
    White vs. Erskine.
    J. S. sold and conveyed to N. M. and at the same time took back a mortgage to secure the payment of the purchase money. Subsequent to which, but prior to the registry of the mortgage, N. M. conveyed without consideration, and •yith notice, to J. Y., and J. Y. to Erskine, the defendant. J. S. died, and his heir quit-claimed to N. M. who thereupon conveyed to White, the demandant. Held, that the conveyance of the heir did not operate as an assignment of the mortgage, she having no authority to make one; — and that, if it had any operation, it was to extinguish the mortgage and lien created under it; — and that, the title of N. M. thus perfected would immediately enure to S. Y., his grantee, and through him to the defendant.
    This was a petition for partition of certain lands, in which the petitioner claimed one half. The plea of the respondent was sole seizin in himself. Both parties claimed under one Levi B. Erskine, who on the 9th of February, 1810, conveyed one undivided half of the premises to Josiah Stebbins. The latter died prior to April 20, 1830, on which day Laura A. Stebbins, his sole heir, conveyed by quit-claim, one undivided half of the premises to Nathaniel Moody, who at the same time conveyed the same half to White, the petitioner. The petitioner relied upon the evidence in this opening to maintain his title.
    The respondent then produced a warranty deed of the whole premises from Josiah Stebbins and David Otis, to whom Levi B. Erskine had conveyed the other moiety, dated March 26, 1818, recorded April 22, 1823, to Nathaniel Moody — and a deed of quit-claim from said Moody to Joseph Young, dated April 22, 1823, recorded April 25, 1823 — and a deed from said Young to Erskine, the respondent, dated Oct. 30, 1829, and recorded Nov. 3, 1829.
    The petitioner then produced a deed of mortgage from said Moody to said Stebbins and Otis, of the same date of their deed to him, recorded May 6, 1823, given to secure the payment of the consideration money — and offered to prove that the conveyances from Moody to Young, and from Young to the respondent were without consideration and fraudulent as against the mortgage of said Stebbins and Otis — and that, at the time of the taking of said deeds, both Young and the respondent knew of the existence of said mortgage.
    He aiso offered further to prove that, the conveyance from Laura A. Stebbins to Moody, and from the latter to the petitioner was one transaction, he, the petitioner, being the purchaser of said Laura’s right for a full consideration, and that said deeds were designed to convey to the petitioner the interest of said Laura, and that the deed was made to said Moody solely for the use of the petitioner.
    But Weston J. being of opinion that by the rules of law, the conveyance from said Laura to Moody, enured directly to the use of said Young and his grantee, rejected the evidence.
    Whereupon the petitioner became nonsuit, with leave to have the same taken off, and the petition restored, if in the opinion of the whole Court, the evidence was admissible, and would avail in law to maintain the title of the petitioner to the moiety of the premises claimed by him.
    
      G. Feans argued for the petitioner.
    The general principle is not disputed, that where one conveys without title, and afterwards purchase, such purchase shall enure to the benefit of his grantee. But this is only where there have been general covenants of warranty, and not where the conveyance is by quit-claim merely. Jackson v. Peck, 4 Wend. 300.
    This principle applies too, only where the conveyance was for a good and valuable consideration, which was the case in Fairbanks v. Williamson, 7 Greenl. 96 — see also Somes v. Skinner, 3 Pick. 52; Varnum v. Abbott 8f al. 12'Mass. 474. It does not apply where the conveyance was fraudulent. Ricker v. Ham &/■ al. 14 Mass. 137. In this case the conveyance by Moody to Young was without consideration and fraudulent.
    Further, if Moody had a good title at the time of his conveyance to Young, this would also, prevent the enuring of an after purchase to him ■— and such was the fact.
    If it do not enure, as contended for by the respondent, then Moody’s conveyance to the petitioner is valid and passes a good title, while his conveyance to the grantor of the respondent is void and passes nothing. The deed to the petitioner was for a good and valuable consideration — that to the grantor of the respondent was without consideration and fraudulent. And the petitioner, being a bona fide purchaser, has a right to show the fraud in the first conveyance. Somes v. Brewer, 2 Pick. 84.
    The conveyance of Laura A. Stebbins should not be construed as an extinguishment of the mortgage, but as an assignment of it merely ; — this the Court may ever do when the justice of the case requires it. Barker v. Parker &f als. 4 Pick. 506; Bullard v. Hinkley, 5 Gree.rH. 272.
    The conveyance from Laura to Moody, and from Moody to the petitioner, was one transaction, and conveyed to the petitioner a good title. Moody was the mere channel of transmission, without interest. He therefore could not have conveyed to any one but the petitioner without committing a fraud upon him. Spear v. Hubbard, 4 Pick. 143. Nor could it have been ■ attached as his estate before he had conveyed to the petitioner.
    
