Copeland v. Copeland , 28 Me. 525 ( 1848 )

W hitman C. J.

— The action is in a plea of land, and of course is of proceeding at law, and not in equity The plaintiff therefore must make out a legal title to the demanded premises. His claim is under Joseph T. Copeland, the son of the defendant; first under a deed of mortgage bearing date July 6, 1836 ; secondly, under an absolute deed, containing a general warranty, under date of 11th of September, 1840; both recorded soon after their dates. If Joseph had a clear title to the premises at the time he executed these deeds, the plaintiff’s right to recover would be unquestionable.

But it appeared in evidence, that, before Joseph made his mortgage to the plaintiff, he had made one of the same premises to the defendant, to secure the payment of a bona fide debt due to him ; and of which the plaintiff, when he took his mortgage was apprised though it was not then recorded. The defendant’s mortgage, therefore, must be considered as taking effect, in preference to the plaintiff’s claim, the same :as if it had been previously recorded; so that the defendant’s title as security for the amount due to him, was paramount to 'that of the plaintiff.

The title standing thus at law, it would seem to be difficult for the plaintiff to entitle himself to recover, unless, as ruled by the Judge at the trial, he can show, that the debt so secur»ed to the defendant, had been discharged by payment or release.

The case is now before us upon exceptions; and to those ■ our attention must be confined. The plaintiff, at the trial, : supposed he might rely upon certain acts and declarations of the defendant, which he alleges were of a tendency to deceive him, and which had the effect of inducing him to believe, that the mortgage to the defendant had become a nullity; and ■thereupon to enter into other negotiations with his son Joseph, whereby great injury will accrue to the plaintiff, if the defendant’s mortgage is to be allowed to be set up in defence in this action. '

The acts and declarations, thus relied upon, are stated to be -as follows: — For several years prior to December, 1840, the ¡plaintiff was allowed by the defendant to enjoy the rents and ■profits of the demanded premises, as tenant in common with the defendant, who owned the other half of the farm, without ;any objection on his part; and in December of that year he . agreed with the plaintiff, verbally, on a division of it, in which . a line separating the one half of it from the other was deter.mined upon; but that it was thereupon concluded to suspend ¡making partition deeds, in conformity to their agreement, till a deed or some writings could be obtained by the plaintiff from Joseph ; and once, when an individual was known by the defendant to have contemplated buying the demanded premises of the plaintiff, he said to that individual, it would be a good plan ; and the defendant did not cause his mortgage to be recorded until 1841.

Upon these facts, which the evidence tended to establish, it appears that the counsel for the plaintiff, at the trial, requested the Judge to instruct the jury, that, although they might believe the plaintiff had notice of the defendant’s mortgage, when he took his deed of September 11th, 1840, yet, if they should be satisfied that ho was led by the acts, conduct and declarations of the defendant to believe that he did not claim by virtue of his mortgage, or that the same had been paid by the mortgager, and the plaintiff took said deed of September 11th, 1840, and paid or allowed said Joseph for the premises, in consequence of such belief, so induced by the defendant, that he was entitled to recover. This instruction the Judge declined to give; and one of the questions made is, did the Judge err in not giving it ?

We have before seen that the title, anterior to any of the acts and declarations relied upon, was conditionally in the de-' fendant by virtue of his mortgage. Have those acts and declarations, so far as the plaintiff is concerned, deprived him of it ? It seems to be well settled at law, as well as in equity, that where “ one by his words or conduct wilfully causes another to believe the existence of a certain state of things, and induces him to act on that belief, so as to alter his own previous position, the former is concluded from averring against the latter, a different state of things, as existing at the same time.” Pickard v. Sears & al. 6 Adol. & El. 469; Gregg v. Wells, 10 ib. 90 ; Hearn v. Rogers, 9 B. & C. 577; The King v. The inhabitants of Batterton, 6 T. R. 554; Welland C. C. v. Hathaway, 8 Wend. 480; 9 ib. 147 ; Dezell v. Odell, 3 Hill, 215 ; Reynolds v. Loundsburg, 6 ib. 534 Barnard v. Pope, 14 Mass. R. 437; Thomson v. Sanborn, 11 N. H. Rep. 200.

