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nized in England, in the United States courts, and in a
majority of the states of the union. 2 Washb. R. Prop.,
3d ed., 87; Mdnlj/ v. Slason, 21 Verm., 271; Kent v. Ger-
hard^ 12 R. Isl., 92 ; Chilton v. Braiden^s Admx.y 2 Black,
460. The better opinion is, that this lien is not confined to
the vendor's person, but passes to the assignee of a note
given for the purchase money. Johns v. Setvell^ 33 Ind., 1 ;
Lagow v. Badollet^ 1 Blackf ., 419 ; Chesehrough v. Millard^
1 Johns. Ch., 409; Johnston v. Ghwathmey^ 4 Little, 317;
Edwards v. Bohannon, 2 Dana, 98 ; Watt v. White, 33 Tex.,
421 ; Crow v. Vance, 4 Iowa, 434 ; Sugden on Vendors, 683,
and note. " The principle is well supported by authority,
that if the negotiation of purchase, and agreement to sell,
be with one person, but the deed be at his instance made to
another, by way of gift or advancement, the person to whom
the title is made will be regarded as a volunteer, taking the
estate without consideration, and the lien will arise, as when
the contract of sale was made with the husband, and his
obligation for the money taken, but the deed was made to
his wife. 6 Sm. & Marsh., 296. Also where the father,
upon the marriage of his daughter, put her in possession of
land as an advancement, and she and her husband con-
tracted to sell the land, but the father made the deed. Here
the daughter was the substantial vendor, and she and her
husband could assert the lien." Campbell v. Henry, 45
Miss., 325. Whether vendors' liens exist in Connecticut, is
said to be in doubt. We submit that they do. 2 Swift
Dig., 128; Watson v. Wells, 5 Conn., 472; Atwood v.
Vincent, 17 id., 583 ; Chapman v. Beardsley, 31 id., 115 ;
Middletown Savings Bank v. Fellowes, 42 id., 45.

2. Be this as it may, however, the plaintiff is entitled to
a decree establishing in her favor an equitable mortgage
upon the premises. "An agreement to give a mortgage,
not objectionable for want of consideration, is treated in
equity as a mortgage, upon the principle that equity will



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108 HARTFORD DISTRICT.

Hall V. Hall.

treat that as done which by agreement is to be done. This
doctrine has been asserted frequently, both in this country
and in England." Jones on Mortg., (2d ed.) § 168, and
numerous cases there cited ; Matter of Rowe^ 1 Paige, 129.
In Daggett v. Rankin^ 81 Cal., 826, the court says : — " The
doctrine seems to be well established, that an agreement in
writing to give a mortgage, or a mortgage defectively
executed, or an imperfect attempt to create a mortgage, or
to appropriate specific property to the discharge of a
particular debt, will create a mortgage in equity, or a speci-
fic lien on the property so intended to be mortgaged. The
maxim of equity upon which this doctrine rests is, that
equity looks upon things agreed to be done as actually per-
formed. The true meaning of which is, that equity will
treat the subject matter as to collateral consequences and
interests, in the same manner as if the final acts contempla-
ted by the parties had been executed exactly as they ought
to have been." 1 Story Eq. Jur., §§ 64, 790 ; Willard's Eq.,
§§ 298, 299; Delaire v. Keenan, 8 Dessau., 74. The fact
that Mrs. Hall did not sign the writing makes no difference ;
she accepted the deed, and whether she knew of the agree-
ment or not is also immaterial, since she is a simple volunteer
and has paid no consideration. Cases supra.

A, P. Bradstreet^ for the defendant, Elizabeth E. Hall.

1. The written agreement of John A. Hall that a mort-
gage should be given by his wife, of course can not bind
her. He had no power as husband to bind her. Courts
wilt not enforce such a contract against a wife. Annan v.
Merritt^ 18 Conn., 487. If the plaintiff has any rights
against her they must rest upon some equity growing out
of the whole transaction.

