
    Mallory v. Aspinwall.
    In the Court belovt,
    Lfcwis Mallory, John Mallory, and Samuel Mallory; Petitioners ; William Smith Aspinwall, and twenty-; nine others, Respondents¡
    
    The mere possession by mortgagee, of an ancient deed releas-ingtheequi-tyof redemg-cien’t evi-deuce, that the deed was delivered.
    
    cha»r oFthe And such release deed, though not recorded, willpreclude a redemption by a sub-equity of redemption.
    A. being in- , debted toB. by bond, was arrested in New-York, and to secure toe bond, made a inortgage of land in this itate to B. after which C. paid the bond,and took an assignment of the inortgage; held, that A. could not redeem, without paying to C. the sum actually advanced by him, and seven per cent, interest
    m A HIS was a petition in chancery, dated the 5th of March,' 1804, praying liberty to redeem two mortgages of sundry pieces of land lying in the town of Norwalk. The material facts as stated in the petition, and found by a committee, ,,,, , , „ . are—That on the Hth of July, 1769, Nathan Mallory oí Norwalk, was seized of a piece of land, lying at a place called Indian Field, containing twenty-nine and an half acres 5 and of a piece containing eight acres, formerly called the - * „ , T homestead, now called Jerusalem lot ; and of a store, house, and wharf, lying at the head of Norwalk river ; which lands, ⅛. were, on the same day, conveyed to John Aspinwall, oí Flushing, in the (then) province of New-York, by deed, to secure the payment of £280 : 5, New-York currency,before the 20th of April, 1772, with interest annually: That said Nathan continued in possession of said lands, from the date of said deed, until the 14th of November, 1789 ; when WiU Ham S. Asfánwall and Gilbert Aspinwall, two of the sons and heirs of John Aspinwall, (then deceased) conveyed, by deeds of bargain and sale, said eight acres, called Jerusalem lot, to Job Bartram, and the twenty-nine and an half acres at Indian field,- to Stephen Marvin / who then entered into possession, and have ever since retained possession of said lands, fexcept five and an half acres, part of Indian field, which has been conveyed to sundry persons, in whose possession it has been* and who are made parties to this petition.
    
      That there was due on said mortgage, computing interest at six per cent, g 2204, 06 : That on the 22d day of December, 1773, Nathan Mallory signed and acknowledged a certain instrument in writing, purporting to be a deed of quit-claim, in usual form, to John Aspinwall, of all his right and title to all the lands mortgaged by him to said Aspinwall, “ which “ deed” [say the committee] “being in the hands and pos- “ session of the counsel for the respondents, and by them “ exhibited and read in evidence before us ; from which evi- “ dence only, we find said deed to have been delivered ac- “ cordingly as mentioned in said deed which deed was lodged for record since this petition was pending : That, on the 8th of June, 1774, John As/iinwall, by his deed of release, for a valuable consideration, released to Mallory all his right, interest and title, by virtue of the aforesaid mortgage deed, to the house, store, and wharf.
    That on the 9th of October, 1772, Mallory was seized of seventeen acres of land, lying at Cramberry-plain, which, with another piece of eight acres on said Cramberry-plain, he, on that day, conveyed to John Fell of New-York, by deed of that date, conditioned for the payment of £ 140:3: S. 1-2, New-York currency, the principal sum of a bond given by Mallory to Fell, on the 4th of December, 1764, to be paid at or before the 1st of October, 1775, and the lawful interest to be paid yearly.
    That Mallory bad before the mortgage, viz. on the 6th of February, 1766, paid on this bond to Fell, £40:5:3, New-York currency, and £ 20 : 2 : 8, like currency, on the 1st of October, 1767 : That about the 7th of April, 1772, a suit was commenced, in New-York, on this bond to Fell, and the body of Mallory was arrested ; and John Aspinwall gave special bail for him, and promised to pay the debt and costs, or deliver him up in six months, if the proceedings against him should be stopped : That he never was delivered up.
    
