The Quinebaug Bank against French

The Quinebaug Bank against French. d first mortgaged a piece of land to B, to secure a debt due from A to B, and afterwards, A mortgaged the same land to C, to secure him against indorse-ments, made, or to be made, by him, for A. at the bank. After these transactions. viz. on the 5th of Aprilt 1838, J) attached Ab equity of redemption, in a suit against him; andón the 9th of the same month. Agave a release deed of the premises to C. On the 2nd of April> 1839, an arrangement was made between C and if, in pursuance of which, (•'. by a writing under his hand and seal, on the back of A's mortgage deed to him, executed to E an assignment of all C’s right and title to the premises therein named, and of all his claims thereto, by virtue of his liabilities for A ; and E, at the same time, executed a bond to C, conditioned to indemnify him against such liabilities; after which, on the same occasion, C executed a release deed to A of his interest in the mortgaged premises, E making no objection thereto; and then A executed a warranty deed thereof to E, subject only to the debt of B. Some time afterwards, D, having recovered judgment in his suit against A, had the execution levied on A's equity of redemption, as subject to B’s mortgage only, which was duly set oft’ to D. On a hill to redeem, and fora conveyance of title, brought by D against E} it was held, 1. that if (As in-cumbrance was removed, before the levy of D’s execution, it was his right and duty to take all the-right of A, without any intervening incumbrance; 2, that the state of the record, at the time of the levy, was a safe guide to D7 in making such levy; 3. that the release deed given by C to A} on the 2nd of Ajiru 1539, was smlicL-m <-vidt nor to D. that Os mortgage debt was no longer out^tatMixi j , i. thcir the a w ianty deed given by .4 to E. immediately after receiving the release deed from C, tended railier to corroborate, than to weaken, such evidence ; 5. that the arrangement of the 2nd of April 1839, between C and E, showed no design to keep on foot C's mortgage: 6. that Id was not chargeable with any laches in not making further enquiry, which should postpone Ins right; T. that consequently, D's execution was correctly levied, and he was entitled to redeem, on payment of the mortgage to B, This was a bill in chancery to redeem mortgaged premises, and for a conveyance of title. On the 7th of October, 1831, Lewis Bradford mortgaged a piece of land in the city of Hartford, whereof he was then seised in fee, to Horace Olcott, to secure a note of that date for 850 dollars, payable in ten years, with annual interest. On the 25th of April, 1837, Bradford, by a warranty deed, in the usual form, conveyed the same land, free of incum-Lrauc o, ]feroce Bando in, v wwire a 8o,,d ••!' 50t¡0 dollar-. wbu h f re 'tout ec.7 mi en t< w<> j ', ■ a, t . ,⅛ ⅝ u 3 him fi-r ’od'ii'CUV'f!,'-' at the Jdo-nn rr mid Brel tries Beni:, anus i'tiry w tTOü iRso. and Art;.' \ do, .one id of all «uch coto- cis KonO-t in m .n't tli-To-dior mdor-,, . at diet nank, for Bn dfmd; th" o: n'liU' n ivoilhur that h- had uurcud to indorse for Bradford, a sum not exceeding, at any one time, 4000 dollars.; >On the 9th of April, 1838, Bradford conveyed to Goodwin, by his release deed of that dam. ail hi-- interest in the mortgaged premises^ and on the 2nd of April, 1839, Goodwin reconveyed, by a release deed, ail his right in the premises, to Bradford,: Afterwards, on the same day, Bradford conveyed to Joseph S. French, the fb-¡b;>dunt, all title to the premises, by a warranty deed in the u-uul form, subject only to the incumbrance of the m< >rtg:i:;t‘ *<> Olcott, above-mentioned. On the 23rd of Decern'-! r, is tu, iHcoft released to the defendant, by deed of that (hoc. a’I Li- right to the premises. All these deeds purport to b«- giv. L¡ for valuable considerations; and they were all duly executed, acknowledged and recorded. After Bradford's deed to French, the latter entered into possession of the mortgaged premises, and has continued therein. It was proved, that Goodwin had agreed to indorse Bradford’s notes, as stated in the condition of Bnufoni's mortgage deed to him, and had, at one time, indorsed notes, under such agreement, to the amount of 3300 dollars; and at the time he received the release from Bradford, he was responsible for him, on such indorsements, to a large amount, and so continued until the conveyance to French, There was no proof as to the circumstances under which Goodwin received the release deed from Bradford, or relative to any arrangement between them, as to the continuance or discharge of Goodwins mortgage on the premises. But it was proved, that Goodwin liad long been desirous of being released from his condition as indorser of Bradford’s paper. /On the 2nd of April, 1839, an arrangement was made between French and Goodwin, to the effect, that French should tsume Goodwin’s liabilities at the bank for Bradford, and indemnify him, and receive from him an assignment of his security for such liabilities. } Accordingly, French executed his bond to Goodwin, in the penal sum of 4000 dollars, the condition of which required French to pay said notes, as they should respectively become duo, and save Goodwin harmless from