Weed Sewing Machine Co. v. Emerson

• Decision Date: 09 September 1874
• Citation: 115 Mass. 554
• Parties: Weed Sewing Machine Company v. Samuel P. Emerson
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

115 Mass. 554

Weed Sewing Machine Company v. Samuel P. Emerson

Supreme Court of Massachusetts

September 9, 1874

[Syllabus Material]

Berkshire. Writ of entry, dated May 27, 1872, to foreclose a mortgage of land in the town of Florida. In the Superior Court, the case was referred to an arbitrator, who reported the following facts:

On February 13, 1867, William H. Sanford conveyed the demanded premises by deed of warranty to Clarissa G. Harrington, then and ever since the wife of William G. Harrington, and living with him in this Commonwealth. On the same day, Clarissa G Harrington executed and delivered to Sanford a mortgage deed of the same premises to secure the payment of her note for the sum of fourteen hundred dollars, given for a part of the purchase money due Sanford for said premises. The execution and delivery of said deed and mortgage were simultaneous, and both were recorded February 14, 1867. The husband of Clarissa G. did not join in said note or mortgage. This note of $ 1400 remains due and unpaid.

Sanford assigned the note and mortgage January 15, 1868, to Horatio H. Hutchins, who on January 16, 1868, assigned them to the demandant "as collateral security, and to hold subject to its control until redeemed by the said assignee or mortgagee, his heirs or assigns, according to law." The debt due from Hutchins to the demandant, for which it holds the note and mortgage as collateral security is now represented by three promissory notes, signed by Hutchins and payable to the demandant, one for $ 250, dated June 1, 1868 at six months; one for $ 300, dated June 1, 1868, at eight months; and one for $ 282.30, dated October 1, 1868, at four months. There is due on these notes, August 28, 1873, the sum of $ 1063.39.

Clarissa G. Harrington and her husband by quitclaim deed conveyed the demanded premises to Horatio H. Hutchins by deed dated and recorded May 26, 1868. Hutchins by warranty deed dated June 25, 1868, and recorded June 26, 1868, conveyed the same premises to Charles S. Blivin, "the said property subject to a mortgage of fourteen hundred dollars, also mortgage of four hundred dollars." It was agreed that the $ 1400 mortgage referred to in the deed, was the same $ 1400 mortgage given by Harrington to Sanford.

Charles S. Blivin conveyed said premises to Benjamin F. Hutchins by deed dated July 23, 1868, subject to said $ 1400 mortgage. Benjamin F. Hutchins, August 19, 1870, conveyed said premises to Augusta, wife of said Horatio H. Hutchins, subject to two mortgages of $ 1900, which sum includes said $ 1400 mortgage.

Augusta Hutchins (her husband, Horatio H. Hutchins, joining in the deed to release "dower and homestead") conveyed by warranty deed dated July 14, 1871, the said premises to Samuel P. Emerson, the tenant.

The arbitrator found for the tenant, subject to the opinion of the court upon the question whether the demandant was entitled to recover on the foregoing facts. The Superior Court ordered judgment for the demandant, and the tenant appealed to this court.

Judgment on the award for the tenant.

J. M Barker, for the demandant. 1. The deed from Sanford to Clarissa G. Harrington and her mortgage back for the purchase money, being simultaneous in execution and delivery, and relating to the same subject matter, were dependent acts constituting one transaction, and to be construed together as one instrument. So construed the two papers are, together, the deed poll of Sanford to Clarissa G. Harrington, and all parts of both are equally binding upon her, her heirs and assigns, not as her deed, but as the deed poll of Sanford to her. This deed poll is then to be so construed, whatever its form, as to effectuate the true intent and meaning of the parties. It is to be construed as the covenant of Sanford to stand seised to the use of himself, his heirs and assigns, until the said Clarissa should pay to him, "his executors, administrators or assigns, or either of them the full contents of the" note given for the purchase money according to its tenor, and thereafter to the use of the said Clarissa, her heirs and assigns. That note having never been paid, the plaintiff as assignee of Sanford is entitled to be put in possession of the demanded premises, Sanford having, in his assignment of the mortgage, conveyed to Hutchins "the estate therein mentioned and described." It is admitted that the mortgage from Clarissa G., if it stood alone as the deed of a married woman, her husband not joining, would be void; and that the court can hardly sustain the demandant's position without overruling the case of Concord Bank v. Bellis, 10 Cush. 276, in which the opinion of the court was given by the late Chief Justice Shaw. Witl. reference to this case it is respectfully submitted: 1st. That the opinion in that case decides that the conveyance and reconveyance were dependent acts, to be deemed to relate to each other and to constitute one transaction, and that they should be construed together. But when the learned chief justice comes to...