Chamberlain and another against Thompson, 10 Conn. 243

Bissell, J. The plaintiffs in error preferred their bill to the superior court, praying to redeem the premises in question, upon payment of the sum due on Townsend,’’s mortgage; and the question is, whether, upon the facts disclosed in the bill and answer, they are entitled to the relief sought. It is admitted, on the face of the bill, that the strict legal title is in the defendant; and that the only relief of the plaintiffs is in equity. At law, they have no remedy.

Now, there is no more familiar principle, than that the plaintiffs are bound to show an equity superior to that of the defendant, before they can successfully claim the interposition of a court of chancery. If their equity be inferior, or equal only to his, a court of equity will leave the parties where it finds them ; and the legal title 1 must prevad. An effort was, indeed, made at the bar, to meet this view of the case, by assuming the position, that, in the view of a court of chancery, the equity;j¡i redemption in mortgaged premises, is the fee.

It is said, that this has ever been considered as an estate in the land ; that it may be devised, granted, levied upon, and set off on execution ; that the wife of the mortgagor is entitled to dower ; that the husband may be tenant by the curtesy ; that the mortgagor, in possession, may acquire a settlement; that he may maintain trespass against his mortgagee ; and may take the emblements, without being liable to account ; and that the mortgagee has only a chattel interest, — a mere pledge for the payment of his debt. All this is very familiar doctrine.

Yet, still it is true, that upon the execution of the mortgage deed, the legal title vests in the mortgagee, subject to be defeated only on performance of the condition ; and that he may bring ejectment, and oust the mortgagor of possession, even before the expiration of the law day. 4 Kent’s Com. 148. Rockwell v. Bradley, 2 Conn. Rep. 1. Wakeman v. Banks, 2 Conn. Rep. 445. Birch v. Wright, 1 Term Rep. 378. Erskine v. Townsend, 2 Mass. Rep. 493. 2 Swift’s Dig. 169.

And it is equally true, that after condition broken, the estate of the mortgagor is forfeited at law; and his only relief is in equity. 2 Swift’s Dig. 164. 169. 178. And whenever he brings a bill to redeem, the rule that he who seeks equity must first do equity, will be applied. And hence it is, that if the mortgagor owe a collateral debt to the mortgagee, he will not be entitled to redeem, without paying such debt, as well as that secured by the mortgage. Scripture v. Johnson, 3 Conn. Rep. 211. 1 Mad. 424. 2 Swift’s Dig. 186.

We are, therefore, to inquire what is equitable between these parties ; and whether, upon ai.y principle, the plaintiffs are entitled to redeem, on payment of the amount due on Townsend’s mortgage. Their claims to do so have been urged on the following grounds: 1. That the first deed from Memvin to the defendant, not containing any words of inheritance, conveyed only a life estate ; the construction of the deed being the same in a court of chancery, as in a court of law. 2.

That although it is found, that it was the intention to convey a fee, and words of inheritance were omitted through mistake ; yet under the circumstances of this case, a court of chancery will not correct the mistake. 3. That nothing passed to the defendant, in virtue of the second deed, it not having been recorded on the records of the court of probate. 1. The inquiry arises, what estate did the defendant take, in equity, under the first deed ?

And here it is to be remarked, that this is a deed in trust, for the benefit of the creditors of the grantor ; and looking only upon the face of the deed, the intention of the parties is most manifest. It was, unquestionably, their intention, that the fee should be conveyed. For although the word heirs is omitted, yet the deed contains words of perpetuity, which, in a devise, would carry the fee. The conveyance is to Thompson, his administrators and assigns, forever. He is empowered to sell. The trusts are declared; and are, obviously, such as to require that a fee should pass, in order to their execution.

Now, it is certainly well settled, that no particular form of words is required, in the creation of a trust. Courts of equity regard the intent, and will so construe the instrument as to carry that into effect. 2 Fonb. Eq. 36. 3 Ves. jun. 9. 4 Kent's Com. 298. And wherever an estate in fee is required, in order to satisfy the purposes of the trust, such an estate will pass, without the word heirs. This principle is fully asserted, by Kent, Ch. J., in giving the opinion of the court, in the case of Fisher v. Fields, 10 Johns. Rep. 495. He says : “ A trust is merely what a use was, before the statute of uses.

It is an interest resting in conscience and equity ; and the same rules apply to trusts in chancery now, which were formerly applied to uses. And in exercising its jurisdiction over executory trusts, the court of chancery is not bound by the technical rules of law, but takes a wider range in favour of the intent of the party.” And again, in his Commentaries, the same learned jurist remarks : “ An assignment or conveyance of an interest in trust, will carry a fee, without words of limitation, where the intent is manifest.” 4 Kent's Com.. 298. In Bagshaw v.

Spencer, 2 Atk. 577. which was the case of a devise in trust, Lord HardvJcke says : “ The devise to would have carried the fee, if the word heirs had not been mentioned.” And he further says, in Villiers v. Villiers, 2 Atk. 72. “ If land be given to' a man without the word heirs, and a trust be declared of that estate, and it can be satisfied by no other way, but by the cestuy que trust's taking an inheritance, it has been construed that a fee passes to him even without the word heirs.” See also Shaw v. Wright, 1 Eq. Ca. Abr. 176. Gibson v. Montfort, 1 Ves. 485. Oates d. Markham, v.

