Bigelow v. Bigelow , 93 Me. 439 ( 1900 )

Wiswell, J.

This is a real action, brought, it is said in the plaintiffs’ brief, to foreclose a mortgage. The plaintiffs made out a prima facie case by introducing in evidence a mortgage given by Levi li. Bigelow, one of the defendants, and under whom the other two defendants claim, to J. Harlow Bigelow, dated April 27, 1889, acknowledged and recorded, to secure a note for one thousand dollars, together with the note, both of which had been duly assigned and transferred to the plaintiffs.

The defense was that the mortgage was not enforceable because it was without consideration; — that, in fact, there was no indebtedness owed by the mortgagor to the mortgagee at the time of the execution of the mortgage.

The verdict was for the defendants, and the case comes here upon the plaintiffs’ motion for a new trial for the reason that the verdict was contrary to the weight of the evidence and the law. There are no exceptions.

The first contention, upon the part of the plaintiffs, is that parol evidence was inadmissible to show a want of consideration, or the existence of an indebtedness, which the mortgage under seal acknowledged and purported to secure; and that, although it was admitted without exception, it should be regarded as ineffectual for the purpose for which such evidence was offered; and that consequently the verdict was erroneous even upon the defendants’ theory.

The defense was not fraud or duress, nor that the consideration was illegal or against the policy of the law, nor that the note had been paid, but that there never was any indebtedness from mortgagor to mortgagee, or consideration for the note or mortgage: the question is, therefore, can a mortgage under seal which acknowledges an indebtedness and which purports to secure such indebtedness, be contradicted by parol evidence to the extent of showing a want of original consideration so that the mortgage cannot be enforced.

The plaintiffs’ counsel have cited many cases to the effect that a seal upon an instrument conclusively imports a consideration, or, that, at least, it estops the covenantor from denying the consideration. But we do not think that this principle applies to a mortgage in an action brought to foreclose the mortgage, so as to prevent inquiry into the existence or non-existence of a debt which the mortgage purports to secure. We mean, of course, between the original parties or those having no superior right. The reason is, that the indebtedness is regarded as the principal thing,, the mortgage only as an incident. In order for a mortgagee to commence a foreclosure of a mortgage in an action at law he must first obtain, under our statutes, a conditional judgment; before such a judgment can be rendered, the amount of the indebtedness must be determined and adjudged by the court. If, as a matter of fact, there is no indebtedness, we do not see how a plaintiff can have such a judgment any more than if the obligation, once valid and real, had since been paid. The question as to the consideration of the principal thing, the note, may be inquired into between the original parties, or between those having no superior right; and when, under these circumstances, the note is shown to have been without consideration, the mortgage purporting to secure such a note must become unenforceable. This has long been the settled law in Massachusetts. Wearse v. Peirce, 24 Pick. 141; Hannan v. Hannan, 123 Mass. 441.

“Want of consideration is, of course, a good defense; for in such case there is nothing on which to found a conditional judgment, and parol evidence is admissible to show that no debt ever existed between the parties to the mortgage.” 2 Jones on Mortgages, § 1297.

The next question is, whether upon all the evidence in the case the jury was authorized in its finding, upon which the verdict must have been based, that the mortgage, which the plaintiffs were seeking to foreclose, was without consideration.

The defendants’ contention was substantially this: In June, 1888, Levi R. Bigelow, the mortgagor, and a nephew of John Harlow Bigelow, the mortgagee, was living in Augusta and working in a cotton mill in Waterville. During the latter part of that month two of his sons were temporarily at Skowhegan where they met and had a conversation with their great uncle, John Harlow Bigelow, during the course of which he inquired concerning the health of his nephew, Levi; and upon being informed by the young men that their father was not in very good health, made a suggestion relative to his leaving the mill and moving upon a farm in a neighboring town that he had in mind.

