Jameson v. Head , 14 Me. 34 ( 1836 )

The case was continued for advisement, and the opinion of the Court afterwards drawn up by

Weston C. J.

By the act additional, respecting the attachment of property, statute of 1829, ch. 431, such an interest as Norton, the debtor of Hatch, had in the land in controversy, was liable to be seised on execution. It was so seised on the seventeenth of April, 1833. That Norton had from the defendant a bond conditioned to convey the land, upon payment of a sum of money therein expressed, by a day then future, is a fact charged in the bill, and admitted in the answer. Had it been given up, prior to the seisure of the interest on execution ? The bill calls upon the defendant to disclose how and where, he obtained the possession of the bond. He answers, that he was in possession of it on the first of July, 1833, and that it had been delivered to him before that day ; but he fixes no earlier period affirmatively and positively. There is nothing in the answer, inconsistent with the conclusion, that it may have been delivered to him the day next preceding.

The deputy-sheriff, Leavitt, deposes, drat about a week after he advertised the interest he had seised, which was done on the eighteenth day of April, the defendant told him Mrs. Norton had given him up the bond; but he does not in his answer confirm his declaration, that he had it at that time; although specially and properly interrogated as to the time, and although it was his duty to make a full disclosure upon this point. If he had the bond in his possession at and prior to the sale, it is not easy to conceive, that such a fact would have escaped his memory; but he does not say that he had it at that time. Taking the answer and the proof together, it cannot be regarded as an established point, that he had the bond before the sale. But assuming that he received it, as Leavitt is impressed he did, the day after the interest was advertised, which would be the nineteenth of April, that was two days after the seisure on execution. The defendant does not affirm in his answer, that he had no notice of that fact, when he received the bond, if indeed that would make any difference in the rights of the creditor or of the purchaser. But there is reason to believe, as well from the inquiries, previously put to him by the officer, and the publicity of the advertisement, as from the silence of the answer, that he had notice. The lien of the creditor was fixed by the seisure ; and no transactions between the defendant and Norton, or any agent of his, could dissolve it. The voluntary surrender of the bond, subsequently made by Mrs. Norton, without consideration, certainly could not have this effect.

On the first of July then, Harvey Jameson was, by operation of law, the assignee of the interest, which Norton had on the seventecnth of April; and on the same first of July, he had a right to pay the consideration to the defendant, and to demand and receive a deed. To guard the interest of the purchaser, the second section of the statute before cited provides, that whenever tbe obligor or contractor, upon request of the purchaser, shall neglect or refuse to give true and correct information of the amount due, or of the conditions remaining unperformed, the purchaser may maintain a bill in equity, without tendering payment of the sum due, or offering to perform any other conditions. The bill charges, that on the first of July such information was requested by the purchaser, which the defendant neglected and refused to give. This is denied by the answer.

It appears from the testimony of Thomas F. Hatch, that he and Jameson did on that day call upon the defendant for the express purpose of obtaining such information, which he, although then possessed of the bond, evaded and withhold. Hatch deposes, that he was desirous of purchasing it, if it promised to be advantageous. Jameson had a right to the information for himself and with a view to make the sale to Hatch. It was from his testimony, a most manifest evasion to defeat the purchaser; for a day or two after, when the time within which he had a right to pay had elapsed, the defendant voluntarily submitted the bond to the inspection of the witness, for the avowed purpose of apprizing him, that the right was gone.

Rufus Dwinal confirms Hatch. He was present at the same conversation, from which he understood, as he deposes, that the object of Hatch and Jameson was to ascertain the conditions of a certain bond; and especially the amount they had to pay. He says, the defendant avoided giving any definite information, and that to the best of his recollection, they did not succeed in getting any. He thinks the defendant would not acknowledge the existence of any bond; hut said if Hatch had any money, he might offer it.

Nehemiah O. Pilsbury, a witness for the defendant, heard part of the conversation. Hatch -wanted to know if the defendant would give up the bond, if he would pay the money due on it; and the witness deposes, that the defendant told him to bring the money, and he would let Mm know. But the purchaser had a right to the information, before he produced the money. Upon the whole, notwithstanding the answer, the proof is satisfactory to the Court, that the information, which the purchaser had a right to claim by the statute, was sought by him, and withheld by the defendant. Nor do we think that it was any excuse for him, that the purchaser may have heard before what the conditions were. He had a right to be assured himself upon this point, and to be able to satisfy Hatch, with whom he was negotiating for the sale of his interest. There is reason to believe that Hatch would have made the purchase, if he had ascertained the terms and had found the defendant willing to fulfil the conditions of the bond on his part.

The rights of the purchaser and plaintiff, his assignee, being preserved by the neglect and refusal of the defendant to give the information requested, the plaintiff has a right, upon payment of the sum stipulated in the bond, to a conveyance of the land, or relief equivalent thereto in damages.