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entered into possession of the premises under a contract for
the purchase of the same and claiming his right under and
by virtue of the contract. We believe his possession, under
such a contract, can not in any view of it be deemed adverse
to Bly. * * While there subsists any contract, express
or implied, for the purchase of the title, between the parties
in and out of possession, the possession can not be adverse.

* * Until he does some unequivocal act to manifest a
repudiation of the contract and brings this home to the
knowledge of the other party, he can not be considered as
holding adversely to the persofl under whom he took posses-
sion." In Ormond v. Martin, 37 Ala., 698, it is held that
where a pai*ty took possession under a bond for a deed and
in expectation of a deed from the owner, he could not be
holding adversely to the owner. The same doctrine is laid
down in Stamper v. Griffin^ 20 Geo., 312, and in Long v.
Young^ 28 Geo., 180. In the last case it is held that where
a person held possession under a contract for a deed, and it

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MARCH TERM, 1882. 51

Harral v. L«verty.

proved that the contract was executed by a person acting
as agent for the owner, but who had no authority, so that
the contract had no effect, the possession still could not be
regarded as adverse to the true owner. In 8 Washburn on
Real Property, 142, it is said that " where one enters in
subserviency to the title of the real owner there must be a
clear, positive, and continued disclaimer and disavowal of
the title under which he entered, and an assertion of an
adverse right, brought home to the owner, in order to lay
the foundation for the operation of the statute of limita-
tions." To the same effect see ffcUl v. Stevens^ 9 Met., 418.
The text books and authorities are not altogether agreed
as to the precise relation to the property and to the real
owner, of a person who has entered into possession under an
agreement to purchase. Some of them call him a tenant at
will but others a mere licensee. In either capacity he would
not be allowed, until by an unequivocal act he had repudia-
ted the relation, to deny the title of the true owner. It
seems to us that his position is that of a licensee. He
enters under no promise to pay rent, but merely to wait for
the consummation of his right to a conveyance from the
owner, while it has been held by our own court in Vandenr
heuvel v. Starrs^ 8 Conn., 208, that he is not liable for use
and occupation. This view of his character is taken by the
Supreme Court of the United States in Burnett v. Caldwell^
9 Wall., 290. SwAYNE, J., delivering the opinion of the
court, says : — " If the contract stipulates for possession by
the vendee, or the vendor puts him in possession, he holds
as a licensee. The relation of landlord and tenant does not
subsist between the parties. The characteristic feature of
that relation is wanting. The vendee pays nothing for the
enjoyment of the property. The case comes within the
category of a license. In such cases the vendee can not
dispute the title of the vendor any more than a lessee can
question the title of his lessor.'* This view is supported by
numerous authorities cited by the learned judge. It is
enough for the present case that McDonald was in a position
in which his possession could not be regarded as adverse to
the owner.

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Harral v. Leyerty.

But if the possession of McDonald could be regarded as
adverse to Wheeler and Sanford, it does not follow that
their deed to Leverty would be void. A conveyance made
under a valid prior contract to convey is not in contraven-
tion of the statute. Such a contract made after the owner
was ousted of course could not support a conveyance made
while the ouster continued. But where made before it is a
valid contract, and under it the purchaser acquires an equi-
table right which is not to be defeated, nor its right to a
consummation in a legal title affected, by an after occurring
ouster of the owner. In Otinn v. Scovil^ 4 Day, 234, it is
held that a conveyance by a mortgagee after the mortgage
was satisfied, the mortgagor having since been ousted, was
not within the statute. Here the ouster of the mortgagor
was an adverse possession as to the mortgagee as well as the
mortgagor. Reeve, J., in giving the opinion of the court,
says, (p. 240) : — " If A should contract by a written agree-
ment with B to sell to him blackacre for $1,000, and to convey
the same within three months, and in the meantime C enters
and disseizes J., would not A in pursuance of a fair contract
be justified in conveying to £, if he was willing to receive
the deed? Shall it be in the power of a vn'ongdoer to
frustrate the honest views of A and B? A in this case is
only a trustee of the legal title. The sale was complete
before, by the bargain, and was not within the statute. * *
Every contract of this kind, being out of the mischief which
the statute meant to remedy, is to be considered as not
within the statute." This principle was recognized and
applied by this court in the recent case of Tawnsend Savings
Bank v. Todd^ 47 Conn., 190. The general principle is laid
down by the court (p. 219,) that " a conveyance made by a
trustee to the party holding the equitable title is not a sale
of a pretended title." In both these cases the party con-
veying held only a bare legal title, both being cases of
releases of a mortgage title after the mortgage had been
satisfied. But it is not necessary that the grantor should
hold a bare legal title. Where the grantee holds an equi-
table title, with something further to be done on his part to

