1 Mass. 219 | Mass. | 1804
summed up the evidence to the jury. He said that the Court gave no opinion relative to the operation of the deed of Jonathan Bridge to the demandant, so as it respected creditors, the Court not conceiving it to be necessary, because the defendant claimá as a purchaser. The deed to Hartwell is clearly a release. If it could not operate as a release, (and it appeared to have been the .intent that it should operate otherwise,) the Court would effectuate that intent, if it could legally be done. But it is not necessary to recur to that principle in the present case, because Jonathan Bridge had a right which might pass by release; and it does not appear, either from the deed or the evidence in the case, that he intended to convey to Hartwell the land itself. At the time of executing the deed to Hartwell, he, Hartwell, had notice of the deed to the demandant, and of the bond from him to Jonathan Bridge. As between the demandant and Jonathan Bridge, the right of redemption was in him for seven years. Whether the bond was or was not, in fact, executed on the day it purports to be dated, never could be contested by the demandant any where. Both the parties were bound by it. On a bill in equity for redemption, the demandant’s mouth would be shut; so that here is most certainly an estate in mortgage. The facts being known to Hart-well, he could have no honest intention but to purchase the equity of redemption ; and the transactions which took place between him and Jonathan Bridge, go clearly, in the opinion of the whole Court, to show what was the intention of both parties The [ * 226 ] Court give no opinion whether any * thing passed by the release; for either the quitclaim, the release, passes all the right which Jonathan Bridge had, viz., the equity of redemption, or it is merely void, and passes nothing. Take it either way, the demandant is entitled to recover.
The jury found for the demandant.
The counsel for the defendant moved for a new trial, assigning for reasons, First, that the deed from Jonathan Bridge to the demandant ought not to have been admitted in evidence; secondly, because the Court directed the jury that the bond in evidence
Parsons, for the demandant, in answer to the first reason assigned in the motion for a new trial, and to show that the deed to the demandant was sufficient to pass the estate, cited 3 East, Spyve vs. Topham.—10 Mod. Rep. 40, 41, Say & Seale.—Allen, 41, Edes vs. Lambert.
To the other reasons, he said, that, as to the operation of the bond, he did not think it necessary to make any reply; but the declaration makes a profert of the deed, which is all that is required by the Court on the demandant’s part. The opposite party may file his bond of defeasance, and so have the judgment entered correctly. As to the * objection that seven years from [ * 227 ] the date of the mortgage have not elapsed, there was a breach of the condition by not paying annually the interest of the sum mentioned therein, and therefore the demandant was now entitled to his action for the land.
By the Court. The rule, that where the intention of the parties can be discovered by the deed, the Court will carry that intention into effect, if it can be done consistently with the rules of law, is founded in good sense, and ought always to govern us. Taking the whole deed together, is it possible to doubt as to the-intention ?
New trial refused.
The judgment was entered as on mortgage.
It is now settled that a mortgagee is entitled immediately and before condition broken to enter upon the mortgaged premises; and he may bring trespass against the mortgagor if he refuse to quit the possession.—JYemail vs. Wright, post vol. iii. p. 138.
[But quad voluit non dixit. The deed was clearly void.—Ed.]