      That on the 23d of April, 1773, Paschati N. Smith paid to* Pell on said bond £ 50 New-York currency ; and on the 1st of August, 1784, the executors of John Aspimvall paid £ 179:9: 41-2 New-York currency, in full of said bond, including interest and costs ; which two last payments were made for the benefit of the heirs of John Aspimoall: And On the 6th of August, 1784, Pell’s attorney received the costs in said suit.
    That on the 28th of April, 1785, Fell, released to Paschatt N. Smith, in trust for the heirs of John Aspimoall, the lands on Cramberry-plain mortgaged to Fell On the 18th of May, 1789, Smith conveyed the seventeen acres aforesaid to Micajah Nash and on the 27th of June following, he conveyed the said eight acres to Noah Patrick. And the last mentioned piece having passed through the hands of sundry persons, who are made parties to the petition, is now in the possession- of Akuin Hyatt r one of the respondents. Mallory remained in possession of the seventeen acres on Cramberry-plain from the 18th of December, 1764, until the V8th of May, 1789 -r when Micajah Nash took possession, and has ever since retained it; and Mallory also remained in possession of said eight acres, from said 18th of December, 17 6⅛, until the 21st of December, 1789, when N. IF S. Patrick took possession ; and the possession ha» ever since remained with the Patricks, and their assigns.
    It also appeared from the report of the committee,, accepted by the Court, that there was due on the Fell bond, computing the interest at six per cent., and deducting the payments made by Mallory, the sum of ⅜ 815, 74 ; that the rents and profits upon the lands mortgaged to Felly since they came into the possession of his assignees, with the waste done thereon, amounted to ⅜ 572, 8 ; and the necessary betterments made within the same time amounted to ¾ 297, 90 ; and that said lands are now worth g 785. On the 22d of December, 1803, for the consideration of S 300, Nathan Mallory conveyed to the petitioners, by deed of release, all his right to the several pieces of land mortgaged to John Asfiinwall and to Fell.
    
    The Court also found, that since the report Mash had received g 10, 20, and Hyatt g 21, rents and profits from the Cramberry-plain lots. The Court also found the debt due on the Fell mortgage, with the betterments, amounted to ⅜ 2082, 92, leaving due to the respondents, after deducting the rents and profits, g 1479,72 ; upon the payment of which sum, with the costs, to Mash and Hyatt, they were ordered to release to the petitioners. And as to the Asfiin-wall mortgage, the decree was, that the petitioners take nothing by their petition, and that the respondents recover their cost.
    The errors assigned were,
    1. That the Court ought to have decreed a redemption of the Fell mortgage, upon the payment of g 815, 74, the sum found due by the committee, from which sum the rents and profits should have been deducted.
    2. That the Court ought to have permitted the redemption of the Asfiinwall mortgage.
    3. That the Court taxed cost against the petitioners ; whereas, if taxed at all, it should have been added to the sum found due on the bond, and decreed to he paid only upon redemption qf the lands.
    
      Smith, (of Woodbury,) and Williams, (of Hartford,) for the plaintiffs.
    The petition prays for liberty to redeem two separate and distinct mortgages, the mortgage to Asfiinwall, and the mortgage to Fell. The mortgage, to Asfiinwall was made in 1769, but possession was not taken under it, until November, 1789. A release deed of the lands mortgaged to Asfiin-wall was signed, and acknowledged, by Mallory, in Decern-her, 1773 ; and In January, 1774, Mallory received from Asfiinwall a release of some of the property so mortgaged. The Court refused to permit the redemption of the-lands included in this mortgage.
    The other mortgage was given to secure a bond given to Fell, in 1764, upon which sundry payments had been made by Mallory, before the date of the mortgage. About six months before the date of this mortgage, Mallory was arrested in New-York, upon this bond ; and John Asfiinwall became his bail, and promised to pay the debt and costs, or deliver him up in six months, if the proceedings should be stopped. The representatives of Asfiinwall afterwards paid to Fell what was clue upon this bond, and received an assignment of the mortgage. The committee found, that there was due upon the bond to Fell g 815,74; that the betterments upon these lands amounted to g 297, 90 ; audit appearéd that the rents and profits, while these lands were in the possession of the assignees of Fell, amounted to g 603, 28. The Court found the facts stated by the committee to be true, and yet decreed, that the plaintiffs should redeem only upon the payment of ⅞ 1479,72. The petitioners being the purchasers of the equity of redemption in both these mortgages, claim that they ought to have been permitted to redeem the Asfiinwall mortgage ; and that they have right to redeem the Fell mortgage, upon the payment of ¾ 510. 36, which is the amount of the Fell bond, as found by the committee, and the betterments on the land, deducting the rents and profits.
    I. As to the Asfiinwall mortgage.
    The objections to the redemption of this estate, are,— That the plaintiffs have no interest ;—or if they have any, that it is the legal estate ; that there has been a settlement pf this mortgage, and a release deed given.
    1. The deed to the plaintiffs, it is said, is void ; and they, therefore, have r.o interest. If Nathan Mallory had, as is claimed, the lights of a mortgagor, then he might convey his interest, although not in the actual possession ;—for tfye possession of the mortgagee is the possession of the mortgagor. This point was settled in this Court, in the case of Sanford v. Washburn, 
      
