Prescott v. Hayes , 43 N.H. 593 ( 1862 )

Bell, C. J.^*

The ordinary rule in the construction of deeds, so often discussed in our Reports, applies to the description of the note in the mortgage of the defendant. If, upon the consideration of the whole deed and the accompanying circumstances, the intention is apparent, any error in the details or particulars of the description will be disregarded. Johnson v. Simpson, 36 N. H. 94, &c. And this rule has been held to apply equally to the description of other instruments in a deed, as to the description of persons or property. Emerson v. White, 29 N. H. 499. This rule has been repeatedly applied by the court to cases of erroneous description of the note secured by a mortgage. Robertson v. Stark, 15 N. H. 109; Webb v. Stone, 24 N. H. 282. No reasonable doubt could be entertained that the note offered in this case was the note intended by the parties. And this was a matter properly determined by the court, since it is the province of the court to construe and interpret all written instruments, even whei’e extraneous evidence is admissible to aid thp construction. Towle v. Bigelow, 10 Mass. 384; Bartlett v. Smith, 11 M. & W. 486; Moore v. Garwood, 4 Exch. 689; Wason v. Rowe, 16 Vt. 529; Guptill v. Damon, 42 Me. 271; Shore v. Wilson, 5 Scott N. R. 986.

It is a rule of very general application that a party who derives title to property from another, or who claims title under him, is bound by his acts and admissions done and made, in whatever form, while he was the exclusive owner of the proj^erty, as if made by himself. A deed duly executed is conclusive evidence of the consideration against the maker; not indeed as to the amount, but as to the fact of the consideration paid; so that, as between the parties and those claiming under them, the consideration can not be impeached for the purpose of defeating the conveyance. Morse v. Shattuck, 4 N. H. 229; Pritchard v. Brown, 4 N. H. 397; Graves v. Graves, 29 N. H. 144; Farrington v. Barr, 36 N. H. 86.

To this general rule there is an exception made by the common law, as well as by the statutes (13 El., ch. 5, and 27 El., ch. 4), which declare every disposition of a man’s estate, not made bond fide and for a valuable consideration, absolutely void with respect to creditors. Everett v. Read, 3 N. H. 55. To make these statutes applicable in any case, it would seem to be necessary to show that the party denying the validity of a deed is a creditor; and then as the statute does not declare all deeds void against .creditors, but only a particular class, that is, those made mala fide and without a valuable consideration, he should go further and show that the deed in question falls within that class. And it is assigned, as a reason for the production of the attesting witnesses to prove a deed, that the other side may have the opportunity to inquire as to the good faith and honest consideration of it.

To prove the first of these points, that the party was a creditor, he usually proves, as was done in this case, his judgment and the note on which it is founded of an earlier date than the deed of the purchaser. Such a note is an admission of indebtedness, made by the party while he was still the owner of the property, and by which the purchaser is bound as if he had made the admission himself; and this is sufficient evidence, prima facie, that the party is a creditor, but is liable to be impeached by any evidence of want or failure of consideration, fraud, or the like, if the facts admit of it.

As to the second point, the party who alleges that a deed was made maid fide and without consideration, and is consequently void as to him as a creditor, upon the ordinary principles of evidence would be required to prove the fact. But the rules of evidence are subject to exceptions based upon principles of public policy, and designed to throw the burden of proof upon the party who, from the nature of the transaction, has the best means of knowing the facts, and of showing that his own conduct has been honest and free from fraud.

The question as to this point w’as early raised and considered in this State, in the case of Kimball v. Fenner, 12 N. H. 248, where it was held that the acknowledgement in a deed of the receipt of a consideration is not of itself evidence against existing creditors, that a consideration was in fact received. As to creditors who have levied on the land, the deed is to be regarded as a mere voluntary conveyance, and presumed to be fraudulent until some evidence is offered of the consideration ; and that, even if the admission contained in the deed were held to be primd facie evidence of a consideration, that evidence would be sufficiently rebutted by showing that a person who had levied on the land was a creditor when the deed was made. This decision goes far beyond any natural construction of the statutes which merely provide that if deeds are made without good faith, or without a valuable consideration, they shall be void as to creditors; yet it was competent for the court, for the purpose of carrying into effect the policy of these statutes, to prescribe a rule of presumption different from that existing in ordinary cases.

The rule established in this case is distinctly recognized in Belknap v. Wendell, 21 N. H. 184, where it is said, by ¡Gilchrist, C. J., that there is no doubt that the general rule is, that a party claiming under a deed must show, as against existing creditors, that the deed was made upon good consideration. And the same point was held in Ferguson v. Clifford, 37 N. H. 97.

