
    VOSE v. HANDY.
    Where several particulars are named, descriptive of the land intended to be conveyed in a deed, if some are false or inconsistent, and the true are sufficient to designate the land, those -which are false and inconsistent will- be rejected.
    If it appears that a debt secured by mortgage has been paid, the mortgagee,- in a writ of entry upon his deed', cannot have judgment for possession of tile land.
    In this State the assignment of a mortgage must be by deed.
    A bond may he assigned by delivery only, for a. full and valuable consideration..
    This was a writ of entry on the demandant’s own seisin in fee and in mortgage, in which he demanded possession of “ a “ parcel of land in China,” [formerly Harlem] “ part of lot No. 29, according to a survey and plan made by John Jones, and “ bounded as follows, beginning on the east side of twelve-milcK pond at the south-west corner of said lot, thence running east “ south-east one mile, thence northerly fifty rods, thence wester- “ ty, parallel with the south line one mile to said pond, and “ thence southerly by said pond to the bound first mentioned, “ containing one hundred acres more or less.”
    
      At the trial, which was upon the general issue, it appeared on the part of the demandant that June 30, 1803, Dan Read conveyed to Nathan Dexter “ a certain tract of land in Harlem “ bounded on lot No. 30, at the pond, thence running east-south-w east 320 rods, thence northerly fifty rods, thence west-north- “ west to the pond, thence southerly to the first mentioned “ bounds, it being the south half of lot No. 29, agreeably to “ John Jones’ plan, containing one hundred acres, more-or less.” it further appeared that Dexter, September 17,1804, 'conveyed to one Fowle “ a certain tract of land in said Harlem being lot “ No. 29 of the i'ange of lots adjoining the eastern side of “ twelve-mile-pond according to John Jones’ plan of said town “ of Harlem, and bounded as follows, beginning on the easterljr “ side of said pond, at the south-west corner of said lot number “ 29, and running easterly one mile, thence northerly fifty rods, “ and thence westerly one mile to said pond, thence to the “ bounds first mentioned, containing 100 acres, more or less.”
    
      At this time Dexter lived on the south half of lot No. 29, between which lot and the lot No. 28, there was an eight-rod range-way. Another man dwelt on the north half of lot No. 29, claiming title, and a third person dwelt on the south half of lot No. 28, who also claimed that land. Fowle entered under his deed from Dexter, and continued in the actual occupancy of the land till the year 1816.
    It further appeared that Fowle, September 26, 1805, mortgaged to the President, Directors and Company of the Hallowell and Augusta Bank, incorporated March 4, 1804, to secure the payment of his bond of that date for 500 dollars and interest,— “ a certain piece of land in China, formerly Harlem, being Io,t “ No. 29, adjoining the eastern side of twelve-mile-pond accord- “ ing to John Jones’ plan, and bounded as follows, to wit, beginning on the easterly side of said pond at the north-west corner “ of said lot, and running easterly one mile; thence northerly “ fifty rods, thence westerly one mile to said pond, and thence. “ to the first mentioned bounds, containing 100 acres, more or V less.”
    It further appeared that the demandant, at the Court of Common Pleas, April term, 1822, recovered judgment against that corporation, and by virtue of a writ of execution duly issued thereon and agreeably to Slat. 1821. ch. 60. all their right and title in the said debt and land mortgaged to them was sold at public auction by the sheriff to the demandant, June 8, 1822, he being the highest bidder, and a deed thereof duly made to him and recorded the following day, describing the land as in the mortgage deed, adding the words “.or however otherwise bounded.”
    The lots on Jones* plan contain each 200 acres, and are thus situated: — -
    
      
    
    The tenant, to support the issue on his part, proved that the bond and mortgage February 1, 1814, wrere delivered by the old corporation to the President, Directors and Company of the Hallo-well and Augusta Bank, incorporated June 1812, and that the latter corporation thereupon paid to the former the whole money due thereon, in full for said bond and mortgage.
    He also proved that the latter corporation brought an action against Fowle on the mortgage deed at the Court of Common Pleas April term 1815, setting forth an assignment thereof by. deed from the former corporation to them, bearing date Decern-, her 1814; — that judgment was rendered therein for possession at the August term following, upon default; — and that the writ of possession thereon was executed January 10, 1816, on which day the demandants in that suit made a lease of the premises to Fowle for three years. The bond and mortgage were both filed in that case, but without any written transfer or assignment thereon.
    