      Sprague, for the respondent,
    cited Jackson v. Hubbs, 1 Cow-en, 617, and was sustained by the Court in the positions taken by him in the argument. .
   The opinion of the Court was delivered by

Mellen C. J.

The facts of this case, necessary to a decision of it, and in chronological order, are these. On the 26th of March, 1818, Josiah Stebbins and David Otis, being owners in common of the lands described in the petition, by purchase from one Levi B. Erskine, conveyed the same to N. Moody. The deed was registered April 22d, 1823. On the same 26th of March, 1818, the said Moody conveyed the same to Stebbins and Otis in mortgage, to secure payment of the purchase money. The mortgage deed was registered May 6th, 1823. On the 22d of April, 1823, Moody, by deed of quit-claim, with special warranty, conveyed the same premises to Young, who caused his deed to be registered on the 25th of the same April. Young, on the 30th of October, 1829, conveyed the same to Erskine, the respondent. J. Stebbins having deceased, his only child and heir, Laura A. Stebbins, on the 20th of April, 1830, by quit-claim deed, conveyed one undivided moiety of the premises to the said Moody, who on the same day conveyed the same to White, the petitioner. The petitioner offered to prove that, the conveyances from Moody to Young and from Young to the respondent were made without consideration, and that all the three knew of the existence of the mortgage deed, though the same was not registered until fourteen days after Moody’s deed to Young was executed, and that therefore the same was fraudulent as against the mortgage. For the purposes of this decision w7e are to consider the above facts, which the petitioner offered to prove, in the same manner as though they had been proved. On this ground, it is clear, that the conveyance so made to Young, did not, and could not prejudice the title of Stebbins and Otis as mortgagees; but still, Moody had a legal right to convey what title he had, that is, his equity in redemption : and his knowledge of the mortgage could not prevent the operation of his deed, nor could Young’s knowledge have that effect. Both those conveyances, therefore, were operative and conveyed to the respondent, Moody’s equity of redemption. But the petitioner contends, that the deed from Laura A. Stebbins to Moody, and Moody’s deed to him, of April 20th, 1830, have operated to convey to the petitioner the fee simple of the undivided moiety of the premises, which is the portion in controversy. It is very clear that the deed of Laura A. Stebbins did not operate as an assignment of the mortgage ; for as heir she had no authority to assign it. Smith & al. v. Dyer, 16 Mass. 18. — If it had any operation, it wras to extinguish the mortgage, and relieve the moiety from the lien upon it, which had been created by the moitgage. On this conveyance the petitioner relies. Now, admitting that the fee simple estate in the moiety, was thus reconveyed to Moody, the legal effect was, that the title instantly enured to the benefit of Young, under whom the respondent, claims, as the presiding Judge decided ; because Moody in his deed to Young, covenanted to warrant and defend the premises to him, his heirs and assigns, against the claims of all persons claiming under him or his heirs. The mortgage deed was made prior to the conveyance to Young; and the claim of the petitioner is under the heir of Stebbins, one of the mortgagees. According to the authorities cited by the counsel for the respondent, and well settled principles of estoppel, the title derived from Laura A. Stebbins and conveyed to Moody by her, enured to Young, and through him to the respondent. But if nothing passed by her deed to Moody, what could have passed by his deed to the petitioner in 1830, when all the right which he had in 1823, was conveyed to Young and by Young to the respondent, both of which deeds were on record on the 3d of November, 1829. In any view of the cause, we do not perceive any principles on which the petitioner can succeed. Accordingly, the nonsuit is confirmed.

Judgment for defendant.  