Ely v. Stannard

44 Conn. 528 | Conn. | 1877

Park, 0. J.

In the recent case of White v. Griffing, (ante, p. 437,) we said that it was difficult to see how an assignee in-bankruptcy could sell the lease of the bankrupt for a large' sum, and appropriate the money for the benefit of the creditors, without accepting the assignment of the lease. The finding in that case was, that the assignee put up the lease for sale at public vendue, and that it was sold for a considerable sum of money, which the assignee received and appropriated for the benefit of the bankrupt’s creditors. The question was whether, as matter of law, the assignee by so doing accepted the conveyance of the lease, and we strongly intimated that his acts amounted in law to an acceptance of the conveyance. It was said by the assignee that, in selling the lease at public vendue, he was merely experimenting to ascertain whether' the lease had any value.. It is said by the defendant in this case that in selling and releasing the mortgage title he was merely removing a cloud on the property, created by a deed, which had never been accepted, and consequently had never been delivered, for delivery includes an acceptance. These claims are equally untenable.

The defendant insists that he sold nothing, for he had nothing to sell; still he went through the form of a sale, for he took a price and for it gave a release which he knew the plaintiff would regard as a great injury to himself, while Hills showed that he considered it of great benefit to himself, by being willing to pay the sum of two hundred dollars to induce him to give it, and he probably would have paid much more rather than have failed to get the release. By the release the defendant admits in terms that he parted with a mortgage title. After particularly describing the mortgage deed, in his deed to White, he says, “hereby intending to release said mortgage.” If the mortgage had never been accepted by him, how did it happen that he had a mortgage to release ? He says he releases the mortgage described in his deed, which could not be true unless he had accepted the deed.

We think the court below erred in not complying with the plaintiff’s request, to charge the jury that if they should find that the defendant, knowing that the mortgage deed had been executed, executed the release, he thereby accepted the mortgage ; and that his conveying to a third person the interest so conveyed to him by the mortgage constituted in law an acceptance of it. The defendant criticises this request, because it assumes a conveyance of the mortgage title by the defendant, and insists that there is a clear distinction between conveying and releasing property to a third person. We are unable to see the force of this distinction, so far as it applies to the case in hand. A quit-claim, or release deed, is one of the regular modes of conveying property known to the law, and it is almost the only mode in practice, where a party sells property and does not wish to warrant the title. Dr. Webster says in his dictionary, “ In law a release or deed of release is a conveyance of a man’s right in lands or tenements to another who has some estate in possession.” This is a strictly technical definition; but by long established practice it makes no difference whether the releasee has an existing estate in possession or not. The release will convey to him, in any circumstances, whatever interest the releasor has in the property. But in the present case the releasee had an interest in the property in possession, namely, the equity of redemption.

We see no substantial distinction between the case under consideration and that of White v. Griffing; and for the reasons there given, and upon the authorities there cited, we think there was error in the charge of the court, and a new trial is advised.

In this opinion the other judges .concurred.