Nathaniel Hatch vs. Stephen Kimball, 14 Me. 9

The action was continued nisi, and the opinion of the Court afterwards drawn up by Weston C. J. The deed of the twenty-third of December, 1818, of Stephen Kimball to his brother Daniel, and the bond of the same date, Daniel to Stephen, both relating to the land in controversy, constitute one transaction. The effect was to transfer the legal seisin of the land to Daniel, who was thereupon to hold the same for the use of Stephen, to whom the premises were to be assured by a formal deed upon demand.

The stipulations in tbe condition of the bond are the covenants of Daniel, tbe fiilfilment of which is secured by a penalty. Low v. Peers, 4 Burrow, 2225.

Tbe condition has these words, “ I agree and bind myself, my heirs and administrators and assigns by these presents, that the said Stephen shall or may occupy the same premises, in all its parts as shall best suit him, by himself, or by any, oilier person or persons, unmolested in any manner Gy me or mine, free of any expense, and I will re-deed to him, or his heirs or assigns, by a deed of quitclaim on demand.” This being an instrument executed between brothers, it may be regarded as a covenant by Daniel to stand seised to the use of Stephen.

For although it does not purport to have been made upon the consideration of love and affection ; yet tliis may be implied from the relation subsisting between them. In Bedel’s case, 7 Coke, 40, it was resolved, that although the consideration in the deed of the covenantor did not run to the wife, yet the limitation of a use to the wife imports a consideration in itself, • so if it be to any of his blood. To the same effect is the fifth resolution in Henry Harpur’s case, 11 Coke, 23. Nor is it essential, that the relation between the parties should be stated in the instrument. It is sufficient if it exists.

Goodtitle v. Petto, 2 Strange, 935. The bond with its condition was not recorded; but the continued possession of Stephen KinibaTl was equivalent to registry. Davis v. Blunt, 4 Mass. 487, and the cases there cited. But we give no decided opinion, whether that instrument is to be regarded as a covenant to stand seised, executed by the statute of uses, with a covenant for further assurance, as in our judgment the title of the defendant is sustained upon another ground, not liable to objection.

The deed from the tenant to John Peabody, conveying the demanded premises in fee and in mortgage, was executed many years prior to that, under'which the demandant claims. The title thus creáted, passed through several mesne conveyances to John Buck. Upon this mortgage, judgment was rendered against the tenant, for the purpose of foreclosure, at die June term, 1823, of the Common Pleas for the county of Penobscot, and a writ of possession was duly ..executed thereon, on the fourth of June, 1824.

On the second of June, 1827, John Buck, for a valuable consideration, remised, released and forever quitclaimed to the tenant, Stephen Kim-ball, his heirs and assigns, all his right, title and interest in said lot of land, by virtue of the mortgage, assignment, judgment and possession, which had been before recited, “.to have and to hold the same to him the said Kimball, his heirs and assigns forever.” To the title of the tenant, under the deed from Buck, two objections are made ; first, that it was a discharge and extinguishment of- the mortgage; and secondly, if it was .not, that it enured by estoppel to Daniel Kimball, and to those claiming under him.

The deed from Buck has words of conveyance and assignment, to Kim-ball, his heirs and assigns. As he..had before parted with the formal tide, and his right under the bond was in súme danger of being defeated by Daniel Kimball and his creditors, it became manifestly the interest of the tenant to uphold the title, created by the mortgage and the proceedings under it. He had entered into no stipulations with Daniel or his assigns, to extinguish the mortgage. In Gibson v.

Crehore, 3 Pick. 475, the purchaser of an equity of redemption, who had given bond to pay the debt, for which the land was mortgaged, took an assignment of the mortgage, paying the amount due thereon. This was held to be no extinguishment, it being the interest of the purchaser to uphold the title created by the mortgage, and his intent to do so being manifest, as it is here, by the form of the instrument. And the doctrine was there recognized, that effect is to be given to an assignment, according to the interest of the assignee. This question was fully considered also by this Court in Freeman v.

Paul, 3 Greenl. 260; and it was regarded as a settled principle, that a mortgage is not extinguished, if it be the interest of the assignee to uphold it. Did it enure to Daniel Kimball and his assigns by estoppel ? Estoppels are allowed to prevent circuity of action. Coke Lit. 265 a. In the deed, Stephen Kimball to Daniel, the former covenanted that neither he, nor his heirs, nor any person under him or them, should set up any demand, right or title to the premises forever.

But in the deed of the same date, Daniel Kimball to Stephen, which is part of the same transaction, Daniel covenanted under a penalty, that Stephen should enjoy the premises ; and that he would reconvey the same to him on demand. Taking both instruments together, Daniel was to take no beneficial interest. He could not avail himself of the covenant in the deed to him. He could neither enforce its performance, nor recover damages, if it was not performed. It was completely neutralized and defeated by the condition in the bond.

Stephen then is not estopped to claim the land ; and he was at liberty to acquire for his own use any collateral title or assurance. An estoppel does not arise between the parties. The title of the tenant is perfect under his deed from Buck, the mortgage having been long since foreclosed. Nor have the creditors or grantees of Daniel any right to complain. Stephen continued in the undisturbed possession. This was sufficient to put them on their guard. And if upon their inquiry, Stephen had disclaimed title, he would not afterwards have been permitted to set it up to their prejudice. But no such fact appears.

If fraud was meditated by diese brothers hi their transaction, which there is too much reason to suspect, -it was to the prejudice of Stephen’s creditors. They might have treated die deed to Daniel as fraudulent and void. But Daniel’s bond and covenants to Stephen had no- tendency to defraud die creditors of the former. He thereby relinquished nothing, to which he or they had any just claim. Stephen continuing in possession, they were bound to take notice, that he might have an interest, notwithstanding the apparent record title in Daniel.

By sustaining the title of Stephen, to whom the property rightfully belongs, it becomes accessible to his creditors, and any fraudulent purpose, he may have entertained with regard to them, is thereby defeated. The default is taken off, and a new trial granted.