       It is said, the release deed here existing distinguishes this case from that. The effect of that deed will be afterwards considered ;—but if it is tp have any operation, the defendants need not resort to it for this purpose.
    2. It is said, that if the plaintiffs have any interest, by the deed of Nathan Mallory, they have the legal title, Mallory having been in possession more than fifteen years after the execution of the deed to Asfiinwall. But to gain title by possession, the lands must, in the language of our statute,  be withheld from the owner ; there must have been an actual disseisin, or ouster ;  the mere taking the rents and profits is not sufficient. There is no evidence, here, that Mallory claimed by a title adverse to Asfiimttall’s. Where the possession of the party in possession is equivocal, his subsequent acts may be admitted to explain the nature of his possession. As if a son is in possession of the house of his father more than fifteen years, and pays no rent, and yet makes no claim, but afterwards, upon the request of the father, leaves the house ; this is evidence, that he did not claim against, but under his father. 
       Here, Mallory having no record title, and waiving any claim he might have made, and going out of possession when requested, never could recover in a court of law, as having held by an adverse title. Besides, the defendants have no right to say, that the plaintiffs shall set up an unconscionable claim, even although they had the legal right.
    
      Again, as the Asfdnwalls gave deeds of this property in If89, claiming to be the legal owners, while Mallory was in possession, they are now estopped to say, that they were not the owners,—thus contradicting their own deed, and accusing themselves of a crime within the statute against selling pretended titles. If Mallory was in possession as mortgagor, it cannot be pretended, that he could gain title by possession ; but it is said, this release deed changes his situation. As to third persons, this deed must be considered as of no force, as not existing ; as it was not recorded, a purchaser had good right to suppose him in under the mortgagee. But it is said, that Mallory gained a title before the purchase by the plaintiffs. What cannot be done directly,cannot be indirectly accomplished. Upon the records,the plaintiffs found an equitable title only to exist in jYathan Mallory. To the records they had a right to look for the evidence of title ; and a deed not appearing there can be of no avail, and, indeed, is no evidence, against third persons.
    3. It is contended, that the parties settled this, more than thirty years ago, by mutual releases of certain parts of the property. But these releases were not made at the same time ; nor did Mallory release a part, but the whole three pieces. No settlement, therefore, was made, though there might have been some negotiation. Besides, Asfdnwall released all the right in the store, house and wharf, which he had by virtue oj said mortgage deed, and nothing more ; consequently, if the deed of release of December 22d, 1773, had then been actually executed, Mallory gained nothing by the release.
    4. The release deed is relied upon to preclude a redemption ; as to which there is no evidence, that it was ever delivered ; and delivery is the essence of a deed,  Without delivery, a deed is no better than old parchment. 
       It does not appear, whether the witnesses were alive, and to be had, or not : nor that they were called ; nor that any evidence existed, as to the delivery, except the single fact, that inore than thirty years after it purports to have been ext-* euted, it first appears in the hands of the respondents’ counsel. Had possession of the land accompanied the deed, this would have afforded presumptive evidence of the delivery ; but Mallory retained the land for sixteen years after this deed was dated. The possession after that time, by the assignees of Aspimaall, may, with more propriety, be referred to the mortgage, than to the release ; because from the nature of the instruments, immediate possession would have followed the latter ; and probably would not have accompanied the former. But the circumstance, that a few days after this pretended release, Asfiimvall released to Mai* lory all Ids right to the store, house and wharf, derived from the mortgage,—shows conclusively, that this deed could not have existed at that time ;—for if it did, Aspimaalts release must have been perfectly nugatory. Had it been really delivered, when it purports to have beer., surely some other evidence coukl have been given than the naked fact, that the respondents’ counsel have it, thirty years after it was executed.
    But, it is contended, that t’ne committee having found the delivery, the evidence upon which they found it is not to be inquired into. If the committee have made a wrong inference from the facts ; and the facts are stated by them, so that this can appear to the Court ; there can be no doubt, that the Court will reject the inference. But the committee have not done this ; they say, that the deed was signed and acknowledged,—and state the facts attending the possession:—and then say from which facts only we find said deed to have been delivered as mentioned therein,
    Further, the deed is of no effect, because it was not recorded. The policy of our law is, that all transfers of real estate, whether by deed, devise, descent or execution, shall appear upon record. The words of the statute are—“ No grant or “ deed of bargain and sale, or mortgage, of any houses or “ lands, &c. shall be accounted good and effectual,” Sec.  An equity of redemption is considerfed as land, or real estate ; as such it -will descend ;  as such it must be devised ; passed by deed ; barred by possession, or a common recovery ; subject to curtesy, and, by our law, to dower.  The statute requiring a record of the levy of an execution is similar to this. But, was it ever supposed, that the levy upon an interest of this hind need not be recorded 1 Frequently, the greater interest is in the mortgagor ; and if an estate may be mortgaged for a trifle, and then the mortgagor convey his interest without any record evidence of it, the whole design of our law would be defeated. And it can make no difference, that this was a conveyance to the original mortgagee ; it is no less a sale to him, than it would be to any other person
    II. As to the Fell mortgage.
    The Superior Court could make out the amount of debt, as they have done, only by considering the sum paid by the representatives of "Asfiimvall as principal, and casting seven per cent, interest thereon ; and then, it would seem, that they must have computed interest annually. The defendants do not claim, that they are entitled to annual interest. But it is contended by them, that the sum paid by the representatives of Asfiimvall should be considered as principal,- and seven fier cent, interest cast thereon.
    The obligor, lived in this State ; the lands lie in this State; the bond ought, therefore, to draw the interest of this State. W h e eg a debt was contracted in England, but security given in Ireland, upon an Irish estate, Irish interest was allowed. 
       But where a mortgage was made in England, of land in the West-Indies, English interest only- was allowed. 
       Where the subject matter relates locally to a state, as a will of lands, or a mortgage, it must be executed according to the laws of that state. 
    