his liabilities thereon ; and Goodwin, by a writing under his hand and seal, on the back of Bradford’s mortgage deed to him, executed to French an assignment of all his (Goodwin’s) right and title to the premises therein named, and of all his claims thereto, by reason of his liabilities on said notes. Immediately after the execution of these instruments, and on the same occasion, Goodwin released to Bradford his interest in the premises, by the deed already referred to ; to which French made no objection, but thereafter received the above-mentioned warranty deed from Bradford. Oil the 5th of April, 1838, the plaintiffs attached Bradford’s right in the mortgaged premises, in two suits in their favour against him ; in which suits they recovered judgments, in September, 1839 ; in one, for 649 dollars, 34 cents, damages and costs, and in the other, for 650 dollars, 21 cents, damages and costs. On the 17th of December, 1839, executions on these judgments were levied on Bradford’s equity of redemption in the mortgaged premises, subject to said mort-age to Olcolt, which was appraised at 3842 dollars, 28 cents, and was set off to the plaintiff’s, in satisfaction of the executions, in such proportion as the amount thereof bore to such appraised value ; and the plaintiffs, thereby became the owners of that proportion of Bradford’s equity of redemp-tion, which is still vested in them. The plaintiffs afterwards applied to French to redeem: the premises, upon payment to him of Olcott’s mortgage debt; to which French refused his assent, claiming that the mortgage to Olcott had never been extinguished, or in any manner satisfied, and as he had taken the place of Goodwin, he had all his rights under the mortgage ; and that the plaintiffs could not redeem, except upon payment of the notes indorsed by Goodwin, under said security. Upon these facts, the case was reserved for the advice of this court, as to the terms upon which the plaintiffs were entitled to redeem, and what decree should be passed, Hungerford and Cone, for the plaintiffs, contended, 1. That the conveyance by Bradford to Goodwin, of the 9th of April, 1838, extinguished the mortgage. Starr v. Ellis, 6 Johns. Ch. 11. 395. James v. Johnson, Id. 423, 4. Forbes v. Mcffatt, 18 Ves. 384. Clark v. Jenkins, 5 Pick. 280. The cases of Baldwin v. Norton, 2 Conn. II. 161. and Ijockwood v. Sturdevant., 6 Conn. R. 373. were also referred to and commented on. 2. That if it did not, the release by Goodwin to Bradford, had that effect; at least, it exonerated the land from the in-cumbrance ; because, in the first place, the title to the land conveyed to Goodwin, by Bradford's mortgage, continued in Goodwin, notwithstanding the assignment of the bond to French, until it was released to Bradford; inasmuch as this title could only be transmitted by deed ; the effect of the assignment being merely to convert Goodwin into a trustee for French. Yose v. Handy, 2 Greenl. 322. 8 Mass. R. 559, Warden v. Adams, 15 Mass. II. 236. Parsons v. Welles, 17 Mass. 11. 425. Harrison v. Owen, 1 Aik. 520. Crane v. Marsh, 4 Pick. 136. Conrad v. Atlantic Insurance Company, 1 Pet. R. 441. Lawrence v. Knapp, 1 Root 248. Phelps v. Sage, 2 Day 151. Crosby v. Brownson, Id. 425. Porter v. Seeley, 13 Conn. R. 574. Smith v. Vincent, 15 - Conn. R. 1. Secondly, Goodwin, with the knowledge of French, and without objection from him, having released and transferred the title to Bradford, no longer remained the trustee of French; nor did Bradford, who accepted the transfer, with the like knowledge and approbation of French, become his trustee, ami could not have been foreclosed by him. 3. That if the mortgage was not extinguished, by the release to Bradford, it was, by Bradford’s conveyance to French, For, in the first place, the merger is absolute at law. Secondly, it does not appear, that there was any intention to keep it on loot,or any benefit or other circumstance, which, in equity, would prevent a merger. Thirdly, it does appear affirmatively, that Bradford gave a deed warranting the property free from all incumbrances, except the mortgage of Olcott; and this would not have, been done, had not this mortgage to Goodwin been supposed to be extinguished. Fourthly, if the mortgage, as between the parties, was not extinguished, it was in respect to the plaintiffs, who had no knowledge of the assignment. The plaintiffs were under no obligation to look beyond the record title, to ascertain its condition. There is no feature in our laws regarding real estate, more prominent than that the true title should appear upon the record. French v. Gray, 2 Conn. R. 109. North v. Belden, 13 Conn. R. 380. Hart v. Chalker, 14 Conn. 1Í, 79. Smith v. Vincent, 15 Conn. R. 1. Orvis v. Newell, 17 Conn. R. 97. Toucey, for the defendant, insisted, That the premises were still subject to the Goodwin mortgage. In support of this position, he remarked : 1. That the legal title which was in Olcott, is now vested in the defendant, by virtue of Olcott's release deed of the 23rd of December, 1840. 2. That the attachment of the plaintiffs was subject to the Goodwin mortgage; the latter being executed on the 25th of April, 1837, and the former served on the 11th of April, 1838. 3. That the assignment of the Goodwin mortgage to the defendant, was effectual. 