Johnson v. Farley

| N.H. | Dec 15, 1864

Bellows, J.

The evidence reported tends to show that the debtor, Edward Emerson, being desirous of making- security for his creditors, undertook to do so by causing attachments of property to be made in behalf of some of the creditors; by separate mortgages to others which he wished to prefer; and by a general mortgage of sundry other parcels of real estate to forty-six grantees, thirty-seven of whom were creditors whose several debts, with those of a few others not named as grantees, were attempted to be secured by such mortgage : that his purpose was to include in this arrangement all his property in New Hampshire, and to provide for all but a few small creditors whom he hoped to provide for in some other way : that these suits were brought and the mortgages made by his brother, Benjamin E. Emerson, and the one in question executed and left by the grantor in the hands of the said Benjamin, who was requested to put it on record for the grantees ; and that he did so, and, after the mortgage was recorded, it was returned by the register to the said Benjamin, although it does not appear that any order to do so was given : that the mortgage was afterwards found in the hands of the plaintiff, one of the grantees, but before that period and before any act of assent by any of the grantees, the defendant, who also was one of the grantees in the general mortgage, had attached two parcels of the land so mortgaged, and afterwards obtained judgment in her suit against the said Edward, and extended her execution upon that land.

Upon this state of facts two questions arise:

1. 'Whether the deed was delivered to any one for the use of the grantees.

2. If so, whether there was an acceptance or assent by the grantees, presumed or otherwise.

As to the first point, it would seem to be clear, that, to constitute a valid delivery of a deed, it must pass into the hands of the grantee, or some one for him, in such way as to be beyond the legal control of the grantor. If merely placed in the hands of a third person to be by him delivered to the grantee, it is obvious that the grantor might at any time before the deed was actually delivered countermand the order and prevent its taking effect. This is the doctrine of Bank v. Webster & al. 44 N. H. 268, and the cases cited.

If in any case there could be a valid delivery to a third person for the use of the grantee, when such grantee had no knowledge of it, and had given such third person no actual authority to receive it, it must be in cases where the law will pronounce the conveyance to be clearly beneficial to the grantee,and therefore presume his assent to it; or, as in cases of assignments in New Hampshire, executed strictly accoidirig to the provisions of our statutes, under which the assent of creditors will be implied. But to give effect to such delivery when the assent of the grantee may be presumed from the beneficial nature of the conveyance, it must be placed beyond the control of the grantor, and not put into the hands of a third person merely to be delivered to the grantee, for then such third person is merely the agent of the grantor, who, at any time before actual delivery to the grantee, may recall it; but it must be delivered to such third person as the agent of the grantee, and received by him in that capacity, and then, if the law will, from the beneficial nature of the conveyance, presume the assent of the grantee, the delivery is complete and the estate passes at once.

There are cases where, upon this ground, such assent has been presumed. Among them are Brooks v. Marbury, 11 Wheat. 96 to 98; Tompkins v. Wheeler, 16 Pet. 113; Doe v. Knight, 5 B. & C. 672; Grove, appellant v. Brien & al., 8 How. U. S. 429; Merrills v. Swift, 18 Conn. 257" court="Conn." date_filed="1847-07-15" href="https://app.midpage.ai/document/merrills-v-swift-6576002?utm_source=webapp" opinion_id="6576002">18 Conn. 257; Woodward & als., v. Camp, 22 Conn. 461; Jackson v. Bodle, 20 Johns. 184" court="N.Y. Sup. Ct." date_filed="1822-08-15" href="https://app.midpage.ai/document/jackson-ex-dem-pintard-v-bodle-5474535?utm_source=webapp" opinion_id="5474535">20 Johns. 184. In some of these cases it has been held that sending to the registry, to be recorded, a deed clearly beneficial to the grantee, is a good delivery; but the law is otherwise in New Hampshire, unless the register receive it as agent of the grantee. Barns v. Hatch, 3 N. H. 304; Derry Bank v. Webster, 44 N. H. 268, and cases cited.

In the case before us, there was no such delivery, and, for aught we can see, the deed remained entirely within the control of the grantor until after the attachment by the defendant, and therefore did not take effect as against her, Cook v. Brown, 34 N. H. 460, and the subsequent assent could not defeat the rights acquired by the intervening attachment. Bank v. Webster, 44 N. H. 269, and cases cited. This case, in fact, stands much upon the same footing as Wheeler v. Emerson & Tr. 44 N. H. 186, which apparently arose out of the same general transaction, and the doctrine of that case, in respect to the delivery of the promissory notes placed in the trustee’s hands, applies equally to this case.

Had Mr. Benjamin F. Emerson, in the case before us, assumed to act as the agent of the mortgagees, and to have accepted the delivery of the mortgage in that capacity, still the law could not regard the conveyance as so clearly beneficial to the grantees that their assent would be presumed. In the first place, the mortgage was designed to secure about forty different creditors; and, to presume the assent of each, it must be assumed that he would he disposed to relinquish the opportunity of obtaining a preference by attachment, and thus securing his whole claim. In this respect it stands upon a footing widely different from the case of a mortgage to a single creditor, as in Merrills v. Swift, 18 Conn. 257" court="Conn." date_filed="1847-07-15" href="https://app.midpage.ai/document/merrills-v-swift-6576002?utm_source=webapp" opinion_id="6576002">18 Conn. 257, before cited, or the case of Brooks v. Marbury, 11 Wheat. 96, where a deed was made to a third person in trust for the payment of certain preferred creditors who held paper with endorsements forged by the assignor, and the residue to be applied to the payment of the creditors generally. The fund here was not sufficient to pay the preferred creditors, and the court say nothing of the creditors of the second class ; but say that unwillingness to receive security cannot be gratuitously ascribed to the holders of forged notes.

Again, in the case before us, the debtor undertook at one and the same time to convey all his property in this State for the benefit of his creditors generally, giving preference to some and making no provision whatever for others, and, although these conveyances did not take the form of an assignment, yet, to say the least, it may be regarded as questionable whether they do not come within the mischiefs designed to be remedied by our legislation upon that subject; and in determining what is or is not clearly beneficial to the grantee, it is not necessary to consider alone the particular conveyance in question, but the nature and circumstances of the entire transaction may be considered. Camp v. Camp, 5 Conn. 291" court="Conn." date_filed="1824-07-15" href="https://app.midpage.ai/document/camp-v-camp-6573866?utm_source=webapp" opinion_id="6573866">5 Conn. 291. At all events, we do not conceive that such conveyances can be regarded as so clearly valid that the law would presume the assent of creditors to them.

Upon the whole, we think this is not a case where the conveyance is so clearly beneficial to the grantees that their assent would be presumed. The cases on this subject are referred to in Bank v. Webster, 44 N. H. 269.

Upon these views, there must be judgment for the defendant, unless the plaintiff desires farther proceedings, and if so,

The case must be discharged.