Pierce v. Lamson

The bill avers with sufficient precision and certainty, that the deed of mortgage was duly executed and delivered by the defendant to the plaintiff, so as to vest the title in the latter as between themselves. The acknowledgment was not essential to its validity as a deed by which the estate would pass presently to the grantee. Dole v. Thurlow, 12 Met. 157, 162. Howard Mutual Loan and Fund Association v. McIntyre, 3 Allen, 572. This averment of delivery, coupled with the other statements of the bill, is sufficient to show that the plaintiff is entitled to the possession of the deed.

The only other question raised by the demurrer is, whether the court has jurisdiction in equity of the case. Before the enlargement of our chancery jurisdiction, it would seem, to be quite clear that, without an averment that the deed was withheld or secreted so that it could not be replevied, the party entitled to its possession could not have maintained a bill in equity for its recovery. Travis v. Tyler, 7 Gray, 146. But under the provision contained in Gen. Sts. c. 113, § 2, by which full jurisdiction, according to the course and practice of courts of chancery, where there is not a plain, adequate and complete remedy at law, is conferred on this court, we have no doubt that the case stated in the bill is one which entitles the plaintiff to relief in equity. One of the most ancient heads of chancery jurisdiction is that which gives specific relief to persons having a right to the possession of deeds and other written instruments, by a decree for their surrender and delivery by those whc *62wrongfully detain and withhold them. Story on Eq. §§ 703, 906. Knye v. Moore, 1 Sim. & Stu. 61. Freeman v. Fairlie, 3 Meriv. 30. The remedy at law is inadequate in the present case, because it furnishes no means by which the p'^intiff in one sui can recover his deed and at the same time restrain the defend ant, in whom the apparent title to the premises described in the deed stands on the record, from conveying the premises to an innocent purchaser without actual notice of the previous deed to the plaintiff, and thus depriving the plaintiff of the estate to which he is entitled. Demwrrer overruled.