2. There is nothing in the transaction to raise any equity
against Mrs. Hall. The deed of the property was delivered
to her, and accepted by her, without any knowledge upon
her part that there were any notes outstanding which her
husband had executed to the vendor, and without any
knowledge that he had agreed with his father to give him a



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MAY TERM, 1882. 109

Hall V. HaU.

mortgage to secure any notes. The first intimation she had
of the existence of any notes was in 1877, four years after
she had accepted the deed, when her husband acquainted
her with the fact. If the testimony of the husband to this
effect is not admissible, then she had no knowledge of the
notes until this suit was brought. Under these circumstan-
ces it would be far from equitable to hold the property in
her hands chargeable for the payment of these notes. She
stands virtually in the position of an innocent purchaser,
without notice of any outstanding equities or incumbrance
upon the property other than appeared upon the face of her
deed. As between the present plaintiff and Mrs. Hall the
equities are largely in favor of the latter. She has taken
up the mortgage of f 1,800, which was upon the property at
the time it was deeded to her, thus relieving William from
his liability to that extent, and she has since given a new
mortgage to the bank for $2,500, upon which the bank holds
her note for that amount, and which they can force her to
pay without resorting to the property by way of foreclosure.
On the other hand the plaintiff has come into possession of
the notes in qucfstion by way of gift from Catherine Free-
stone, to whom they had been given by William Hall. She
has paid nothing for them and is placed in no worse position
than she was in originally if she never collects them.

8. The claim of a vendor's lien can not be sustained.
This lien has never been recognized to its fuU pxtent in
Connecticut. Dean v. Dean, 6 Conn., 285; Meigs v.
Dimoek, id., 464, and note ; Atwood v. Vincent, 17 id., 588.
In Maine the doctrine is entirely rejected as inconsistent
with the registry laws and policy of the state. PMlbrooh
V. Delano, 29 Maine, 418. In New Hampshire it is unde-
cided, as well as in Massachusetts. In Vermont the doctrine
was abolished by statute in 1851. By the very nature of
the case these liens are secret, and often productive of much
injustice, and should not be extended beyond the require-
ments of the settled principles of equity. To recognize it
to the extent called for by the plaintiff's claim in this case
would result in establishing an unwise policy inconsistent



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110 HARTFORD DISTRICT.

Hall V. HftlL

with our registry laws. If William himself were living,
and still held the notes, he would have no right to insist
upon this lien, as his conduct shows that he did not rely
upon the lien as security for the payment of the purchase
money. His agreement with John whereby he was to allow
the premises to be mortgaged to an unlimited extent and
without restriction as to time before a mortgage was to be
made to himself, precludes the idea of his relying upon this
lien for his protection, and is inconsistent with the princi-
ples upon which a vendor's lien rests.

4. If a vendor's lien existed in favor of the original
vendor, it certainly does not exist in favor of this plaintiff.
The lien is a personal right and will not pass to the assignee
by assignment of notes given for purchase money. 2 Swift
Dig., 115 ; Jticharda v. Learning^ 27 111., 431 ; Jaekman v.
Hallocky 1 Ohio, 318 ; Brush v. Kinsley^ 14 id., 20 ; Halloek
V. Smith, 8 Barb., 267; White v. WilliarM, 1 Paige, 502;
Dickenson v. Chase^ 1 Morris (Iowa,) 492; Iglehart v.
Armigevy 1 Bland, 519 ; Claiborne v. Crockett, 3 Yerg., 27 ;
Green v. Demoss, 10 Humph., 871 ; SJuUl v. Biscoe, 18 Ark.,
142; Perry on Trusts, § 238 ; 2 Story Eq. Jur., § 1227.

Carpenter, J. (After stating the facts.) We think the
plaintiff is entitled to the relief sought. We do not rest
our judgment however on the ground of a vendor's lien.
Conceding that such a lien exists in this state, there may be
some difficulty in enforcing it in favor of an assignee. We
choose to regard the property as subject to a mortgage in
equity.

Mrs. Hall, the only party who appears to defend, cannot
object to the establishment of an equitable mortgage against
her on the ground that she is a feme covert, for she is a mere
volunteer. No part of the consideration moved from her.
Therefore the case is not within the principle of those cases
where courts . refuse to set up a deed or enforce a contract
specifically against the wife. The underlying principle of
those cases is protection to the wife's estate. Here her
estate is in no danger. She has paid nothing and is required



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MAY TERM, 1882. Ill

HaU V. HalL

to pay nothing, except to pay for property which she has
actually received. To apply the principle of those cases to
this would be a perversion of it and operate as a fraud.

Nor is it important that she did not know of the agree-
ment to give the mortgage at the time she accepted the
deed. She parted with nothing then, and when the agree-
ment afterwards came to her knowledge she could have
surrendered the land and have been in no worse condition
than she was in before the deed was given. In equity and
good consience she was bound to do that or else perform the
agreement which was a material part of the consideration
for the deed under which she holds.

Here was an agreement in writing, for a good considera-
tion, to give a mortgage. There was an obvious reason for
not giving it at the time ; the existing mortgage was to be
increased and the mortgage agreed to be given was to be a
second mortgage. Some delay was unavoidable, and the
parties took the precaution to put the agreement in writing,
so that no question arises under the statute of frauds.