In this position thus established, it must be observed, that several things are essential to be made out in order to the operation of the rule ; the first is, that the act or declaration of the person must be wilful, that is, with knowledge of the facts upon which any right he may have must depend, or with an intention to deceive the other party ; he must, at least, it would seem, be aware that he is giving countenance to the alteration of the conduct of the other, whereby he will be injured, if the representation be untrue ; and the other must appear to have changed his position by reason of such inducement.

In Storrs v. Barker, 6 Johns. C. R. 166, the rule in equity •seems to have been laid down in accordance with these views. It was held in that case, that one knowing certain facts, which had the effect to create a title in himself to property, though unaware of such effect, if active in inducing another to buy the same, every one being bound to know the law, he should not be permitted, afterwards to allege his ignorance of it in attempting to recover the same from the buyer.

Upon this rule, as first stated, or as extended in Storrs v. Barker, we must suppose, the requested instructions were predicated. We must now look into the case, and see if they should have been given. In the first place, it does not appear that, in the call for instructions, any regard was to be had to whether the conduct, acts and declarations of the defendant were done or uttered with a design, or even with the knowledge, that they could or would influence' the conduct of the plaintiff; or that they were done or said with a design that they should come to his knowledge; or with any reason on the part of the defendant, to suppose that they could or would influence the conduct of the plaintiff. The request itself, therefore, was defective.

Secondly; the facts set forth in the bill of exceptions, are not such as would warrant a call for instructions, under the rule referred to. Such is clearly the case-, with regard to the plaintiff’s mortgage. None of the acts relied upon, took place till long after that was made.

The next" question is, would the requested instruction, if it had come within the rule, have been applicable, as to the other branch of the plaintiff’s title, derived under the absolute deed from Joseph, made in September, 1840. To make it so applicable it should appear, that the facts relied upon occurred at the time, or before the making of the deed, as, otherwise, they could have formed no inducement to the plaintiff to take it. The verbal agreement to make partition would seem, from the evidence, set forth in the bill of exceptions, presented by the plaintiff, and allowed by the Court, to have been made in December after the date of that deed; and, therefore, could have formed no inducement for him to take it. The rents and profits, which the defendant allowed the plaintiff to receive, accrued before the taking of that deed. But that was nothing more than occurs between mortgager and mortgagee, in almost every instance of a mortgage ; and the plaintiff was but in the place of the mortgager, in reference to the defendant; he having become seized merely of the right in equity of redeeming from him.

And it is of every day’s occurrence for the mortgagee to forbear, for years, even, to enter on the mortgaged premises, against the mortgager or his assigns. The existence of the defendant’s mortgage, must be regarded as having been well known to the plaintiff, from the time the latter took his mortgage, in 1836. There could, therefore, be no concealment or misrepresentation as to that fact. The plaintiff, thereafter, should have looked for something more than equivocal acts, merely admitting a possible inference, that it had been discharged. In doing otherwise, he must be considered as having acted without due precaution, and as liable to the imputation of gross negligence, in paying Joseph the full value of the demanded and mortgaged premises. As to the defendant’s omission to record his deed, till 1841, it must be remarked, that, it had become, as to the plaintiff, the same as if it had been seasonably recorded. The title had vested under it in the defendant. This the plaintiff must be deemed to have understood, whether the deed was ever recorded or not. This, then, was not a circumstance which should have thrown him off his guard, when he took his absolute deed.

As to what passed between Safford and the defendant, in reference to the purchase of the part claimed by the plaintiff, it does not appear, that the plaintiff was apprised of it, before the taking of that deed. Moreover, it does not appear that the defendant was present, when the plaintiff took it. Indeed it does not appear that the defendant knew any thing of the nature of the bargain, which the plaintiff made with Joseph, in taking it.

There was then no act or declaration, done or made, in the presence of the plaintiff, by the defendant, which could fairly have been taken to be an inducement, intentionally held out to the plaintiff to make the bargain with Joseph, which resulted in taking from him his absolute deed of the premises ; and of course, nothing that could have authorized a call for instructions, of the nature of those contemplated by the counsel for the plaintiff; and they were therefore properly refused.

We now come to the consideration of the instructions, which the Judge, at the trial, did give; and it must be admitted, that, abstractly considered, they were of an import, somewhat too general.

