53 Ark. 185 | Ark. | 1890
This is a bill on the part of the plaintiffs, as the heirs at law of Pat Sweany, to redeem lands mortgaged by him in his life-time, and which it is alleged the appellees hold as assignees of the mortgage. The appellees allege that they acquired the land by purchase under the power of sale contained in the mortgage, and deny that they hold as mortgagees.
The mortgage was executed to Harriet A. Cabell as security for a note payable to her order eight months after date thereof; and it contained the provision, that if default should be made in the payment of the note, “the said Harriet A. Cabell, her executors, administrators or assigns, should have power to sell the premises either at public or at private sale, and convey the same to the purchaser in fee- simple absolute.”
The mortgagor died, and the note was not paid. Subsequently Harriet Cabell assigned the mortgage and note to one V. Dell, entering the assignment of the mortgage on the copy of it in the office of the recorder of deeds. Dell held the mortgage and note until October 4, 1879; on that day he executed a deed of conveyance, in usual form with covenants of seisin and warranty of title, purporting to convey the land to the defendant, Ed Lanigan, for the consideration, of $100.00. This deed contained no reference to the mortgage or the power of sale therein contained; and it does not appear that the note was assigned or delivered to Lanigan.
The effect of that deed is the only question for our consideration; the'plaintiffs contend that its only effect was to convey Dell’s interest as a mortgagee, while the appellees contend that it was an execution of the power of sale in the mortgage, and passed the title formerly held by Pat Sweany.
The instrument itself is unambiguous, and manifests an intent on the part of the grantor to convey a perfect estate in fee simple absolute. Now, in view of the relation of the grantor to the land conveyed, is the deed consistent with any other intent?
It is not the usual, direct or simple means of assigning a note secured by mortgage; that such an instrument executed by one who had a lien, but not an estate, in the land might be construed as transferring the lien, is true; but this effect would be given, because it could not operate to convey an estate, and it would be presumed that the grantor intended his act to be effective. Still, this is a result reached by construction and not as the usual and natural significance of the thing done.
We deem an examination and review of the authorities n this opinion unnecessary. Sir Edward Sugden, after a reiew of the cases, announces a conclusion which we believe orrect; he says: “an intent apparent upon the face of an nstrument to dispose of all the estate would be deemed a sufficient reference to the power to make the instrument operate as an execution of it in as much as the words of the instrument cannot otherwise be satisfied.”
If any would investigate the subject further we would refer to the discussion of the question by Sir Edward Sugden and the cases below: 1 Sugden on Powers, *p. 412-22; Campbell v. Johnson, 65 Mo., 439; Warner v. Conn. Mut. Ins. Co., 109 U. S., 357; Funk v. Eggleston, 92 Ill., 515; Blagge v. Miles, 1 Story, 445-50.
The attorney for appellees cites us to the case of Pease v. Pilot Knob Iron Co., 49 Mo., 124, as sustaining a different view in a case very similar to this. The conclusion reached in that case is favorable to his contention, but in our judgment the opinion fails to support it. It rests upon no reason which would entitle it to much persuasive force with us, and it loses what it might possess because the court that delivered it has since then overruled its former opinions and approved the rule above stated. Campbell v. Johnson, supra.
If the deed from Dell is given effect by reference to his interest, the grantee therein acquires a chose in action with a mortgage on the land to secure it; that materially curtails the effect of the deed. If it is referred to the power, the grantee acquires an estate in fee simple, and has effect according to its terms and tenor; and we must conclude that such was the intent of the parties. That it was sold at a great sacrifice may be true; but it does not appear that it was attended by bad faith or willful misconduct.
As Lanigan acquired title by the conveyance from Dell, it is unnecessary for us to consider the other questions raised upon the argument.
The judgment will be reversed, and the cause dismissed.