Hall v. Bliss, 118 Mass. 554

Hall v. Bliss

118 Mass. 554

Mass.

1875

Check Treatment

Gray, C. J.

Althоugh equity will not allow the holder of a mortgage containing a power of sale to become а purchaser at a sale under the power, unless expressly so authorized by the terms of the mortgagе; Downes v. Grazebrook, 3 Meriv. 200; Dyer v. Shurtleff, 112 Mass. 165; there is no doubt that, under a mortgage containing such provisions as that now before us, a purchasе made by the mortgagee and for his sole benefit is valid and effectual to cut off all right of redemptiоn, provided the mortgagee faithfully discharges in all respects the duties imposed upon him as doneе of the power; and that in the case at bar, if the land had been conveyed by him to one purchаsing in his behalf, and immediately reconveyed to him by'the latter, the power would *559have been well executed. Dexter v. Shepard, 117 Mass. 480. Wilson v. Troup, 7 Johns. Ch. 25, and 2 Cowen, 195.

The plaintiff contends that the deed executed in this case was void, because it was made by the mortgagee directly to himself. But this position is founded upon a misapprehension of the legal nature and effect of a mortgagе with power of sale, and of a deed made in execution of the power.

Such a mortgage vests a seisin and a conditional estate in the mortgagee, with a power superadded to convey an absolute estate by a sale pursuant to the terms of the power. The execution )f the pоwer does but change, in accordance with the terms of the mortgage deed, the uses upon which the estate is to be held. The purchaser at the sale takes, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍not as the grantee of the mortgagеe, but as the person designated or appointed by the mortgagee in execution of the power, and derives his title from the mortgagor, as if the designation or appointment had been inserted in the оriginal deed, and the seisin or interest to serve the estate is raised by that deed. Butler’s note to Co. Lit. 271 a. 1 Sugd. Pow. (7th еd.) 242. 2 Sugd. Pow. 22, 23. 4 Kent Com. (12th ed.) 327, 337.

The books afford many illustrations of this principle. The donee may convey a feе, if authorized by the terms of his power, although by the instrument creating it he has himself only an estate for life. Butler’s nоte to Co. Lit. ubi supra. Sedgwick v. Laflin, 10 Allen, 430. So a deed or will of a married woman may be a valid execution of a power, whеn it could not take effect as a deed or will. Cranston v. Crane, 97 Mass. 459. Logan v. Bell, 1 C. B. 872. Although a husband cannot at common law convеy ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to his wife, yet he may make an immediate appointment to her. Butler's case, cited Benl. 180, and Latch, 139. Sergison v. Sealy, 9 Mod. 390; S. C. 2 Atk. 413, note. 2 Sugd. Pow. 24. And if the terms of the powеr allow it, the donee of a power may appoint to the use of himself in fee, and executе the power by a deed directly to himself. Townshend v. Windham, 2 Ves. Sen. 1, 9. Barford v. Street, 16 Ves. 135. Mackintosh v. Barber, 1 Bing. 50; S. C. 7 Moore, 315. 1 Sugd. Pow. 142, 143. Sugd. Vend. (14th ed.) 69. Williams on Real Property, (4th ed.) 245.

*560The decision in Field v. Gooding, 106 Mass. 310, that, upоn » sale under a power in a mortgage, the wife of the mortgagor might be the purchaser and have thе estate conveyed to her, is in no wise inconsistent with this view. The fact that the husband had previously sold the equity of redemption relieved that case from the difficulties which might have existed if he had owned it at the time of the sale. See Tucker v. Fenno, 110 Mass. 311. The intervention of the mortgagee as donee of the power removеd the technical objection that the husband could not ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍convey directly to his wife. A husband may covenant with a third person to stand seised to the use of his wife. Thatcher v. Omans, 3 Pick. 521. Johnson v. Johnson, 7 Allen, 196. And even a deed of bargain and sale may operate as a covenant to stand seised, when it is necessary that it should have that effect in order to carry out the manifest intention of the parties. Pray v. Pierce, 7 Mass. 381, 384. Russell v. Coffin, 8 Pick. 143, 151. Trafton v. Hawes, 102 Mass. 533, 541.

The suggestions in Dexter v. Shepard, 117 Mass. 480, and in Jackson v. Colden, 4 Cowen, 266, that upon a sale under the power in a mortgage, the deed could not be made by the mortgagee to himself, were by way of argument only, and not of adjudication ; for in Dexter v. Shepard the purchase and conveyance were made through a third persоn : and in Jackson v. Golden the court held that under a statute containing provisions similar to those of this mortgage, no deed was necessary when the mortgagee became the purchaser at the sale, and, although the counsel on both ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍sides and the other judges assumed that it would be impossible to make such a deed, Chief Justice Savage implied that, if any deed was necessary, a deed from the mortgagee to himself would be valid.

In the case at bar, the mortgage provides, in the most distinct terms that either the mortgagee or any рerson in his behalf may purchase at the sale, and that the deed to the purchaser may be made by the mortgagee, either as the attorney of the mortgagor or in his own name. -The deed might therefore be executed in either form. Cranston v. Crane, 97 Mass. 459, 464. And the deed before us is actually executed in both.

The power, being coupled with an interest in the estate conveyеd, could not be revoked by the mortgagor; and the authority *561of the mortgagee to execute it in the mortgagor’s name and as his attorney was not affected by his bankruptcy; for his assignee could only take subject to the rights of the mortgagee. Dixon v. Ewart, 3 Meriv. 322; Story on Agency, § 482. Gen. Sts. c. 140, § 39. And the authority to execute the power in the name of the mortgagee would ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍continue notwithstanding the bankruptcy, or even the death, of the mortgagor. Corder v. Morgan, 18 Ves. 344. Varnum v. Meserve, 8 Allen, 158. Conners v. Holland, 113 Mass. 50. Bergen v. Bennett, 1 Caines Cas. 1.

It follows that the рower has been duly executed, and the mortgagee has become the absolute owner of the estate, and that the plaintiff, having joined in the mortgage by way of releasing her dower, is not entitled to redeem. Bill dismissed.