Mills v. Shepard

Ellsworth, J.

The defendant puts his right to the land in question upon his deed from Michael F. Mills of the 7th of May, 1851, the land having been conveyed to Mills by Dennis Whalley on the 20th of July, 1841.

The deed from Whalley to Mills must upon the facts found be regarded as nothing more than a mortgage. It was so decided by us in the case of Mills v. Mills, 26 Conn., 213 ; but as this defendant was not a party to that suit, the judgment is not of force against him, beyond the settlement of the law upon the facts then found, which are precisely the same, so far as the mortgage is concerned, as in the present case.

The deed of Michael F. Mills to the defendant does not embrace this piece of land by description; and if it embraces it at all, it is entirely by force of the general clause, “ with all the other land I own in the town of Norfolk ; ” a clause that is generally used, where used at all, to strengthen and secure what has gone before, rather than as a distinct and independent grant of additional estate. To suppose the parties to have actually intended to embrace this land in the deed, situated as it was, is to suppose them to have done an act entirely inconsistent with honesty, and one which could receive no favor from this court. It is certain that the defendant did not really give credit to the mortgage title in Mills. Mills certainly was not the owner of the land, and never represented that he was. Were there proof that the town records ’ had *101 been examined by the defendant, and that he had found a clear title in Mills and relied upon it, giving him credit and taking his mortgage on the ground of this title, the defendant might perhaps have a somewhat plausible claim Jo the land. But there is no such proof. The deed shows all that there was of knowledge or belief on his part or of intention on the part of the grantor, and it declares that the grantor conveys, as we interpret the deed, only what he strictly owns. So much he was willing to mortgage to the defendant, and so much the defendant expected to receive by the general words made use of, and no more ; otherwise the parties would have described this piece of land, either by boundaries or by reference, in the same particular manner that the other pieces were, and as is usual in all such conveyances. We will not extend the meaning of the word ownership, the very word the parties chose to use and which was so properly used, so as to make it embrace what the grantor did not own, and, so far as appears, did not pretend to own.

Much reliance is placed upon the fact that Michael E. Mills had the paper title to the land on the town records, as if that circumstance alone conclusively proved that he was the real owner of the property. But we feel bound to look at the facts and not at the form merely on such an inquiry as this. Can it be that when a person undertakes to sell, and in terms sells, only what is his own, he sells under that term that which he holds only as trustee ? and this perhaps by some ancient dormant title of which he had not the least recollection? Shall he be held under that term to sell, and covenant that he has good title and right to sell, what he does not pretend to own ?

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, a right of priority in getting payment of his debt, that is all; and he is never spoken of as owner; nor is he such even in a technical sense until he has obtained a foreclosure. Porter *102 v. Seeley, 13 Conn., 564 ; Burr v. Spencer, 26 id., 159; and Savage v. Dooley, 28 id., 411.

For these reasons we think the judgment must be reversed.

In this opinion the other judges concurred; except Sanford, J., who dissented.