
    William Wade et al. versus Charles Howard et al.
    
    The demandant, erroneously supposing that he was the purchaser of the equity of redemption of land which was subject to two mortgages, paid to the first mortgagee the amount due on his mortgage and took a deed in which the mortgagee 44 remises, releases, grants, bargains and sells,” his interest in the land, u meaning hereby to release all the right I have in the premises, by virtue of said mortgage, the aforesaid sum having been this day paid me in discharge of said mortgage.” In a writ of entry by the demandant against the second mortgagee to obtain possession of the land, it was held, that the deed to the demandant operated as a grant of the legal estate, or a satisfied mortgage, and not as an assignment of the debt, for that was paid by the demandant.
    It was held also, that the clause last quoted was not inconsistent with the words of release which were intended to operate, but was merely explanatory of the purpose of the mortgagee, viz. to acknowledge payment of the mortgage and to avoid the inference of the debt’s being assigned, and that this clause was to be taken into consideration in construing the deed.
    The legal estate of the mortgagee after condition broken and after the debt has been paid, will not enable him to maintain a writ of entry against the mortgager, for in such case the conditional judgment, (to which only he would be entitled,) cannot be entered j since, if the mortgager performs the condition, (viz. to pay the sum due on the mortgage within two months from the time of entering up judgment,) the mortgage is declared void and discharged by the statute.
    Writ of entry. The demandants counted upon the seisin of their father, William Wade. Plea, non disseisivit. Trial before Wilde J.
    To maintain the issue on their part, the demandants offered in evidence a deed of mortgage, dated April 29, 1819, from Thomas Fry and Nathaniel Fry to John Gould, to secure the payment of $ 1500, — and an assignment of the mortgage to Justice Willard, dated February 8, 1825,—and a deed from Willard to Wade, the demandants’ father, dated February 26, 1827, by which deed Willard, in consideration of $ 527T0, did “ remise, release, grant, bargain, sell and forever quitclaim ” to Wade, all Willard’s “ right, title, interest and estate of, in and to ” the demanded premise^ “ being the same land which was mortgaged to John Gould &c. and assigned bj said Gould to me on the 8th day of February A. D. 1825, together with the evidences of the sum remaining due on said mortgage; meaning hereby to release all the right I have in the premises by virtue of said mortgage and assignment, the aforesaid sum having been this day paid me in discharge of said mortgage.’’ It was proved that Gould had entered on the demanded premises for condition broken, and that the right to redeem would have been foreclosed on February 27, 1827.
    The tenants offered in evidence a deed of Nathaniel Fry to Thomas Fry, dated March 12, 1821, of his interest in the demanded premises, — a mortgage from Thomas to Nathaniel of the same date, to secure $ 1000, according to his promissory note — an assignment from Nathaniel, of the note and mortgage, to Joseph and Elijah Bissell, — and an assignment from them to the tenants. They also offered to prove, that Wade was the purchaser of the equity of redemption of this land, but it was finally admitted that the purchase was void, Wade having brought a bill in equity to redeem, which was dismissed on an objection taken by the tenants to his title to the equity of redemption.
    It was proved by parol evidence, that Wade paid to Willard the amount due on the mortgage of T. and N. Fry, at the time of the execution of Willard’s deed, and that he paid it with intent to save his rights ; that he wanted Willard to assign the mortgage and moneys and evidences of the debt due thereon; that Howard objected, and Willard intended that his deed should not operate as an assignment, but as a discharge of the first mortgage, thereby to save the rights of the tenants under the second mortgage ; that the evidences of the debt were delivered by Willard to G. Bliss junior, the attorney of Wade, Willard intending that the delivery of them should be considered as of notes delivered up on payment, and Bliss claiming to hold them and the deed as legally assigned to Wade. Bliss prepared a release and assignment in apt words to carry Wade’s object into effect, but Willard refused to execute it. Willard then turned to St. 1798, c. 77, relating to the redemption of mortgages, and said he would give such a deed as Wade under the circumstances was entitled to 
      have, and he wrote and delivered as such a d;ed, the one above mentioned. Bliss objected to the clause, in which it is said that the money had been paid in discharge of the mortgage, but Willard refused to strike it out. Bliss said he would take the deed, but as an assignment of the mortgage; Willard, resisting, delivered it as a discharge.
    The demandants objected to all the evidence offered by the tenants.
    A verdict was taken for the tenants, but if the Court should be of opinion that the demandants were entitled to maintain the action, the verdict was to be set aside and the tenants to be defaulted.
    The cause was argued in writing.
    
