Wadsworth v. Loranger , 1 Harr. Ch. 113 ( 1839 )

The Chancellor.

The facts are briefly these: about the 20th of September, 1829, Antoine Laselle obtained from Thomas Bell, a loan of $150 for one year, and for security gave a deed of the premises in question. That before the expiration of the time, Bell absconded, and his residence has not since been known. That Laselle has since died; that the property was sold and conveyed to complainant by the administrator of Laselle, subject to this incumbrance, on the 7th day of January, 1833. That defendant knew all these facts, but yet afterwards on the 5th of March, 1836, procured a deed from Bell. Loranger, the defendant, denies all knowledge of the fact that the deed from Laselle to Bell, was a security for a loan.

But from the continued possession of Laselle and his representatives, the proceedings in the attachment suit, which form a part of the exhibits in this cause, in which Laselle, in answer to the attachment, states the facts under oath, and in which suit Loranger was a party, from the evidence of Wolcott Lawrence, who states that he explained at that time the circumstances to the defendant, and from the positive evidence of Warner Wing, Esq., there can be no doubt that he was a purchaser with notice. It was objected to the testimony of Lawrence, that his evidence was a professional secret, and therefore ought not to be received. But it is not a com in uni-cation from the client to the attorney, but information from the attorney to the client, informing him of the nature of Bell’s title. It was information which, as an honast man, he was bound to give, and which he is now not only competent but bound to disclose. That a deed absolute in its terms,-may be proved by parole to have been intended by the parties to operate only as a mortgage, cannot admit of a doubt. [See Strong et. al., vs. Stewart, 4 J. C. R., 167; James vs. Johnson, &c., 6 J. C. R., 417; Van Buren vs. Olmstead et al., 5 Paige, R., 9.)

The facts then being ascertained, and of these there can be but little doubt, it only remains to apply the law to the case, and in this there is little difficulty. '

I must, therefore, declaré that this deed, though absolute on its face, is only valid as a mortgage for the security of the loan from Bell to Laselle, and that Loranger being a purchaser with notice, can take no greater interest"than Bell had in the premises, and that the complainant is entitled to redeem by the payment of the amount due, which by. the testimony of Lawrence and Durocher, is proved to have been one hundred and fifty dollars at the date of the deed.

As to costs, Loranger purchased with-a knowledge of the facts; he was wrong in refusing the. money when tendered, and by denying any knowledge of .the. nature of Bell’s title has put the complainant to the expense of proving his bill. The complainant is therefore entitled to recover his costs.