Brown v. Dean

By the Court, Savage, C. J.

At the circuit there were two issues to he tried, viz. on the first and sixth pleas. The judge directed the jury to find the issue on the first plea for the defendants: they did so, and assessed the damages at $42,75, and under his direction also they found the issue on the sixth plea for the plaintiff, subject to the opinion of this court. We are now called upon to render judgment upon this verdict; I will therefore state the several findings of the jury.

Upon the first issue they find (to negative the plea) that William Dean was seised, as averred in his avowries, and leased the premises to Dyer, who held the same as tenant to Dean; and that the plaintiff Brown held as the assignee of Dyer, and as tenant to Dean, and they assessed the defendant’s damages to $42,75; and upon the sixth issue they find that the indenture by way of mortgage, and the indenture of lease given by way of defeasance, mentioned in the third avowry, were never recorded according to law; that Dyer being in possession, and claiming to be seised in fee simple, the plaintiff having no notice of said deed and defeasance, on the 4th April, 1826, became, and was the purchaser bona fide of said premises from Dyer, for the full value thereof; and that Dyer and wife conveyed to him, and his deed was recorded, by which he became seised in fee of the said premises.

*213 From the facts as proved on the trial, the case is simple and plain. By the act concerning deeds (1 R. L. 370, § 4,) every deed and conveyance of lands in certain counties of this state, (among which is Otsego county, where the premises are situated,) after the 1st February, 1799, shall be adjudged fraudulent and void, against any subsequent bona fide purchaser or mortgagee, for valuable consideration, unless the same be recorded in the clerk’s office in said county, before the recording the deed or conveyance under which such subsequent purchaser or mortgagee shall claim. By the act concerning mortgages, (1 R. L. 373, § 3,) every conveyance which appears by any other instrument to have been intended as a security in the nature of a mortgage, though it be absolute in its terms, shall be considered a mortgage, and liable to be resgistered as other mortgages ; and that it shall not have the advantages given to mortgages unless the defeasance be also registered.

The conveyance from Dyer to Dean, though absolute in its terms, being accompanied by a writing operating as a defeasance, according to the statute last cited, must be considered as a mortgage between the parties; but not being registered as a mortgage, was inoperative and void as against the plaintiff, who was a bona fide purchaser for valuable consideration. The first issue in fact, therefore, which was found for the defendants, should have been for the plaintiff; Dean having been originally but a mortgagee, and never seised in fee of the premises, nor did the legal relation of landlord and tenant exist between Dean and Dyer; much less did it exist between Dean and the plaintiff Brown. Whether it is competent for a mortgagor and mortgagee to create between them the relation of landlord and tenant, and to give the mortgagee a remedy by distress for the interest or principal, it would be useless to enquire, because the question here is not between those parties. Conceding therefore, for the sake of argument, that it may be done, (on which question however, I give no opinion,) the rights of these parties would not be affected by it; for though the deed and defeasance operated between the parties as a mortgage, yet as between *214 the plaintiff and Dean, the supposed mortgagee, those instruments are of no more force than mere blank paper. Dean has his remedy against Dyer on his covenant to pay, and against Dyer and Farnham upon their bond, but there is no lien or charge upon the land. The moment Dyer conveyed to Brown, the plaintiff, and his title was perfected by the recording his deed, all the previous conveyances by deed. and lease became nullities, and, as respects this cause, have no existence in fact. The jury should have been so instructed, and instead of finding that Dean was seised and leased the premises to Dyer, who thereby became tenant, and that such tenancy attached to Brown, the plaintiff, the issue should have been found for the plaintiff; and as the verdict was taken subject to the opinion of this court, the finding of the jury will be corrected on the record.

The plaintiff is clearly entitled to judgment upon the facts as they appeared in evidence. But as they appear upon paper in the form of a demurrer book, they are, by the ingenuity of the pleaders, so involved in the mazes of special pleading, that a considerable portion of patience and perseverance has been found necessary to disentangle them. [The Chief Justice here enters into a minute examination of the pleaings, and then proceeds as follows:]

One general" demurrer is put in to four pleas, and special causes are assigned to each, which, however, all involve the main question, viz. whether the deed and lease executed between Dyer and Dean, taken together, constitute a mortgage, and if so, then, as the mortgage was not registered or recorded, and as the plaintiff had not notice of it previous to his purchase, whether it is valid as against him 1 On the part of the defendants it is contended that Dyer was Dean’s tenant, and that the plaintiff purchasing from the tenant, comes into his place, and is estopped from denying title in Dean.

It is contended by the defendants that the second plea is bad because it does not traverse the demise in the first avowry, but attempts to introduce a collateral issue. Whatever in pleading is not denied is admitted; but a party pleading may admit the facts stated in the pleading which he professes to answer, and then aVer matter in avoidance. So here, the *215 plaintiff might say, I admit that the deed and lease set forth in the avowry were executed, but they were never recorded, and subsequently I became a bona fide purchaser for valúable consideration. The latter facts are a complete answer to the avowry, and shew that there was no tenancy as to the plaintiff, or as to the premises after his connection with them. This is also an answer to the objection that the pleas shew a disseisin .of the landlord by the tenant. By the allegation of the sale to himself, the recording of his deed, and that if any such papers were executed as are set forth in the avowries, they were not recorded, all ideas of landlord and tenant and demised premises vanish. The same facts are an answer to the objection that nil habuit in tenementis is a bad plea, and that the lease being by indenture is an estoppel. If the lease was a valid instrument as to the plaintiff, these objections would be conclusive. In the case of Sullivan v. Stradling, (2 Wils. 208 to 218,) the subject was much discused, and the conclusion of the court was that such a plea is bad. But the tenant may deny the demise ; and even if the pleas were bad which deny the title in Dean, there would be enough left to destroy the alleged right of distress. But my answer to these objections is, that those rules are applicable to cases of real tenancies; that if they can be enforced here, they virtually repeal the statutes ; that here nothing like a tenancy exists.

I am of opinion, therefore, that though these pleas may be informal, yet they are substantially good, and that the plaintiff is entitled to judgment upon the demurrers and the whole record.

Judgment for plaintiff

Justices Sutherland an Marcy did not hear the argument, and gave no opinion.