Appleton v. Boyd

Where land is conveyed to two in mortgage, as collateral security for a joint debt, it is holden in joint tenancy, notwithstanding the statute of 1785, c. 62.

This was a writ of entry, brought to obtain possession of certain lands, mortgaged by the tenant to Royal Makepeace and Robert Rose, in joint tenancy at common law, since the statute of 1785, c. 62, (by the fourth section of which it is enacted, that all gifts, &c., of any lands, &c., made to two or more persons, shall be taken to be estates in common, and not in joint tenancy, unless it shall be therein said that the grantees, &c., shall hold the lands, &c., jointly, or as joint tenants, or in joint tenancy, or to them and the survivors of them, or unless other words be therein used, clearly and manifestly showing it to be the intention of the parties to such gifts, &c., that such lands, <fcc., should vest, and be held as joint estates, and not as estates in common,) and after Rose’s death assigned by Makepeace to the demandant in fee. The mortgage was made to secure a debt due to Makepeace and Rose jointly, they being partners in trade. The tenant pleaded in bar, that the mortgage was usurious, which was traversed, and on the traverse issue was joined, which was tried before the chief justice, at the sittings here after the last October term. The report of the chief justice states that the tenant, to maintain the issue on his part, offered to give in evidence * the confession of Makepeace, made before the assign- [ * 132 ] ment of the mortgage. This was objected to, and the evidence was rejected by the judge. The tenant offered to swear Makepeace as a witness; to which he objected, declaring that it was his interest that the demandant should recover. The tenant did not move to examine Makepeace on his oath as to his interest, but the demandant’s counsel, to prove Makepeace’s interest, produced a bond of even date with the assignment, as executed by Makepeace to the demandant, in the penal sum of 2180 dollars, on condition that, after the termination of the suit on the mortgage to be commenced by Appleton, whether he should recover possession or not, if he should reconvey the mortgage to Makepeace, on his paying the demandant 1090 dollars, with interest, then the said bond to be void; which bond was executed as an escrow, to be delivered tf' the demandant on a condition to be performed by him, and not within the control of Makepeace. On this evidence the judge ruled that Makepeace might be sworn as a witness, if he consented; but that he could not be compelled to be a witness against the demand-ant. The tenant then offered one Daniel P. Parker as a witness, who also refused to be sworn, saying that it was his interest that the demandant should recover. The judge then ordered him to be sworn on the voir dire, on which oath he answered ; that he and the demandant were joint partners in trade, that the mortgage was assigned to the demandant to secure a debt due from Makepeace to the copartnership; and that if the demandant recovered, he should be equally interested with him in the judgment. On which, at the tenant’s motion, one Daniel Stephens, jun. was sworn, and testified that said Parker had told him that he had no interest in the said mortgage; and Parker again answered, that being particularly acquainted with the tenant, and not wishing him to know that he was interested in the mortgage, he had concealed his interest from the witness Stephens. The judge, ruled that he could not [ * 133 ] compel Parker to testify against the demandant; but *that he might, if he consented, which he refused to do. A verdict was then found for the demandant, with liberty for the tenant to move for a new trial, upon the judge’s report, because proper evidence, as the tenant supposed, was not admitted, and because the conveyance to the demandant was of a moiety only of the demanded premises. The action stood over to this term, for a decision of the tenant’s motion for a new trial; and now' Dana, of counsel with him, seemed not to have prepared himself for argument, and submitted the cause with observing, as to the last point only mentioned in the report, that the words of the mortgage deed were clearly within the statute, and must, therefore, be held to convey an estate in common, so that after Pose’s death, Makepeace, the survivor, was seised of a moiety only, and could of consequence assign no more than such moiety to the demandant.