Patterson v. Yeaton , 47 Me. 308 ( 1859 )

The opinion of the Court was drawn up by

May, J.

The right of the orator to redeem the premises described in his bill is fully established, unless the facts relied upon in the respondent’s answer, and sustained by his proofs, show a valid defence. Said premises consist of ninety-five acres of land, conveyed by the respondent, on December 14, 1850, to the orator’s intestate, and by him mortgaged back to secure the performance of a certain agreement then existing between the said parties. ' That agreement it is not contended has ever been fully performed.

The defence now urged is, that afterwards, on the eighth day of October, 1851, the respondent, at the urgent request of said intestate, purchased the right in equity to redeem said premises of said Jefferson Pierce, then in full life, and paid him the sum of $225-, therefor, in full for said right, who thereupon gave a release to the said respondent in the following words:' — “Sold to John Yeaton all the right that I have this day in land belonging to me for $225, .more or less,” dated October 8, 1851, and signed by the said Pierce; and at the same time gave np to the respondent the deed then unrecorded, which said respondent gave to him of the premises described in the mortgage, and bearing even date therewith; all which was dope with the purpose and intent of vesting the entire estate in said premises in said respondent. All this is directly alleged and sworn to by the respondent in his answer.

The answer further alleges, that said Pierce represented and declared to said respondent that said transactions would operate as a release of his right of redemption, and vest the whole title in said premises in said respondent, and that said respondent then and there believed that such would be their effect; and that, according to the respondent’s best knowledge and belief, the said Pierce so understood the same, and after-wards in his lifetime admitted, represented and declared, to divers persons, that he had so sold all his right in said property to the respondent.

There is much testimony in the case tending to show that said Pierce did represent to several persons that he had sold all his interest in said premises to the respondent; but no such release as is set forth in the answer is produced. The one which was produced, the suggestion being made that it was fraudulent and forged, was withdrawn by the counsel for the respondent, but subsequently put into the case by the counsel on the other side, as tending to impeach the respondent’s answer in other respects. Upon examination of the paper, we are satisfied that it is not genuine, and no such release as is alleged and sworn to was ever given. Under such circumstances, no part of the respondent’s answer can be regarded as true, any further than it is corroborated by other evidence. Falsus in uno, falsus in omnibus, though not a binding maxim at law, is deserving of great weight in determining how much credit shall be given to the statement of a party or a witness.

The alleged release seems to have been originally the gravamen or gist of the defence. All the other facts seem to have been regarded in tbe answer as corroborative of that. The answer alleges no other sale of the equity of redemption than such as was evidenced by the written release. The cancelling of the respondent’s deed to the orator’s intestate, and the subsequent statements by him in regard to the sale of all his interest in the premises to the respondent, tend strongly to show that some release in writing ought to have been given. If the surrender of the deed was intended as a cancellation of the conveyance, and to divest the intestate of his estate, it is remarkable that the mortgage depending upon it should not have been also given up or discharged. If the intestate had, in fact, parted with his estate, the mortgage had no longer any basis on which to stand. It is, therefore, improbable that the deed was given up with any such design.

The other testimony in the case shows that the orator’s intestate frequently said that he had sold out his place to the respondent and got his pay; and one witness testifies that he saw $200 paid; and it also appears that said Pierce had a note for $25, dated Oc.tobér 8, 1851, signed by the respondent, which was subsequently paid to the indorsee of Pierce.

In view of these facts, it is contended in defence, that, notwithstanding the failure to show a written release as alleged, still the surrender of the deed from Yeaton to Pierce by the latter, under the circumstances in this case, revested the entire estate in the respondent, notwithstanding the mortgage was not given up or discharged, so that the orator’s intestate thereby ceased to have any equity of redemption. The only evidence that the deed was in fact surrendered depends upon the respondent’s answer, and the fact that he now produces the deed in court; and the only evidence that it was surrendered with the purpose and intent of revesting the title to the premises in the respondent depends upon his answer alone, except so far as the same may be incidentally corroborated by the statements of the intestate, that he had sold out to the respondent his interest in the place.