Cooke, 3 Burr. 1684. 1686. 1 Cruise's Dig. 307. It was, however, said, at the bar, that the cases relied upon arose under wills ; and that the rule of construction there adopted is not applicable to the case of a deed. Can it make any possible difference, in point of principle, whether the trusts be declared by a deed or a will ? I have been unable to find an intimation of such a distinction in any book of authority. The language of chancellor Kent, already cited, strongly implies the contrary. “ An assignment or conveyance will carry the fee,” &c. See also, 1 Cruise's Dig. 307.

Besides,.it will be borne in mind, that the case of Fisher v. Fields, already cited, and also the case of Higinbotham v. Burnet & al. 5 Johns. Ch. Rep. 184. 186. and in both of which the doctrine is fully recognized, arose under deeds; and in the last case, a legal conveyance was decreed. See also Wadsworth v. Wendell, 5 Johns. Ch. Rep. 224. In view, then, of these authorities, it may well be questioned, whether this first position, and upon which the plaintiffs’ entire case rests, has been sustained.

But admitting it to be so : the case finds, that it was the intention of Merwin to convey a fee ; that such was the agreement between the parties ; and that the omission of words of limitation was entirely accidental, and owing to the mistake of the scrivener, who drew the deed. It is further found, that the plaintiffs in error had actual notice of these facts, previous to the levy of their attachments. Upon this state of facts the question arises, 2. Whether a court of chancery will correct this mistake ?

That it is not only in the power, but that it is the peculiar province of a court of chancery to correct mistakes in a deed, and mistakes of this character too, is too well settled to admit 0f a question, or to require that authorities should be cited in proof. It has not, indeed, been denied m the argument. Is tjlere any ¿bing jn character in which the parties stand before the court, that should prevent the exercise of this very ordinary jurisdiction of a court of chancery? It is contended that there is.

And first, it is said, that the deed to the defendant is without consideration ; that he is a mere volunteer; and therefore, not entitled to have the mistake corrected in his favour. Unless the case of Swift v. Thompson, 9 Conn. Rep. 69. is to be overruled, it certainly puts at rest this claim of the plaintiffs. Not only is the doctrine asserted, by the learned Judge, who pronounced the opinion in that case, but it was expressly decided, that grantees, standing in the condition of this defendant, were both bona fide purchasers and creditors.

I will only remark further, that the case at bar is stronger than the case of Swift v. Thompson; for it is found, that the defendant was a creditor of Merivin ; and the object of the conveyance was, to satisfy his debt in common with others. Suppose, then, that Merwin was before this court, seeking to enforce the claim, which is urged by these plaintiffs : could be be heard ? This has not been pretended. But there being no claim that this conveyance was fraudulent, and the plaintiffs having levied their attachment, with full notice of all the facts; are they in a. better condition ?

Do they not stand in his place ? And can they enforce a demand, which he could not have enforced ? Had they taken a conveyance from Merwin, with notice of all the facts disclosed in the answer, where would have been then equity? Where their claims for the interposition of a court of chancery, in their favour ? But it is said, Secondly, that they are attaching creditors; and therefore, this deed is not to be reformed as against them. It is said, there is a distinction between the case of a mortgagee, with notice of a prior defective conveyance, and that of an attaching creditor, with like notice.

I confess I am unable to see on what ground this distinction rests. I know it was taken, and urged upon us, in the case of Carter v. Champion, 8 Conn. Rep. 559. But the doctrine did not, even impliedly, receive the sanction of this court. And in the case of Priest v. Rice, 1 Pick. 164. it was decided, that a creditor, knowing of a conveyance of land made by his debtor, for a valuable consideration, which is not registered, cannot, by an attachment and levy upon the land, obtain a title • against the grantee. The same principle was decided in Farnsworth v. Childs, 4 Mass. Rep. 641. in Davis v. Blunt, 6 Mass.

Rep. 487. and in Prescott v. Heard, 10 Mass. Rep. 60. In the last case, Seicall, Ch. J. remarks, that the case of an attachment or execution is put upon the same footing as second purchasers ; and that the reason is the same in both cases. It is true, that in all these cases, the deeds were valid, and passed the legal title ; but they were unrecorded ; and therefore, ineffectual against a subsequent attaching creditor, without notice.

I will not say, that it is in the power of a court of law to give validity to a conveyance defectively executed; or that in the scramble among creditors, such a conveyance must not give place to an attachment levied according to law, although there may have been notice.

But where a creditor levies his attachment, with notice that there is a prior conveyance to a bona fide purchaser, which, although defective, in equity conveys the fee, and is obliged to come into a court of chancery, to give efficacy to his own levy ; I have yet to learn, that he is to stand on any better ground than a purchaser with notice; or that the great and fundamental principles of equity are to be set aside, in his favour, because he comes in the character of an attaching creditor. This view of the case renders it unnecessary to determine the effect of the second deed.

I am of opinion, that there is nothing erroneous in the decree of the superior court. The other Judges were of the same opinion, except Peters, J., who was absent. Decree affirmed.