Parker v. Moore , 59 N.H. 454 ( 1879 )

The only question in this case is, whether Cummings, the grantor of the defendant, is estopped to contest the plaintiff's claim by reason of an award of an arbitrator upon a submission between the plaintiff and one Bowles. In that submission the question before the referee was, whether the title claimed by the plaintiffs under their mortgage should prevail over the title which Bowles claimed had been conveyed to Cummings by mortgage. But this was a question, not between the several mortgagees, but between the mortgagees under one mortgage and their grantor or warrantor. Not being a party of record to this submission, he cannot be bound as such by the award.

Was he bound by reason of any privity between him and Bowles? If he had any title, he acquired it long before the submission. Whatever Bowles may have done with reference to the title subsequent to the execution of his mortgage to Cummings, could not bind the latter as a privy in estate. Cummings, therefore, was not legally interested in the submission. Dickinson v. Lovell, 35 N.H. 9, 16; Hunt v. Haven, 52 N.H. 162,170.

When it is said that adjudication binds "all who have the right to adduce testimony or cross-examine the witnesses introduced by the other side, all who have the right to defend the suit or control the proceedings or appeal from the judgment" (Chamberlain v. Carlisle, 26 N.H. 540, 551, 552), this is not intended to include one who, as an agent or attorney, adduces testimony, cross-examines witnesses, and controls the suit, but one who, being a party, or in privity with one of the parties, or at any rate legally interested in the event of the suit, thus conducts with reference to it. In one sense Cummings was interested in this proceeding, but he had no legal interest in the result. The question before the referee amounted perhaps to this, — whether the plaintiffs' title should prevail as against Cummings's title; but however that question might be determined between the parties to the reference, Cummings could not be concluded from contesting the validity of the plaintiffs' mortgage. As the result of the arbitration the plaintiffs established a title founded upon the Atwood mortgage, but this could not prevent Cummings from attacking that mortgage; and in the event of such a contest, if Cummings had prevailed, the only remedy left to the plaintiffs would be upon Atwood's covenants. In the same way, also, if the award had been in favor of the validity of the Cummings mortgage, the plaintiffs might still have contested that mortgage as against Cummings, and if unsuccessful their remedy would still be on the covenants of Bowles. But if Cummings were estopped by the result of the arbitration, as a privy in estate, then he would be driven to look to the covenants of his grantor without the opportunity of testing the strength of his own title or that of the plaintiffs.

The acknowledged rule is, in cases of this character, that an estoppel must be mutual. Bouv. Inst. 374; Hunt v. Haven, 52 N.H. 162, 169. It does not exist in this case, unless the plaintiffs would have been estopped to contest the validity of Cummings's mortgage in case they had been beaten and Bowles had prevailed before the arbitrator. The adjudication then would have only settled this, that Atwood Bowles, as partners, had a right to convey the whole property, superior to the right of either to convey an undivided part of it; but the validity of the Cummings mortgage would not have been determined by that adjudication, and the plaintiffs would not have been estopped to contest it, by reason of any facts that appear in this case. Parker v. Bowles 57 N.H. 491; Thrasher v. Haines, 2 N.H. 443.

The only remaining question is, Is Cummings estopped by this words or conduct? Has he intentionally so conducted as to cause the plaintiffs to alter their position? From the report of the referee, to whom the case was sent to find further facts, it appears that Cummings did not intend, in what he said, to induce the plaintiffs to act upon it, and that his conduct was not such as to afford reasonable cause for them to believe that he would be bound by the award. There is therefore no estoppel. Wheelock v. Hardwick, 48 Vt. 19; Bigelow Estop. 480. At the trial he acted as the agent of Bowles, as he had a right to do, without prejudice to his own rights. Schroder v. Lahrman, 8 Reporter 241.

Case discharged.

SMITH, J., did not sit: the others concurred.