Eaton v. WhitingEaton v. Whiting
dеlivered the opinion of the Court. The opinion expressed in the case of Blanchard v. Colburn & ux.
The plaintiff in this case, then, in order to sustain his suit, must show that the propеrty attached as the defendant’s is something more than a mortgage interest, for as he is not an inhabitant of this commonwealth, and was not within its jurisdiction when the writ issued, he can be held to answer only by the attachment of real or personal estate belonging to him liable to be attached or seized on execution.
The prоperty returned as attached consists of two parcels of real estate, formerly belonging to John Peck, who, by deed of indenture, on the 2d of February, 1810, cоnveyed one of the pieces to Ruggles Whiling the defendant; and by a like deed of indenture, made on the 31st of March, 1810, conveyed the other piece to thе same Ruggles .Whiting. On the 8th of March, 1810, Whiting, by deed, assigned and conveyed all his right and interest in the deed and land first mentioned to Ebenezer Francis. This deed of Whiting to Francis was acknowledged by Whiting on the 15th of the same March, but has never been recorded. The other tract described in the deed of indenture first mentioned, has not been conveyed by Whiting. So that whatever estate passed to Whiting by the indentures, may be supposed, for the sake of the question, to have remained his, as regards his creditors, to the timе of the supposed service of the plaintiff’s writ
Both deeds contain a recital setting forth that Peck the grantor was indebted to Whiting, and both contain a provision, that if the sums admitted to be due shall be paid within specified times, the deeds shall be void. Thus far we have evеn the common characteristics of a deed of mortgage expressly made as collateral security for a debt. At the same time with the deeds promissory notes were given by Peck to Whiting, which were also to become void on payment of the sums intended to be secured. The deeds are also in trust, but as Whiting the creditor is the trustee, and as the payment of his debts was the first object of the trust, the nature of the conveyance is not altered thereby. But it is further provided, in the first deed, that after fifteen months from the date, and in the second, after thirteen, if the' money due shall not be paid, Whiting may sell and convey the lands described, at public auction, аnd from the proceeds pay himself the amount due and expenses, and the balance over to Peck. Now it is contended by the plaintiff, that this power to sеll so alters the character of the conveyance, as to deprive it of the qualities of a mortgage, or else superadds qualities which enlarge the estate in Whiting, so as to render it subject to his debts by attachment and levy. We have not seen any authorities which will justify us in adopting this opinion ; on the contrary, all the authоrities cited have a tendency to show, if they do not distinctly decide, that where the transaction between the parties to the conveyance is in truth and in faсt a security for debt or loan, it shall have all the attributes of a mortgage, notwithstanding there may be an unlimited power to sell. Conveyances of the kind are invariably thus treated in chancery, and even when the parties have attempted in that form of convey
We do not find any thing in the authorities cited by the plaintiff’s counsel that contradicts the principlе, which seems well founded in equity, that a power in the mortgagee to sell, unexecuted, leaves the estate as it would be if no such power existed. The right of redemption, which is the true indicium
Verdict set aside.
Notes
See 1 Powell on Mortg. (Rand’s ed.) 255, n. (1).
See 1 Powell on Mortg. (Rand’s ed.) 187 a, note.