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![handle is hein.slavery/ssactsengr1016 and id is 1 raw text is: century ago the Court would not have seen further; but now it is said the Court
must look further and see the real intent of the deed; namely, that it was a
mortgage.
We are all of opinion, that the answer is'a good one, and that the exception to
the general rule was allowed of for the advancement of agriculture and tillage.
We are also of opinion, that the Court ought to look into the substance of the deed,
and to see with the same eyes as the rest of the world: it is in substance a mortgage,
though in form a lease for 99 years. But we think we have good authority to say,
that the wife is nevertheless bound by it, and that her subsequent acts set up this
mortgage against her.
Perkins, which is a very good authority in point of law, in sect. 154, says, It is
to be known that a deed cannot have and take effect at every delivery as a deed; for
if the first delivery take effect, the second delivery is void. As in case an infant, or
a man in prison, makes a deed, and deliver the same as his deed, &c. and afterwards
the infant, when he cometh to his full age, or the man imprisoned when he is at large,
deliver again the same deed as his deed, which he delivered before [204] as his deed,
this second delivery is void. But if a married woman deliver a bond unto me, or
other writing as her deed, this delivery is merely void; and, therefore, if after the
death of her husband she being sole, deliver the same deed again unto me as her deed,
the second delivery is good and effectual. The Year Books, Mich. 3 Hen. 6, 4, and
Hil. 8 Hen. 6, 8, confirm the proposition laid down by Perkins; namely, that the
deed is not to be re-executed or re-attested, but delivered only. Now delivery is an
act in pais only.
The question then is, whether the law has laid down any precise form in which
delivery must be made, or whether circumstances may not be equivalent to it without
actual delivery ?
Lord Coke in his Commentary on Lit. 36, says, As a deed may be delivered to
the party without words, so a deed may be delivered by words, without any act of
delivery: as if the writing sealed lies upon the table, and the feoffor or obligor says
to the feoffee or obligee, take up the said writing, it is sufficient for you, as it will
serve your turn, it is a sufficient delivery.--2 Roll. Abr. 26, pl. 2.
This brings it to the single question, whether these facts amount to a delivery.
Now the mortgage deed was in the hands of the mortgagee: the wife, after .the death
of her husband the mortgagor, surrenders possession under her own hand to Sanders
and Smith, the executors of the mortgagee, and orders the tenants to attorn to them
as executors of the mortgagee in terms. This is a clear acknowledgment that the
deed was hers, and that she was content, the defendants should enjoy according to
the terms of the deed.
Therefore, we are all of opinion for the defendants, and that these facts were a
confirmation of the mortgage, upon the ground of their being equivalent to a re-delivery
of the deed.
Per Cur. unanimously. Rule for a new trial discharged.
CAMPBELL versus HALL. 1774.
[S. C. Lofft, 655; see Sottomayor v. De Barros, 1879, 5 P. D. 106; West Band
Central Gold Mining Company v. Rex [1905], 2 K. B. 406.]
This case was very elaborately argued four several times; and now on this day
Lord Mansfield stated the case, and delivered the unanimous opinion of the Court,
as follows:
This is an action that was brought by the plaintiff James Campbell, who is a natural
born subject of this kingdom, and who, upon the 3d of March 1763, purchased a
plantation in the island of Grenada: and it is brought against the defendant [205]
William Hall, who was a collector for His Majesty of a duty of four and an half per
cent. upon all goods and sugars exported from the island of Grenada. And the action
is brought to recover back a sum of money which was paid, as this duty of four and
an half per cent., upon sugars that were exported from the island of Grenada, by and
on account of the plaintiff. The action is an action for money had and received; and
it is brought upon this ground; namely, that the money was paid to the defendant
without any consideration; the duty, for which, and in respect of which he received
1045
I COWP. 204.
CAMPBELL V). HALL](ViewImageLocal?handle=hein.slavery/ssactsengr1016&div=1&collection=&method=preview&ext=.png&size=3)