Burns v. Hobbs , 29 Me. 273 ( 1849 )

Howard, J.

Dearborn, one of the defendants, has demurred to a portion of the bill and answered the remainder. This demurrer presents all the questions that arise, in this stage of the proceedings. Considerations of form or substance, not noticed by the parties, and not presented by the demurrer, are waived in the present examination.

The plaintiff claims to have acquired title to certain land, by virtue of an attachment and of a levy thereon, as the property of David L. Hobbs, one of the defendants; and he alleges that David L. Hobbs deeded the premises to his son, John Hobbs, another of the defendants; that John Hobbs pretended to convey in mortgage the same property to Dear-born, the other defendant, who has entered to foreclose the mortgage, and that these conveyances were not bona fide, but fraudulent, and effected in truth “ to protect the property, and keep it for the use of said David L. Hobbs, and to cheat and defraud the plaintiff out of his just demand against him.”

The plaintiff seeks for a discovery of the facts and circumstances attending these transactions; and particularly, calls on Dearborn to state whether he did not know of said Burns’ claim and suit, before he took the mortgage from John, and before David L. conveyed to John, “ and to produce and file in Court, with his answer, the original note of $1310,66, and tó state what said note was given for, and when; if for money, where ? In whose presence, and to whom was it paid, and what was then done with it, and where and from whom did said Dearborn obtain the money ?” “ Said Burns further represents that it appears of record, that on the 22d of August, 1840, said John Hobbs executed to one Josiah Dearborn, of Effingham, N. H., a mortgage, to secure payment of $ 1310,66 payable in three years from that day, with interest annually, but he does not suppose that such mortgage deed was in truth, and bona fide executed at that time. It was recorded the 25th of June, 1846, book 192, pages 19, 20. And said Burns is informed and believes that said Dearborn claims to hold the premises by virtue of the mortgage.”

The demurrer covers that portion of the bill above recited, and proceeds upon the position that the party demurring is not required to discover documents,, or evidence which solely respect his own title. As an abstract proposition this may be true; but its direct or necessary application to this case, is not required.

The plaintiff presents prima facie, an equitable title, at least, to the premises, which he acquired in due form of law; and he calls upon a court of equity to sustain this title against what he considers the pretended title of Dearborn, originating and asserted in fraud of such equitable title.

Courts of equity acquired jurisdiction over almost all matters of fraud at an early date; and they address the conscience of the defendant, as one of the most direct means of detecting latent frauds and concealments, within his knowledge. If he do not know, such may be his answer; but if he do know, equity demands the discovery upon oath; unless such discovery would expose him to punishment, subject him to penalty or forfeiture, or render him infamous.

If Dearborn as mortgagee has legal or equitable rights they will be duly respected and guarded in a court of equity. But as mortgagee, he cannot, by demurrer to the bill, avoid answering and discovering the date of the execution of his mortgage, and whether he claims to hold the premises by virtue of it; or from discovering and producing, if within his power, the note as exhibiting the mortgage debt; or from stating when, where, in whose presence, and for what such note was given; from whom the consideration was received, and to whom paid. All this may serve to enable the court to come at, and adjust the rights of the parties; and it may all be consistent with the plaintiff’s claim under the mortgage. We cannot presume, in this state of the case, that an answer to such portions of the bill as call for this discovery will impeach or impair the defendant’s title.

If he be a bona fide purchaser, without notice of the supposed fraudulent conveyance, he may avail himself of that fact in defence, but if he acquired his title with a full knowledge of the fraud, or if he knowingly participated in effecting such fraudulent transfer, then equity demands of him a discovery of all the facts and circumstances attending it.

A demurrer cannot be good as to a part, which it covers, and bad as to the rest; the whole must stand or fall. Wigram on Discov. 82, 83; Hare on Discov. 140 — 145; Story’s Eq. Pl. § 603 — 605, 811; Cooper’s Eq. Pl. 207, 208; Fonbl. Eq. B. 2, ch. 6, § 2; and B. 6, ch. 3, § 3; 1 Story’s Eq. Jurisp. § 31, 32, 33; Ovey v. Leighton, 2 Sim. & St. 234; Jewett v. Palmer & al. 7 Johns. Ch. 65; Varick v. Briggs, 6 Paige, 329; Jackson v. McChesney, 7 Cowen, 360; Frost v. Beekman, 1 Johns. Ch. 302; Meth. Ep. Church v. Jaques, 1 Johns. Ch. 74; 3 Black. Comm. 437, 438; 2 Madd. Ch. 286; Story’s Eq. Pl. § 443; Livingston v. Livingston, 4 Johns. Ch. 296; Higinbotham v. Burnet, 5 Johns. Ch. 186; Hare on Discov. 289, 290. Demurrer overruled.