Paddock v. Potter

| Vt. | Jan 15, 1895

ROWELL, J.

Although the mortgage secured only the several debts of the mortgagees, yet it was executed to them jointly, and therefore they together were the party thereto of the one part and the mortgagors of the other part; hence the death of one of the mortgagees did not render the mortgagor Potter incompetent to testify concerning the scope of the mortgage in respect of what land it embraced, as the other mortgagee was living and competent .to testify.

After specifically describing five pieces of land, • the mortgage contains these words : “And we further hereby convey any and all other real estate in the town of Pownal that we or either of us own or possess, or any interest that we or either of us may have in any other real estate in said Pownal.”

The petitioners claim that at the time of the execution of the mortgage, the mortgagor Augustus H. Potter had an interest in the piece of land called in the case the sixth parcel that passed under those general words of the mortgage; but if notan interest then, that those words are broad enough to embrace an after-acquired interest therein, and that he acquired such interest, which, when it accrued, fed the estoppel and passed it at once under the mortgage, as it contains ■full covenants of warranty.

But we construe those wórds to embrace only a then present interest and not an after-acquired interest. The words “may have,” as there used, mean, may now have, and not, may hereafter have. This is clear from the context. This construction disposes of the claim of title by estoppel, and leaves for consideration only whether Potter had an interest in that parcel when the mortgage was given, which depends upon whether the deed from Mrs- Lincoln to him, executed long before the mortgage was given, conveyed title to him before it was delivered. The facts concerning that deed are these: Potter and his brother owned a lot of land worth two hundred or three hundred dollars ; under an oral agreement to convey it to her, Mrs. Lincoln, the mother of Potter’s first wife, erected an expensive house thereon, in the building of which Potter labored without compensation; after it was built, he and his brother conveyed the land to Mrs. Lincoln as agreed, and she at the same time executed to Potter a quit-claim deed of the premises with certain conditions, but kept the deed in her posession and control till October 15, 1891, long after the mortgage was given, when, thinking her end near, she delivered it to him and it was recorded. There was no understanding when Potter and his brother deeded to Mrs. Lincoln that she should reconvey to him, and he never considered that he had any legal interest in the premises; but although Potter was not entitled to demand a deed, yet there was an expectation that she would reconvey to him and that her affection for him would enure to his benefit. The only consideration moving to Potter’s brother for deeding to Mrs. Lincoln was the benefit Potter might derive therefrom.

Many claims are put forth in argument as affording ground for holding that this deed conveyed a present interest to Potter that passed under the mortgage; but a careful consideration of them fails to disclose such ground, and mainly because the facts found do-not warrant the claims. Upon the findings, this deed was subject to the.absolute control of Mrs. Lincoln till its delivery; there was no secret trust in the matter, and she could have destroyed the deed at any time and conveyed the premises to whomsoever else she pleased, and Potter would have had no legal ground of complaint. In these circumstances the deed evidently passed no title till delivery, and then, for present purposes, as of that date, and not by relation as of the date of the deed.

The defendants claim that the seventh and the ninth parcels did not pass under the mortgage, but the question is not pressed at all, as well it may not be, for no such defence is made by the answer, but on the contrary the answer pretty much says that no question is made about it.

Decree affirmed and cause remanded. Let the Court of Chancery fix the time of redemption.