25 Me. 23 | Me. | 1846
The opinion of the Court was delivered on by
The plaintiff’s bill sets forth, that the defendant, Horton, together with Churchill, Fish, Dolbier, and others unknown, were owners of and interested in a tract of land; that the three last named individuals, acting for themselves as well as agents for Horton, and with his knowledge and consent, represented said tract to the plaintiff’s testator
Horton alone appears to have been summoned to answer to the bill, and the plaintiff, alone, complains of the injury alleged to have been done jointly to his testator and his associates. The requisite parties, therefore, do not seem to be before the Court. But Horton has appeared, and put in his answer without insisting upon any exception, on account of such defect; and the plaintiff’s testator, in his lifetime, filed a general replication thereto; and proofs have been taken, and the cause has been fully argued as between the testator and Horton.
In the first place, Horton’s answer expressly negatives every material allegation made against him in the bill. In proceedings in equity this, ordinarily, is equivalent to the testimony of one credible witness that the facts stated in the bill are not true. The plaintiff, in such case, must adduce proof sufficient to overcome such denial, and fully establish his allegations. Horton, furthermore in his defence, states that he was, for a valuable consideration one of the assignees of a bond, conditioned for the conveyance of the tract, upon the performance of certain conditions; and that he had given to the said Churchill a bond to assign and convey to him, upon certain terms and conditions, his interest in the tract; and that, after a lapse of time, Churchill notified him that he was ready to perform the conditions, and take a conveyance of his interest in the tract, as had been agreed between them; and, thereupon, he, on receiving the money and securities, as had been stipulated, caused his interest to be conveyed to said Churchill, and his appointees, Dolbier and Fish; that he knew nothing of any means made use of by Churchill, Dolbier and Fish, or either
The case before us is even more favorable to the defendant than the case supposed. His interest was actually conveyed to Churchill, to whom he had contracted to convey it, and his appointees, and not to the testator and his associates, who did not bargain with the defendant, and who took their conveyance from those to whom the defendant had caused the conveyance to be made. The defendant, therefore, might well take a transfer of the securities his assignees had received as the consideration for their sale to the testator and his associates.
If the testator suffered damage, by reason of fraudulent misrepresentations and foul practices, the remedy of the executor is against the grantors of the testator, who perpetrated the fraud, and not against Horton, who, for aught that appears, was innocent of it. Horton had set his price upon his interest in the land. Churchill, Dolbier and Fish were content to give it. They make no complaint of any thing that he said or did. Nothing existed between them, that can be deemed to amount to a mutual mistake, in reference to the premises. Horton does not appear to have had any particular knowledge of the value of the land. It is not pretended, that he ever personally made any representation whatever to Churchill, or either of his two associates. It does not appeal- that he ever formed any estimate in his own mind of the value of the timber on the land. There cannot, therefore, be said to have been any mistake in his apprehension about it. There is, therefore, no ground to
The bill, therefore, must be dismissed with costs for the defendant, Horton.