
    Symes & Wife, original Plaintiffs, vers. Hill, original Defendant.
    1771.
    The Estate of a Mortgagee of Land, after Condition broken, is liable to Attachment and Execution for his Debts.
    The Assignment of a Bond secured by Mortgage does not pass the Lands as against an Attachment by a Creditor of the Assignor, before the Assignment of the Mortgage is recorded.
    EJECTMENT of two Pieces of Land in Cambridge. The Case was, that Hill, the Defendant, mortgaged the Premises to N. Wheelwright, Esq. Some Time after, Wheelwright failed and shut up; and, on the 10th of January A. D. 1765, conveyed all his Estate to Chas. W. Apthorp; (his wearing Apparell not excepted) and Apthorp, in the same Instrument, agrees to discharge certain Demands whereon Wheelwright might be arrested; or — should chuse to discharge. On the 18th of the same January the Premifes were attached as Wheelwright’s Estate at a Suit of the Plaintiffs’, and, on the 8th of March following, the Alignment of the Mortgage to Apthorp was recorded. Judgment on the Plaintiffs’ Adion against: Wheelwright entered up the 15th of May following; and, on the 6th of June, the Execution was levied on the Premises; and Seizin thereof delivered to Wm. Vassal, Esq., Attorney to the Plaintiffs, agreeable to the Law of the Province, and the Officer made a regular Return, (as to one Piece — as to the other, he did not certify the Livery of Seizin,) and the Execution duly recorded, as directed by the Province Law. Hill, immediately after the laid Seizin, entered again on the Premises ; and the Plaintiffs bring this Action.
    ered.ina tofelureT8 Creditor-
    
      Mr. Adams
    
    opened the Case and introduced Evidence of the Facts as Acted. As to the Defect in the Sheriff’s Return, (which was discovered by Mr. Juffcice Trowbridge) Mr. Adams moved to prove Seizin by Parol Evidence; which was done, no great Opposition being made by the Defendant.
    
      Mr. Fitch for Defendant.
    
    1. A dired Alignment of a Mortgage may not be good to every Purpofe till it be recorded. But, in our Cafe, the Bond was aligned to Apthorp before the Attachment; and the Alignment of a Bond need not be recorded. The Mortgage is only Security for the Money due on the Bond — a mere Accident attending it. 2d. Abr. Cafes in Equity, 617, 618.—Vacating the Bond vacates the Mortgage; and the Alignment of the Bond carries the Land with it to every Pur-poie. 2d Burr. 978, 979. For Apthorp had a Right to the Bond by the Aflignment, 1 Inft. 232; and may recover the Money, 1 Bacon, 137; 2d Vern. 239, 240; T. Jones, 222; 2 L. Ray. 1242; and, if recoverable in Chancery, it equally affeófcs this Caufe, for hereafter we may be in the Power of Chancery, (or, ihould the Bond be put in Suit by Apthorp, we cannot plead Symes’s Recovery in Bar.)
    But the Aflignment conveys the Debt in Law; 1 Lil. Abr. 124; and alfo the Mortgage. See Burr. before cited. Therefore, the Mortgage bearing fuch Relation to the Bond, and confequently in Apthorp with the Bond at the Time of the Attachment, the Plaintiffs cannot affeót it by the Attachment.
    2nd. Coniiders the Marks of Fraud in the Affignment.
    
      Mr. Adams, contra.
    
    1. If this Aflignment be bona fide, ftill we have a Right to recover, but
    2. The Aflignment is fraudulent.
    By the Attachment the Plaintiffs had an inchoate Title which was kept alive by the Judgment and Execution and compleated by the Seizin thereon, the Return and Recording thereof; which Title, when thus regularly compleated, takes Effeót to all Intents and Purpofes, from the Time of the Attachment, which, in this Cafe, was before the pretended Alignment; and by the Pro. Stat. 9 W. 3, c. 7, no Conveyance of Houfes or Lands is good, untill recorded, but againft the Grantor and his Heirs; and the Plaintiffs are not Heirs.
    Brother Fitch’s Dodrine of Alignment is extravagant and incredible. A Chofe in Action cannot be aííigned. ’Tis a Rudiment in Law; and neceifary to abridge the powerful and aid the weak.
    
      Curia.
    
    Mr. Adams, we think you need not labour this Point. You may anfwer Mr. Fitch’s Authorities briefly, if you pleafe.
    
      Mr. Adams.
    
    — I fay a Chofe in Action cannot be afligned; 1 Bac. don’t ferve their Caufe. See the Margin; the Profecutions are by Power, and in the Name of the original Obligee. The Power is in its Nature revocable; and, when revoked, the Af-fignee can do no more in a Court of Law.
    No Affignment can give him Power to profecute in his own Name. Vern. and Cafes in Equity Abr. are Principles of Equity; and as fuch are true ; but, as we are before a Jury, are of no Confe-quence. In Chancery Anything will ferve for Right and Title that gives it in Confcience. If the Debt is difcharged, the Mortgage is difcharged, i. e. Chancery will compelí it. In Law, the Fee is in the Mortgagee untill regularly transferred by dired Afiignment or otherwife, conformable to ye Pro. Stat. 2 Jones, is on Motion; fubjed to great Uncertainty; in a Court that proceeds on equitable Principles; nor does it appear what the Debt was. B. R. would not contradiófc the Cufloms of London,—which feems to be the Diítinétion. L. Raymond is not in Point. The Cafe in Burrow depends on the Teitator’s Intention, whofe Sentiments on the Operations of Law we muit fuppofe his Lordihip is purfuing; and the common People take Chancery for Law. But his Lordihip, in that very Cafe, expreffly declares that the Eftate has become abfolute in Law. Lili. Abr. proves no more than that the Court would not iniiit on a Power. It don’t prove but that a Difcharge by the Executor would have been good.
    2nd. He compared the Evidence with the common Marks of Fraud.
    