Assuming that the deed was surrendered for the purpose, and with the intention alleged, which, perhaps, may well be doubted, we are not satisfied that such a transaction, under our law, would have the effect to revest the estate in the respondent. It is believed that, in all those cases in the books where the surrender and cancellation of deeds conveying lands have been held, as between the parties, to revest the estate in the grantor, the deeds have not only been unrecorded, but were surrendered soon after their execution and delivery, and the parties were in fact restored to the same position, or to what was equivalent, that they stood in before the conveyance was made. In the present case, the deed surrendered was but one part of a transaction, and while the conveyance to the mortgager was to be cancelled, his mortgage and liabilities thereon were left in full force. In some of the cases, the possession had not changed prior to the cancelling of the deed.

In the case of Nason v. Grant, 21 Maine, 160, cited in defence, the deed of conveyance and mortgage back, together with the notes, were all given up and cancelled.' Had the surrender been of the mortgage, or any instrument of defeasance only, the estate would thereby revest in the mortgager. Not, however, as is said by Shaw, C. J., in the case Trull, in equity, v. Skinner & al., 17 Pick., 213, “by way of transfer, nor, strictly speaking, by way of a lease working upon the estate, but rather as an estoppel arising from the voluntary surrender of the legal evidence by which alone the claim could be supported; like the cancellation of an unregistered deed, and a conveyance by the first grantor to a third person without notice. The cancellation reconveys no interest to the grantor, and yet, taken together, such cancellation and conveyance make a good title to the latter by operation of law.”

In the case of Holbrook v. Tirrell, 9 Pick., 105, Parker, C. J., says, “ that the mere cancellation of the deed, under which one holds title to real estate, does not divest the title or revest it in the grantor, seems to be abundantly settled by the cases cited in the argument;” and he particularly refers to the two cases from the Reports of Connecticut, vol. 4, p. 550, and vol. 5, p. 262. We find nothing connected with the. cancelling of the respondent’s deed to Pierce, which, upon® the principles above stated, can Operate by way of re-conveyance or estoppel to prevent the orator in this case from setting up and maintaining his title to the equity of redemption.

Assuming, also, that the evidence in the case, independent of the alleged written release, satisfactorily establishes the fact of a parol sale of the intestate’s right in equity of redemption, and the payment of the price agreed therefor, w'e know of no principle by which such a sale can be upheld, either in law or equity, under the circumstances of this case.

It is said the purchaser went into immediate possession; but this he was entitled to under his mortgage; and, so far as he may have paid any money in pursuance of the sale, or made any improvements upon the estate by reason of such parol contract or sale, he will be entitled to recover therefor, upon the principles settled in Richards v. Allen, 17 Maine, 296, provided such sale shall be repudiated and a redemption shall take place.

By the law of this State, no such verbal contract, even when accompanied by part performance, will enable this Court, when sitting as a court of equity, to compel a specific performance. Inhabitants of Wilton v. Harwood, 23 Maine, 131. This is conceded by the counsel in defence. Such, also, is the law in Massachusetts. Parker & wife v. Parker & wife, 1 Gray, 409.

No reason is perceived, if such a contract will not authorize this Court, on its equity side, to decree a specific performance of it when it has been partly performed, why the same facts should enable it to set up such a contract as a valid defence against a party having an equitable right to redeem an estate which he has mortgaged. The statute, which was in force when the alleged contract was made, forbids the exercise of any. such power. R. S., c. 91, § 30. By that statute, it was enacted that “ no estate or interest in lands, unless created by some writing, and signed by the grantor or his attorney, shall have any greater force or effect than an estate or lease at will; and no estate or interest in lands shall be granted, assigned or surrendered, unless by some writing sign- ' ed as aforesaid, or by operation of law. The same provision is substantially reenacted in the R. S. of 1857, c. 73, § 10, with the omission, however, of the words “ by operation of law.” We know of no “ operation of law,” while the statute of frauds is in force, by which such a contract, or surrender of a deed, as is relied on in defence, can divest the holder of real estate of his title thereto, or vest it in another. The orator, therefore, is entitled to a decree, permitting him to redeem the premises described in his bill, and for his costs; and the case must be sent to a master, to hear and determine the amount to be paid for that purpose.

Tenney, 0. J., and Rice, Appleton, Cutting, and Goodenow, JJ., concurred.