      He also proved that Fowle by his deed dated December 20, 1816, conveyed to the tenant all his right and title to “ a tract “ of land — being lot No. 29 — bounded, beginning on the easter- “ ly side of said pond at the north-west corner of said lot No. 29, “ and running easterly one mile, thence southerly fifty rods, “ thence westerly one mile to said pond, thence by said pond “ to the point begun at, containing 100 acres, more or less” ; — • and that thereupon Fowle removed from that town, and the tenant entered under his deed, and haa ever since continued to occupy the south half of lot No. 29.
    He also proved that the corporation to whom the bond and mortgage were delivered as aforesaid, released to the tenant July 22, 1820-all their right in the mortgaged premises on payment by him of the money due on the bond.
    There was no evidence that the corporation against whom the demandant recovered his said judgment, or the members' lhereof,*ever assented to the act passed June 19, 1819 for continuing the existence of certain bodies corporate of which that corporation was one, for certain purposes therein specified.
    Upon this evidence a verdict was taken for the demandant, subject to the opinion of the Court upon the general question , whether, upon the whole matter, the action was sustainable; the parties agreeing that if the Court should.not be of opinion with the demandant, a new trial should be granted.
    
      Bond, for the tenant,
    argued against the verdict, taking the following points.
    1. The charter of the old bank having expired by its own limitation long before the passage of the statute of June 19, 1819, that corporation was dissolved. The legislature cannot compel one to become a corporator without his assent; nor impose. a new charter on an existing corporation without its acceptance. But here was no acceptance of the statute of June-1819, and so no corporation in existence in April 1822, against which the demandant could recover a judgment. Ellis v. Marshall, 2 Mass. 269. 4 Wheat. 675. Lincoln and Kennebec Bank' v. Richardson, 1 Greenl. 79. That judgment therefore was merely void ; and there being no party to bring a writ of error for its reversal, it may be avoided by plea. 3 Com. Dig. Error. D. And where a corporation is extinct, its funds be. come the prívale propertj*- of the corporators, and its lands revert to the grantors. 1 Bl. Com. 484. 1 Lev. 237. Co. Lit. 13 b.
    
    2. The boundaries in the deed to the demandant do not in-' elude the land demanded, but describe a tract lying north of it. And when the description of land in a deed has a well known place of beginning, that must govern, and the grant be confined to boundaries. 17 Johns. 146.
    3. At the time of the demandant’s judgment against the old bank in April 1822, nothing was “due” to that corporation from Fowle — vid. Stal. 1821, ch. 60 — and so nothing passed to the demandant by the sheriff’s deed. The debt was the principal thing, without which the land could not be affected. But here the bond and mortgage had long since been assigned from the old bank to the new. And the actual delivery of a bond and mortgage to another is a valid transfer of both, determining the interest of the assignor in them both. 1. Johns. 580. 11 Johns. 534. 17 Johns. 284. 2 Bum 978. 11 Mass. 134. 4. If the assignment of the mortgage is not effectual without deed, here is evidence of such assignment; — for in the writ by the new bank against Fowle it is recited that the mortgage was assigned by deed, which is admitted by Fowlers appearance and default.
    5. And if this is not sufficient, yet here is a legal assignment of the bond by delivery from the old to the new bank, for a full and valuable consideration, of which Fowle had notice’by the suit against him, so that no payment by him to the old bank could have been valid. If this assignment is entitled to the protection of law, the old bank had no “debt” due from Fowle.. 12 Mass. 281. 13 Mass. 304. 15 Mass. 481.
    6. If neither the bond nor the mortgage were legally assigned, jret the bond was paid in July 1820 to the officers of the new bank, with whom it was deposited for collection ; and this payment whether before or after breach, is a discharge of the mortgage.
    7. The Stat. 1821. ch. 39. sec. 3. provides that the judgment in an action like the present, on a mortgage, shall be conditional, that if the tenant shall within two months pay the money due ■on the bond, no writ of possession shall be issued. But here 
      nothing is due. To what purpose then can a judgment be rendered for the demandant ?
    
