Abbott v. Marshall , 48 Me. 44 ( 1860 )

The opinion of the Court was drawn up by

Tenney, C. J.

This action is for a trespass, alleged to have been committed by the defendant’s deputy, the defendant being at the time the sheriff of the county of York, in taking a certain mare, called the “ Pierce mare,” on a writ of replevin, in favor of Lewis Pierce against James E. Abbott. The question raised by the pleadings, is whether the property, at the time of the taking, was so far that of the plaintiff that he can maintain this action, the defendant representing therein Lewis Pierce, who was once the undisputed owner thereof, and continued to be so, till the exchange made by him with James E. Abbott of the mare for a horse called the “ Warren horse,” in which exchange Pierce paid to Abbott the sum of thirty or forty dollars, the estimated value of .the “ Warren horse” over that of the Pierce mare.

A question of fact was presented at the trial, whether James E. Abbott, at the time of exchange, had purchased the “Warren horse” of Warren, the supposed owner, or'whether he had only the right to use him and to purchase him, by paying within a time fixed a certain price. This question did not appear material, because, on Dec. 31, 1856, James E. Abbott gave a mortgage of the “Warren horse” to one Wig-gin, who, according to the evidence, took possession thereof under said mortgage, between the fifth and nineteenth days of February, 1857; and that Warren a short time afterwards, and before the nineteenth day of February, 1857, took the horse upon a replevin writ, and has continued to hold him since.

In the exchange of horses made by Pierce and James E. Abbott, the latter disclosed no defect of title in him of the “Warren horse.”

The plaintiff’s right to the Pierce mare is under a mortgage thereof, with other personal property, dated Feb’y 2, 1857, from James E. Abbott, made after the exchange before mentioned, to be void on the payment of certain notes given by the mortgager, on which the plaintiff’s name was as surety, and of notes holden by plaintiff against him. It was in evidence, without objection, that, before the execution of the mortgage, the plaintiff promised the mortgager that if he would give such a mortgage, he would pay the notes on which he was surety and wait for reimbursement of the money so to be paid, and also wait for the notes so holden against him, and, thereupon, the mortgage was executed and the plaintiff had paid the notes on which he was surety and had waited until the time of the trial.

The case is presented to this Court solely on the instructions given to the jury. The first portion relate to the withholding, by James E. Abbott, of defects in his title to the “Warren horse” at the time of his exchange with Pierce. No error is perceived in these instructions, and they cannot be regarded as unfavorable to the plaintiff.

The jury were further instructed, that, when a mortgage is given solely to secure pre-existing debts or liabilities, such debts or liabilities, not being otherwise affected, than by being thus secured, the mortgagee is not in the character of an innocent purchaser for a valuable consideration, and does not thereby acquire a right to sot up a title as such against the original owner, if the title of the mortgager was void or voidable as against him by reason of his fraud in obtaining the property from the original owner. This instruction was no ground of exceptions by the defendant. Upon the facts exhibited by the mortgage alone, it was as favorable to the defendant as the law will authorize.

The jury were further instructed, that if, as an inducement and consideration for giving the mortgage, and before it was made, the plaintiff agreed with James E. Abbott, to give further time for the payment of the notes due to him, and also agreed to pay the notes where he was surety for him, and wait on him for re-payment of what he should thus advance and pay, as stated by the plaintiff, that these facts would place him in a new relation, and he might be regarded as an innocent purchaser with all such purchaser’s rights, and not affected by the fraud, if any, in the sale or exchange between James E. Abbott and Pierce, although no particular time of such waiting was specified or agreed upon.

It is insisted for the defendant, that no effect should be given to the parol evidence, as to the consideration of the mortgage, but that the rights of the parties should be confined to the facts as disclosed by the mortgage itself. This agreement is not inconsistent with anything in the mortgage; and it is well settled by our law, that a vendee is not estopped to prove that there were other considerations than those expressed in the instrument. Packard v. Richardson, 17 Mass., 122; Tyler v. Carlton, 7 Greenl., 175; Emmons v. Littlefield, 13 Maine, 233.

A part, at least, of the consideration of the mortgage, if the evidence was believed by the jury, was the agreement touching the notes held by the plaintiff, and those on which he was surety. If,, at the time of this transaction, the plaintiff had actually paid the notes, on which he was surety, and had taken notes of James E. Abbott for the amount paid, and also new notes for the direct indebtedness to him, to be paid at a time later than that fixed in the original notes, it cannot be doubted that this would be a valid consideration for the mortgage. And, if the holder of the notes on which the plaintiff was surety, had made a valid agreement with the' principal to extend the time of payment without the knowledge and consent of the surety, the latter would be discharged, on the ground that he would, by such agreement, if still holden, be subject to a greater liability than he had assumed. It follows that, when he by a contract increased his liability, it was a consideration for the security given. The authorities cited sustain this position. Before the common law was changed by the statute, the payment of the part of a debt by the debtor, upon an agreement to discharge the balance, was held to be without consideration, but if time was given, it was otherwise.

It is incidentally mentioned in the defendant’s argument, that it does not appear that the mortgage to the plaintiff was recorded. No question upon that matter is presented in the exceptions, and it does not appear that the mortgage was not recorded.

Again, the defendant invokes the principle as applicable to the facts of this case, that when property is obtained feloniously from another, the one so obtaining it cannot impart to an innocent purchaser a title against the former owner. And it is insisted that James E. Abbott obtained the Pierce mare by false pretences, and that, having done so, he may be punished by imprisonment in the state prison. R. S., c. 126, § 1. And it is hence insisted that, by c. 131, § 9, he is guilty of a felony. Whether James E. Abbott would have been guilty of a felony, if convicted of having obtained goods by false pretences, we here give no opinion. But, upon the assumption of the defendant’s counsel, in that matter, we think the point is not open to the defendant. The case finds, that James E. Abbott did not disclose any want of title in the “ Warren horse” at the time of the exchange, but there is nothing, in the evidence reported, tending to show that he made any false pretences, but simply treated the horse in his possession as his own. The view now taken was not presented to the Court at the trial in any request for instructions, and we cannot assume that he did obtain the property in question by such unlawful means. ' Exceptions overruled.

Judgment on the verdict.

Appleton, Cutting, Goodenow, and Kent, JJ., concurred.