This section is from the book "A Treatise On The Construction Of The Statute Of Frauds", by Causten Browne. Also available from Amazon: A treatise on the construction of the Statute of frauds.
9 Meador v. Meador, 3 Heiskell, 562.
10 Probasco v. Johnson, 2 Disney, 96.
11 Lehman v. Collins, 69 Ala. 127.
12 Vanmeter r. McFaddin. 8 B. Mon. 435. 13 Bicknell p. BicWH, 31 Vt. 498.
14 Gothard v. Flynn, 25 Miss. 58.
1 Martin v. Mowlin, 2 Burr. 978.
2 Powell on Mortgages, 187; Roberts on Frauds, 272.
3 Thornbrough v. Baker, Cas. in Ch. 283; Matthews v. Wallwyn, 4 Ves. 118; Richards v. Syms, Barn. Ch. 90, per Lord Hardwicke; Green v. Hart, 1 Johns. (N. Y.) 580; Aymar v. Bill, 5 Johns. (N. Y.) Ch 570; 2 Story Eq. Jur. §§ 1013-1018; 4 Kent Com. 160.
1 1 Powell on Mortgages, 187; Rex v. St Michael's, 2 Doug. 630; Eaton v. Jaques, 2 Doug. 455; Chimney v. Blackburne, 1 H. Bl. 117, note; Silvester v. Jarman, 10 Price, 78; 4 Kent Com. 160. The doctrine in Martin v. Mowlin has been affirmed in New York, both at law and in equity. Green v. Hart, 1 Johns. 580; Jackson v. Willard, 4 Johns. 41; Runyan v. Mersereau, 11 Johns. 534; Wilson v. Troup, 2 Cowen, 195; Johnson v. Hart, 3 Johns. Cas. 322; Aymar v. Bill, 5 Johns. Ch. 570; Jackson v. Bronson, 19 Johns. 325; Gillett v. Campbell, 1 Denio, 520. And in the New York Court of Appeals, Malins v. Brown, 4 N. Y. 403, it was said that, such being the law of that State, it was doubtful if a parol agreement to discharge the mortgage without payment of the debt would not be good. It is adopted also in New Hampshire, Southerin v. Mendum, 5 N. H. 420, 432; Rigney v. Lovejoy, 13 N. H. 247; Bell v. Morse, 6 N. H. 205; Ellison v. Daniels, 11 N. H. 274; Parish v. Gilman-ton, 11 N. H. 298; Whittemore v. Gibbs, 24 N. H. 484; Page v. Pierce, 26 N. H. 317. In Connecticut. Crosby v. Brownson, 2 Day, 425; Dudley v. Cadwell, 19 Conn. 218; Clark v. Beach, 6 Conn. 159; Huntington v. Smith, 4 Conn. 235; Barkhamsted v. Farmington, 2 Conn. 600. In Vermont, Pratt v. Bank of Bennington, 10 Vt. 293; Keyes v. Wood, 21 Vt. 331; Belding v. Manley, 21 Vt. 550; Mussey v. Bates, 65 Vt. 449. In Illinois, McConnell v. Hodson, 2 Gilra. 640; Mapps v. Sharpe, 32 111. 13. In Kentucky, Burdett v. Clay, 8 B. Mon. 287; Waller v. Tate, 4 B. Mon. 529. In Mississippi, Dick v. Mawry, 9 Smedes & M. 448; Lewis v. Starke, 10 Smedes & M. 120; Henderson p. Herrod, 10 Smedes & M. 631. In Tennessee, Ewing v. Arthur, 1 Humph. 537. In Alabama, McVay v. Bloodgood, 9 Port. 547. In California, Bennett c. Solomon, 6 Cal. 134; Tapia v. Demartini, 77 Cal. 383. In Iowa, Bank of the State of Indiana v. Anderson, 14 Iowa, 544. In Wisconsin, Croft v. Bunster, 9 Wise. 503. In Louisiana, Scott v. Turner, 15 La. Ann. 346. In Michigan, Martin v. McReynolds, 6 Mich. 70. In Missouri, Potter v. Stevens, 40 Mo. 229. In North Carolina, Hyman v. Devereux, 63 N. C 624. In Ohio, Paine v. French, 4 Ohio, 318. In Texas, Perkins v. Sterne. 23 Tex. 561. In Massachusetts, it is held that, upon the transfer of the debt, the equitable title to the mortgage is in the transferee, but the legal title remains in the transferor, the parties holding to each other the relation of cestui que trust and trustee. Parsons v. Welles, 17 Mass. 419, 423; Crane v. March, 4 Pick. 131; Young v. Miller, 6 Gray, 152; "Wolcott v. Winchester, 15 Gray, 464. See Morris v. Bacon, 123 Mass. 58. It is rejected in Maine, see Vose v. Handy, 2 Greenl. 322, per Mellen, C. J.; Smith v. Kelley, 27 Me. 237. And perhaps in New Jersey, McDermot v. Butler, 5 Halst. Law, 158; but see Sayre v. Fredericks, 16 N. J. Eq 205; and in Maryland, Evans v. Merriken, 8 Gill & J. 39. In those States where paying the debt does not discharge the mortgage, of course a parol livery only without deed, and between coparceners verbally without deed or livery. Since the Statute of Frauds, it is settled in England that tenants in common and coparceners can only make partition by writing, as provided in the statute; while the necessity for a deed between joint tenants remains as at common law.1 In several of the United States, however, partitions between tenants in common, followed by occupation in severalty, have, for certain purposes, been held valid without writing, even at law. Thus in New York, in the case of Jackson v. Bradt, in 1804, tenants in common had made partition and had occupied in severalty for fifty years: but there was never any writing between them, except a covenant (though in the report it is designated as a deed of partition), made after the division, by which they agreed with each other, for themselves, their heirs and assigns, that the division so made and done should thenceforth and forever stand and remain. On the trial it was objected that this deed was a mere covenant, and did not contain the necessary granting words to sever the estate. Kent, J., said upon this part of the case: "The division and the deed between the proprietors by which they covenanted to abide by it, and the separate possessions taken in pursuance of that division, were sufficient to sever the tenancy in common, which consisted in nothing but a unity of possession." The deed being inoperative as such, it would seem to be the effect of this decision, that the division and the separate possession were sufficient to effect a valid partition for the purposes of the plaintiff, who sued in ejectment against a mere tenant at will.2 In Jackson v. Harder it was held that a plaintiff, upon proof of parol partition and separate possession, could recover in an action of ejectment against a mere intruder.3 In Jackson v.
This doctrine is not opposed by the circumstance that in many of the States provision is made for the discharge of mortgages, after payment, by the entry of satisfaction in the margin of the registry; for this may mean only to provide a remedy for damages sustained by the refusal of the mortgagee to put an acknowledgment of such payment on record.1
§ 66. It has been suggested that the equitable doctrine we have been considering might be better reconciled with the statute by regarding the mortgagee's interest as passing (upon the assignment of the debt) by way of a trust, which trust, as it arises by operation of law, would be saved from the section of the statute which is directed against verbal evidence of trusts in land. But besides the difficulty of bringing such a case fairly within the terms of that section, it seems unnecessary to go beyond the plain rule derived from the nature of the contract of mortgage as interpreted to be, on the one hand a conditional sale of the land, or on the other a mere security for the debt.2 It appears, however, that a mortgage could never pass by mere parol gift, for want of the possibility of actual delivery of either the debt or the security.8