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MARCH TERM, 1882. 63

Harral v. Leverty.

entitle him to a conveyance of the legal title, it is yet a case
where the sale rests upon a contract made before the ouster
and therefore not to be affected by it. Judge Reeve, in the
remarks we have quoted, states the principle as applying to
all cases of conveyances under previous contracts to sell.
In this case it does not appear clearly whether the contract
of Leverty with Wheeler and Sanford had been fully per-
formed by him before McDonald asserted his right of
possession against Leverty, but as the conveyance was
made so soon after it is to be presumed that he had fully
performed, so that the grantors were in the position of a
party who held a bare legal title. We regard the point as

It should be noticed, that while the contract of Wheeler
aud Sanford was to convey to Leverty " or his assigns^'^^ it is
not found that Leverty had ever assigned his right to a deed
of the premises in dispute to McDonald, while all the facts
found seemed to render any such assignment improbable^
The contract of Wheeler and Sanford therefore stood as one
to convey to Leverty, and could be performed on their part
only by a conveyance to him. They could not be affected
by any controversy between Leverty and McDonald, even
if it was brought fully to their knowledge. If McDonald
wished to protect his rights he could at any time have
brought all the parties into a court of chancery and had his
rights adjudicated upon. Neglecting to do this he can not
complain of a conveyance which Wheeler and Sanford were
under a plain contract to make.

We conclude therefore that the deed of Wheeler and
Sanford to Leverty of January 15th, 1876, conveyed a good
legal title to the premises to Leverty.

Thus the matter stood until the first day of July, 1876,
when Leverty made a mortgage of the premises in contro-
versy to Harral, the plaintiff, for $2,400, and the next
question is whether the possession of McDonald was at that
time such as to make the mortgage void under the statute
we have been considering.

The relation of McDonald's possession to the case has

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' ' ' ■

Harral v, Leverty.

now become entirely different from what it was when we
before considered it. Then Wheeler and Sanford held the
legal title and were the owners, and his possession, as we
saw, could not in the circumstances be adverse to them.
Now Leverty is the owner. It is true that McDonald took
possession in the expectation of receiving a deed either from
Wheeler and Sanford or from Leverty; but before the
execution of the mortgage to Harral by Leverty a contro-
versy had arisen between Leverty and himself with regard
to the property, he had demanded a deed of Leverty who
had refused to give it, and they had engaged in a personal
contest for the possession of the premises. The finding is
that McDonald entered into possession on the 22d of
November, 1876, with the consent of Leverty, and that on
the 10th of January, 1876, Leverty entered on the premises
and caused the tenants of McDonald to move out, ^^ and
attempted to obtain exclusive control and possession of the
tenement ; " but that, while this was going on " McDonald
arrived and entered on the premises and moved some of his
own goods into the tenement, Leverty forbidding him to
move in said goods or to remain therein ; " the result being
that Leverty left after locking some of the inside doors and
carrying away the keys, while McDonald ** continued in the
occupancy of the premises, with the outside keys in his
possession until April, 1881." In these circumstances it is
impossible to regard McDonald as holding possession under
a license from Leverty or in any other way than adversely
to him, the notice to the latter of McDonald's repudiation
of the license under which he originally entered, being
given by the most unequivocal acts and declarations.

Regarding the possession of McDonald as sufficient there-
fore to make void a conveyance of the property by Leverty,
under the statute, was the mortgage to Harral void ? The
statute invalidates all ^^ conveyances " made by a grantor
who is ousted, unless made to the person in possession.
Was the mortgage such a conveyance ?