The testimony of Frank Bigelow, one of the mortgagors’ sons with whom the conversation was had relative thereto, is as follows: “We drove up in a team, found him (Harlow) at the end of the stable in a flower garden. I got out and introduced myself and he asked me about my lameness. I was on canes at that time; inquired how my father was and asked if he was in the mill at work. I told him he was and he says to me, do you suppose that your father would come out of the mill and go onto a farm. I know where there is a farm that can be bought cheap. A good farm but run out some; it is the Marston place in Smithfield, owned here in Skowhegan by Mr. Merrill; he got it through a mortgage. Wanted to know when I was going down home. Told him sometime during the week; wanted that I should stop at Waterville and tell father what he said. Q. What, if anything, did your uncle say about deeding the farm to your father? A. He said that, if he would come out of the mill and go onto the farm, he would make him a present of it.”

This message was carried by Frank to his father, who expressed himself as pleased with the suggestion, but who said that, before he made any move and gave up his employment in the cotton mill, he wanted to be sure that the arrangement was to be made; and thereupon he sent Frank and another son to Skowhegan again to see the uncle and obtain further information upon the subject. The two sons went to Skowhegan, saw their father’s uncle, and explained to him their father’s attitude; thereupon the uncle at once went to see the owner of the farm in question, bargained with him for it and informed the young men of what had been done, and requested them to tell their father that he had bought the farm, and that he had better move onto it at once so as to cut the hay. Frank, testifying as to this conversation, says: “Uncle Harlow said tell your father that he had bought the farm and would make him a present of it.”

This word was carried to Levi, who shortly afterwards left his employment in the cotton mill and, on July 12tb, 1888, moved onto the farm and went into possession of it. He brought to the-farm certain farming tools and some horses and stock, and made some rather slight repairs upon the building at a cost, he says, of about fifty dollars. Harlow Bigelow on the day following his second interview with Frank concluded his purchase of the farm by taking a deed thereof to himself. In the spring following, on the 27th of April, Harlow went to Levi’s house with a deed of the farm running to Levi, duly signed, executed and acknowledged, which he then and there delivered to him and told him that he wanted him as soon as convenient to call at a certain office and there sign a note and mortgage for one thousand dollars. Levi admits upon cross-examination that he was told by Harlow Bigelow at the time of the delivery of the deed that, as a part of that transaction, he was to go to Merrill & Coffin’s office and sign a mortgage and note for one thousand dollars. A few days later he, Levi, did go to the office and executed the note and mortgage in question ; — the latter contains this clause: “ This mortgage is given to secure part of the purchase money of said premises.”

Assuming this to be a true statement of the facts, and although it is stoutly denied by the plaintiffs, we think that a jury might have been authorized in finding that the facts were substantially as above narrated, — was Levi R. Bigelow, prior to April 27th, 1898, when the deed to him was delivered, the equitable owner of the farm and entitled as of right to a conveyance thereof so that he could have successfully maintained a bill in equity for a specific performance? If so, the defendants’ theory that the mortgage was without consideration is correct.

The defendant’s contention is, that these facts disclose a valid and binding contract upon the part of Harlow Bigelow, for a valuable consideration, to convey the farm to Levi; and that the partial performance by Levi was of such a character as to take the parol contract out of the statute of frauds.

There is no question that a parol agreement for the conveyance of land may be enforced in equity in behalf of a vendee whose partial performance had been such that fraud would result to him unless the vendor be compelled to perform on his part. It was so decided by this court in Woodbury v. Grardiner, 77 Maine, 68.

But even upon tlie plaintiffs’ testimony we cannot regard the alleged promise of Harlow Bigelow to make Levi a present of the farm as a valid contract upon the former’s part. It lacks the essential element of a consideration. True, the testimony of Frank Bigelow was that Harlow said, if his father would come out of the mill and go upon the farm, he would make him a present of it. But we do not think that this comes within the broadest definition of a consideration. It was neither a benefit to the promisor nor an injury to the promisee. The case shows no circumstances from which it can be inferred that Harlow would be benefited by Levi’s moving onto the farm. It could not have been understood to be such by the parties. Nor was this an injury to Levi; — it could not have been understood as such. Levi’s health was rather poor, so one of his sons informed Harlow at the first interview, and the suggestion as to his moving upon the farm was made, intended and acted upon, we are forced to believe, as a benefit to Levi. The subsequent conduct of the parties, when the deed was made and the mortgage taken back as a part of the same transaction, confirms us in this belief that they did not suppose that a binding contract had been made.