      Orr and R. Williams, for the demandant,
    contended — 1. that the deeds should be so construed as to effectuate the intention of the parties; and that an erroneous description shall not avoid that which is otherwise sufficiently certain. 5 East. 51. 3 Bac. Air. Grant, H. 1. note, i Caines, 493.
    2. As to the right of the legislature to revive and continue in force the charter of the old bank, they cited Foster v. The Essex Bank, 16 Mass. 245.. But the objection that the demand-ant’s judgment was against a corporation not in esse is not open to the tenant, because he does not claim under that corporation, but under the new bank.
    3. By the Stat. 1821. ch. 60. a copy of the mortgage deed is made prima facie evidence of a “ debt due” to the bank.
    4. The debt thus due was never paid, nor was the bond or the mortgage ever legally assigned to the new bank. The payment of money by the tenant to the new bank was no payment or discharge of the bond, because it was not so intended, and because he had no authority from the obligor. Nor had he a right to redeem the land. The interest of the mortgagor was hot conveyed to him; — the deed of the new bank to him was not of the land mortgaged.
    As to the assignment. — The case finds a deliveiy from the old to the new bank. This, being an act in pais, must be. proved by shewing some authority to do it, for a corporation cannot act by parol. 7 Mass. 102. 8 Mass. 292. But if it might, yet the delivery here would be of no effect, because the interest of a mortgagee in lands cannot be transferred by delivery over of the deed. Powell on mort. 23 — 4, 225 — 6, 247, 271 — 2, 1127 —8. 5 Bac. Air. Mortg. C. E. 8 Mass. 554. 3 Mass. 559. 11 Mass. 125. 17 Mass. 419. It is not assignable at law. G Mass. 239. Being an interest in lands, it can only pass by deed, by the statute of frauds. Warden v, Adams, 15 Mass. 233. If the delivery over in this case were a good assignment, then the new bank might have an estate in mortgage, and after-wards in fee, without deed.
    
    
      Neither was the bond assigned. The 'bond and mortgage be¿ ing parts of one entire contract, one part could not be assigned without the same solemnity which would be necessary to transfer the other; and the mortgage being assignable only by deed, the bond must pass by deed also. Perkins v. Parker, 1 Mass. '123. 2 Mass. 96. 3 Mass. 558. 4 Mass. 450. 11 Mass. 488; 12 Mass. 193. The Mew -York decisions to the contrary have never been recognized here as law.
   Mellen C. J.

at the succeeding term in Cumberland, the action having been continued nisi for advisement, delivered the Opinion of the Court as follows.

We have listened with much pleasure to the able arguments which have been ufged by the counsel on both sides; and carefully examined and considered the principles and cases that have been relied upon.

Both parties claim under the mortgage-deed made on the 26ih of April ’1805, by Daniel Fowle to the bank incorporated in 1804. In speaking of this bank, for brevity’s sake, we call it the old bank; and the other, which was incorporated in 1812, we shall call the new bank.

The premises demanded are not bounded and described in the mortgage in the same manner as in the declaration; but this will be more particularly noticed hereafter; The demand-ant's title, as he has disclosed it, is under a judgment recovered by him at the Court of Common Pleas, April term 1822, against the old bank for $2833,42, on which execution duly issued: by virtue of which, on the 3d of June 1822, Kimball, a deputy sheriff, sold at public auction all the right and title of the* old bank acquired by said mortgage deed, and to the debt, to secure Which the deed of mortgage was made, to the demandant who purchased the same; and the officer on the same day gave a deed of the premises, so sold to him; which deed, on the next-day, was duly registered. It has been contended that, independent of the facts disclosed in the defence, the demandant is entitled to recover upon those which he himself has proved.