And it is not unusual for a Judge to express himself in general terms, having, at the moment, only the case before him presented to his mind, and having a view to that alone. The instructions were, that there could be no waiver by the tenant of his rights by parol; that nothing but a deed of release, or evidence of actual payment of the debt to the defendant, would avail the plaintiff. We have seen that the conduct and declarations of the defendant might have been such, that it would have been otherwise; and that, if those acts and declarations had been proved, so as to bring the case within the rule to which they would be applicable, the plaintiff might have recovered ; but as they did not, the plaintiff is not aggrieved, in this particular, by the generality of the terms of the charge, and, therefore, is not entitled to maintain exceptions on account thereof.

Furthermore, it is urged, that, by the generality of the terms of the instructions, the jury were precluded from considering whether the debt due to the defendant had been forgiven; and it is true that such was the case. But then, the question again recurs, was there any evidence in the case, which could have authorized the jury to find that the debt had been forgiven.

This was a question between Joseph and the defendant. The position, that a debt may be forgiven, even by parol, is supported by authority. Martin v. Mowlin, 2 Burr. 969; Mentz & ux. v. Dehaven, Executor, 1 Serg. & Raw. 312. And it may well be conceived, that one may give up a personal security, he may hold for a debt, to his debtor to be canceled, with a declaration of his forgiveness of the debt; and that the debt would thereupon be extinguished. In the case of Wentz v. Dehaven, the creditor had given a writing under his hand, witnessed by two witnesses, to his debtor, his son-in-law, containing a declaration, that he never intended to call for the amount due by a bond and mortgage, which he held against him ; nor for the interest thereon ; and that he intended to give up the same; and over twelve years thereafter had elapsed, when the creditor died without any call for, or payment of either principal or interest; and the wife of the debtor, being the daughter of the creditor, the Court thinking it might be considered as an advancement to her, held the debt to have been forgiven.

But what have we in this case, tending to show a forgiving of the debt to the debtor ? It is obvious, that, to be available to the plaintiff, it should be such a forgiving of the debt, as would enable the debtor to oppose a recovery of the debt of him, or that should tend to that effect. On looking into the bill of exceptions, we do not find the slightest evidence tending to show, that the debtor could ever have had any pretence for such a defence. On the contrary, he himself was a witness, and disclosed no ground for any such defence; but testified that the debt was justly due. The plaintiff, then, cannot be aggrieved because the charge of the Judge precluded the consideration of such ground of defence by the jury ; and besides, the case does not exhibit any attempt at the trial to set up any such ground as tending to defeat the defendant’s claim; and of course the attention of the Court, was not brought to the particular consideration of any such exception, to the generality of its ruling.

It is further insisted, that the jury were precluded, by the charge, from giving their attention to a question of fraud as imputable to the defendant, affecting his rights, which it is contended the case presents. The reply to this must, in a great measure, be the same as to that in relation to the supposed forgiving of the debt. No question of fraud seems ever to have been brought to the notice of the Court, otherwise than is contained in the requested instructions, in reference to which we have seen that the pretence of actual fraud, on the part of the defendant, had no foundation in any of the evidence, supposed to have a tendency to support it. In fact the case as exhibited, could scarcely have involved the consideration of any other question, than that of actual payment of the debt to the defendant; and the jury, under proper instructions upon that head, found that the debt had not been paid; and it is also distinctly admitted by the counsel for the plaintiff, in his argument in writing, that the amount due is not paid.

It may be remarked that the conduct of both parties has been singular; and séems inexplicable upon any other hypothesis than that they had both labored under the impression that the recording the plaintiff’s mortgage, before that held by the defendant, had vested the title in the plaintiff, to the exclusion of all right remaining in the defendant. The defendant may well be supposed to have been under such impression, as it does not appear that he was apprised of the fact, that the plaintiff, when taking his mortgage, knew of the existence of ■ that of the defendant. The plaintiff being unlearned in the law, may also have been under the same impression. When the defendant discovered his mistake, he of course altered his conduct. In this view there would not seem to be the, slightest ground for the imputation of a fraudulent intent on either side. The plaintiff cannot be regarded otherwise, than as having been unaccountably remiss in taking his second deed and making additional advances upon the supposed strength of the title thereby acquired, without concerning himself at all with the title of the defendant, under his mortgage, and without the slightest inquiry, so far as appears, concerning it.

Exceptions overruled.