Citation Numbers: 19 F. 237
Judges: Lowell
Filed Date: 7/1/1884
Status: Precedential
Modified Date: 9/9/2022
In this writ of entry the plaintiff corporation demands several parcels of land in the county of Cheshire and state of New
The grantor/ Albee, testifies for the defendant by deposition: “I do not understand that there was any consideration, except that they were, as I understand, given as collateral security to secure my bondsmen.” By “they” he means the deed; for, though there was but one, he had before testified that he did not remember how many there were. The deposition of this witness is not very satisfactory, because he remembers but little with any positiveness, and speaks of “impressions” chiefly. He further says that he did not know the amount of his indebtedness to the bank at the time, and that no valuation was agreed on at which the land was to be taken. On the other side, the evidence is that the bank had laid a first attachment on the land; that the amount of defalcation was approximately known, and far exceeded the value of the property; that Albee himself, knowing of the attachment, offered to give the deed to save the plaintiff bank the trouble and expense of legal proceedings; and that, accordingly, the deed was given and taken without any condition of any sort. If such was the transaction, the inference is that the deed was given, instead of the attachment, as a payment so far as it would go, for the debt. The plaintiff might be required to account in some form of action for the full value if Albee or his sureties should be ready to pay the remainder, but it would be as payment, and not as security, that the credit would be due. •
I consider the plaintiff’s case to be made out by a decided preponderance of the evidence. Verdict for the plaintiff.