65 Md. 310 | Md. | 1886
delivered the opinion of the Court.
This is an appeal from a decree of the Circuit Court for Carroll County, sitting in Equity. The bill of complaint was filed by the administrator of Henry Bussard; and it is alleged in said bill and shown by the proof in the cause, that William H. B. Dorsey, being indebted to the Central National Bank of Frederick City on two promissory notes, with the said Henry Bussard as one of his endorsers, did, on the 2nd day of October, 1876, execute a mortgage to said bank as security for the liquidation of said indebtedness. The land described in said mortgage consists of a tract of about forty acres ; of which said tract eight acres and a fraction are situate in Frederick County, and the remaining portion in Carroll County. This land belonged to the appellee, Fannie Y. E. Dorsey, who was the wife of the said William H. B. Dorsey, and who joined with her
On the 14th day of May, 1878, the first mentioned mortgage was assigned, by the Central National Bank, to the said Henry Bussard, he having paid the notes for which this mortgage was intended as security. The said Henry Bussard held another mortgage executed by John J. Molesworth, of Frederick County, and recorded in the clerk’s office of said county. As shown by the testimony of Molesworth, the money secured by this mortgage was paid, on or about the 17th of May, 1878, to the mortgagee at his house in Carroll County, at which time he promised to enter a release on the record in Frederick County. On the 21st of May Henry Bussard went to Frederick City ; and it is contended by the plaintiff’s solicitor that he went for the purpose of releasing the mortgage executed by Molesworth. The mortgage assigned to him by the bank, having been recorded in Frederick County, on the 27th of May, 1878, soon after his return from Frederick, he sent the same mortgage, with the assignment thereon-, to the Clerk of the Circuit Court for Carroll County to be there recorded. ' It was subsequently discovered that, while on his visit to Frederick City, he had not released the mortgage from Molesworth, but had released the mortgage executed by Dorsey and wife to the bank and assigned to him, which mortgage had not then been, and has never since, been paid. It is contended by the appellant that this release was made by mistake ; and this question must now be determined by the proof in the cause.
The only testimony offered by the defendant was that -of Thomas Gforsuch, formerly the Clerk of the Circuit Court for Frederick County. He says h.e has no recollection of the transaction, but does not think that such a mistake could have occurred, as it was an assigned mortgage. But when we see by the evidence, that the mortgage was •assigned hy the bank on the 14th of May, 1878, and was • first recorded in Frederick County; that on the 21st of May, 1878, Mr. Bussard went to Frederick, and on the 27th of the same month sent the mortgage to Carroll County to ~be recorded,' the conclusion is obvious that he must have spoken to the clerk about the mortgage, and, during this ■conversation, the mistake may, as the result of age and infirmity, have occurred. But Mr. Gforsuch’s memory has retained nothing in relation to the transaction, and there-, fore nothing is established by his testimony.
. When it has been proven that a mistake of this nature •has occurred, equity will intervene and grant relief. But it has been said in some of the cases, that the proof must be “ clear and overwhelming.” Beard vs. Hubble, 9 Gill, 430; Groff vs. Rohrer, 35 Md., 327; Mendenhall vs. Steckel and Wife, 47 Md., 454.
What is intended to be understood by the very strong •expression overwhelming proof is explained hy other authorities. It cannot be disputed that proof sufficient to remove every doubt from the mind is in effect, overwhelming, because it establishes the fact sought to be proved, ■and no proof can usefully accomplish more than this result. In some of the States the expressions used by the Courts are not so strong, and it is held that “the evidence •of the mistake must be clear and satisfactory, leaving but
And in other Courts “satisfactory evidence” of the mistake is sufficient, as, indeed, it must be sufficient in all cases where a material fact is sought to be established by proof, for, if it were otherwise, the evidence would not be satisfactory. As Chief Justice Shaw said in a case nearly resembling the one now under consideration :
“ The discharge of a mortgage on the margin of the record of the mortgage deed is strictly an act in pais of which the register is the witness, and is declared by the statute to have the force and effect of a release duly acknowledged and recorded. But a release acknowledged and recorded would not be conclusive, even if delivered, if no money was paid, and other facts proved, showing that it was delivered by accident or mistake. I am of opinion it is such a case of accident and mistake in the course of conveyancing, as would be relieved against in a Court of equity upon satisfactory proof of such mistake or accident.” Bruce vs. Bonney, 12 Gray, 111.
It has been contended on the part of the appellee that, “ as against the subsequent mortgages, parol evidence of an alleged mistake is inadmissible, and that no decree ■could be passed thereon affecting their rights.” The cases cited as authorities do not support this proposition. Those were cases in which the legal existence of the mortgages was not disputed, but an attempt was made to vary the apparent meaning of the instruments of writing, and give them a very different effect from that warranted by the language therein contained. But here the very existence of a valid release is disputed. It is contended that the release, having been made by mistake, is a nullity. In relation to this question the authorities tend strongly in one direction. The doctrine thus established is, that “ a subsequent mortgagee, whose rights existed at the time
•The authorities remove all doubt in regard to the admissibility of parol evidence to prove a mistake in regard to the execution of an instrument of writing. Busby vs. Littlefield, 31 N. H., 193; Canedy vs. Marcy, 13 Gray,. 373; McKay vs. Simpson, 6 Iredell (Equity), 452.
The evidence in this record is such as to leave no reasonable doubt on the mind of any one, who carefully examines it, that Henry Bussard did not intend to release the mortgage which had never been paid, and that the release was the result of a mistake. Such fact being established, it follows that the plaintiff was entitled to the relief asked for in the bill of complaint, and the Court below erred in refusing to grant such relief. The order dismissing the bill should, therefore, be reversed, and the cause remanded, so that a decree may be passed in conformity with what has been said in this opinion.
Order reversed, and cause remanded, ' tvith costs to the appellant.