Fryer v. Patrick

Brent, J., delivered the opinion of the Court. The object of the original bill filed in this case, is to procure a proper distribution of the fund, derived from the sale of certain furniture between the appellee, who is complainant below, and the appellant, who is defendant. The distribution involves the construction of a mortgage made to the appellee on the 13th of October, 1810, by Maddox and wife, conveying to him a lot and house, and all the furniture therein. Under a reservation in this mortgage, the appellant claimed he was entitled to a preferred lien upon the whole of this furniture, for a debt due him for such part of the furniture as he had sold and delivered to the mortgagors.

The Judge below indicating that his construction of the mortgage was in accordance with this claim, the appellee filed, in the same case, a bill to reform the mortgage, so that the lien of the appellee might be restricted alone to the furniture which he had delivered, upon the ground that such was in fact the pur ⁵³ pose and intention of the parties to the mortgage. Upon this hill and the answers, and after proof a decree reforming the mortgage was passed, and the fund ordered to be distributed accordingly. From that decree this appeal is taken. The counsel for the appellant have addressed the much larger portion of their argument to the sufficiency of proof to authorize a decree reforming the mortgage, insisting that it is the only question presented by the record.

In this we do not concur. The decree may be incorrect for either of two reasons. The one may be, that there is no occasion, arising upon a construction of the mortgage, for reforming it in the respect asked for in the hill of complaint ; or it may he erroneous, because, as contended, the proof is not sufficient to establish the right of the party complainant to have it reformed. As Courts of Equity will not pass decrees needlessly, the one question is as vital to the correctness of the decree as the other, and is of consequence equally open npon this appeal.

Indeed the construction of the mortgage must he first ascertained and decided, before the Court can possibly say, whether it ought to be reformed upon the proof, and if so, in what respect it is to he reformed. The particular clause of the mortgage in controversy is the one, in which the property conveyed is mentioned. This property is stated to be a certain lot and buildings thereon with the appurtenances, “and also all the household and kitchen furniture in the dwelling on the said described lot, and now occupied by the said Joseph H. Maddox and wife, subject however to the claim of James Fryer thereupon, for the unpaid purchase money for the portion of said furniture now being delivered to said Maddox and wife upon said premises.” James Fryer is not a party to this mortgage, and it is clear that it does not confer upon him any rights — as a mortgagee under it. Its only effect is to render the property conveyed subject to ⁵⁴ the incumbency of any existing claim or lien which Eryer then had upon it.

The nature and extent of that claim cannot be understood with certainty — from the words used. It is conceded by the appellant, that it does not extend to the house and lot. But as all the property conveyed is mentioned in the same clause continuously, why should not the words “subject however to the claim of James Eryer thereupon,” have reference to all the preceding property ? If he could have exhibited an equitable lien upon all o.f it, can it be doubted that the language used would have embraced the house and lot as well as any other portion of the property ?

Or it might be construed to embrace the furniture only, or a portion of it. Either of these constructions would not violate the words of the instrument if in accordance with the lien Fryer actually had. It is thus apparent that the terms of the mortgage do not render clear and certain to what the lien or claim extends, and the only mode in which it can be made to appear certainly and definitely, is to ascertain by parol or extrinsic evidence what his claim upon