4 N.H. 191 | Superior Court of New Hampshire | 1827
delivered the opinion of the court.
It is well settled, that the cancelling of a deed does not revest property which has once passed under it by transmutation of possession. Jackson v. Chase, 2 Johns. 84; Marshal v. Fisk, 6 Mass. Rep. 24; 4 Barnewell and A. 672; Doe v. Bingham; 3 D. & E. 156; 2 H. Black. 263; 1 Ventris 296, Woodward v. Aston; 6 East 86, Roe v. The Arcnbishop of York; 2 Levintz 113, Nelthorpe v. Dorrington; Shep. Touch. 69—70.
And in all cases a mere agreement to cancel a deed without actually cancelling it is without effect. Thus Shepherd in his Touchstone, 70, says “ if an obligee deliver up an obligation to be cancelled and the obligor do not afterwards cancel it, but the obligee happen to get it again into his hands and sue the obligor upon it, the obligor hath not any plea to avoid it, for the deed remains still in force.”
So in Dana v. Newhall, 13 Mass. Rep. 498, it was held that an agreement to cancel a deed, by which real estate had passed, did not revest the estate.
In Cross v. Powell, Cro. Eliz. 483, it was held that u if a deed be delivered to be cancelled to the party himself, yet if it be not cancelled and the other gets it again, if remains a good deed.”
There are however cases in which an actual cancelling of a deed by which land has passed, will in effect revest the estate. Thus where A being seized and possessed of land purchased by him of B, by a deed duly executed but not recorded, contracted to sell the land to C, and for that purpose cancelled B’s deed, who at A’s request made a
So in Tomson v. Ward, 1 N. H. Rep. 9, it was held that an unrecorded deed of land, voluntarily given up and can-celled by the parties to it with intent to revest the estate in the grantor as between them and as to all subsequent claimants under them, operates as a reconveyance and revests the estate in the grantor.
It is apprehended that in these cases the cancelling of the deed operates like a reconveyance but that it is not in fact to be considered as such. The true ground on which these decisions are to be supported is that the grantee having voluntarily and without any misapprehension or mistake consented to the destruction of the deed with a view to revest the title, neither he nor any other person claiming by a title subsequently derived from him is to be permitted to show the contents of the deed so destroyed by parol evidence. So that in fact there being no competent evidence that the land ever passed, the title is to be considered as having always remained in the grantor.
Such being the law, the case now before us is easily settled. The' deed from the defendant to Pierce not having been actually cancelled, remains in full force. The same is true of the mortgage from Pierce to the defendant. The notes given by Pierce for the land and secured by the mortgage having been given up and cancelled under a misapprehension that the title to the land was revested absolutely in the defendant, they still remain due. It is then very clear that the defendant was seized of the land at the time he conveyed to the plaintiff.
The right of Pierce’s heirs to redeem may be an incum-brance, for which the plaintiff may have a remedy, if his deed contains a proper covenant for the purpose, whenever he shall have extinguished that right. But in this action we are of opinion that there must be
Judgment on the verdict-