The first objection is that the charter of the old bank had expired long before the judgment abovementioned was recovered, viz. in October 1812. And though it was continued for certain purposes by the act of June 24, ,1812, to October 1816 9 and by the act of December 14,1816, for three years longer; and afterwards, by the act of June 19, 1819, for three year's longer 9 still it has been contended that the old bank never assented to this "extension; and that without such assent, those extending acts never were binding on them ; because such extending is in the nature of a new 'charter / — and that no charter can ever bind those to whom it is granted, without their acceptance of it. It is very questionable whether it is competent for third persons to make this objection 9 and not only so, but in so doing, to impeach the merits of a judgment in this collateral manner. But we do not' proceed on this ground, nor is it necessary; because we consider the case of Foster v. Essex Bank, 16 Mass. 245, and Lincoln and Ken. Bank v. Richardson, 1 Greenl. 79, as deciding the merits of this objection. — The counsel for the tenant has relied upon an apparent discrepancy between these two cases as to the necessity of the acceptance of an act continuing a charter of a bank. There is perhaps á want of clearness; perhaps some inaccuracy of expression, in that part of the opinion in the latter case, which relates to this point. But it will be seen that the Court in that case, declared themsélves perfectly satisfied with the reasoning and conclusion of the Court in Foster v. Essex Bank, and that the same principles ought to govern both cases. The C. J. of this Court stated that the same principle of law applied to an act, continuing a charter beyond its original term, as to an act, which granted the charter ; that in both cases, the grant or chartered powers must be accepted. The above remarks were made in a case where a bank was plaintiff and the language’used had reference to chartered powers, not corporate liabilities. The question of liabilities had been settled on sound principles in Foster v. Essex Bank, the opinion in that case had been approved and adopted by this Court; and in both cases those liabilities related to debts contracted pri- or to the expiration of the . original charter. Hence it appears that the expression thus limited and understood, does not, nor was it intended to convey an idea at variance with .the opinion in the case last mentioned. This objection therefore we overrule.

The second objection, founded on the defects in the demandj ant’s own proof is, that the land sold by the officer, and convey-» ed to him is not the land demanded; inasmuch as the description in the deed of the officer, though agreeing with that in the mortgage, varies essentially from that in the declaration; and in fact embraces no yurt of lot No. 29, but the southerly half of lot No. 28 on Jones’ plan. There certainly is a mistake %■ and it arose from the circumstance of using the word “ northwest” instead of “" southwest” in commencing the description of the land intended to be conveyed, both by the mortgagor and the officer, which was the south half of lot No. 29. It may again be observed that both parties claim under the same mortgage deed; and in the deed from Fowle to the tenant, executed on the 16lh of December 1816, and conveying all his right, we find the same erroneous description, occasioned by the substitution of the Word “ northwest” for “ southwest.”

Our attention is then directed to the following facts, viz. that Dexter the grantor of Fowle, lived on the south half of No. 29,-when he conveyed to Fowle, and Fowle went into possession of that half of No. 29,- under Dexter’s deed f. and continued thereon until 1816,- When he sold his night to the tenant as before stated j that another man at the timé lived on the north half of lot No. 29, claiming it as his own; and the south half of No. 28, was occupied by a person then and ever since residing thereon; there being also an eight rod range-way between Nos-28 and 29. Besides, the mortgage and the officer’s deed both; purport to convey a part of lot No. 29.

With all these facts before us, we must collect the intention of the parties concerned, and give effect to the deeds according to such intention, if legal principles do' not forbid it. Where" several particulars are named,- descriptive of the premises conveyed, if some- are false or inconsistent',- and the true be sufficient of themselves, they will" be retained, and the others rejected, in giving a construction to the deed ; as in case of Worthington & al. Ex’rs. v. Hylyer, 4 Mass. 196. See also Jackson v. Clark, 1 Johns. 217. The land described as conveyed, in the case before us, is part of lot. 29 ; which it cannot be, on the supposition that the word “ northwest” was used intentionally and without- any mistake 5, but if we compare the description in the deeds with the facts above stated, as to the ownership and oc« cupation of the north half of Mo. 29, and the south half of Mo. 28 ; and the constant possession of the south half of Mo. 29, by Dexter and Fowls, the intention seems clear; and for the purpose of giving effect to the deeds we ought to reject the word “ northwest” altogether. The description then will be sufficiently explicit; it will include, the south half of the lot mentioned, viz. Mo. 29, and cannot include any other ;■ and conform also to the ownership and possession of that half and of the adjoining land. If it were necessary to. decide the cause on this point, we incline to. the opinion that such would be our construction. But our decision, is founded on certain facts which have been disclosed and relied on in the defence. Some of those facts we proceed to mention, , ¿, ■