      J. H. Jlshmun and G. Bliss, for the demandants.
    Nothing is in controversy, except the effect of Willard’s deed to Wade. Willard was the undisputed mortgagee of the demanded premises, and his deed, we contend, conveyed and transferred to Wade the mortgage, the debt secured by it, and the estate of the mortgagee ; and the subsequent foreclosure made the estate absolute.
    1. Such a conveyance Willard was competent to make. Gould v. Newman, 6 Mass. R. 239.
    2. The mortgage and Willard’s estate and interest were a proper and usual subject of sale and transfer.
    3. The deed itself is in usual and good form, with explicit and sufficient terms. Willard c< grants, bargains and sells.”
    The determination in the former action between Wade and the tenants, (reported in 6 Pick. 492,) has no bearing against the demandants in this. There the demandant was shown to be the purchaser and owner of the equity of redemption when he received his deed, and the opinion of the Court was, that he acquired by the purchase of the equity nothing but the right of the mortgager ; and that the mortgager could not, by paying off the first mortgage, take precedence of the second ; and that this deed was “ only a release or discharge of the mortgage,” and not an assignment. In the present case, Wade was not the owner of the equity, and may therefore take an assignment or conveyance. He had no former estate or interest, and could not take by release. He had a conveyance or grant, or *ie ^ nothing ; his deed was that, or it was void.
    It is a rule of invariable force, that no deed shall be held to be void, if by any construction it can be made to operate Co. Lit. 183 b ; 2 Wms’s Saund. 96 b, note 1 ; Jackson v. Schoonmaker, 2 Johns. R. 233, 234 ; Jackson v. Blodget, 16 Johns. R. 178 ; Barrett v. French, 1 Connect. R. 364.
    If this deed is void, the consequences are, 1. that Willard has received $ 500 of the demandants’ money without any consideration ; and 2. he remains the owner of this land, and neither the demandants nor the tenants have any thing to do with it. And he could hold it, if he were the tenant, against our suit; this too, after he has granted, bargained and sold to us.
    The deed then is to have effect; and as it cannot operate as a release, it must as a conveyance. Pray v. Pierce, 7 Mass. R. 381 ; Wallis v. Wallis, 4 Mass. R. 135 ; Parker v. Nichols, 7 Pick. 111.
    The tenants will rely in defence, upon the clause in the deed, “ meaning hereby to release all the right I have in the premises, the aforesaid sum having been this day paid me in discharge of said mortgage.” Independently of this clause, the deed is a regular, formal and complete deed of convey anee ; such as any grantor would make on a sale of lands, where he was not to warrant the tide. The phraseology is entirely free from ambiguity. The clause in question cannot have the effect of changing, much less of destroying the operative words of the deed. It is a mere recital of something done before, which is not a necessary part of a deed, either in law or equity, and has no effect or operation in limiting the estate. Cholmondely v. Clinton, 2 Meriv. 343 ; S. C. 2 Jac & Walk. 64.
    Nor is there any thing in the opinion of the chief justice, in the former case, (6 Pick. 492,) repugnant to our claim. He admits the rule we are now contending for, and lays it down in these terms ; that where there is a clear and undoubted grant, and afterwards, words which are repugnant or contradictory, the latter may be rejected; “but,” he says, “where the words are ambiguous, or so mixed up with other words as to show an intent different from the common effect of some of the words by themselves, the subsequent words may be used to ascertain the real intent of the instrument.” Now the operative words were, “ release, grant, bargain and sell,” and they could be considered ambiguous only with reference to the question then before the Court, which was, whether the deed was a grant or a release. The tenants now must claim, that this deed is neither a grant, bargain and sale, nor release, and if they do not contend that none of these words has any operation, but would wish to limit or restrain them by the recital, they must overthrow the rule we have endeavoured to establish.
    But in the clause in question, the words u meaning hereby to release,” and “ said sum having*been paid me in discharge,” amount to no more than the word “ release ” in the former part of the deed, which, if it stood alone, would be enough for our purpose.
    Perhaps the tenants, to avoid the difficulty of maintaining that this deed is utterly void, will contend that it shall have an operation by enuring to their benefit or that of the mortgager. If so, we say, 1. there is no consideration upon which such an effect can take place ; and 2. no. person can take by a deed to which he is not in some way a party. Co. Lit. 231 a; Com. Dig. Fait, D 2 ; Green v. Horn, 1 Salk. 197 ; Jackson v. Cory, 8 Johns. R. 301 ; Hornbeck v. Westbrook, 9 Johns. R. 73; Pixley v. Bennet, 11 Mass. R. 298. The consideration was paid by Wade. Did he pay it in order that some one else might have the benefit of it ? Did Willard receive it with such a view ? Willard grants to Wade and his heirs.
    If the debt is paid, it will not avail the tenants. Had the mortgager himself paid it and taken a receipt, the mortgage would still be a subsisting, valid, legal estate. Willard was mortgagee in possession for condition broken, and after payment the tenants could neither enter nor maintain a writ of entry. The case of Parsons v. Welles, 17 Mass. R. 424, is express to this point: Willard, as he might do, conveyed his estate to Wade and put his grantee in seisin and possession; and Wade being in possession, the tenants had no right to enter on him. And if they had brought their bill in equity, even supposing Willard were made respondent, how would they allege this payment so as to entitle themselves to relief ?
    