      Courts Direction to the Jury.
    
    
      Trowbridge.
    
    1st Question in Law is, whether the Lands demanded were Wheelwright’s Estate at the Time of the Attachment, fo as to be bound by it. 2nd. Whether they were thereupon regularly taken in Execution, fo as to satisfy the Debt.
    As to the first Point, it may be inquired, — 1st. Whether the Lands ever were Wheelwright’s, fo as to be held; and, if they were,—2nd. Whether he had not conveyed them before the Attachment. The Lands were a Mortgage to satisfy £6900 Hill was obligated to pay Wheelwright, and due before the Attachment.
    
      In Mortgages, the Fee passes from Mortgagor to Mortgagee at the compleating the Deed; and, on Failure in the Condition, becomes abfolute in him (save the Equity of Redemption given by the Province Law). Then the Province Law charges all Lands with the Payment of Debts ; and, when attached, are holden to satisfy the Judgment. And, on compleating the Process, the Creditor compleats his Title to the same Estate which the Debtor was possessed of; and the Debt is discharged. So that there can be no Doubt but that the Lands were once Wheelwright’s, fo as to be held by the Attachment. But, 2nd, had he not conveyed them before the Attachment? a Conveyance is produced, 1st, then it maybe further inquired, whether it be made bona Fide; for the Contrary is strongly contended; and, if it be, 2d, whether, in the State it was at the Time of the Attachment, it was sufficient to defeat it.
    The general Marks of Fraud you have had from the Council. As to that, therefore, I shall only add, that, if a Deed has Marks of Fraud, they are not conclusive Evidence. But, in this Case, there is Something peculiar. The Nature of the Case made it necessary for Apthorp to be secret in securing himself; and the Legislature seems to favour Creditors in this Thing; for, when a Creditor has fo done, he is subject to foreign Attachment for the Overplus; and the Law prefers this to Bankruptcy. Two must concur in a Fraudulent Conveyance;— for, if the Grantor do it with a fraudulent Intention, yet, if the Grantee receive it bona Fide to satisfy his Debt, it is not a fraudulent Conveyance. — Apthorp, at the making the Covenant, might not know how much his Debt was, and secure more than was due; but he cannot hold more — and, you fee, had covenanted to refund. No Time is set for Reconveyance, but the Law settles that. The moft fuipicious Clause is that which respects Apthorp’s paying certain Sums for which afterwards he might become bound; but, if that was done only to satisfy true Debts for which he should become bound bona Fide, it will not avoid the Conveyance; but, if to reserve Anything to Wheelwright, it vitiates the Whole.
    2. As to the State they were in at the Time of the Attachment. The Assignment of the Mortgage was not then recorded. “ But,” faith the Defendant, “ the Bond was then assigned, and that carries the Land with it to every Purpose.” However, the Assignment of the Bond does not carry the Land with it. The Fee of the Land was in Wheelwright; and the Province Law requires all Conveyances of Houses and Lands to be recorded before they are good against any Person except the Grantor and his Heirs; and the recording after the Attachment shall never have such a Retrospect, as to enure from the Delivery of the Assignment, and fo defeat the Attachment.
    2nd. As to the 2d Point, there is no Doubt but the Lands were regularly taken in Execution, fo as to satisfy the Debt, save the Slip in the Officer in not returning Livery of Seizin in the 15 Acres. I doubt if it will do without.
    
      
      Oliver.
    
    There is a Receipt of the Seizin under Mr. Vassall’s hand, as Attorney to Symes. I have little else to add to my Brother Trowbridge.
    
      Cushing.
    
    If the Officer’s Return is helped by the Testimony of the Witnesses, there is an End of the Case. I don’t know that you will depart from the Intention of the Law, if you suppose it. The Generality of the Conveyance is a strong Mark of Fraud. I don’t think such general Conveyances will do. Another Thing in the Conclusion of the Covenant is too loose, — that Apthorp shall pay who he pleases, and when he pleafes. — ’Tis such a Trust as Lord Coke says is a Mark of Fraud. Twine’s Case is good Law.
   Lynde, C. J.

There is no Doubt as to the 8 Acres, the only Question is as to the 15, — ’twas such an Estate as has been determined on Special Verdict to be in Wheelwright.

Judgment for Plaintiffs. 
      
       See post, Hooton v. Grout, where the question of the liability of the estate of the mortgagee to attachment and execution is considered at length by Judge Trowbridge.
     