¶1The bill in the original suit was filed by Mrs. Powell to foreclose a purchase money mortgage for seven hundred and *397fifty dollars and interest, dated February 1st, 1872, made by Alonzo Conant and Almina J. Conant, his wife.
¶2The suit was defended on the ground that the mortgage was executed before the conveyance from Mrs. Powell, and left in escrow with her agent until title should be made good, and then to be recorded with the deed; that before Mrs. Powell signed or executed the deed, the deed to herself not being on record, her grantor conveyed the lands to a third person, who put his deed on record at once, and thus created a cloud upon the title, and that the Conants, on discovering this, were induced to remain in possession on Mrs. Powell’s behalf, and desired to rescind, and attempted to rescind, but she would not accept the rescission.
¶3It is claimed for Mrs. Powell that a mortgagor holding by warranty deed, and not ousted or disturbed, cannot set up an outstanding title by way of defense, but must rely on the covenants.
¶4If this is true, it must be because the party purchasing has seen fit to accept a title,. which he was not bound to accept without examination, and has thereby obtained advantages which he cannot equitably refuse to pay for. Usually, perhaps, the cases may justify the enforcement of such a rule, as desirable to prevent collusion. It is not necessary for us to consider how far it should be applied, as the present case is so peculiar as to fall beyond, any such rule if it exists.
¶5There is no reason to suspect fraud on either side, and the equities depend on other consideration's. It is necessary therefore to consider the situation of the parties.
¶6The complainant, Mrs. Hetty Powell, received a conveyance of the premises in question from one Noah A. Bruce (to whom Conant had formerly sold it), on the 30th of January, 1872. This deed she failed to record uutil March 11th, 1872.
¶7Two days after the date of this deed, and on the first of February, 1872, Conant and wife made the mortgage in suit, acknowledged it, and delivered it to Joseph Powell, a son of *398complainant, to be kept until Mrs. Powell should make title to Conant, and then recorded.
¶8Thomas Powell and his brother Joseph Powell, on the first day of February, professing to act on their mother’s behalf, made a verbal bargain to sell the land to Conant, and a deed was drawn up at the same time with the mortgage, but not signed, and both papers were taken by Joseph Powell to be held until Mrs. Powell, who was then out of the state, should execute the deed, and then recorded, as before mentioned. On the 5 th of February, Noah Bruce deeded to his father, John O. Bruce, and that deed was at once recorded. No further .communication was had with Mr. Conant, until after the deed and mortgage were recorded on the 11th of March. Conant knew nothing of the record or completion of the title until he also learned at the same time of the deed to John O. Bruce. He at •once objected, and was induced to continue in possession on an understanding that steps would be taken to cancel Bruce’s title by proper legal proceedings, and after considerable delay, he tendered a release and quit-claim, which complainant’s agent refused to accept.
¶9It will be observed that Conant never dealt with Mrs. Powell in person, nor with any one competent to bind her under the statute of frauds. The verbal bargain was a mere nullity, and the mortgage when executed was without foundation or consideration, and moreover there was no title in Conant to mortgage. Its delivery, whatever may have been the language of the parties, could not have been a present delivery of a present contract, but a conditional deposit, of a paper to be delivered in future in ease a contract was made in future. It. was at all times subject to recall.
¶10Whether any agreement or understanding was expressed in words or not, there can be no doubt a good title was expected, and on that day a good title could have been made. If the agreement had been , in writing, that Mrs. Powell would convey to Conant, and that the latter would give back *399a purchase money mortgage, Oonant could not have been compelled, on a bill for specific performance, to accept a doubtful title, and no agreement would be enforced which should require such acceptance unless specially bargained for.
¶11When Mrs. Powell made her deed she had no contract rights against Conant, and she had, by her own negligence, allowed her title to become clouded. Nothing but an intelligent acceptance of a clouded title could have bound Conant. He never accepted, nor had he ever authorized Joseph Powell to accept for him any such title. He had never made Joseph his agent under the statute of frauds for any purpose, unless the deposit created an escrow of such a nature as to give Mrs. Powell greater rights than she would have had by an express written contract, which would certainly have bound her to convey a good record title.
¶12Conant never ratified this transaction. He objected at the outset, and all the subsequent course of the parties was understood to be conditional. The deed was recorded without having been accepted, and he cannot be made worse off by Joseph Powell’s unauthorized act. The latter, who was really employed in an adverse capacity, would not have been permitted to do any thing prejudicial to Conant and thereby' bind him. But it is not in evidence that he knew of the Bruce deed when he recorded the others. If he had, it would have been a fraud on Conant to put his mortgage on record without informing him of the changed condition of the title.
¶13The mortgage, as we are satisfied, never was and never would have been delivered to Mrs. Powell by Conant if he had known how the title stood; and vyas not his act in any proper equitable or legal sense. It was void as a mortgage at its date, and never received vitality by Conant’s intelligent acquiescence.,
¶14The case is therefore entirely different from the ordinary case of a mortgage delivered by the party on the acceptance *400of a conveyance. This mortgage was never operative at all.
¶15The decree must be reversed, with costs of both courts. The original bill must be dismissed, and a decree entered on the cross-bill, requiring the mortgage and securities to be canceled and delivered up, on the release by Conant and wife to Mrs. Powell of their apparent interest in the lands in controversy.