Roberts v. Salisbury , 3 G. & J. 425 ( 1831 )

Buchanan, Ch. J.,

delivered the opinion of the court.

It appears that Andrew Black, having sold'and conveyed to John Roberts his interest in a tract of land, took from him on the same day a mortgage of the same land to secure the payment of the purchase money, which deed of mortgage has not been recorded; that afterwards, John Roberts, the mortgagor, conveyed the same land to Isaac G. Roberts, and that subsequently, John and Isaac G. Roberts united in a conveyance of it to John Gooding. The object of the bill, in which it is stated that the purchase money of the land for which the mortgage was given has not been paid, and that Isaac G. Roberts and John Gooding, when the conveyances were respectively made to them, had a knowledge of that fact, and' also of the existence of the mortgage, is, to have the mortgage deed recorded, and the deeds from John Roberts to Isaac G. Roberts, and John Roberts and Isaac G. Roberts to John Gooding, vacatéd. Isaac G. Roberts and John Gooding in their answers flatly deny any knowledge of the existence of the mortgage, when the coñveyances to them were respectively made; and we think" they equally deny á knowledge of the existence of a lien of any kind whatsoever. Nor can we perceive any thing in the evidence,'to show that either óf them had before, or at the time of the execution of the deed to Gooding, any knowledge that the purchase money, or any part of it, remained unpaid by John Roberts. An answer flatly denying an allegation in a bill, can only be overruled by the positive testimony of two witnesses, or of one, aided by pregnant circumstances, neither of which will be found to exist here, in relation to the denial by Isaac G. Roberts and John Gooding, of any knowledge of the mortgage, when the conveyances were respectively made to them. One witness, it is true, and only one, does swear that in a conversation with Gooding, he admitted that he had at that time a knowledge of the existence of the mortgage deed; but that was some time after the execution of the deed to him, and about the time at which he says in his answer he first acquired a knowledge of the mortgage, and does not carry hack his knowledge of the mortgage, to the time of the conveyance to him. The testimony therefore of the witness, does not contradict, but is consistent with the answer; and if there were pregnant circumstances, which we do not wish to be understood as affirming, yet standing alone, without the aid of the positive testimony of a single witness, they would be unavailing. Nor is there the positive testimony of a witness, to show by the admissions of Isaac G. Roberts, or otherwise, that he had any knowledge of the existence of the mortgage at the time in question; we should therefore say, that in our opinion, Isaac G. Roberts and John Gooding are not to be considered and treated as purchasers with notice. But we think that the appeal has been improvidently taken; there has been no decision in chancery settling or binding the rights of the parties.

The chancellor has, it is true, in his remarks preparatory to the order appealed from, said, he is “ satisfied that John Gooding and Isaac G. Roberts must be considered as purchasers, with full notice of the vendor’s lien, and of the mortgage which had accrued or been given to secure the payment of the purchase money, and that under the one or the other, the land was bound for the payment of the purchase money to the representatives of the late Andrew Black;” but he has passed no decree directing the deed óf; mortgage from John Roberts to Andrew Black to be recorded, or vacating and annulling the deeds from John Roberts to Isaac G. Roberts, and from John Roberts and Isaac G. Roberts to John Gooding, or either of them; but has passed an order only, referring the case to the auditor, with directions to state an account for the purpose of ascertaining the amount of the purchase money due to the complainants.

It is to be presumed, from the intimation given by the chancellor of his opinion, that it was his intention at that time, to decree relief to the complainants, at the final hearing. .But he had not reached that stage of the cause,.to which the order in question was only preparatory,, and might before the final hearing, have taken a different view of the case, and decreed accordingly. Nothing had been done conclusive, upon either the chancellor or the parties; no question of right had been settled: but upon further consideration he might, after an account taken in pursuance of the order, have rejected it and dismissed the bill, had not the proceedings been árrestedby the appeal. It is not like the cases of Thompson vs. McKim, et al. 6 Harr. and Johns. 302, and Williamson vs. Carnan, 1 Gill and Johns. 184, where the rights of the parties were adjudicated upon, but cannot be distinguished in principle from Snowden, et al. vs. Dorsey, et al. 6 Harr. and Johns. 104, which has since been followed up by Hagthorp, et ux. et al. vs. Hook's adm'r, 1 Gill and Johns. 270, and Danels vs. Taggart's adm'r, Ib. 311, and Hungerford vs. Bourne, ante, 142. The appeal therefore, is dismissed with cpsts.

APPEAL DISMISSED