French v. Sturdivant

| Me. | May 15, 1832

Weston J.

delivered the opinion of the Court at the ensuing May term in Kennebec.

The first objection, taken by the counsel for the defendant, is to the testimony of David Wescott, the officer, as incompetent on the ground of interest. This interest, if any exists, must arise from his liability to the plaintiff, by reason of failure of duty on his part. He does not appear to have been guilty of any official negligence, unless it was his duty to have brought this bill in equity, of which the plaintiff’has certainly no right to complain, having elected to bring it himself, if otherwise he might have sustained an action against him. A second objection is, that the defendant, if liable at all, is liable to the officer, and not to the plaintiff, between whom and himself, there is no privity of contract, either at law or in equity. The answer to this is, that the officer is the trustee, acting for and in behalf of the plaintiff, the cestui que trust: and that the latter, ns the party beneficially interested, may sue in equity; and in support of this position, respectable authorities have been cited. To this, it is replied, that the relation between trustee and cestui que trust, so well known in chancery, and which is the foundation of the rule relied upon by the plaintiff, does not result from official duties, such as the law imposes upon the officer. But as we determine the cause upon other grounds, it is not necessary to Come to a decision upon this point.

It is further insisted, that chancery will not sustain a bill for specific performance, unless it relates to real estate ; but as it is founded upon the purchase and sale of real estate, this objection is not sufficient to defeat the plaintiff’s suit.

A more important ground taken by the defendant is, that there was nothing in Vining, the judgment debtor of the plaintiff, which could by law be attached, or seised and sold on execution. First, because if the conveyance by Vining to Owen was a mortgage, the land being subject to a prior mortgage to Jordan, there remained only in Vining a right to redeem an equity, which it is contended is not liable to attachment, or to seisure on execution. Tt has been held that where an equity has been seised and sold on execution, the right which the debtor has to redeem such property, is not liable to further attachment. But if the debtor mortgage this right, it has been decided, that the equity still remaining in him is attachable. Reed v. Bigelow, 5 Pick. 281. There may seem to be great refinement in this distinction ; but it results from the language of the statute. Whenever real estate is conveyed in mortgage, an equity of redemption remains in the debtor, which the statute has subjected to attachment; and however frequently this right is successively mortgaged, the remaining equity is by law made liable to be attached by creditors.

It is, secondly, urged, that the conveyance from Vining to Owen was absolute, and that the latter did not hold in mortgage. On the day that the deed was executed, Owen undertook by a written instrument, not under seal, to reconvey to Vining, upon the payment of certain sums, within a limited period. In England, according to the law and practice of the court of chancery, this constitutes a mortgage. But in this state and in Massachusetts, ít has been held that to constitute- a mortgage, the condition must be part of the deed, or that there must be a defeasance, which is an instrument of as high a nature, and executed at the same time. Upon such only has relief been afforded in equity, under our statute. This may well be regarded as a modification of the English law, as applied in chancery, if it ever obtained in this country. And no other equities, except such as may be enforced under our statute respecting mortgages' and the right in equity of redemption, have heretofore been recognized by our law.

This view of the law was taken in Kelleran v. Brown, 4 Mass. 443. It is true Chief Justice Parsons in that case admits the chancery doctrine, but says that it cannot be applied here, by reason of the limited equity jurisdiction of the court. He intimates that it would be otherwise, if the court held all the equity powers of a court of chancery. What might result from the hypothesis assumed, was not the question before the court. If the legislature thought pr®per to invest this or any other court with the general powers of a court of chancery, such powers must be administered according to existing laws. To these the principles and practice of such courts, however extensively adopted, must be accommodated. And whenever equities and trusts, or other subjects of chancery jurisdiction, may have been modified by our laws, either directly or by necessary implication, chancery is restrained and limited .by such modification. But giving the fullest effect to the dictum of the learned Chief Justice, we are not satisfied that the law of mortgage has been changed, or that what was before held not to be a mortgage, becomes such in the view of this court, by reason of the additional chancery powers, with which it has faeou invested, since the decision in Kelleran v. Brown. These powers, though much extended, are still not general, but limited. No further powers, ip relation to equities of redemption, have been given. Those previously granted, were deemed adequate to the enforcement and protection of this species of property. As the public exigencies have, in the opinion of the legislature, called for other specified and enumerated powers, appertaining to this jurisdiction, they have been granted ; and have been accordingly extended to eases, where a specific performance of contracts in writing is claimed ; and to cases of fraud, trust, accident or mistake. It is not pretended that this is a case falling within either of the four latter sources of jurisdiction.

The plaintiff’s rights, whatever they may be, depend upon a contract in writing. But giving effect to this contract, could not avail the plaintiff Where time is not of the essence of the contract, it is sometimes disregarded by a court of equity. But hero it was of the essence of the contract. It was the condition, upon which the engagement of Owen to reconvcy, was distinctly made to depend. Had this constituted a mortgage, according to our law, the mortgagor would have had three years more, after entry or holding for foreclosure, beyond the time limited; but this neither results from the contract, nor could it have been intended by the parties. As the instrument is not a mortgage, the parties to it, and such as come in under them, must be restricted to the time therein stipulated. If that period had. not-expired at the time of the seisure and sale, upon, which the plaintiff founds his bill, it was an attachable interest under the additional act, respecting the attachment of property. Stat. 1829, ch. 431. But the time limited having expired at that time, there was nothing upon which the execution could operate.

The defendant relies upon other points, which it is unnecessary to notice.. Being of opinion, from the facts disclosed in the bill, answer and proof, that no attachable interest of the judgment debtor was seised and sold to the defendant, upon the plaintiff’s execution, the bill is dismissed; but under the circumstances of the case, we do not award costs to the defendant.