16 Conn. 517 | Conn. | 1844
The questions necessarily involved in the present case, are, whether the plaintiff is entitled to a decree of foreclosure, and also to the appointment of a receiver.
1. The defendant Joseph Robinson executed and delivered to the plaintiff a mortgage deed of two-fifths of a certain farm, which formerly belonged to his father. Joshua Robinson. The interest which he had in the property, depends upon the construction to be given to the will of his father, by which the farm was devised to the five sons of the testator. One-fifth the mortgagor claimed as his own share under the will, and the other fifth, as the share conveyed to him by his brother William.
We do not consider it necessary to determine precisely what estate the sons took under the will, whether an estate in fee or in tail; because if the plaintiff, by the mortgage, took any estate whatever, which is still subsisting, he is entitled to a foreclosure of that estate, as against the mortgagor, and the other defendants who derived their title from the mortgagor, by conveyances subsequent to the mortgage to the plaintiff. Although the deed to the plaintiff purports to convey an estate in fee in two-fifths of the farm, yet if the mortgagor owned but one-fifth, or an estate for life only, the deed will operate as a conveyance of all the interest he had. Law v. Hempstead, 10 Conn. R. 23. Rogers v. Moore, 11 Conn. R. 553. And if the debt for the security of which that interest was mortgaged, is still unpaid, the plaintiff is entitled to a decree of foreclosure. We therefore waive the discussion of the question as to what estate the mortgagor took under the will of his father, and the deed from his brother, as being un
The testator, in his will, directed, that none of the real estate given to the sons, should be sold, until three years after the expiration of the widowhood of his wife, unless sold to one of those sons. As the widow is still living and unmarried, and the plaintiff is not one of the sons of the testator, it is insisted, that the mortgage to him is invalid. If this be so, and the plaintiff acquired no interest whatever under the mortgage to him, the bill should be dismissed.
In order to ascertain the construction to be put upon this provision in the will, it becomes necessary to look at the object, which the testator had in view in making it. Was it to deprive his sons of all power of alienation during the widowhood, or to protect the widow in the enjoyment of the interest devised to her? The latter seems the most probable. He directs, that the estate shall be improved, by one of the sons, whom his widow may select, and who is to be accountable to her and the other sons for the rent of their respective shares. No provision is made as to the person who should take, in case all of his sons should attempt to sell contrary to the directions in the will. He doubtless meant to guard his widow against the annoyance which might arise from having a stranger occupy with her one half of the house and farm.
A construction depriving the sons of the power of alienation, and of raising money by a mortgage of their shares, is not to be given to the will, unless required in unequivocal terms. It has ever been the policy of our law, that all the property of a man shall be made available for the payment of his debts.
Here it is found, that the mortgagor obtained from the plaintiff the loan of a large sum of money, upon the representation that he was the owner in fee of the property described in the mortgage deed. The reasons ought to be very strong to induce a court, under such circumstances, to deprive the plaintiff of the power of appropriating the property in payment of the debt. And we are not satisfied, that a fair construction of the will requires this to be done.
We, upon the whole, think, that the mortgagor took, under the will, a beneficial interest in the farm, which he was not, by
The remaining inquiry relates to the appointment of a receiver. The question is not, whether, under any circumstances, such an appointment ought not to be made, but whether the plaintiff is entitled to it, upon the case as presented to us.
Now, it is alleged in the bill, and found by the court, that the deed to the plaintiff contained the usual covenants of seisin and warranty; and that the mortgagor now is, and ever since the mortgage, has been, in possession of the farm. And the suit is against the mortgagor, and other persons deriving title from him subsequent to the mortgage to the plaintiff. How then does the case differ in principle from the ordinary case of a mortgage of an undivided interest in real estate—the mortgagor continuing in possession? In the latter case, it is not usual for the court to appoint a receiver of the rents and profits, but to leave the mortgagee to his action at law to recover possession, and take them himself.
We see nothing in the case to prevent the plaintiff from pursuing the same course. The mortgagor, by his covenants, may not be estopped from setting up in his defence in this case, those facts which the plaintiff in his bill has alleged to be true; yet in an action of disseisin for the possession, he might be estopped from denying that he owned and conveyed, in the manner stated in the covenants of his deed. Stow & al. v. Wyse, 7 Conn. R. 214.
It is true, the bill sets out the mortgagor’s title under the will, the widow’s interest in the mortgaged premises, and her power of appointment; but it does not state, that she has ever exercised that power, or threatened to exercise it, to the prejudice of the plaintiff; or that the mortgagor claims to hold by virtue of any authority derived from her.
Besides, the widow and the other persons interested in the farm, are no parties to this suit. The appointment of a receiver may affect their rights. Before this is done, they ought to have an opportunity of being heard.
Were the appointment of a receiver the sole object of the suit, the cause might be continued, for the purpose of enabling the plaintiff to bring all necessary parties before the court. But as he has made no such request, and has prayed for other relief, which we think may properly be granted, we advise
Foreclosure to be decreed.
Receiver not to be appointed.