    But, it is contended, that the situation of these parties is changed, fay the payment made to Fell, and the consequent assignment of the mortgage to Smith, Where a mortgage has been assigned with the concurrence of the mortgagor, the sum paid by the assignee has been considered.as principal.  Here is no evidence of Mallory’s• assent to this assignment. Nor does it appear, that the money was paid Sf his request, or in fact that Aspinwall was, or could have been, compelled to pay it. For it does not appear, that judgment was obtained, by which Aspinwallbecame liable as bail; nor that proceedings were stopped upon Aspimvall’s promise to pay in six months, or deliver up Mallory. But if the proceedings were stopped upon this promise'; yet from the time when this mortgage was given, two days only after the expiration of the six months, there can be no doubt, that Fell received this mortgage in preference to any benefit lie expected to derive by the arrest of Mallory. The respondents, therefore, are to be treated as mere purchasers. But whatever might have been the terms imposed upon jYalhan Mallory, the purchasers of the equity of redemption may redeem upon paying the original debt, and interest. The land is merely pledged for the debt, 
       And the as-signee of the mortgage can, in chancery, be in no better situation as to the sum to be paid to him, than if he had brought a suit upon the bond,  And, surely, in. this State, where it is intended, that the actual state of the property should appear upon record, it would be hard, indeed,, to make the grantee of the mortgagor pay more than what appears by the records to be due.
    
      Jngersoll, and Baggett, for the defendants in error.
    The plaintiffs in error, in the Court below, sought to redeem two mortgages,—one called the Asfiinwull,—*the other the Fell mortgage. These mortgages being distinct, deserve distinct considerations.-
    The Superior Court decreed the redemption of the Asfiin* -mall mortgage. This judgment,- we contend, ought to be affirmed.
    I. The quit-claim deed from the mortgagor to the mortgagee, on the 23d of December, 177 3, bars all right of redemption-
    The objection to this is, first, that the delivery of this deed is not found. We answer, that the committee to whom was referred this petition to report the facts, state that the deed was in possession of the counsel for the respondents ; and this was the only evidence on which they found it to have been delivered. They had previously stated, that it was signed, witnessed, and acknowledged.— It is entirely unnecessary on what quantity of evidence the committee came to their result. This Court will never say, that the proof was insufficient. But if this Court were to inquire, is not proof derived from the possession of a deed of thirty years old, conclusive of Ms delivery ?
    Se-condly, it is objected, that this deed was never recorded* and therefore it shall not operate against the purchasers of the equity of redemption, though good against the grantor. We answer,—the statute does not, in its letter or spirit, regard such deeds. The object of the legislature was, that on the town records the legal title should appear. In this case, the purchaser, by inspecting these records, would see, that the legal title to this estate was in Asfdnwall. This should prevent him from purchasing, unless on speculation ; but no guard was intended to be placed to benefit speculators. To say, that all the equitable circumstances existing between mortgagor and mortgagee must appear on the records, would be saying too much. The purchaser takes the estate with all this equity.
    At any rate, this deed may operate to prevent any accounting for rents and profits, on the part of the mortgagee. Surely, a bond, covenant, or agreement, by which the mortgagor discharged the mortgagee from accounting for rents and profits, would be valid, without being reaorded. This deed might well operate thus far.
    II. This title of the plaintiffs, as stated on the petition, and found by the committee, was a legal title, Mallory bar ing been in possession from December, 1773, to December, 5789, almost sixteen years after the quit-claim deed was given, during all which time he acknowledged no right or title in Mpinwall, but took the whole rents and profits to himself. In his petition, he seeks the interposition of the Court to obtain the legal estate ; but by the facts, be has it already. Then he has'adequate remedy at law. To say that a court of chancery will decree in such a case, is to say, that a decree is necessary to render valid a title already legal and perfect.
    III. The deed of Nathan Mallory to the plaintiffs was void under our statute against selling pretended titles. This deed is dated in 1803. Axfiinwall’s grantees were in possession taking the whole rents and profits, and claiming title by the original mortgage, and by the quit-claim deed. To be sure, the possession of the mortgagee is in unison with that of the mortgagor ; and therefore, had there been no quit-claim deed, the statute would not have operated ; but that makes the possession of Asfiinwall adverse, and of course brings the deed within the mischiefs of the statute.
    
