3 Sumn. 152 | U.S. Circuit Court for the District of Rhode Island | 1837
There is no dispute about the deraignment of title of either party; and the whole question is, whether, under the circumstances, after such a lapse of time, the plaintiffs are entitled to redeem.
The act of Rhode Island, for quieting pos.session Dig. 1798, p. 465, and of 1822, pp. 363, 364), gives to a quiet seisin and possession -of lands in fee simple, for twenty years, the ¡ full effect of a good and rightful title in fee, ; •subject only to the common exceptions in favor of persons under age, femes covert, non ¡ -compotes mentis, or imprisoned, or beyond i •seas. The act of Rhode Island, respecting mortgages Dig- 1798, p. 275; Dig. 1822, p. 1210), declares, among other tilings, that the •equity of redemption of mortgages made prior to 1798 shall be “within twenty years j after possession shall have been obtained of : ■ any mortgaged estate, by consent of parties, without legal process;” with a proviso that the supreme court of the state may “allow -a redemption of any mortgaged estate after •a possession of twenty years, obtained with- ! • out legal process, if any peculiar circum-
It appears to me, that the possession of Aza Arnold, under the deed of Thomas Arnold, must be treated as the possession of a person claiming title in fee, as absolute owner of the one third of the premises conveyed by that deed. There is no pretence,
But let us take the case in the most favorable view for the plaintiffs in which it can be contemplated; and that is, as a case in which Aza Arnold had full notice of the mortgage as a subsisting mortgage, with the equity of redemption attached thereto, at the time of his purchase, and, of course, that, as to the other heirs of Jonathan Arnold, he was to be treated only as a mortgagee in possession. What then would be the operation of the circumstances in a court of equity? The general rule in equity is, that twenty years’ exclusive possession by a mortgagee is a bar to the equity of redemption. The exceptions-are, where there have been, within that period, acts done, or solemn acknowledgments made, by the mortgagee, .recognizing the title as a mere mortgage. The statute of Ehode Island, applicable to this very mortgage, prescribes the same limitation of twenty years. Are there, then, in the present case any peculiar circumstances which render a redemption equitable after the lapse of twenty-six years? No acts have been done by the supposed mortgagee, Aza Arnold, within this whole period, which recognize his title to be purely that of a mortgagee. No accounts have been kept bj’ him as such; no written acknowledgments or transactions are shown, even with strangers, pointing to such a mortgage title. His acts, so far as they go, are all the other way. His title, so far as we can trace it from the title-deeds, is opposed to such a conditional right. It is upon its face purely absolute. Admitting that he was made by the notice, in contemplation of law, as to the other heirs of Jonathan Arnold, a mere assignee of the mortgage, it is certain, that he did not claim merely as such as-signee; but his title-deed purported to convey to him an unconditional title; and under that, and not otherwise, he entered, at least as far as any clear proofs "exist in the case.