It is contended by the counsel for Leverty in his brief
that if it was, yet as Leverty had agreed in his contract

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MARCH TERM, 1882. 66

Harral v. Leverty.

with McDonald to procure a mortgage of $2,400 for him
upon the property, the latter can not now deny his right to
make the mortgage in question. But the agreement was to
procure a loan for McDonald's benefit, and surely this could
not be regarded as authority to mortgage the property for a
loan obtained for his own benefit and really in fraud of
McDonald. Besides this, McDonald had twice before this
demanded a deed of the premises from Leverty just as they
were, which the latter had refused to give, and such a
demand would be a waiver of his claim that Leverty should
procure him the loan, inasmuch as the conveyance demanded
would take away from Leverty the power to procure the
loan on a mortgage of the property. It is clear that the
mortgage can not be sustained upon this ground.

But we are satisfied that the mortgage is not to be re-
garded as a ** conveyance " within the meaning of the
statute. The precise point was decided by this court in the
case of Leonard v. Bosworth^ 4 Conn., 421. That was, it is
true, a qui tarn action to recover a penalty given by the
statute, as it then stood, for receiving a deed of land of
which the grantor was ousted, the deed in fact being a
mortgage; but the question whether a mortgage is an
alienation of the land within the meaning of the statute,
was the same that would have been presented in any other
case in which the question could have arisen. Hosmeb, C. J.,
in giving the opinion of the court, all the judges concurring,
says, (p. 424): — "Is a mortage an alienation of land?
The cases cited by the defendant show that it is not, and
the point has frequently been decided in this court. * *
A mortgage may be considered as a lien, by means of which
the mortgagee may obtain possession, and, if his debt is not
paid, appropriate the thing pledged in satisfaction ; but it is
no alienation * for years, life, lives or forever, or for any
Jither term of time whatsoever.' "

The phraseology of the statute has been changed in the
Revision of 1875, (which is to govern this case,) but we
can not regard the change as intended to affect the meaning.
It seems to have been made merely for the purpose of con-

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Harral v, Leverty.

densation. As it stood before the revision the conveyances
invalidated by it were " all bargains, sales, leases, or alien-
ations for years, life, lives, or forever, or for any other term
or time whatsoever, of any lands, tenements or heredita-
ments." In the revision it is simply "all conveyances and
leases for any term of lands or tenements." The only point
of difference as to which any question can arise is in the
substitution of the word " conveyances " in the revision for
" bargains, sales or alienations " in the old statute. But as
it would have been easy for the revisers, if any change had
been intended, to use language that would have been
decisive of such an intent, and as other changes were made
in it which evidently were made solely for the purpose of
condensation, we must conclude that no change of meaning
was intended.

The case of Leonard v. Bosworth is strongly supported by
that of Bates v. Coe^ 10 Conn., 280. The question there
was whether a mortgage was within the statute of 1828,
making void "conveyances and assignments" made by
persons in failing circumstances with a view to insolvency.
Daggett, C. J., giving the opinion of the court, says,
(p. 294) : — " The prohibition is of conveyances and assign-
ments. But surely a mortgage is not an assignment, for
that passes the whole interest in the thing assigned ; whereas
a mortgage creates only a lien in favor of the mortgagee.
Nor is it a conveyance^ within the meaning of that term as
it has been understood by jurists in New York, Massachu<
setts, Maine and Connecticut for the last thirty years, and
by English judges for the last half century." After citing
a great number of cases from the English decisions and
from those of the states named, and among them that of
Leonard v. Bomoorth, the judge adds : — " The result of all
these cases is, that a mortgage is not a conveyance of the
land, but a charge or lien upon it ; and that the mortgagee'^
interest is a chattel ; and that he is vested with the right
to maintain ejectment to obtain and appropriate the pledge."

