Stewart v. Thompson

| Vt. | Mar 15, 1831

Hutchinson, C. J.,

after stating the case, pronounced the opinion of the Court. — It appears by the case, that the evidence of plaintiffs title was objected to by the defendant, yet admitted by the court; and there is nothing in it, at all liable to objection, except the assignment from Lindsey to the plaintiff on the back of the mortgage deed. If this was a sufficient assignment to pass the estate described in the mortgage, it was correctly admitted ; otherwise, not. The objections to this assignment are its want of description of the consideration, and of the premises conveyed in the mortgage deed. Lindsey does not tell what he received, but says, for and in full consideration, received to 1ns full satisfaction. Neither does he say, that he conveys the land described in said mortgage deed, or his interest in said land, but, all the right, title and interest he had in, or to, said mortgage deed. And this conveyance is to the plaintiff, and his heirs and assigns forever. The authorities, cited by the plaintiff’s counsel, 'go the whole length of supporting this assignment upon both points. Nor need we rest our decision, in relation to the first point, upon those authorities which affirm the deed good as between the parties, if there were no consideration. This is not without consideration, but given upon a full and satisfactory consideration. Of what this consisted might have been shown by parol, and the jury, considering the evidence in the case, that two notes, described in the mortgage, were also transferred by Lindsey to the plaintiff, might well have presumed, that the plaintiffpaid to Lindsey the amount, at least, of these two notes.

So with regard to the second point, we must keep in mind the intention of the parties, as manifested by the whole transaction. What could be intended by a conveyance to the plaintiff, in fee, of all the mortgagee’s right, title and interest in and to said mortgage deed ? and this written upon the back of the deed, and executed with all the solemnities required to convey real estate ? What right had Lindsey in or to said mortgage? He had the right to hold and use it as evidence, conclusive too, to recover this land, and hold it as security till his debt was paid. This right he conveyed to the plaintiff, who is now using it for that very purpose. It is admitted that this assignment would be good in equity. We consider it good also at law.

The defendant’s counsel have ingeniously urged, that a mortgagee cannot assign his interest in the mortgaged premises, till after a foreclosure; or surely, not till after the condition broken. This we have fully considered, and we find no difficulty, arising from adverse possession or any other source,in supporting what has long been considered to be law, that a mortgagee may, at any time, assign his mortgage interest and debt secured by it, and thereby put his assignee in his place and stead, and give him all the right he before had to receive the money when offered, whether it be due or not, and of suing to recover the money, or recover possession, after condition broken.

Starkweather, for plaintiff. Leslie, for defendant.

The only remaining question is,whether the jury were correctly instructed with regard to the evidence about the recording of the two deeds. Indeed, it does not definitely appear, what instructions were given upon this point; but we presume such were given as are supposed by the counsel in their argument; that is, if they believed, from the testimony adduced, that the defendant knew, or was informed, when he received his deed from Norris, that Norris had previously conveyed the same land to Lindsey, by mortgage deed, or any other valid deed, he could gain no priority of title, by procuring his deed to be first recorded. There was proper evidence for the jury to weigh under such instructions. There was not only evidence tending to show, that the defendant was informed of Lindsey’s deed, but that it was in the file of mortgage deeds in the town clerk’s office, where he would probably have seen it, had he made enquiry, for the purpose of ascertaining the amount of the incumbrance upon the land. I will improve this occasion to observe, that town clerks should not neglect their recording in this way. They should make it their business to record their deeds soon after they are lodged in their office. If, as is sometimes done, a man delivers a deed to be put on file, but not to be recorded at present, the clerk should tell him to do as he pleased |bout leaving it, but if he left it, it would be recorded immediately : and he should act according to his information.

The judgement of the county court is affirmed.