The promise upon Harlow’s part, therefore, must be regarded merely as a voluntary executory promise to make a gift in the future. Such a promise, so long as it remains unexecuted, can not ordinarily be enforced.

But, it is also undoubtedly true, as urged in behalf of the defense that, under some circumstances, even a parol promise to make a gift of land will be enforced in equity. The principle is thus stated in the case of Neale v. Neale, 9 Wallace, 1: “And equity protects a parol gift of land, equally with a parol agreement to sell it, if accompanied by possession, and the donee, induced by the promise to give it, has made valuable improvements on the property. And this is particularly true where the donor stipulates that the expenditure shall be made and by doing this makes it the consideration or condition of the gift.” In that case the promise to give the real estate was made to a person who was about to marry the promisor’s son, and it was upon the condition that she should erect with her own means a suitable dwelling-house upon the property. This condition was expressly made the consideration of the promise to give, and upon its performance by the promisee she was certainly entitled to performance on the part of the promisor.

No such state of facts exist in this case; — there was no stipulation that any expenditure should be made for repairs. But we do not hold that this is necessary in order to make such a promise enforceable. We think that the following is a correct statement of the rule as deduced from the great weight of authority. A parol gift of land, accompanied by possession by the dbnee, will be enforced in equity, when the donee has been induced by the promise of the gift to make valuable improvements to the land of a permanent nature and to such an extent as to render a revocation of the gift unjust, inequitable and a fraud upon the donee. Green v. Jones, 76 Maine, 563. See the cases collected in the note to Lester v. Foxcroft, White & Tudor’s Leading Cases in Equity, Vol. 1, p. 1047; and the note to Anderson v. Green, 23 Am. Dec. 417, (7 J. J. Marshall, 448.)

But it must clearly appear that the acts relied upon as part performance were done with a view to the performance of the contract. Tilton v. Tilton, 9 N. H. 385. And slight and temporary erections for the tenant’s own convenience give no equity. Young v. Glendenning, 6 Watts, 509.

In the case under consideration, as we have already seen, the expenditures made by the promisee were not provided for by any stipulation in the alleged promise. Nor do we think that it clearly appears that these' expenditures were induced by or made in consequence of the promise. It seems to us from the nature and extent of these expenditures for repairs upon the buildings that they were made for the convenience of the mortgagor, who was expecting to occupy them, at least, for an indefinite period of time, and that the expenditures would have been just as likely to have been made under the facts claimed by the plaintiffs as under those relied upon by the defendants.

But even if it were otherwise, and it could be said that the expenditures for repairs were induced by and made in consequence of tbe alleged promise, they were in tbe opinion of the court, of such a trivial character, in comparison with the value of the property, which cost the alleged donor some twenty-three hundred dollars, and the repairs were of such a temporary nature, that they do not in the opinion of the court raise an equity in behalf of the donee. The revocation of the promise to make a gift would not, under all of the circumstances of the case work such a hardship or impose a fraud upon the promisee, as to entitle him to a decree in equity compelling a conveyance.

In our view of the case, therefore, the mortgagor, prior to the delivery to him of the deed, was not the equitable owner of the property and could not have compelled a conveyance of it to himself ; consequently the note and mortgage given back shortly after the delivery of the deed, and as a part of the same transaction, was not without consideration.

These questions might perhaps have been more concisely raised upon proper exceptions; but still they are open to the plaintiffs upon their motion, because, in our view of the case the facts testified to by the witnesses for the defense, and the inferences properly deducible therefrom, did not warrant the verdict rendered by the jury.

Motion sustained. New trial granted.