Amos Lovering versus Charles M. Fogg, 18 Pick. 540

Shaw C. J. drew up the opinion of the Court. The plaintiff has filed his bill in equity against the two defendants, to enforce the specific performance of an agreement. The Court are of opinion, that the true nature and purpose of this agreement were to give to the plaintiff, from whose estate the land was taken, and with which it may be presumed to be con nected, a right of pre-emption, in case of a final alienation, so as to prevent the letting in of a stranger.

But this could not be intended to restrain the defendant from all or any of the uses of his property, incident to the ownership, except on an offer to the plaintiff before a sale and alienation. It could not prevent him from mortgaging it to raise money. Had it been passed by a process in invitum, as an attachment and levy of execution on an adverse judgment, it is, to say the least, very questionable whether it would have come within the terms of the agreement.

If indeed an attachment and levy, or a judgment at law, had been resorted to by mutual consent, as in case of a fine, it might have been deemed a sale and alienation. But the Court are of opinion, that the deed from Fogg to Partridge was, in effect, good as a mortgage between them. When the deed was originally given, absolute in its form, but with an agreement, made in good faith, that a defeasance should be executed, on request, when such defeasance was executed, m good faith, it related back to the deed, and made it a mortgage.

Had the estate been attached as Partridge’s, in the mean time, it might be attended with difficulties, but they do not now arise. When the absolute deed was first made, there was a sufficient agreement, to constitute a defeasance ; but it was not proved and manifested, in the manner required by law, by inserting it as a condition in the original, or by a separate deed. Where the delay of the defeasance does not affect third persons, the defeasance, when made, is good between the parties.

This being a security for money, and not a sale or alienation of the estate, we think the casus fcederis had not occurred, that the plaintiff had no right to call for a specific performance of the agreement, and that the bill must be dismissed with costs.