Gibson v. Seymour

After argument,

Williams, J.

delivered the opinion of the Court. — We are satisfied that the decision made by the county court in this case was correct, except on one point. The parties both claim title under Jacob Bartholomew. The plaintiff has the elder title, and the jury must either have found that title fraudulent, or that he had parted with it at the time of trial. The deed to Parsons and Allen was introduced to show that fact. The court omitted to charge the jury as to the effect of that evidence, and the verdict of the jury may have been founded thereon.

The direction to the jury, as to the effect of an absolute deed 'ntencled as a security for a debt or liability, was correct. Wheri-ever'a person intends to secure another by a lien pn real estate, he should do it by a deed of mortgage.- Thp condition should be expressed in the deed, or in a separate deed of defeasance. The giving an absolute deed, without taking back a deed or writing of defeasance, when it is understood between the parties that the deed should be defeated on the performance of a condition, is, when the grantor is in debt, evidence of a fraudulent intent between them and should so be considered, unless it satisfactorily appears that there was some valid and honest reason for transacting the business in that way.

The deeds executed by Bartholomew to plaintiff in February and October, 1821, were admissible in evidence. They tended to show the amount received by Gibson of Bartholomew, which might be presumed to be in satisfaction of his claim against him, unless the contrary was shown.

The mortgage deed from Bartholomew to Seymour, which was offered in evidence, was wholly irrelevant, as it only-proved that Mr. Seymour bad- obtained a mortgage security for his demand against Bartholomew, and this was no satisfaction of his debt.

The remaining point, is the omission of the court to charge the jury as to the effect of the deed to Parsons and Allen, executed since the commencement of this action, and the* defeasance. The jury may have found their verdict on this evidence, and we think it ought not to bave’affected the title of the plaintiff.

It has been generally considered in this state that the plaintiff must have a title at the time of trial. He recovers damages to that time. In England the judgement in the action of ejectment is conclusive evidence in an action of trespass for mesne profits, and entitles the plaintiff to recover therefor to the time the verdict was rendered. If the demise laid in the declaration has expired at the time of trial, the plaintiff cannot recover. Hence if he conveys away his title so as to be divested of any interest in the land at the time of trial, he must fail to recover. Many actions of ejectment have been defeated in this way in this state.

It is true, Adams, in his treatise on ejectment, advances a different idea ; but the case to which he adverts in support of his position, (Grundy vs. Clark, 14 East, 488,) does not sustain him.

But in this case the title set up to defeat the plaintiff was a mortgage from him to Parsons and Allen, inasmuch as the defea-sance executed by them of the same date with the deed, shows that they were mortgagees with power to sell. It is clear from principle, as well as from the authorities, that the mortgagor is entitled to the possession against every one, except the mortgagee. Before foreclosure, he is considered as the owner of the land, and as seized of the same, and may maintain an actiong against any stranger who disseizes him. The mortgagee has only a chattel interest in the land. For the purpose of availing himself of his interest, he may maintain ejectment to get into possession; but still the mortgagor is considered as the owner, and having all' the rights of a freeholder. It is unnecessary to go into an elaborate argument to establish this position. It' is sufficient to say that it is abundantly established by the following authorities.—Wellington vs. Gale, 7 Mass. 138; Porter vs. Millet, 9 Mass. 101; Kelly et ux. vs. Beers, 12 Mass. 387; Collins vs. Torrey, 7 Johns. 278; Sedgewick vs. Hollenbeck, do. 376; Runyan vs. Mersereau, jun. 11 Johns. 532. In the latter case the mortgagor was allowed to maintain trespass against those claiming under the mortgagee. The respective interest of the mortgagor and mortgagee is most fully and ably considere^ by Chief Justice Hosmer, in Clark vs. Beach, 6 Conn. R. 152, and renders it wholly unnecessary to say any thing further upon that subject, than merely to refer to the very able and elaborate opinion of Justice Hos-mer, in that case.

Starr & Phelps, for the plaintiff.

O. Seymour, for defendants.

Our conclusion from the whole is, that the deed from the plaintiff to Parsons and Allen, in connexion with the bond executed by them to the plaintiff of the same date, ought not to have prejudiced the plaintiff in this action ; and, inasmuch as the jury were not so directed, a new trial must be granted.

The judgement of the county courtis, therefore, reversed, and a new trial granted.