This seems to be a proper case for the application of the
maxim that equity looks upon that as done which ought to
have been done. ^^ The true meaning of this maxim is that
equity will treat the subject matter as to collateral conse-
quences and incidents in the same manner as if the final
acts, contemplated by the parties, had been executed
exactly as they ought to have been, not as the parties
might have executed them. * * The most common cases
of the application of the rule are under agreements. All
agreements are considered as performed, which were made
for a valuable consideration, in favor of persons entitled to
insist on their performance. They are to be considered as
done at the time when, according to the tenor thereof, they
ought to have been performed.*' 1 Story's Eq. Jur.,
sec. 64 g. See also Jones on Mortgages, (2d ed.) sec. 16S,
and cases cited.

Applying these elementary principles to the case before
us, it is apparent that, as i^oon as the mortgage was given to
the Savings Society, in March, 1877, the mortgage agreed



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112 HARTFORD DISTRICT.

Hall V. Hall.

to be given should have been given. If full justice could
not otherwise be done, perhaps we might be justified in
establishing the mortgage as of an earlier day, on the ground
of the delay in giving the first mortgage. But that does
not seem to be necessary, as, under the circumstances, secu-
rity given after the mortgage was given to the bank will be
effectual according to the intention of the parties.

We fail to discover that Mrs. Hall, the defendant, has
any equity arising from the fact that she executed a note
and mortgage to the Savings Society. She took the land
incumbered to the amount of eighteen hundred dollars.
That amount, if she would retain the land, she must pay.
The balance she had in cash, and of course it is just and
reasonable that she should pay that. Charging the land
subject to that mortgage with the burden of paying the
plaintiff's demand is only charging the property which she
actually received ; and that does her no wrong.

Nor is it any disparagement of the plaintiff's equity that
she received the note as a gift or legacy. That is a matter
which in no wise concerns the defendants. They cannot be
permitted to say to the plaintiff, — ^" You paid nothing for
your notes ; therefore we should be permitted to hold the
land without paying for it." The plaintiff's claim is as
meritorious legally as it would have been had she taken
them by distribution or purchase.

We advise the Superior Court to render judgment for the
plaintiff, and to pass a decree containing in substance a
description of the premises, the mortgage to the Litchfield
Savings Society, the notes held by the plaintiff and the
amount due thereon, and declaring that the real estate,
subject to that mortgage, shall stand charged with the pay-
ment of the notes in the same manner and to the same
extent that it would have been if the defendants had
executed a mortgage thereof on the 2d day of March, 1877.

In this opinion the other judges concurred.



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MAY TERM, 1882. US

Salisbury Sayings Society v. GuttiDg.



Salisbury Savings Society vs. Eleanor F. Cutting,
a dmtnistbatbix, and another.

Whether a deed with coyenants of title giyen before the grantor acquires
title to the land conyeyed, and placed on record, is to preyail oyer a deed
giyen after the title is acquired to a purchaser who takes in good faith,
for yalue, and with no notice of the preyious deed: Qucere.

If as a general rule the later deed is to preyail, yet it can not where it is a
mortgage giyen for a pre-existing debt.

Nor where the circumstances are such as reasonably to put the second
grantee upon inquiry as to the existence of the prior deed.

SiTiT for a foreclosure ; brought to the Superior Court in
Litchfield County. The facts were found by a committee.

On the 3d of May, 1872, William E. Cutting procured
from the plaintiffs a loan of $1,400, and on the same day
mortgaged to them as security for it, by a warranty deed,
the property now sought to be foreclosed, which consisted
of about a quarter of an acre of land in Salisbury with a
dwelling house and tin shop on it. The mortgage was at
once put on record.

At this time Cutting had no legal title to the premises
conveyed. On the 8th of January, 1872, he had purchased
the land, then without buildings upon it, for $200, of one
Coffing, who had agreed to convey it to him when that sum
was paid, but had not done so when the mortgage was given
to the plaintiffs, and who died soon after and before making
the conveyance. On the 16th of July, 1874, Cutting made
an application to the court of probate, upon which the
administrators of Coffing's estate were cited in and heard,
for an order that the administrators perform the agreement
and convey the land to him ; and such an order was made
on the 23d of July, and the land conveyed by them to
Cutting by deed dated the 8d of August, of the same year,
though not delivered until December 1st, 1874, and not
recorded until December 6th. The loan was obtained of
the plaintiffs to pay the cost of erecting the buildings on
the land and was used for that purpose, the mortgage being
Vol. l. — 8



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114 HARTFORD DISTRICT.