It is'not now material to inquire into the correctness of these decisions. Their tendency is toward the suppression of fraud, and is therefore right. And they may perhaps be regarded as establishing an exception to the general rule upon special reasons limited to a particular case. "Whether the ruling in this case was in accordance with these decisions or not, is not material here, as the plaintiff has not chosen to rely upon his exception to it, but offered evidence that the mortgage was fraudulent and void, as to George’s creditors, and, for any thing which appears, the whole subject was investigated, and all the facts shown. The case then falls within the principle laid down in Clough v. Bowman, 15 N. H. 515. If a party takes an exception on account of a deficiency of evidence on the part of his adversary, which is in fact well founded, but is overruled erroneously, and he afterward supplies that deficiency by evidence produced by himself, he thereby waives or overrules his exception. A refusal to direct a verdict for the plaintiff is in this respect like a refusal to order a nonsuit. If the party elect to proceed, he waives his exception. Belknap v. Wendell, 21 N. H. 184.

It is contended that this deed is wanting in that good faith- which is essential to a conveyance valid against creditors, and is fraudulent in fact, because its statements are false, and it is in consequence calculated to deceive and embarrass honest creditors in the collection of their debts, in this, that the condition of the mortgage is for the payment of a note of $2,550, when no such sum of money was due to the mortgagee. The case shows that all his claims amounted to $1,350 only, and the balance of the mortgage note was made up by adding the amount of a note for which the mortgagee was a surety with others for the mortgagor, for which he and they had other security, and which he was under no special liability to pay. The court was requested to rule that this mortgage was fraudulent and void as to creditors, because this sum of $1,200 was thus included in the note. But the court instructed the jury that this liability was a good consideration, pro tanto, for the mortgage note, and it would not render the mortgage fraudulent as to creditors, if it was included in good faith, and without an intent to defraud, defeat, hinder, or delay creditors. This instruction seems to us to be correct. The liability was a good consideration. A note for a definite sum may be valid as an indemnity for a contingent liability, as was held in Belknap v. Wendell, 31 N. H. 92, though the holder can recover no more than he has actually paid, or assumed to pay, upon his liability as surety, before the judgment. Hazelton v. Guild, 11 N. H. 390, and authorities cited. Such a liability is there said to be a good consideration for a mortgage. The only question would be that of good faith, whether the mortgage and note were put in this form merely for the purpose of the security, or whether there was an ulterior purpose in view, to hold out false pretenses, and to represent the property as loaded with a debt, of $2,550, when the actual debt was $1,200 less. There can be no doubt that the proper form of security for a bondsman is a condition of indemnity, but if the security is made in good faith the mode is not essential.

But it is further contended that the mortgage is void as to creditors, under the provisions of the Revised Statutes (ch. 131, sec. 2) which are that no conveyance in writing of any lands shall be defeated, nor any estate incumbered by any agreement, unless it is inserted in the condition of the conveyance, and made part thereof, stating the sum of money to be secured, or other thing to be performed. In the case of Belknap v. Wendell, before cited, it was held, that according to the Revised Statutes (ch. 132, sec. 7), which provided that, “ if such mortgage (of personal property) is given to indemnify the mortgagee against any liability "assumed, or to secure the fulfillment of any agreement, other than for the payment of a debt due from the mortgagor to the mortgagee, such liability or agreement shall be stated truly and specifically in the condition of the mortgage, and the affidavit shall be so varied as to verify the validity, truth, and justice of such liability or agreementa mortgage to secure a note for a sum of money will be invalid unless the true character of the note as an indemnity, if it be such, is stated in the condition. But it was in that case said, “ it has been often held that a mortgage of real estate, given in terms to secure the payment of promissory notes, would be a valid security, though it appeared that the notes were given as collateral security, or as an indemnity, or on some other special agreement of a contingent kind. No statute regulates the taking of such mortgages, except the statute which prohibits mortgages of real estate for the security of future obligations or liabilities.” Rev. Stat., ch. 131, sec. 3. It was not understood that the second section was designed to prescribe a rule that au indemnity must be stated as such, and that is still our impression.

To show the value of certain parts of the mortgaged property which was subject to a previous mortgage, it was shown that the equity was seized upon an execution and offered for sale, and no bid could be obtained for it. It was proposed by the plaintiff to show that there was a talk of an adverse claim, which prevented the sale, and the court excluded the evidence. We think rightly. That there was an adverse claim was a fact open to proof by evidence of a different character, if the party deemed it important. No estimate could be formed by a jury of the influence of such loose talk and mere report upon the market value of property. The exceptions being overruled, there must be

Judgment on the verdict.

* Doe, J., did not sit.