14 Conn. 77 | Conn. | 1840
The simple question in this case, is, Whether a deed with a condition to secure a note of even daté therewith, payable to the mortgagee, on demand, with inter-, est, is so described, that, as against a subsequent mortgagee; if will stand as security for a note of 1,366 dollars ; that being understood, by the parties, to be the sum secured by the deed;
Having so often, and so recently, had this subject presented to the court, it seems unnecessary to examine the question very minutely. Our recording system, in its spirit, requires, that the record should disclose, with as much certainty as the nature of the case will admit of, the real state of the incum-brance upon the property. And all the authorities concur ⅛ this result, that reasonable notice of the incumbrance should be given by the record. What is reasonable notice, in certain cases, has been a question. Certain points, however, Wé think are settled : that if a mortgage is given to secure an' ascertained debt, the amount of that debt ought to be stated : that if it is intended to secure a debt not ascertained, such data must be given respecting that debt as will put any one interested in the inquiry,-upon the track leading to a discovery : and if given to secure an existing or a future liability, the foundation of such liability must be set forth. Thus the record is made to show the real state of the title, so far as it can be known; and as little room as possible is left for the substitutiori of fictitious claims.
Now, let us apply these principles to the case before us; Here was a single debt, secured by note ; of course, exactly ascertained. That note, so far as we are informed, was before the parties, at the time the deed was drawn; and yet there is an entire omission as to the most important fact respecting it, its amount, Whether it was 100 dollars, or 1000 dollars, no one can tell. It is entirely indefinite; and is of that class of cases in our reports where the whole difficulty
It is said, that there is enough to put a person on inquiry; and that is all a court of equity requires. That principle; however, we do not think is applicable to cases of this class; where there is a certain known debt. If it is to be adopted as a general rule, it would overturn all the cases in which this court have held, that the description was too indefinite. It Was urged without effect in Pettibone v. Griswold & al. 4 Conn. Rep. 158. 162.; and can be urged with effect in those cases only, where, from the nature of the demand, a specific description cannot be given. In Crane v. Deming & al. 7 Conn. Rep. 388. 395, 6. the amount was not given. That, however, was the case of a penal bond, the amount of which would give but little light upon the real demand, except to identify the instrument; and the court held, that that was sufficiently done without it. In Booth & al. v. Barnum & al. 9 Conn. Rep. 286. 290. the exact amount of a great number of debts attempted to be secured, was not given. It was a deed intended to secure the creditors of an insolvent; and did not profess to give the exact amount; and there were various mistakes in the amounts. The bill averred, that the object was, to secure these debts ; and the inaccuracy arose from the mistake of the draftsman, the papers not being in his possession. The court there say: “It is apparent that from the real or supposed necessity of taking imrliediate security for these debts, the plaintiffs’ agent, who drew this deed, had not the evidence of the indebtedness of the mortgagor to the plaintiffs before him.” Bolles v. Chauncey & al. 8 Conn.
We think, then, there is nothing in the cases cited, which is intended to interfere with the general principles we have stated, or which will support the plaintiff’s claim.
It was said, that had the date or time of payment been omitted, it could not have affected the deed. How that might have been, it is not necessary for us to determine; There doubtless may be omissions in the description, which would not invalidate it; but this is one all-important to the subsequent vendee or mortgagee, for which no reason at all is assigned; Should such a description be held sufficient, our records would hereafter convey but little information as to the real state of the incumbrances on real estate. Instead of that definite and precise intelligence they were designed to convey, general and loose descriptions would be given, and the inquirer would have to depend upon the good faith of the parties rather than upon the public records. Adopt the principle contended for, and it would seem to be enough to stamp upon the deed “ this is intended as a mortgage,” to render it valid. After the repeated decisions of this court, we do not feel at liberty to adopt these principles ; nor do we think them correct. It is far better that one honest creditor should have his security postponed to another perhaps equally honest, who has apparently a subsequent title, rather than that the valuable provision of our statute relative to the recording of deeds should be nullified, or its vitality impaired. And how much soever we may regret the hardship of a particular case, we cannot dispense with an important principle. We, therefore, advise the superior court to adjudge the plaintiff’s bill to be insufficient.
Bill insufficient.
