5 Day 479 | Conn. | 1813
From the statement of this case, it is apparent, that the right of the plaintiff to recover, depends on hit shewing, that no title was derived to the defendant, hy either of the deeds. If either conveyed a valid title, the defendant. was entitled to a verdict.
As the jury found the mortgage deed not to be fraudulent, and thereupon, gave their verdict for the defendant, the plaintiff cannot claim a new trial, on the grofind, that the last deed was not submitted to their consideration ; nor on (he
It has been decided, in Connecticut, in conformity; I conceive, to the principles of the common law, that a grantor, with warranty, but without title, is estopped from denying his former title, or claiming under a subsequent one ; and such covenants running with the land, this estoppel will affect and bind all those who claim under the grantor ; of course, in this case, Austin Nichols, and the plaintiff, who claims under him, are estopped from setting up the subsequent title derived from Daniel Nichols, to defeat the mortgage deed. Town of Norwich v. Congden, I Root’s Rep. 222. Co. Litt. 265. Trevivan v. Lawrence, 6 Mod. 258. S. C. Salk. Rep. 276. Palmer v. Ekins, 2 Ld. Raym. Rep. 1551. The subsequent title will thus enure to the benefit of the first grantee. The mortgage, then, is valid, unless defeated, by the absolute deed from Austin Nichols to Philo Norton, the mortgagee. This, it is claimed, absorbed the mortgage, though void as to creditors, it being good between the parties.
The question, on this branch of the casé, can arise only on the ground, that the absolute deed is fraudulent; for, the moment we admit its application to the mortgage, as payment of that, either by express contract, or legal inference, we admit a legal consideration, which may give validity to the deed : For, if given and received bona fide, for a good and valuable consideration, as it would be, if given in discharge of a pre-existing mortgage of equal value, the title under it would be, unquestionably, good. Admitting, then, that this latter deed was executed, without consideration,
It would he a strange perversion of a statute, in its provisions highly penal, to give effect, by construction, to an instrument, which, by the letter of the statute, is expressly made void.
The obis'ct of the creditor is to seek a fund for the payment of his debt. To secure him in this, the statute makes void, all deeds fraudulently designed to defeat him. In this case, the fraudulent deed was calculated to defeat him of the fund remaining in the equity of redemption. The statute; by making that deed void, leaves the property liable to his demand, subject only, as it was before, to flie mortgage lien. This, I conceive, is precisely what the statute intended, and it preserves the rights of all the parties.
The construction, e.ouicndid for, would do injustice to the mortgagee, by subjecting him to penalties, in the loss of his debt, which the statute never intended. It would enlarge the fund of the creditor, w'hich the statute meant merely to protect. It would give effect to a deed, to the advantage o! a creditor, which the statute, in express terms, as to him, makes void. Whatever, therefore, might be the effect of the absolute deed, upon the mortgage, as between (he parties, it can have none, as to the creditor. As to him, 1 ho mortgage remains as it was.
If this reasoning is correct, the plaintiff has no reason to complain, that the only question submitted to the jury, was the validity of the mortgage deed ; for, having established that, their verdict must have been for the defendant, whether the absolute deed was fraudulent or not.
New trial not to be granted.