      It will he recoi~ecrecl, that the mortgagor remained in possession till 1789 ; and then the mortgagee entered, and his grantees have held the possession ever since~
    lATe contend, also, that the release deed of 4s/~l1sualt, the mo~ tgagce, fourteen dayS after the ciu~t~clairn above mentioned, of part of the property to the mortgagor, is to be considered as prouf of a settlement of this mortgage in Jaau~ra, 177 L-I indin~ that thirty years ago, the parties to thi~ rno~ yae thus released their rights to certain portions of t! i~ ptoperty, andthat a possession of nearly fifteen of the last years i; found correspondent thereto, the Superior Ceurt might wet! deny any right of redemption in the mOltgagor, or Lia assignees.
    The Supet ior Court permit ted the plaintiffs to redeem the Fell mortg~ cc, so called. The plaintiffs, however, com~ plain, that the terms arc inequitable ;-that they oupht to he permitted to redeem on payment of the bond, and the interest thereon. \Vc in~i~t and so the Superior Court decided, that the pa~ ntents made by Smith, and others, for the heirs c f 4 pinwatl, shall be considered as principal from the time when made, and thereafter draw interest. \Ve admit tie ruic to be, that the assignees of a mortgage, pur-claasing without the concui rence of the mortgagor, sh~ll relinquish it, upon the peyment of the original debt, and simple interest ; hut if the purchase be made at the request of the mortgagor, interest shall be turned into principal. Such is the rule as laid down in jJhenhurst v. James,  Now, in this case, it clearly appears from the facts found by the Cout t, that this bond was paid by 4afiinwall'~ heirs, in consequence of Lis hasing given special bail for JlJallory in New-York, when he was arrested on the bond. When bail pay money for the prindpal, it is always presumed to he upon request. The case, therefore, is within the rule tistablished upon equitable grounds.
    
      The plaintiffs further say, that interest should be cast at ~rix Jier cent. `We contend, that the payment being made in New-York, where the legal interest is seven fzer cent. interest ought to be computed at that rate, according to long established practice.
    
      
       2 Root 506.
    
    
      
      
        Slat. 254, edit. 1796.
    
    
      
       5 Burr 2607, Fairclaim v. Shackelton. 2 Ld. Raym, 829, Reading v. Rawsterne.
      
    
    
      
      
         Cro. Car. 363, Blunden v. Baugh.
      
    
    
      
       2 Refu 5, Goddard’s case.
      
    
    
      
       2 Bac. Abr. 648, Guil. ed.
      
    
    
      
      
        Stat. 417, 418, edit. 1796.
    
    
      
      
        Pow. Mart. 109.
    
    
      
       2 Root 505, Sanford v. Washburn.
      
    
    
      
      
        3 Atk. 382, Connor v. Earl of Bellamont.
      
    
    
      
       3 Atk. 727, Stapleton v. Conway.
      
    
    
      
      
        2 Burr. 1079, Robinson v. Bland.
      
    
    
      
      
         3 Atk. 271, Ashenhurst v. James,
      
    
    
      
      
        Prec. Chan, 89, Bayly v. Robson. Prec. Chan. 512, Coleman v. Wince. 1 Eq. Ca. Abr. 325.
    
    
      
      
         4 Ves. jan. 128, Matthews v. Wallwyn.
      
    
    
      
       2 Atk. 371.
    
   The judgment of the Superior Court was reversed ;-not, however, for any error in the princz~1cs assumed by that Court in the decision ; but for a mere mistake in the ca1cu~ lation of interest.  