It appears that on the first of February, 1814;, the saidmort-. gage deed and the bond, to secure the payment of which, the mortgage was given, were delivered by the old bank to the President, Directors and Company of the. new bank,. who thereupon paid to the old bank the sum of f590, being the whole amount due o,n the bond and mortgage. There was. no written transfer or assignment thereon; nor does it appear-by any testimony in the case, that there was any assignment whatever in writing, off either of them. The transaction however, such as it was, be* tween the old bank and the new bank, in relation to the bond and mortgage, it is contended by the counsel for the tenant, amounts to a legal assignment of them both ; but, if not of both, at least,, of the bond and the debt thereby secured';, and that, of course, there was no interest, in the old bankfin the bond, debt or mortgage, which could have been legally, sold and conveyed to the demandant by virtue of the Statute of 1821, ch. 60. The provisions of that statute relating to the subject, are contained in. tbe fourteenth and fifteenth sections. They deserve particular consideration, as they are peculiar in their nature, and form exceptions to the general law relative to this species of property. — The fourteenth section is. in these words, viz.: That all “ the right, title,, claim and interest of any bank now incorpor- “ ated, or which hereafter may be incorporated by law', in any il lands, tenements. qr; hereditaments, which has been or shall “ be mortgaged for security of any debt due or assigned tq sucfi. “ bank, shall be liable to be seized on any writ of execution « issued on any judgment rendered, or which may hereafter be “ rendered by any Court in this State, and sold at public auc- “ tion in the same manner as is prescribed for the sale and con- “ veyance of tlie real estates of such banks in this act.” The provisions of the 15th section, so far as necessary to he examined upon this point, are in these words, viz. “ That any “ debts secured by such mortgage and due to such bank at the lime of the sale of such mortgage, shall pass by the deed of- “, conveyance, executed by the officer who shall serve such writ of execution, and be completely, and to all intents and “ purposes transferred to, and vested in such purchaser; and « such purchaser or his legal representative may, in his “ own name, maintain any action proper to recover such debt, “ or to obtain possession of such lands, tenements, or heredita- ments, which might have been maintained in the name of such “ bank, had no such sale been had.” From a view of these provisions, it is evident that the cases provided for, are those in which a bank is. either mortgagee or assignee of a mortgage, and the debt, secured by such mortgage, is due to such bank at the time of seizure and sale on execution. — The last, member of the sentence above quoted plainly shews this; as it gives the purchaser the same right to recover the debt, and obtain possession of the premises, as the hank would have had, if there had been no sale. — The law is founded on the idea that the real and the personal security are both holden and owned by the bank; because the provision is special and particular that a sale of the mortgage shail operate to pass and convey to the purchaser any debt secured by such mortgage and then due to the bank; and this is reasonable; because the bond need not be recorded, but the mortgage usually is. Hence a copy of the deed is by statute made prima facie evidence of the deed and of the bond or note on which the mortgage is founded. The provision seems also, conformed to the principle and practice which requires that a mortgagee, in a suit on the mortgage deed, before he can obtain his conditional judgment, must file" or produce in Court the bond or note on which the mortgage is founded; that the Court may know what payments have been made, and how much is due in equity and good conscience : for such sum only, pan the conditional judgment be rendered ; and if all the debt has been paid by the mortgagor or his representatives or asr signs ; or if the mortgagee has assigned the bond or note for a full consideration paid to him, there is no reason in law or justice why he should have any judgment whatever in his favour, though he never has assigned the mortgage.

We have now arrived at the principal inquiry in the cause, which is, whether any property or interest passed to the demandant, by KimbalPs sale on the execution ; or in other words5 whether prior to that time, the old bank had divested itself of all title and right in and to the demanded premises, by the alleged assignment to the new bank in 1814, as before stated.

It was intimated by the counsel for the tenant that there was proof of an assignmént of the mortgage by deed to the new bank; because that averment is contained in the declaration in the suit by the new bank against Fozule wherein judgment was rendered on default, at August term, 1815. But though this iudgment might estop Fowle, it cannot have any such effect in respect to the demandant — a stranger to that suit.

