Pettibone v. Griswold

4 Conn. 158 | Conn. | 1822

Hosmer, Ch. J.

The plaintiff has brought his bill to foreclose a mortgage, the condition of which is, to secure to the mortgagee the payment of a note accurately described, which, it is presumed, has been paid, as there is no allegation of nonpayment; and likewise to secure, “all other notes the said grantee might indorse for or give for said Griswold, at the bank or elsewhere, and all receipts said Pettibone, deceased, might hold against said Griswold.” The land mortgaged has been levied on, by executions against the mortgagor; and the controversy is between the mortgagee and the execution creditors.

The notes of hand given to Seth Cowles and Elijah Cowles and Co. were in existence at the date of the mortgage, and are not included in the condition. They might and ought to have been described, or embraced, by some intelligible description of them. But the expression, “all notes the said grantee might indorse for or give for said Griswold,” manifestly refers to future contracts, and not to notes then existing. The receipt of the 19th of September, 1815, renders it necessary to proceed further in the discussion of this case, or the preceding observations would be conclusive on the whole controversy.

On the extent, to which a mortgage may be taken, I shall not express a definite opinion; as the exigencies of the case do not require it. It undoubtedly may be, for existing debts, existing liabilities, and, perhaps, for debts to be contracted in future. But the manner in which it may be done, forms an important consideration. It is the policy of our laws, and experience has demonstrated the wisdom of it, that the titles to real estate should be registered, for the benefit, not of the parties, but of creditors, and all others interested. “All grants and mortgages of houses and lands shall be recorded at length, by the town clerk; and no deed shall be accounted good and effectual to hold such houses and lands, against any other person or persons, but the grantor or grantors, and their heirs only, unless recorded as aforesaid.” Stat. 302. sect. 9. It is the object of this law, to prevent fraud, and give security and stability to title. It results, unquestionably, that the condition of a mortgage deed, must give reasonable notice of the incumbrances on the land mortgaged. A creditor is not obliged by law to make inquiry in pais, concerning the liens on the property of his debtor; but on application to the record, he may acquire all the information, which his interest demands. At least, he must have the power of knowing from this source, the subject matter of the mortgage, that his investigation may be guided, by something, which will terminate in a certain result. And what is not of less importance, the incumbrance on the property must be so defined, as to prevent the substitution of every thing, which a fraudulent grantor may devise, to shield himself from the demands of his creditors.

The condition of the deed under discussion, is dangerously indefinite; and is at war with the policy of the recording system. It embraces all future notes and receipts, without the designation of any; and baffles the inquiry of creditors and others, relative to the condition of the mortgaged estate. A condition to a deed made to secure all future supplies, debts and liabilities, of every possible nature and description, would not be more lax and indefinite. The creditor could know nothing from an examination of the record, and must be cast on his debtor for information, the very person who would be least inclined to give it: and successive obligations, fictitious or actual, might be made to lock up his land, in defiance of every claim against him.

I am well aware, that absolute certainty is not always to be expected, from an examination of the records of land titles; but there always may and ought to be a certain object, after which suitable inquiries may be made. A mortgage may be given to indemnify a person from damages arising by reason of his having become the surety of another, in the office of sheriff or collector; or as administrator on an estate. In all these cases, an inquiring creditor cannot know from the town record the precise incumbrance; but he has notice of certain definite facts, which point to, and guide him in, the necessary investigation on the subject. Cases of this description must not be confounded with conditions to deeds, which neither communicate any certain information, nor designate any track, in pursuance of which, information may be obtained.

The other Judges were of the same opinion.

Judgment to be entered for defendants.