      Sept. 22d, 1831.
    But the debt is in no sense paid. Willard’s receipt of this money was, if his deed is void, for our use. It was paid without consideration and through mistake, and Willard must refund it. This would be not only right, but safe for him ; for the debt would remain due and secured by the mortgage. The mortgage therefore is either his or ours ; and if so, it must be ours. No injury is done him by this conclusion ; for he has received his whole claim. None is done to the tenants, for it cannot concern them whether it is ours or Willard’s. In either case they have it not; and in either case they might have redeemed if they had seen fit.
    The parol evidence was inadmissible. 6 Pick. 500, and cases there cited ; Haynes v. Hare, 1 H. Bl. 664 ; Benedict v. Lynch, 1 Johns. Ch. R. 382. But if admitted, it has no bearing on the case; it amounts, at most, to no more than what Willard says in the deed itself, that he means to release.
    
      Lathrop and Willard,' for the tenants.
    In regard to the construction of Willard’s deed, they cited 6 Pick. 499 ; Sumner v. Williams, 8 Mass. R. 174 ; Sprague v. Snow, 4 Pick. 54; Jackson v. Swart, 20 Johns. R. 85; .Shep. Touch. 84 ; Pray v. Pierce, 7 Mass. R. 381 ; Smith v. Packhurst, 3 Atk. 136 ; Cholmondely v. Clinton, 2 Meriv. 343 ; S. C. 2 Jac. & Walk. 64 ; James v. Morey, 2 Cowen, 246 ; Bagshaw v. Spencer, 2 Atk. 570 ; 2 Wms’s Saund. 96 b, note 1. In regard to the admissibility of the parol evidence, Sumner v. Williams, 8 Mass. R. 214 ; Fowle v. Bigelow, 10 Mass. R. 379 ; Leland v. Stone, ibid. 459 , Whallon v. Kauffman, 19 Johns. R. 104 ; Wilson v. Troup, 2 Cowen, 195 ; James v. Morey, 2 Co wen, 246 ; Starr v. Ellis, 6 Johns. Ch. R. 393 ; Carter v. Gregory, 8 Pick. 169 ; Slee v. Manhattan Co. 1 Paige’s R. 49 ; Whittick v. Kane, ibid. 202.
   Wilde J.

delivered the opinion of the Court. The demandants’ title is founded tin a deed- of mortgage from Thomas Fry and Nathaniel Fry to John Gould, on an assign ment of the mortgage to Justice Willard, and on a supposed assignment to William Wade, the demandants’ father, now deceased. The demandants claim as his heirs, maintaining that the estate in mortgage became absolute in him by foreclosure, and so descended to tnem. The case altogether

depends on the validity of this title. William Wade commenced an action against the present tenants, in which his title, as it is now stated, was fully considered, and adjudged insufficient to maintain a writ of entry.

The facts, however, which appeared in that case were different, — and as the demandants’ counsel contend, very materially different, — from the facts now reported. It was shown in the former action, that William Wade, previously to his receiving his deed from Willard, had purchased the equity of redemption, and it now appears that his title to the equity was defective, and has been so adjudged on a bill by him to redeem. The former case turned, as the present must, upon the force and effect of the deed from Willard, and the Court held that it operated as a discharge, and not as an assignment of the mortgage. The question now is, how far the failure of William Wade’s supposed title to the equity, will affect the legal operation of the deed from Willard ?

A part of the able and learned argument of the demandants’ counsel seems intended for the purpose of obtaining a partial revision of the decision in the former action, and if any part was so intended, it will be sufficient for us to say, that we are entirely satisfied with the reasons given for that decision in the report of the case. Some further reasons, however, will be given in support of that decision, which apply also to questions not raised in the former action.

The ground first taken by the counsel for the demandants is, that the deed from Willard to Wade, as the facts now appear, cannot operate as a release ; that unless it can operate as a conveyance in some other form, the deed is void ; and that, according to a well established rule of law, it is not to be so held, if by any construction it can be made to operate.

These positions have not been controverted, except so far as the rule relied on by the demandants may be qualified by other rules of law : one of which is, that every deed is to be construed according to the intention of the parties. Another rule is, that a deed is to have a reasonable construction, taking into consideration the entire deed, and giving effect, to all words of it which are conformable to" law.

In construing the deed in question, all these rules are to be observed, if they consistently may be.

The question then is, what is the true construction of this deed ?