Now, I am not disposed to doubt the authority of those cases, which have decided, that the acts of the mortgagee within twenty years, clearly admitting the title to be a mortgage, are sufficient to keep open the equity; such, for example, as the bringing of a bill to foreclose within the twenty years; or keeping accounts of the rents and profits under the mortgage; or receiving interest from the mortgagor on the footing of the mortgage; or devising the estate as mortgaged property. See 1 Pow. Mortg., by Coventry & Rand, 380-
What, then, is the principal ground of reliance of the plaintiffs to sustain the right to redeem? It is founded upon certain parol acknowledgments, asserted by two witnesses, Elisha Angelí and Jonathan Arnold, to have been made to them in conversation by Aza Arnold. One question which has been argued is, whether any naked, verbal admissions, or parol acknowledgments in conversations, are sufficient to establish the fact, that the mortgagee has treated the conveyance as a mortgage within twenty years. Such admissions and acknowledgments are certainly open to the strong objection, that they are easily fabricated, and difficult, if not impossible, to be disproved in many cases, and that they have a direct tendency to shake the security of all titles under mortgages, even after a very long, exclusive possession by the mortgagee; nay, even after the possession of a half-century. 1 am fully sensible of the force of the objection. and I can scarcely think it can be overstated. Lord Alvanley in Whiting v. White, 2 Cox. 290, 300, Coop. 1, reprobated the introduction of any such parol evidence; and, commenting on the ease of Perry v. Marston, 2 Brown, Ch. 397, where it has been supposed, though it is not, perhaps, certain (see 1 Pow. Mortg., by Coventry & Rand, pp. 381, 382, and note H; Reeks v. Postleth waite, Coop. 101, 164; Lake v. Thomas. 3 Ves. 17. See, also, Mr. Belt’s note to his edition of 2 Brown, Ch. 397), that Lord Thurlow thought parol evidence admissible, and sufficient to give the plaintiff a decree for redemption; but he, in fact, decided against it. on another ground. Lord Alvanley said.—“I cannot help thinking, that it would have been a very wise rule, if no parol evidence had been admitted upon these subjects. It is clear, that the party' obtains an irredeemable interest by twenty years’ possession; and then that interest is to be totally changed by this sort of loose conversation.” He afterwards added,—“I will not take upon myself, in the present case, to lay down any rule that shall contradict that authority, because it is not necessary. But, at any rate, 1 think the declarations must be clear and unequivocal; and in the present case I do not think that the evidence is of that clear and unequivocal nature, as to justify the court in giving the plaintiff a redemption.” The same point came before the vice chancellor’(Sir Thomas Piumer) in Reeks v. Postleth waite, Coop. 161; and he, after admitting, that there was no case in point, upon principle decided, that parol evidence was so admissible. But after sifting the evidence in that case (which sufficiently shows the dangers of sucli evidence), he decided, that it was not satisfactory, and refused the redemption. Then came the case of Barron v. Martin, Coop. 189, 19 Ves. 326, where Sir William Grant thought the parol evidence admissible, but at the same time, on account of its being unsatisfactory, decided against the redemption, and adhered to the rule laid down by Lord Alvanley, that it ought to be clear and unequivocal to justify a redemption. But there is an important remark made by this eminent judge in the same case, which is worthy of special notice. “It is now decided,” (said he), “that twenty years’ possession by a mortgagee, will prima facie bar a right of redemption; and it lies on the mortgagor to show, that such length of possession ought not to produce that effect.” He added—“The onus lies on the mortgagor to show that fact, in order to defeat the effect of the possession.” In Marks v. Pell, 1 Johns. Ch. 594, the same point came before Mr. Chancellor Kent; and the only evidence relied upon in favor of the redemption, was certain naked, unassisted confessions of the mortgagee, stated by witnesses. The learned judge decided, upon a review of the evidence, that the redemption ought not, under all the eircum-stances, to be allowed; for “it would be setting up a dangerous precedent, to give ef-feet to a stale claim, upon such uncorroborated and loose confessions.” In delivering his opinion, he said; “It was once observed in the supreme court (6 Johns. 21), that acknowledgments of the party as to title to real property, are a dangerous species of evidence; and though good to support a tenancy or to satisfy doubts in cases of possession, they ought not to be received as evidence of title, as it would counteract the beneficial purposes of the statute of frauds. That doctrine strikes me as just and sound; and principles are essentially the same in both courts.” Erom this language I cannot but infer, that the learned chancellor was against the admissibility of the evidence, though he did not deem it necessary to decide the ease on that point His very able reporter (Mr. Johnson) has supposed differently, in his marginal note of tlie case; but I have been unable so to read the case.