Salisbury Savings Society v. Cutting.

taken after they had been erected. The plaintiffs made no
examination of the land records of the town at the time they
took their mortgage.

John Scoville, the principal defendant, was the father-in-
law of Cutting, and lived at Ashley Falls, in the stat^ of
Massachusetts. He had loaned him money from time to
time, and on the Ist day of December, 1874, Cutting gave
him his note for $2,483, and on the 5th of December made
a mortgage to him of the real estate in question as security
for the note. At the time he took the mortgage he made no
inquiry of Cutting as to any prior encumbrance on the
property, but he took the mortgage in good faith and with-
out any knowledge of the encumbrance. Of the $2,483 for
which the note was given, the greater part was advanced
after the mortgage to the plaintiffs had been given by
Cutting and put on record.

The petition of Cutting to the court of probate for an
order that the administrators of CoflSng convey the land to
him, recited the agreement of Coffing to convey it when he
should be paid the sum of $200, and the deed of the admin-
istrators referred to the petition and order on the probate
records and stated that the deed was given under the order.

The amount due the plaintiffs on their note and mortgage
was found to be $1,677.22 and that due to Scoville on his
note and mortgage $3,704. The mortgaged property was
found to be worth $1,800.

Cutting hajl since died, and the defendants were his
administratrix, and John Scoville.

Upon these facts the court (Hitchcock^ J".,) rendered
judgment for the plaintiffs, foreclosing the defendants. The
defendant Scoville brought the record before this court by
a motion in error,

J. D. Hardenberghi for the plaintiff in error.

1. The defendant Scoville had no notice of the plaintifb'
claim, either actual, presumptive or constructive. The
committee finds that he took the mortgage in good faith and
withoiit any knowledge of the encumbrance. The record



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MAY TERM, 1882. 116

Salisbury Savings Society v. Cutting.

of the plaintiffs' mortgage, given two years before the
mortgagor acquired title, was not notice to Scoville. He
was not bound to search for such an instrument. He was
not bound to go back of the delivery of the deed to Cutting.
" The purchaser is not charged with notice from the record
of conveyances from his grantor, prior to such grantor's
acquisition of title. In such case the subsequent purchaser
would not be estopped by the record of a mortgage from
his grantor, prior to the date of his grantor's deed. To
hold otherwise would be to impose upon the purchaser the
duty of examining the record indefinitely." Wade, on the
Law of Notice, § 214. *'But upon both principle and
authority, it seems more consonant with the spirit of the
recording acts to absolve purchasers from the duty of
examining the record of conveyances from their grantors,
prior to the time when they had a title to convey." Id., §
216. "Such a result seems to be at variance with the
recording acts of this country, which are generally held not
to require an examination of the record prior to the period
at which the title conveyed vested in the vendor." H. &
W. notes to 3 Smith's Lead. Cas., (7th ed.), 692, See also
Bigelow on Estoppel, 859 ; Rawle on Covenants for Title,
(4th ed.), 428. If we claimed adversely to Cutting it might
be said that his possession was presumptive notice, but as
we claim under him and knew that he had no title until the
day we took our mortgage, his possession could not be
notice to us that he had conveyed a title two years before
he had acquired it. At all events it was merely presump-
tive, and the finding rebuts the presumption. The instru-
ment under which the plaintiff claims, taken two years
before the grantor acquired title, was not within the con-
templation of our recording acts. " Where the deed from
the vendor is not recorded, a deed of trust or mortgage,
given by his vendee, for the purchase money, will not be
notice to subsequent purchasers of the unrecorded deed.
There is nothing to guide the purchaser beyond the record
title of the vendor, and the discovery of the mortgage for
the purchase money would be purely accidental^" Wade
on the Law of Notice, § 207, and cases cited^



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116 HARTFORD DISTRICT.

Salisbury Savings Society v. Cutting.

