Platt v. Squire

Dewey, J.

Upon the facts disclosed in the present case, there can be no doubt that the mortgage to the plaintiff, of April 21st 1838, must be postponed, so as to let in the subsequent mortgage to Presby, of November 19th 1841. The finding of the jury as to the representations of Platt, “ that he had no claim on the land, that his debt was paid or satisfied, and nothing was due on his mortgage, as set forth in the defendant’s answer,” and that said Presby, by reason of such representations, was induced to discharge his attachment, and receive his mortgage of November 19th 1841, brings the case clearly within the principles of Fay v. Valentine, 12 Pick. 40, and the cases there cited. A more recent application of similar principles to personal property may be found in Dewey v. Field, 4 Met. 381. The party who makes representations of this character, calculated to mislead, and which have, in fact, induced another person to alter his condition, as by advancing money, releasing other security, and the like, is estopped from disputing their truth with respect to that person, and those claiming under him, and that transaction. Heane v. Rogers, 9 Barn. & Cres. 586. Nor is it any objection, that the title of Platt was by a recorded deed. It is true, that title by mortgage deed cannot be released by parol. But although the legal title might exist, as a paper title, the party may not be able to enforce it, or render it effectual. This species of defence, when offered to control written conveyances or title deeds, is no more obnoxious to the objection of permitting oral evidence to control written, than exists in the ordinary cases of setting aside conveyances for fraud, upon oral proof. The defendant, through Presby, has therefore the mortgage of November 19th 1841, charged upon the land sought to be redeemed, and this mortgage takes priority of the plaintiff’s mortgage of April 21st 1838.

The plaintiff, however, interposes another title, having, to a certain extent, priority of the defendant's mortgage of November 19th 1841. Jehiel Stewart, having title to a portion of the same premises that are embraced in the mortgages held by the defendant, executed his mortgage deed to Henry W. Brown, on the 12th of July 1841, to secure the payment of $200, which mortgage Brown, on the 2d of March 1842, assigned to the plaintiff and Asahel Buck, jr. This mortgage, being of a prior date to the second mortgage of the defendant, takes precedence of it, and, as to so much of the land as is embraced in it, will give the plaintiff the right of redemption of the defendant’s first mortgage. Some difficulty might arise, as to the mode of effecting this object; but as we understand that the defendant consents that if the right exists to maintain this bill, a redemption may take place of the land embraced in the mortgage of Jehiel Stewart, upon the plaintiff’s paying such proportion of the demand secured by the mortgage, as the value of the tract thus included bears to the value of the whole land embraced in the first mortgage, that mode may be adopted, and will do equity between the parties.

It was objected, on the part of the defendant, that the bill could not be maintained for this purpose, inasmuch as the plaintiff is not sole assignee of the Stewart mortgage, but holds it jointly with Buck. There is no objection as to the manner of the stating of this title in the bill, as it is truly stated, and according to the facts. But the doubt is, whether the plaintiff, being a joint assignee of this second mortgage, can bring a bill, in his individual name, to redeem the prior mortgage, without joining Buck. We perceive no reason why the defendant should avail himself of this objection. The plaintiff has a legal interest, as assignee of that mortgage, although not the entire interest. His redemption will enure to the benefit of all his cotenants. He can only redeem by payment of all claims of the defendant under the prior mortgage, to the same extent as would have been paid if Buck were a party to the bill; and therefore the defendant can sustain no injury.