4. 1 hat the release deed of Goodwin to Bradford, did not affect the defendant’s claim : because, in the first place, the legal title was not in Goodwin, but in Olcott. Secondly, the assignment made by Goodwin to the defendant, carried the security with the debt. Thirdly, the deeds of the 2nd of April, 1839, are to be taken together, and to have the same -effect as if executed to the defendant only, 5. That there was no merger, by reason of the lien by attachment, [MAJORITY — Williams, Ch. I.] Williams, Ch. I. The defendant claims he is proprietor of the Goodwin mortgage, which he says, is not extinguished. He claims, that he has the legal estate, and also has at least equal equity. As it is the peculiar province of a court oí equity to protect equitable interests, we do not think that the fact of she plaintiffs having taken up Olcott's mortgage, can have any important influence upon the question before the e isn't. We are to enquire what are the equitable rights of the parties. It is admitted, that the plaintiffs attached iht lau l'iibjeet t J th" clam,- of OLott and Goodwin. But they dam*, that befs w th • Mown:: .4 their i ovations, they cvamini <1 fh.- ivovd-., and fun,4. 'hot ifiV/A'lcnwasre-uno o,i. a-.d that h- ü i I ev< '¡!<-J a ref a-e deed t<« Bradford; and we thmk, there can be no doubt that, if Goodwin's in-cumbrance was removed before the levying of an execution, by an attaching creditor, it would be the right and also the duty of the attaching creditor, to take all the right of the debtor, without any intervening incumbrance. The defendant, however, claims, that Goodwinh mortgage was still existing ; that it was assignable by Goodwin, and was actually assigned by him, by the instrument of the 2nd of April 1839 ; and the defendant then became vested with all the right that Goodwin had, by his mortgage ; and surely, there is no doubt that by the assignment of a debt, the equitable interest in the lands given to secure it, may pass. But long before this assignment, Goodwin had received an absolute deed of the land itself: and it is hardly to be supposed he was to hold the laud and the debt too. His title to the land seems to be absolute ; and yet it is claimed his debt still exists, and is an assignable interest. It is true, that this court decided, in Baldwin v. Norton, 2 Conn. R. 166, that where, to adjust the claims between the parties, there was a release of the land, by the mortgagor to the mortgagee, and delivery up of the note by the mortgagee, this would not operate so to destroy the Men of the mortgagee as to give priority to a subsequent mortgagee ; and we certain!v can have no doubt of the soundness of the law of ” . . that case, Em iu the case before us, there is an entire silence . as to the purpose for which this deed was given, it was not accompanied with any discharge of the claims secured by the mortgage; and Jong after it was given, Goodwin, by-giving an assignment of his mortgage, conducts precisely as if such deed never had been held by him. Unless the intent of the parties was, to extinguish the lien of Goodwin, to the extent of the value of Bradford's interest in this land, we can see no legitimate object in this deed. Without deciding how this deed would affect this case, if it stood alone,' we mean only to say, it differs much from the case cited, as there the object shown was fair and just, and here no object at all is shown. Aside from the objections founded upon the deed of Bradford to Goodwin, there arc other transactions more material. The record shows, that alter this title was thus conveyed to Goodwin by Bradford, Goodwin rcconveyed to Bradford, and the defendant then took a new title under Bradford, by receiving from him a deed. The defendant says, this cannot affect the plaintiffs, as they can now get all the rights Bradford had, when they attached, he claiming no more than Goodwin 'could. But it must be remembered, that the plaintiffs are at their peril to levy their execution correctly. They must take the interest of the debtor, as it is. If there is no subsisting mortgage, they must set off the land by metes and bounds. If there is a mortgage, they must examine the records to see whether it is discharged or not. If it is discharged, and this appears upon record, they will be charged with laches, if they do not notice that fact, and levy accordingly ; or if lands are attached, upon which are two mortgages, and before execution is taken, one of the incumbrances is removed, and the land released of record, and tint creditor should levy his execution as if both mortgages were outstanding, the interest he would take would be as much more than he ought to take, as was the amount of the discharged mortgage. Of course, that levy must be void, or the debtor must be subjected to a serious injury. It must then be as important to a levying creditor, as to a purchaser, to know the state of the record ; and he acts accordingly; .though we do not mean to say, that this is the only evidence. ,, From the evidence in the present case, it appears, that -nearly a year after Goodwin appeared upon the record as the owner of this land, he gave a release deed to Bradford, the former owner, and thus revested in Bradford all the right he ever acquired