It is contended for the demandants, that as the estate could not pass by way of release, it must operate as a grant or bargain and sale ; and we have no doubt it does so operate. Such a construction is conformable to all the rules, for the principal intent of the parties was, that the estate should pass, and the manner by which it was to pass is not material. But then it must be the same estate which was intended by the parties, and not one larger and more valuable. This is admitted by the demandants’ counsel, and a note of Williams, in Saunders, is referred to, where the doctrine is correctly stated. “ The intent of the grantor is to be regarded as to what estate shall pass, and to whom ; yet it is not to be regard ed as to the manner of passing it: — the chief end of the parties is to pass the estate, and the method ought to be subservient.”

The estate intended to be passed seems to be clearly ascertained by the clause in the deed, which was no doubt inserted for that purpose. By that clause it appears that the intention was to pass the legal estate merely, and not to assign the debt, for it had been paid by the demandants’ ancestor, who was then supposed to have a valid title to the equity.

But the demandants’ counsel still insist, that this clause is inconsistent with the operative words of the deed, and therefore void. The answer is, that it is not inconsistent with the words of release which were intended to operate, and that the mistake under which the parties acted cannot affect a clause in the deed introduced for the purpose of restraining the general language of the context, and explaining the intention of the parties, for the question of intention is to be decided by the entire language of the deed, although some parts of it may have no legal operation for any other purpose. It might be argued with as much propriety, that the words “ grant, bargain and sell ” are void for repugnancy, because they fc low the words “ remise and release,” as the deed could not op ¡rate both ways. But the clause in question is not repugna it in any sense to the operative words in the deed; it is merely explanatory. The sole purpose was to acknowledge payment of the mortgage, and to avoid the inference which might be made from the other parts of the deed, that the debt was assigned. All passed by the deed which was intended to pass, and which the operative words purport to convey, namely, the legal estate, or a satisfied mortgage ;—such an estate as in England is frequently purchased, to be tacked to a subsequent mortgage. If the clause in question had not Deen inserted, the satisfaction of the mortgage before the execution of the deed, might be proved by parol evidence, [t is therefore very clear that the clause which acknowledges Dayment, is to be considered in the construction of the deed. So that the deed itself is prima facie evidence of payment, and it is confirmed by the parol evidence.*

Considering then that nothing passed by the conveyance from Willard but the legal estate, the question will be whether that is sufficient to maintain this action.

The demandants’ counsel rely upon the case of Parsons v. Welles & al. 17 Mass. R. 419. But the main point decided in that case is, that a writ of entry cannot be maintained by a mortgager against the mortgagee after the payment of the debt, the legal estate not being released ; and that the mortgager’s only remedy is by a bill in equity. It is true that it appears to have been admitted by the judge delivering the opinion of the Court, that a writ of entry might he maintained, in such a case, by the mortgagee ; but this admission was inadvertently made, and without adverting to the effect of the law requiring in such a case a conditional judgment to be entered. After condition broken and before foreclosure, the mortgagee is entitled to no other judgment. If the mortgagee declares on his own seisin generally, still the mortgager may insist upon the benefit of a conditional judgment. Erskine v. Townsend, 2 Mass. R. 493. If he performs the condi tio i, — which is to pay the sum due on the mortgage within two months from the time of entering up judgment, — then the mortgage is declared void and discharged by the statute. It necessarily follows, that no conditional judgment can in this case be entered, and as the demandants are not entitled by a reasonable construction of the statute to any other judgment, the action cannot be maintained.

It is said that great injustice will be done, if the demandants cannot recover, and it may be so; but it is certain that great injustice would be done to the tenants, if the demandants should recover. If a loss cannot be avoided, it must be sustained by the demandants. The difficulty has arisen by the mistake and the misrepresentation of their ancestor. But for this misrepresentation, Willard would never have made the deed in dispute. He acted on the supposition that Wade was the owner of the equity, as he claimed to be, and had a right to make a tender, and to demand a release. We do not think there is any evidence to support the charge of fraud, but as the demandants claim as heirs of Wade, they must abide by the consequences of his mistakes and misrepresentation, however innocently they may have been made. If the demandants have any remedy, it must be sought in another action.

Judgment according to verdict. 
      
       See Thompson v. Chandler, 7 Greenl. 377; Willard v. Harvey, 5 N. H. R. 252; Brown v. Stead, 5 Simons, 535; Hunt v. Hunt, 14 Pick. 374; Freeman v. McGuw, 15 Pick. 82 ; Tuttle v. Brown, 14 Pick. 514; Sherman v. Abbot, 18 Pick. 451; Eaton v. Simonds, 14 Pick. 104.
     
      
       See Howe v. Lewis, 14 Pick. 329.
     
      
      
         See Morgan v. Davis, 2 Harr. & McHen. 17; Vose v. Handy, 2 Greenl 322; Holman v. Bailey, 3 Metc. 55.
     