Howe v. Russell , 36 Me. 115 ( 1853 )

Howard, J. —

The defendant Joseph Russell, mortgaged timber land, in 1835, to secure the payment of his notes described in the mortgage, and which are still outstanding. Afterward, in 1838, he conveyed by deed of warranty, the same land together with a farm to Sawyer. We have determined at a former hearing of this case, that the deed last named, though absolute in its terms, constituted a mortgage to the grantee to secure him for sums due, and liabilities assumed for the grantor. It appears, and it is admitted in the argument for the defendants, that the farm embraced the two parcels of land claimed by the plaintiff under a levy in 1847. John K. Russell, son of Joseph Russell before mentioned and co-defendant, operated upon the timber land by the request and intercession of Sawyer, who “ urged him to make an effort to redeem,” and with the knowledge and approbation of Joseph Russell, and with the implied assent, or without any objection of others, who might be supposed to have been interested as prior mortgagees, or their assignees. The net avails of those operations far exceeded the amount of the indebtedness and liabilities of Joseph Russell, which were secured by his mortgage to Sawyer. Upon receiving a portion of those avails of the lumber from John K. Russell, and his obligation to discharge the remaining liabilities of the father, Sawyer conveyed the farm to the son, on Sept. 4, 1845; the grantee having full knowledge of the nature of the title of the grantor, as mortgagee.

The ease has been submitted to a master to ascertain the .amount due upon this mortgage; and he has reported that it has been wholly paid, and that there is nothing due and secured upon the farm levied upon, and claimed by the plaintiff.

The defendants now “move to amend the answers by stating, that prior to Sept. 1837, Joseph Russell had conveyed to sundry persons, by deeds before that time duly recorded, all his interest in the timber lands, on which John K. Russell lumbered, as set forth in the bill, excepting one sixteenth, and that afterwards he acquired no title thereto, said facts having been omitted because not supposed material.” The motion is not supported by evidence of the facts alleged, or by affidavit.

The practice of amending answers is not generally allowable in proceedings in equity in this country or in England. A supplemental answer, though allowable in some cases, will not be allowed to correct an alleged mistake, or supply an omission, upon motion, and where it is not made evident that a mistake exists, or that there has been in fact such omission of material facts. Wells v. Wood, 10 Ves. 401; Verney v. Macnamara, 1 Bro. Ch. R. 419; Story’s Eq. Pl. §. § 896, 905; Bowen v. Cross, 4 Johns. Ch. 375; Hughes v. Bloomer, 9 Paige, 269. To allow the amendment proposed, would be admitting a new ground of defence, existing and known to the defendants when their answers were filed, and proof taken, and which they did not omit to present and rely upon through accident or surprise. The motion is, therefore, denied.

The defendants, in their answers, do not appear to rely on titles to the timber lands derived from sales for taxes ; and as those sales and the titles springing from them, as now assumed in argument, are not supported by evidence, they cannot be regarded as valid. It does not appear that any estate passed to the purchasers, or their assignees, through titles originating in sales for taxes.

On September 4, 1845, the day on which John K. Russell received the conveyance from Sawyer, he took an assignment of the first mortgage of Joseph Russell of the timber lands from Warren, a prior assignee. This transfer was negotiated wholly by the father, and the amount paid by the son did not exceed one eighth of the sum apparently due upon the mortgage. In this sale or transfer, neither Warren, nor his assignors, claimed or required the defendants or Sawyer to account for the previous operations upon the lands. Under that conveyance the defendants cannot legally or equitably retain the avails of those operations, and divert them from the purpose first intended. It is manifest that they were procured in order to redeem the last mortgage; and they were so appropriated in part at least. Having been derived from the land for that purpose, by the assent of all interested, it is but simple justice to the levying creditor, that the appropriation should not be changed, so as to affect his rights injuriously.

Although it may not be necessary, in this case, to determine the relative rights of the defendants, in respect to the estate, derived from the assignment of the original mortgage by Warren, yet it is not quite apparent that there is a subsisting incumbrance by reason of that mortgage, if it has been purchased by the avails of the operations upon the timber lands, by John K. Russell, by the procurement of his father.

