3 Barb. Ch. 375 | New York Court of Chancery | 1848
The execution'of the bond and mortgage to Alien, under the circumstances disclosed in this case, ‘constituted him a trustee for the ladies of the nunnery whose 'debt was intended to be secured thereby ; so’that if he had neglected to execute the assignment pursuant to the arrangement, or if, for any reason, the assignment executed by him was "technically invalid, such bond and mortgage would still have cfe
But even if the complainant had never heard of this bond and mortgage and assignment until after the recovery of the appellant’s judgment against McNamara, it would not have altered her legal and equitable rights in this case. For the absolute delivery of the bond and mortgage to Allen, in trust to assign the same to her, and the delivery of the assignment to McNamara for her use, vested the title thereof in her immediately on such delivery of the assignment, although it was delivered to the mortgagor. For if he had afterwards refused to deliver this assignment to her she might have compelled its delivery by suit. The cases of Doe, ex dem. Garnous, v. Knight, (5 Barn. & Cress. 671,) and of Church v. Gillman, (15 Wend. Hep. 656,) are directly in point to show that a deed absolutely delivered to a third person, for the use of the grantee, is a present deed and takes effect from the lime of such delivery, although such third person was not authorized by the grantee to receive it; if such grantee afterwards assents'to it. Such assent will also be presumed from the beneficial interest of the grantee or obligee in the deed, unless a dissent is proved.
Some of the earlier cases on this subject went even so far as to declare that the delivery of the deed to a stranger, for the use of the grantee, made it a good deed in presentí, although the grantee refused to accept it when offered to him by such third person. (Taw, executrix, v. Bury, Anderson's Rep. 4; 2 Dyer, 167, b, S. C.) But it was afterwards held, that where a deed was delivered to a stranger who had no authority to receive it for the grantee, and such grantee refused to receive it, (he delivery was invalid, and the deed lost its force. (See Rutler and Baker's case, 3 Coke's Rep. 26, b; Whelpdale's cast, 5 Idem, 119, b; and per Holt, C. J. 1 Salk. 307.)
There is no-foundation for the suggestion that McNamara intentionally gave the bond and mortgage for more than was actually due, for the purpose of defrauding his Creditors. The admission of the indebtedness by McNamara, at the time óf tíre giving of the bond and mortgage, as the same was stated in thé letter to him from the agent of the ladies of the nunnery ’á‘t Montreal, and the execution óf those securities for that amount
There is therefore no error in the decree appealed from, and it must be affirmed with costs. And if the proceeds of the mortgaged premises, upon a sale thereof under the decree, should not be sufficient to pay the amount due upon such decree and the costs, together with the expenses of the sale, the appellant must pay to the respondent the value of the rents and profits of the mortgaged premises during the time the sale has been suspended by this appeal, or so much of the value of such rents and profits as may be necessary to pay the deficiency; as the respondent’s damages for the delay and vexation caused, by such appeal. And the respondent is to be at liberty to apply for a reference to ascertain the amount of such damages, if necessary.