Majority
p. 143Stewart vs. Hutchins. insisted, in addition to the points raised in the court below, ( 13 Wend. 486 ,) that even if the conveyance under which the plaintiff claimed should be deemed a mortgage, yet as it was executed in 1818, the rights of the parties were to be ascertained by the laws then in force; and the statute subsequently passed• forbidding mortgagees to bring ejectment ,(2 R. S. 312, § 57) had no application to the case. (Dash v. Van Kleeck, 7 Johns. Rep. 477 .) In support of the point raised below that the conveyance was not a mortgage, they cited and commented on Conway's ex'rs v. Alexander, ( 7 Cranch, 219 ,) and The Lincoln and Kennebeck Bank v. Drummond, ( 5 Mass. Rep. 323 .) contended that the conveyance in question was a mortgage. To this point he
Headnote
T. executed a conveyance of certain lands to S., containing the following clause, viz: “ Provided always and these presents are upon this express condition, that if the said T. shall pay off and discharge the several legacies bequeathed by the last will and testament of J. deceased, to the legatees therein mentioned, and in the manner therein specified, and which said legacies are charged on the lands devised by the said last will and testament to the said T., a part of which land has been conveyed by the said T. to the said S., then these presents shall cease, determine and be null and void.” Held, in ejectment brought by S. against T., that the conveyance was in effect a mortgage.Held further, that the provision in the revised statutes depriving mortgagees of the remedy by ejectment (2 R. S. 312, § 57) was applicable to this case, though the conveyance in question was executed long before those statutes took effect.
On error from the supreme court, where Stewart brought an action of ejectment against Hutchins, and was nonsuited at the trial. Afterwards, Stewart moved for a new trial on a bill of exceptions, but the motion was denied, and judgment rendered against him for costs. He then sued out the present error. For the facts of the case, together with the opinion of the supreme court, see 13 Wend. 485 , et seq.
J. Crary & M. Fairchild, for the plaintiff in error,
N. Hill Jun., for the defendant in error,
p. 144cited 1 R. L. 373, § 3 ; 1 R. iS. 756, §'3; 4 Kent’s Comm. 141, 2, 145, 6, 4th ed.; Nugent v. Riley, ( 1 Metc. Rep. 117 ;) Lanfair v. Lanfair, ( 18 Pick. 299 , 304;) Hogins v. Arnold, (15 id. 259.) He further contended that the statute depriving mortgagees of the remedy by ejectment (2 R. S. 312, § 57) was applicable as well to mortgages executed before as after its passage; for the mischief intended to be suppressed was the same ha both instances. (4 Kent’s Comm. 156, note (c), 4th ed.; 13 Wend. 486 , 7.) The nonsuit granted at the trial was therefore proper, and the judgment of the supreme court should be affirmed.
delivered an opinion concurring substantially with the view taken of the case by the supreme court. And
On the question being put, “ Shall this judgment be reversed ?” all the members of the court present who heard the argument, voted for affirmance.
Judgment affirmed.
Cases cited
- Stewart v. Hutchins 13 Wend. 485 p. 143