The defendants contend that the second tract described in the levy, containing three acres, was not the property of the debtor Joseph Russell. It appears however that he was in possession of it, as a part of the farm, that he conveyed it to Sawyer, in mortgage, as such, and that Sawyer conveyed the farm to John K. Russell, as the same farm conveyed to him by Joseph Russell. The deed from Pearson to John K. Russell, of July 15, 1845, embraces the “Bray lot,” containing thirty acres, including this tract of three acres, but it appears that Pearson was, at most, tenant in mortgage only, and that the equity of redemption was in Joseph Russell, by whose request this deed was made to his son. The avails of the lumbering operations referred- to, were sufficient to enable John K. Russell to discharge this mortgage, and the mortgage to Sawyer; and he in fact did pay to Pearson about two thirds of the mortgage debt with such avails, directly. And if that mortgage is not fully discharged, which cannot be admitted, still we hold that the defendants are estopped to claim that the three acres were not a part of the farm, and subject to the levy. R. S. c. 94, § 1. Equity demands that they should convey to the owner of the farm, all claim of title through the mortgage of Pearson, to that tract. For this will be just to the creditor of Joseph Russell, forced to seek payment by levy, and will work no injustice, or hardship upon either of the defendants.

But they except to the master’s report; and the first and third exceptions are based upon the fact that the master refused to receive evidence of title to the lands described in the bill. The answer to these objections is, that the question of title was not submitted to the master, and he had no jurisdiction, or authority to adjudicate upon that subject.

The second exception is, that the master appropriated the net avails of timber taken by the mortgagee, or by his authority,. from some of the lands embraced in the mortgage, to the discharge of the mortgage debt. The course of the master in this respect, was authorized and required by his appointment, and is unexceptionable.

The report of a master in chancery, upon facts submitted to him will be presumed, prima fade, to be true, and will not be reconsidered, or set aside, for an alleged mistake or abuse of authority, unless it be clearly shown, and the correction be required in equity. The burden is on the excepting party, to establish the mistake or misconduct alleged. Da Costa v. Da Costa, 3 P. Wms. 140, note. It is a sufficient answer to the fourth, fifth and sixth exceptions, that no such mistakes, as are alleged, have been shown. The evidence before the master, on the question of rents and profits, is not stated, nor was it-required to be reported by him, and cannot be considered by the Court. But if it were reported, his conclusions of fact upon the evidence will be upheld until impeached.

The seventh exception refers to a supposed error in the computation by the master, of the sum due 'upon the mortgage, when he regarded it as paid and discharged. But the error assumed, if it existed, would not be material, as the amount of rents and profits would far exceed the sum due upon the mortgage after correcting the alleged mistake. For such an error the report should not be set aside or re-committed. Errors in computation not affecting the result materially, may be corrected at any time, before or after confirmation of the report. 2 Madd. Ch. Pr. 507; Mason v. Crosby, 3 W. & M. 258. The master’s report is accepted and confirmed.

The mortgage to Sawyer having been paid, the title of the plaintiff is relieved from incumbrance, and is complete. It has not been deemed necessary, for the disposition of this case, to determine that the conveyance of Joseph Russell to Sawyer was fraudulent, as against creditors of the grantor. It is sufficient for the plaintiff that the conveyance has been, proved to have been a mortgage, and that its payment*has been established. ' He is entitled under his prayer for general relief, to a decree, that the conveyance from- Joseph Russell to Osgood Sawyer, described in the bill, was a mortgage; that the same has been fully paid ; and that the defendants release and convey to the plaintiff by deed duly executed, all right, title, interest and claim to the farm described in the bill, and in the levy under which the plaintiff holds, with covenants of warranty against all claims of all persons, claiming by, through or under them, or either of them. And it is ordered and decreed accordingly with costs for the plaintiff.

Shepley, C. J., and Rice and Hathaway, J. J., concurred.