Bunker v. Gordon , 81 Me. 66 ( 1888 )

Peters, C. J.

The plaintiff: claims title to certain land under two levies thereon against Warren Hardy, one made by himself on a portion of the land, and the other made on another portion by Charles L. Jones, who conveyed his levy to the plaintiff. The two levies give an apparent title in the land to the plaintiff.

The defendants are claimants of the land under an assignment of a mortgage, given by Warren Hardy to Daniel S. Gordon, their ancestor, on the same property. The attachments and levies were made after the mortgage was, but were recorded first. If not disturbed by other facts, the plaintiff’s title would be the best.

But the defendants contend that the plaintiff, when the attachments and levies were made, had actual notice of the existence of the mortgage, and that that fact deprives the plaintiff of his apparent priority of title.

The mortgage was made in September 1864, but was not recorded until January 1880. The attachments, on which the levies are founded, were made in January 1872, and the levies were completed and recorded the same year.

In December 1871, a short time prior to the attachments, Warren Hardy made a disclosure on an execution, which grew out of another transaction of the parties, in favor of the present plaintiff, in which he disclosed the existence of the unrecorded mortgage and the notes secured thereby. At that examination, Mr. Jones attended as counsel for Hardy, and S. J. Walton appeared as the attorney for the plaintiff. This disclosure gave to Jones personally, and to the plaintiff through his attorney, actual notice of the notes and mortgage.

The defendants, under these facts, appearing to have the better title, the result finally depends on whether that notice continued good, or whether it was counteracted and avoided by an investigation, immediately pursued by the plaintiff’s attorney, which reasonably led him to believe that there was no such mortgage. And this, in turn, depends upon the testimony of Mr. Walton, called as a witness by the defendants. He testifies that he drafted and witnessed the execution of the mortgage, but had wholly forgotten the fact. He further testified: “He (Hardy) stated that there was a mortgage to Daniel S. Gordon resting upon the premises. * * * It was when he was disclosing under one of the executions in favor of Mr. Bunker. * * * He said there was a mortgage, that covered that land, existing, running to Daniel S. Gordon. * * * I told Mm (Bunker) my opinion in regard to it. I told Mm that Mr. Hardy stated in his disclosure that there was a mortgage on these premises, but that I had examined, or caused to be examined, I don’t remember the language now, the records, and I could find no mortgage on record, and I had made inquiries. I have the impression that I told him I had inquired of Daniel S. Gordon, and I could not find out that there was any mortgage, and I didn’t think there was any. These were the communications I made to Mr. Bunker. I do not remember how long it was after that before I made the writ. * * * Q. You talked with Gordon ? A. I think I did. Q. And you came to the conclusion that there was no mortgage and so informed Mr. Bunker ? A. That is my recollection. I informed Mm what Mr. Hardy said and what I had done. I made a levy on the same land embraced in the mortgage,” meaning in his own name on his own debt. The questions and answers were on cross examination. The evidence is plenary from other witnesses that the existence of the mortgage was disclosed by Hardy on his poor debtor examination.

Although the case may be rather near the line, we are induced by the evidence to believe that the plaintiff had actual notice of the mortgage when Ms attachment was made. That Jones had such notice when he attached on his demand, cannot be questioned. "We do not see that the notice has been explained away. Mr. Walton’s personal as well as professional interest led him, perhaps, too easily to tMnk no mortgage existed. His investigation, from anything exhibited to us, did not warrant the conclusion. The burden is on the plaintiff to explain why he is not to be affected by the notice he received.

Mr. Walton “thinks” he talked with Gordon, the mortgagee. He does not seem to be positive that he did. He has “the impression” that he so told the plaintiff. He is not only doubtful about that, but he nowhere says that Gordon admitted or intimated that he had not a mortgage. No reply from Gordon is related. Inquiry, pointed inquiry, should have been made of bim, such, as would liave elicited the truth about it. Nor is it pretended that Gordon refused to make answer to any inquiries. Tbe notice of the mortgage came in an official way in a sworn statement, and should not have been lightly regarded. It is hardly to be supposed that Hardy swore falsely, or that Gordon would have denied a transaction in his own favor, the honesty of which is not now questioned, or that Walton would have forgotten that Gordon repudiated the mortgage transaction had be done so. Walton may liave believed there was not a mortgage, or a valid mortgage, but tliat would appear to have been Ms inference or supposition not founded on proof. As touching tbe propositions of law, on the facts that we have reviewed, the following cases have a close application. Jones v. McNarrin, 68 Maine, 334, 337; Fairfield Savings Bank v. Chase, 72 Maine, 226; Knapp v. Bailey, 79 Maine, 195.

Plaintiff nonsuit.

WAlton, Danforth, Virgin, Emery and Haskell, JJ., concurred.