by virtue of his several deeds. A release deed is the ordinary evidence in this state, that the mortgage debt is paid, or the security given up, as it is under the hand and seal of the party; and when recorded, as in the present case, it was a declaration to all the world of that fact, and that the public might safely deal with the mortgagor as if no mortgage had been given. And were we to hold, that those who trusted to such record evidence, were not safe, vain would be our registry laws, and vain would be further attempts to enforce them. Had the case rested here, it would hardly be claimed but that the plaintiffs proceeded correctly in their levy ; but the record further shows, that when the mortgagor obtained this release, he himself conveyed to French, the defendant; and if we look to the record alone, this rather adds to the strength of the plaintiff-* claim ; for the mortgagor, having now obtained the title of tins m ntga-gee, immediately proceeSs, as owner, to sell the land, and gives a warranty deed of the same, subject only to a prior mortgage. Looking at the record then only, every thing confirms the proceedings of the plaintiffs, in the case. Without enquiring, therefore, how far there is a technical merger, the court proceeds upon the simple ground that trie record speaks a language that cannot be misunderstood, and shows beyond a doubt, that so far as the record speaks, Goodwin's mortgage has ceased to exist. , The defendant says, however, there is enough shown to put the party upon enquiry as to the real state of this mortgage debt, and cites the case of Bolles v. Chauncey, 8 Conn. R. 390. There, the record title remained unchanged; and therefore, the court held, that the fact that the mortgagor showed that the note was taken up, was not sufficient: the party affected should have enquired as to this outstanding legal title. But here, the legal title being settled upon the record, there seems nothing to enquire for, unless whether the deed of Goodwin is genuine : if it is, its import is plain, and requires no explanation. If we proceed to enquire into the other facts, the result iiiust be the same. What are they 1 That Goodwin was anxious to be freed from his liabilities. That would be done-in the same manner, as it respected Goodwin, whether French comes in as purchaser, or as mortgagee. French received an assignment of Goodwin's claim. That he might do, as well if he had agreed to complete the purchase of Bradford, as if he intended to remain the mortgagee. He must have consented to the arrangement, by which Bradford was to receive the release deed; for he immediately takes a warranty deed from Bradford; and why Brádford should have given this warranty deed, while this mortgage to Goodwin was outstanding, is certainly unexplained. The import of these facts is very equivocal. If French agreed to buy this land of Bradford at a given price, and in part payment extinguish the lien of Goodwin; and Bradford, on his part, agreed to remove this incumbrance of the plaintiffs ; we think that they would quite as probably have pursued the course they did, as if their dosgn was to keep in existence that mortgage. Indeed, nothin!»- would have been more natural, if there were two mortgages upon a piece of land, and the mortgagor was about to sell it, by warranty deed, than that he should have excepted both the mortgages ; and nothing more improbable, than that he should have excepted one of the mortgages, and not the other, if both were outstanding. If the evidence was admissible to show a different intent from what appears on the record, that evidence ought to be such as would leave no doubt of the réal object of the parties. So far from relieving doubts, in this case, the evidence, or rather the want of evidence, tends to increase them. We are not told for what consideration the deed to Goodwin was given ; we are not shown in what character French came in, whether as surety for Bradford merely, or as purchaser of the estate. If he came in as purchaser, we are not told, whether he was not by contract to take up all the incum-brances on the land, or in what way the parties contemplated their removal. . If he was merely a surety, we are not told why he did not take a deed from Goodwin to himself, instead of the circuitous course which was taken ; nor can we understand why French, if he acted merely in that character, came at once to take an absolute deed, and to take, and ever since to hold, possession. ' In' short, if we go aside from the record, we seem to be left to mere conjecture, as to facts which would be important to know, and which seem to be wit hi u the power of the defendant to furnish. So far as the facts are before us, we see nothing to remove the effect of the record ; and were it otherwise, we think there was nothing to lead the party away from the record to enquire into other facts evincive of another intent. Whatever private agreement these parties may have made, it cannot operate upon the persons ignorant of it, in face of the public declaration upon the record. We think, therefore, that the plaintiffs’ levy was correct ; and advise the superior court to allow them to redeem, on payment of the Olcott mortgage. In this opinion the other Judges concurred. Decree for plaintiffs.