Goodman v. Randall

44 Conn. 321 | Conn. | 1877

Carpenter, J.

The petitioner, the owner by purchase of a note, which the maker attempted to secure by a mortgage of real estate, brings his petition for a foreclosure or relief in some other form. The deed seems to have been witnessed by two witnesses, and has appended to it a certificate of acknowledgment in the usual form, but was never signed by the grantor. In that condition it appears to have been delivered to the grantee and recorded. On the same day the premises, described as subject to this mortgage, were conveyed to a third party, the conveyance stipulating that the grantee should pay the mortgage debt. The deed to the respondent contains similar provisions. The court below dismissed- the bill, and the petitioner brings the case before this court by a motion in error.

It is very clear that the petitioner in the present condition of the deed is not entitled to a decree of foreclosure. The deed conveyed no title, legal or equitable; therefore the mortgagee acquired no lien on the property, and there is no equity of redemption to foreclose. Our statute requires all conveyances to be “ in writing, sealed by the grantor, and subscribed with his own hand, or with his mark with his name thereto annexed, or by his attorney, &c.” The deed not having been signed by the grantor in any form, is not merely a defective conveyance, but is wholly void.

The fact that the person named therein as grantor acknowledged it to be his deed, is not sufficient'. An acknowledgment is required, but a compliance in that respect can never dispense with the manual act of subscribing by the grantor,

It is claimed that the deed may be established by-a court of equity and thus have validity as a mortgage. Courts of equity will sometimes give effect to deeds that are defectively executed; but not, so far as we know, to a deed defective because it was not signed by tbe grantor. The principle upon which a remedy is thus afforded is that there is a valid contract lying back of the deed which courts of equity will lay hold of and through it give relief. In Dickinson v. Glenney, 27 Conn., 112, Storrs, C. J., says: “We confess that it seems to us that this proceeding is not the reformation of a deficient instrument, but belongs rather to the branch of equity jurisprudence which relates to the specific performance of contracts ; to the performance of contracts of which the defective instrument is the evidence or memorandum.” If this is a correct statement of the principle, and we think it is, then it is obvious that no relief can be granted which will give effect to this instrument as a valid mortgage from the day of its date. The decree will operate prospectively only, and upon such title as the party may then have.

Now if it be conceded that the case is not within the statute of frauds, and that there is a valid contract which might bo enforced, still there is a difficulty in decreeing a specific performance, inasmuch as the party contracting, and who, if any one, should be directed to perform it, is not before the court; and if he was, a specific performance is impossible, as he long since parted with all his title to other parties.

We are unable to see that the doctrine of estoppel will aid the petitioner. The original owner cannot be estopped by deed, because the instrument relied on as a deed was never signed. His grantees, including the respondent, cannot thereby be estopped, because they will be in no worse condition in that respect than their grantor. They cannot be estopped by the deeds given to and accepted by them. A grantee by accepting a deed which describes the premises as subject to an incumbrance, is not estopped from claiming that the incumbrance has no existence in fact. The respondent may or may not be liable in some other form of action upon a promise, express or implied, in her deed. However this may be, we are satisfied that the petitioner has no lien that can be enforced in this proceeding.

The doctrine of estoppel in pais has no application to the case. This respondent, so far as the record before us discloses, has done no act whereby the petitioner, or any one under whom she claims, has been deceived or misled.

There is no error in the judgment of the court below.

In this opinion the other judges concurred.