In Clark v. Beach^ 6 Conn., 168, Hosmer, C. J., (dissent-
ing, but not disputed on this point, and quoted approvingly

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MARCH TERM, 1882. 6T

Harral v. Leverty.

by Daggett, C. J., in the foregoing opinion,) says: —
"Nothing is conveyed to the mortgagee; the equity of
redemption alone is an estate in the land. The mortgage
was intended as a security only, not as a sale." In City of
Norwich V. Eubbardj 22 Conn., 587, Church, C. J., giving
the opinion of the court, says : — ^" A mortgagee has only a
lien, and can not be considered as owner of the mortgaged
estate." In Mills v. Shepard^ 80 Conn., 101, Ells-
WOETH, J., giving the opinion of the court, says : — " The
doctrine that a mortgagee of land is not the owner of it by
virtue of his mortgage deed, has been too often held by this
court and elsewhere to admit of a question in the mind of
any respectable jurist. He obtains a lien upon the land,
that is all. He is never spoken of as owner ; nor is he such
even in a technical sense until he has obtained a foreclos-
ure." This piinciple was applied, in the case of Whiting v.
City of New JSaven^ 45 Conn., 808, in giving a construction
to the term "owner of land," under a provision of the
charter of the city requiring notice, and afterwards compen-
sation, to the owner of land taken for a public improvement,
the court holding that a mortgagee was not to be regarded
as the owner, but the person owning the equity of redemp-

It has been held in numerous cases that a mortgage of
insured property is not an alienation of it within the mean-
ing of a provision in a charter or policy making the policy
void if the property is "alienated by sale or otherwise."
Jackson v. MassachtLsetts Mutual Fire Ins. Co.y 28 Pick., 418;
Bice V. Tower^ 1 Gray, 426 ; Rollins v. Columbian Ins, Co,^
5 Foster, 204; Pollard v. Somerset Mutual Ins. Co.^ 42
Maine, 225 ; Conover v. Mutual Ins. Co. of Alhany^ 8 Denio,

Were the question entirely a new one we should not
regard it as free from difficulty. It is manifest that the
statute can easily be evaded under the cover of a mortgage.
In Chinn v. Scovil^ 4 Day, 241, which we have before
referred to upon another point, Reeve, J., in giving the
opinion of the court, in. the course of an illustration of a

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Harral v. Leverty.

point that he is stating, says : — " The case put supposes the
mortgagor to be in possession at the time he mortgaged ;
for if he was then ousted his deed would he void^ And
HosMBR, C. J., in giving the opinion in Leonard v. Bosworthy
4 Conn., 421, in which he holds that a mortgage is not an
alienation within the meaning of the statute, remarks that
" mortgages are within the mischief at which the statute is
aimed," but that they " are not within the literal construc-
tion of the act." We regard the question however as
settled by the former decisions of our own court, while on
the whole the weight of considerations, in view of the
peculiar character of the interest of the mortgagee, is in
favor of a construction of the statute which takes mort-
gages out of its operation.

If we are right in the views we have thus far taken there
was no error in the judgment of the court below, holding the
mortgage of Leverty to the plaintiff valid, and decreeing a
foreclosure unless the mortgage debt was paid by McDonald
or other of the respondents interested.

But the counsel for McDonald, in his assignment of
errors, and in his brief, claims sundry minor errors to have
gone into the judgment, which it becomes necessary for us
to consider.

One of these is that his motion that Wheeler and Sanford
should be cited in as co-defendants should have been
allowed ; and another that the committee should have heard
evidence upon the question of a fraudulent combination
between Wheeler and Leverty to withhold from him the
title to the property and vest it in Leverty. We will con-
sider these two claims of error together.

The object of bringing in Wheeler and Sanford, and of
the evidence as to a fraudulent conspiracy to withhold from
McDonald the title, was mainly to procure the setting aside
of the deed of Wheeler and Sanford to Leverty, and the
vesting of the title in McDonald. A further claim is made
in this connection which we will consider later.

It is obvious that if Wheeler and Sanford had been
brought in, and evidence of the fraud had been received

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MARCH TERM, 1882. 69

Harral v. Leverty.