Several cases have been cited from Johnson's Reports by the counsel for the tenant, to show that a mortgage may be assigned by parol or by delivery merely. Those from 1 11 Johns. are strong in favour of the tenant, and go very far towards sup- ■ porting the position of the counsel. But we are well satisfied that the principles of law upon this point have never been carried so far in Massachusetts or in this State. Our statute of 1821, ch. 36. seems decisive of this question; and to require that the assignment of a mortgage should be made by deed.— The form of declaring in an action by the assignee of a mortgage against a mortgagor shows this ; it is always alleged that by virtue of the deed of mortgage, the mortgagee became seized in fee; this very averment shews that such an estate cannot be conveyed to thé assignee but by deed. The case of Martin v. Mowolin, 2 Burr. 970, has so. long been the subject of critical animadversion by Judge Trozebridge and many learned Judges since his time, that it cannot be deemed an authority. Indeed the cases of Gould v. Newman, 6 Mass. 239. Warden v. Adams, 15 Mass. 233, and Parsons v. Welles, 17 Mass. 419, render a further examination, on opr part, of this point in the defence: wholly unnecessary.

The only question then remaining is, whether the delivery of the bond accompanied, as it was, by the mortgage deed, by the old bank to, the new bank, and the receipt from them of the whole amount due on the bond and mortgage, amounts in law to an assignment of the bond and the debt due thereby; for if so, then the sale by Kimball wa§ wholly ineffectual, and the verdict must be set aside.

We had occasion, in the case of Clark v. Rogers [antep. 143.] to remark that for many years Courts of Justice had been gradually becoming more and more inclined to protect equitable interests; that less form is necessary now than formerly, as to. the mode of creating such interests; that the object has been to ascertain that it was an interest.founded in equity and justice, and on good and adequate consideration. A series of cases decided in Massachusetts prior to our separation, will show the correctness of the above remark. In Perkins v. Parker, 1 Mass. 123. the Court doubted whether an assignment must not be by deed. In Quiner v. Marblehead Social Insurance Company, 10 Mass. 476. it,was decided that an assignment need not be by deed ; but that the delivery of the certificate with an indorsement upon it for a valuable consideration, was. a sufficient transfer of the right to become a stockholder. In Brown v. Maine Bank, 11 Mass. 153. an assignment of a judgment and execution by a writing on the back of the execution, for valuable consideration, was holdcn to be good. In Mowry v. Todd, 12 Mass. 281. the Court held that an assignment on the back of a contract written but not signed, and the contract handed- over to the alleged assignee, was a valid assignment, if assented to by the person who was bound by the original contract. In Jones v. Witter, 13 Mass. 304. a negotiable promissory note, for an adequate consideration, was assigned by delivery only, and held good. The Chief Justice says, “ There are cases in the old books which shew “ that debts and even deeds may be assigned by parol, and we “ are satisfied there is no sensible ground upon which, a writing “ shall be held necessary to prove an assignment of a contract, which assignment has been executed by delivery any more “ than in the assignment of a personal chattel.”-

In the case of Dunn v. Snell, 15 Mass. 181. the Court went farther still, and decided that a mere delivery over of an execu-. lion, was an assignment of it, and of the judgment.. And in Prescott v. Hull, 17 Johns. 284. Spencer C. J. delivering the opinion of the Court, and speaking of the validity of assignment, says — “ I do not consider the want of a seal essential;— “ the mere delivery of the chos'e in action, upon good and valid consideration, would be sufficient, even were it a specialty. It u ought however to be alleged that the assignment was for á u full and valuable consideration.”

The new bank, claiming under the assignment from the old lank, commenced their action against Fowle (in which they de-. dared as assignees of the mortgage) and obtained judgment in •August 1815 ; — of course, this amounted to notice to Fowle of the assignment, and the claim of the new bank under it. After this, Fowle would not have been justified in paying the debt to-the old bank. The new bank had the custody of the bond, and might legally cancel it, or release the debt 5 and if the new bank had commenced an action on the bond in the name of the old lank, after the assignment was made, the Court would not have suffered the old bank to become nonsuit or discharge the action*-.

On the whole, we are satisfied, after a long and laborious in-5 vestigation, that the action cannot be maintained ; and accordingly the

Verdict is set aside, and a new trial granted*  