| Vt. | Sep 15, 1853
The opinion of the court was delivered by
This case comes up by an appeal from the Court of Chancery. The bill is brought to foreclose the equity of redemption, of Daniel Aikens and those claiming under him, in certain parcels of lands, described in the bill of complaint, and in the mortgage deed from said Aikens to the orator, bearing date the 19th day of July, 1845, and recorded the same day.
The first question relates to that portion of the mortgaged premises called in the bill the “ Paul Ellis Farm.” To this farm the defendant Sarah A. Goddard claims a paramount and prior title, as derived from Daniel Aikens. It seems that Aikens conveyed this farm to one Isaac Angelí in fee, on the 22d day of March, 1845, and on the same day, it is filed for record in the town clerk’s office in the usual way where deeds are left for record. Though it may
There is nothing in the case to show, that this deed was not left by Angel, with the town clerk, with instructions to recoi’d it, and in the usual way, and this is the import of the certificate of the town clerk. If when the plaintiff took his mortgage from Daniel Aikens, this deed was suppressed, through the fault of the town clerk, Angel should not suffer. He had done his duty. As Sarah A. Goddard has the title from Angel, she must prevail as to this lot, and she was correctly dismissed by the Chancellor.
The more important question is, in relation to the “ Lease Lot” so called. Though it may be true that this lot was, in 1836, leased by the Society for the propagation of the gospel in foreign parts, to Abial Frye for a period of thirty years; and he mortgaged it to Wiliam Caryl; and though the premises may have come by quitclaim to Daniel Aikens, yet it is clear, that without resort to what shall be the effect of the recovery in ejectment, by the Society against Frye and Dutton, the present plaintiff cannot rely upon any title which Aikens had to this lot under the Frye lease. The title which Caryl had from Frye was but a mortgage, and there is nothing in the case to show, that Caryl’s debt against Frye is outstanding, or that it passed into the hands of Aikens. His title is stated to be by quit-claim deed. As our courts have decided, that a mortgagee cannot maintain ejectment after the mortgage debt has been paid, and that to rebut the presumption of payment, the mortgage notes should be produced, or accounted for otherwise; it would seem to follow, that so far, at least, there was no title in Aikens for him to convey; but it is claimed that Aikens, after he had executed his mortgage to the plaintiff, took a durable lease of this lot from the propagation Society, and that this after title, inured to the benefit of Jarvis.
It appears, that the date of the Society’s lease to Aikens was the 20th day of November, 1848, and recorded the same day; and that on the 27th day of November, 1848, Aikens conveyed, by a deed of warranty, the lot to Henry Murphy; and after this, Murphy
It is not seriously claimed by the counsel for Catherine Murphy, but what the subsequent title acquired by Aikens, would inure to the benefit of Jarvis, so as to estop Aikens and his heirs from claiming title against him and his assignees; but it is said that the principle should not be applied, as between the purchaser and a subsequent purchaser from the grantor, and that to so apply it, would be at war with our registry system. This is a point of some importance, and well deserves consideration. We need cite no authorities to show, that Aikens himself would be estopped from setting up title against Jarvis, because he might sue Aikens on his covenants, if he was not estopped; and the law abhors circuity of action; but it is said, if Jarvis can claim the premises, as against Aikens, to save circuity of action, yet as against Murphy no such reason exists, and the only question is, which shall be compelled to resort to the covenants in Aikens’ deeds, Jarvis, or Murphy ? In Trevivan v. Lawrence et al., 1 Salk. 276, it was held that the parties, and all claiming under them, were bound by an estoppel, and ’the court put the case, as between the purchaser and a subsequent purchaser from the grantor. In the same case, reported in 6 Mod. 258, and Ld. Ray. 1051, Lord Holt cites 39 Ass. 18, and speaks of an estoppel, as running upon the land, and altering the interest of it — as creating an interest in, or working upon the estate in the land, and as running with the land to whoever takes it. The covenants in Aikens’ deed to Jarvis, may well be said to have a double operation, first as an estoppel, and secondly to pass the estate, the instant that Aikens became the owner.
The covenants bound Aikens, as an estoppel, until he took his durable lease from the Society, and then the estate, which devolved upon him, fed the estoppel, and the estate created by the covenants in Aikens’ deed by way of estoppel, ceased to be an estate by estoppel only, and became an interest, and gave the orator precisely what he would have had, in case the durable lease had been executed to Aikens before his mortgage deed to the orator. The estoppel, when it runs with the land, operates upon the title, so as actually to alter the interest in it, in the hands of the heir, or assigns of the person bound by the estoppel, as well as in the hands of such person himself. It was said, by Lane, J., in the case of
We see no reason, why this doctrine should not be extended to a mortgage deed with the usual covenants, as well as to an absolute deed, and indeed in the case of the 24 Pick, the claimant’s title was under a mortgage deed.
Though it may be true, that' before the lease was executed by the Society to Aikens, Henry Murphy paid sixty dollars to the Society towards rent, which was in arrear, and which was to be a part of the consideration which he was to pay to Aikens for his deed; but this cannot create a resulting trust in Murphy, to any portion of the land, which can avail against the legal title of Jarvis. It was in fact money paid by Murphy to the use of Aikens. Nothing can be made out of this, that can aid Murphy in this controversy.
We think then, that the decree of the Chancellor should be reversed, as to Henry and Catherine Murphy with costs; and a decree of foreclosure pass against them as to the “ Lease Lot,” and in other respects affirmed.