2. The parties therefore stand in precisely the same
position they would have stood in, if the instrument under
which the plaintiffs claim, had not been put on record. The
plaintiffs say that even then we are estopped by the cove-
nants of their mortgage. We deny that such is the law.
It is in direct conflict with the recording acts. Gen. Stat-
utes, p. 353, sec. 11 ; 2 Smith's Lead. Cas., (7th Am. ed.),
692; Rawle Gov. for Title, (4th ed.), 428; Bigelow on
Estoppel, 331 ; Fay v. Arnold, 18 Geo., 182 ; Fairdoth v.
Jordan^ id., 350 ; Great Falls Co. v. Wboster, 15 N. Hamp.,
412; Lessee of Buckingham v.. ffanna, 2 Ohio St., 551;
Calder v. Chapman^ 52 Penn. St., 359 ; Jones v. Kearney,
1 Dru. & War., 159 ; Lloyd v. Lloyd, 4 id., 369. It is also
contrary to the statute of frauds. Bigelow on Estoppel,
358 ; Rawle on Gov. for Title, 430 ; Bivins v. Vinzant, 15
Geo., 521 ; Fairdoth v. Jordan, 18 id., 350. The modem
covenant of warranty does not pass the land as to subse-
quent purchasers without notice. It does not act as a
technical estoppel, but simply as a rebutter. Bigelow on
Estoppel, 355 ; 2 Smith Lead. Gas., (H. & W. notes, 7th ed.),
693.

3. The equities are with the defendant Scoville. He
took his mortgage, as the committee has found, in good faith
without notice. The plaintiffs were guilty of laches.
They knew, or were bound to know, that Gutting had no
title 5 they took their mortgage with their eyes open, and
assumed all the risk. " But the strongest arguments against
permitting the conclusion of the covenant or recitals in a
deed to extend beyond the person of the grantor to an
estate which he does not hold at the time, is that it necessarily
tends to give a vendee, who has been careless enough to buy
what the vendor has not got to sell, a preference over subse-
quent purchasers, who have expended their money in good
f^ith, and without being guilty of negligence." 2 Smith
Lead. Gas., (7th ed.), 700. They could have seen to it that
the contract between Goffing and Gutting was put on record,
and thus supplied the missing link in their chain of title,
which might have led the defendant to their mortgi^e. Our



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MAY TERM, 1882. 117

Salisbury Savings Society v. Cutting.

statutes provide that such a record shall secure to a party
the equitable title that the contract creates. This would
have protected the plaintiffs, since such an equitable title
could be conveyed or mortgaged, and would have been full
legal notice to us. Gen. Statutes, p. 354, sec. 13.

(7. B. Andrew9 and D. T. Warner^ for the defendants in
error.

1. It clearly appears from the finding that Cutting had
an equitable interest in the premises from the time of his
taking possession of the same, though he did not have the
legal title ; for the finding shows that he was in possession
"claiming to own the same," and that he had erected a
building thereon, which then constituted, as it does now,
the principal value of the property. The administrators of
Coffing's estate recognized this equitable interest, and con-
veyed nothing but the land to Cutting. The court of
probate also recognized Cutting's equity in the premises. It
was an interest that he could sell and convey or mortgage.
Gen. Statutes, p. 364, sec. 13. It was such an equitable
interest as a court of chancery would have protected by
decreeing a specific perfoimance of the contract. Qreen v.
Finin, 35 Conn., 178.

2. Cutting's mortgage with warranty to the plaintiffs, he
afterwards having acquired the legal title, is just as effectual
as if he had had the legal title when he gave the mortgage.
Where one having no title to land conveys the same with
warranty by a deed which is duly recorded, and afterwards
acquires a title, and conveys to another, the second grantee
is estopped to aver that the grantor was not seized at the
time of his conveyance to the first grantee. 3 Washb. Real
Prop., 110, sec. 50 ; 1 Swift Dig., 364. It has repeatedly
been decided in Connecticut, that if one who conveys lands
with warranty, but without title, subsequently acquires
title, he and all claiming under him are estopped from
setting up such title against the first grantee. The subse-
quent title enures to the benefit of the first grantee. Coe
v. TalcoU, 5 Day, 92 ; Hoyt v. Dimon, id., 483 ; Dudley v.



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118 HARTFORD DISTRICT.

Salisbary Savings Society v. Cutting.

Cadwelly 19 Conn., 226. The same doctrine prevails in
other states. Somes v. Skinner^ 3 Pick., 62 ; White v. Fattefh^
24 id., 324; Muss v. Alpaugh, 118 Mass., 376; Tefft v.
Mimsoriy 67 N. York, 97; Ifouse v. McCormich^ id., 310;
2 Smith Lead. Cas., 626; Rawle on Cov. for Title, 392;
Bigelow on Estoppel, 344, 347.

3. The defendant Scoville had constructive notice of the
existence of the plaintiffs' mortgage. There is no difference
in legal effect between actual and constructive notice. 8
Washb. R. Prop., 283 ; Sumner v. Rhodes, 14 Conn., 139.
Open and notorious possession is sufficient to put a pur-
chaser on inquiry as to the existence of a deed. Especially



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