Jarvis v. Woodruff , 22 Conn. 548 ( 1852 )

Hinman, J.

The first point involved in the question re-, served for the advice of this court, is, whether the transaction, evidenced by the deed of Maria A. Woodruff and-her husband, of the 17th of January, 1831, was a loan of money to the husband, and a mortgage, by them, of the-wife’s land, to secure it ? The point depends upon what appears, upon the face of the deed itself. The court does not find, that any other contract, than such as is shown by that instrument, was made at the time ; and although the circumstance, that the land, at that time, was of no greater value than the sum mentioned in the condition, as lent to these leasors, would be evidence, to rebut a presumption, that the deed was intended as a mortgage, in a doubtful case, yet, of itself, it is not sufficient to control the clear and unequivocal language of this instrument. The condition recites, that the parties, to whom the deed was given, had lent to the releasers the sum of one thousand dollars, to be paid in three years after the date of the deed, and then, after providing how the interest shall be paid on this sum, it goes on, in the usual form of the ordinary condition to a mortgage deed, to say, “ If we shall pay said money, this deed shall be void,—else valid.” • Here is every element that enters into the ordinary definition of a mortgage,—a conveyance of lands by a debtor to a creditor, as a security for the payment of the debt; or,-as it is very briefly expressed, by.'Judge Swift: “ It is a contract of sale, executed,- with a power to redeem.” It is true, that no note, or other written security, except the mortgage deed, was taken for the money; and, in this respect alone, it is distinguishable from an ordinary loan and mortgage.- But,-it is.well settled, that no other security was necessary, to constitute, the; transaction a loan and mortgage. If the conveyance was intended as a security for the money, that is enough ; and the. condition here expressly recites, that there was a loan, and that it was to be paid at a time fixed. On this point, the case can-not be distinguished from the late case of Bacon v. Brown, 19 Conn. R., 29,—the principle of which is fully sustained, by theauthorities there cited.- See also Russell v. Southard, 12 How., 139, where this subject is fully considered. But, although we consider the transaction to have been a loan-of money, and mortgage to secure it,—we still think, that neither Woodruff, nor his wife, have any remaining, right to redeem. The mortgagees went immediately into the possession of the land, and have ever since used and occupied it, as the absolute owners ;. and, whether we consider their adverse occupancy to have commenced immediately, or at the expiration of the law day, more than fifteen years has expired. It is clear, therefore, that, had neither of the parties been,under any disability, their right of redemption would be lost.by the lapse of time. Skinner v. Smith, 1 Day, 124. But it is said, that Mrs. Woodruff’s right is saved, by the proviso in the statute, in regard to the time within which entry must be. made into lands, in the adverse possession of another; and, had the equity of redemption been cast upon her, without any act of her own, this would be.so. It would.be so however, only by an equitable application of the statute in her favor. Strictly speaking, she had no right of entry, to be saved, after the law day'had expired. She hadan equity of redemption ; but after the law day, to make -it available, she must come into a court of equity, and ask, rather as a favor, than as matter of strict legal right, to be permitted to redeem. Now, we think the saving in the statute ought not, by construction, to be extended to the case of a married woman, who has, by her own deed, raised am equity of redemption in her favor. In this state, she has the same power to convey her land, as if she were a feme sole. The statute having given her the power of a feme sole, to convey her lands, we think her equity of redemption, which she has by deed reserved, should be subject to the same incidents, as if she were sole. In the absence of any authority to the con» trary, it seems to us, that, in this respect, it is more equitable, that she should be bound by her deed, as if she were sole, than that, as matter of favor, she should have extended to her a power to lie by, as long as she remains a married woman, and speculate upon the prospective value of her equity of redemption. We therefore, advise the superior court, that neither the said Maria, nor her husband, have, at this time, any right to redeem said mortgaged premises.

In this opinion, the other judges concurred.

Decree for plaintiffs.