and upon it the court had set aside the deed to Leverty, it
could not have affected the mortgage held by the plaintiff.
The deed to Leverty would not have been void, like a deed
by a grantor who is ousted of possession, but would merely
have been liable to be set aside by a court of equity, and if
McDonald had in season procured an injunction against a
conveyance or mortgage of the property by Leverty, or had
brought a bill in equity against him to set' aside his deed,
the way would have been open for him to obtain the relief
which he sought and to which he would on the facts claimed
have been clearly entitled. But he took no such measures,
but left the record title standing unquestioned and undis-
turbed in Leverty until the latter, in July, 1876, made the
mortgage to the plaintiff. An attempt is made to impeach
the mortgage by showing that tlie plaintiff did not inquire
into the matter and learn of McDonald's possession and of
his claim of equitable rights. But he was not bound to
inquire further than after the record title. K an equity
existed in McDonald it was for him to give notice of it to
the plaintiff or to make sure that he had notice. There was
nothing on the public records to suggest an inquiry into the
matter. And the finding of the committee is explicit as to
his want of knowledge. It is that he "loaned said money
and took 'said mortgage without knowledge of any claim of
McDonald on the property, and his occupation thereof, and
in good faith, supposing that Leverty had the undisputed
title and possession, but without inquiring who was in

The plaintiff therefore obtained a valid mortgage lien
upon the property, and if the court had found and given
full effect to the fraudulent conduct claimed on the part of
Wheeler, Sanford and Leverty, it would not have set aside
the mortgage to the plaintiff, but would merely have given
McDonald the title subject to that mortgage. McDonald
therefore is not injured in being compelled to redeem that
mortgage, since he would have been compelled to do it in
any event, it having obtained a precedence of his own equi-
table rights that it could not be deprived of.

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Harral v. Leverty.

And the decree gives him precisely this. It is that "if
the said McDonald shall, on or before said day [limited for
redemption] pay said sums to the plaintiff, then and in that
event it is ordered and decreed that * ♦ ♦ the title to
said premises shall pass to and become vested in the said
McDonald." This part of the decree is founded on the
equitable right of McDonald to the premises under his
contract with Leverty. This contmct was admitted and
becomes a part of the case, and it made wholly unnecessary
an impeachment of the deed to Leverty for fraud, so long
as such an impeachment of it would have resulted, as it
necessarily would have done, in vesting the title in
McDonald, so far as it gave him any, subject to the plain-
tiff's mortgage.

It is clear therefore that' if the court committed any error
in excluding this evidence and denying the motion to make
additional parties defendant, no harm has resulted to
McDonald from the error.

But McDonald further claims that he was entitled to a
judgment against Leverty for damages for the fraud
practiced upon him in withholding the deed to which he
was entitled under his contract, and against Wheeler and
Sanford also, if they were brought in as he moved to have
them ; and also a judgment against Leverty for six hundred
dollars and interest, being the amount of the mortgage
above the sum which by the contract he was to pay Leverty
as the price of the premises which were to have been con-
veyed to him. This price by the contract was to be $4,100,
of which $2,800 was to be applied in payment for the
work done on the block by McDonald, and the balance
($1,800) was to be paid to Leverty by Mct)onald in cash.
By the decree McDonald, after paying the mortgage debt,
will become vested with the title to the premises; but
instead of paying Leverty the $1,800 he will have been
compelled to pay Harral, the mortgagee, $2,400, (taking
here no account of interest on either side.) He will thus
have paid $600 more than by the contract he was to pay.
This he has been compelled to pay by the wrongful act of

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MARCH TERM, 1882. 61

Harral v, liOverty.

Leverty in making the mortgage. On this ground he
clearly had a claim on Leverty for $600 and interest, for
whicfi he claims that he should have had a judgment against
him, as a part of the decree.

These claims are made under the provisions of the
Practice Act of 1879. That act provides, in section 6,
that courts may " administer legal and equitable rights and
apply legal and equitable remedies, in favor of either party,
in one and the same suit;" and in section 12, that "any
person may be made a defendant who has or claims an
interest in the controversy or any part thereof adverse to
the plaintiff, or whom it is necessary, for a complete determi-
nation or settlement of any question involved therein, to
make a party ; " while section 7 provides that the same suit
may embrace " claims, whetTier in contract or tort, or both,
arising out of the same transaction or transactions connec-
ted with the same subject of action." The 6th section pro-
vides for counter claims, which it is reasonable to suppose
were intended to embrace as wide a diversity of claims as
the complaint, as follows : — ^*' In cases where the defendant
has either in law or equity, or in both, a counter-claim or
right of set-off against the plaintiff's demand, he may have

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