I have not in my researches found any other cases upon the point. And, what is very remarkable, there is no instance of a. decree being made upon such parol evidence in
What is this evidence? Elisha Angelí says, that in 1S2S, (just twenty-one years after Aza Arnold had been in possession of the estate,) he was employed by Aza Arnold in rebuilding a saw-mill on the Paget farm. Aza told him, that he must charge it.in a separate account, different from any other charges against him; for the reason, that his brothers' heirs had an interest in that estate, and that was a building he built on his own account His other charges he had made against Aza. His work on the mill he charged, so much per day, for work on the saw-mill. Upon being interrogated by the plaintiff’s counsel, as to the conversation, whether Aza named what heirs and what brothers were interested in the saw-mill, he answered, that it was so long ago, and he had no interest in the business, that he could not be positive; that his words were pretty much, that his brothers’ heirs had an interest in that estate, and none in the mill; and that he could not say, that he named any brother. Now, it is plain, that every word of this statement may be true, and yet no reference whatever have been had to any supposed title in his brother Jonathan's heirs; for the children and hen's of his deceased brother, Welcome Arnold, had an undisputed title in one third of the Paget farm.
The other witness is Jonathan Arnold. He is one of the heirs of Jonathan Arnold the mortgagor; and of course would be incompetent to give testimony in the case, while he retained his interest as such heir. After the bill was brought, and indeed as late as August. 1880, he sold his Interest to his. son. John Randall Arnold, as he asserts, for' fifty dollars; and it cannot be disguised, that, in all probability, the sole object of the conveyance, pendente lite, was to qualify himself as a witness in the cause. So much, then, for his position in the cause, as to his general credibility under such circumstances. He says, that three or four years ago, (that is to say, about one or two years before Aza Arnold's decease), he was at the Paget farm, and had a conversation with Aza Arnold, who is his uncle. He. asked his uncle, if he had bought the right of his uncle Jonathan in the farm; and lie told him, he had got a deed of Thomas Arnold of his right, that is, Jonathan’s right; that he had bought out the mortgage right of him; that he had a war-rantee deed, from Thomas Arnold, of Jonathan's interest in the farm; that he does not recollect any other particulars of the conversation, except what is above-stated. Now, taking this conversation together, it may be true; and yet it establishes nothing beyond what the deed from Thomas to Aza Arnold upon its very face imports. It does not establish, that the title, that Aza then claimed in the premises, was a mere mortgage title, or that any mortgage was then subsisting. And if it did, I must say, that such loose and indeterminate conversations, which I cannot but suspect were designedly had with Aza, with a view to being used as testimony against him, would weigh with me very little in a case of this sort No man would be safe, if upon such conversations his title to real estate, as an absolute owner, after twenty-five years of exclusive possession, could be thus cut down to that of a mere mortgagee.
This is the whole testimony to establish the right of redemption; for the testimony of Stephen Dexter was rejected by the court at the hearing, as the legal owner of the title, though a trustee for the benefit of the plaintiffs. the cestuis que trust, in the premises in controversy. It is trae, that he is made a defendant in the bill; but he cannot be treated otherwise than as a substantial plaintiff, and, indeed, as the proper party to redeem. If, indeed, his testimony had been admissible, it would not, under the circumstances, have changed in the slightest manner, in my judgment, the posture of the case; f.or I think it impossible that the conversation which he states can, without straining (even if its credibility were fully admitted), be interpreted to amount to a clear and unequivocal admission by Aza Arnold, that he then held tille to the farm as a mere mortgagee. Even the witness, though put by a cross-interrogatory to that very point, does not pretend to say that.
The answer of Thomas Arnold in the former case of Dexter v. Arnold [Case No. 3,-855], in 1822, was offered in evidence in the present ease, and objected to as evidence against all the defendants. Although I am clearly of opinion, that nothing contained in that answer can be evidence against Aza Arnold, or those who claim title under him to the Paget farm; yet it was allowed to be read, de bene esse, at the argument. I still retain the same opinion of its inadmissibility; but as. in my judgment, nothing contained in it can rightfully trench upon the title vested in Aza Arnold, under the deed of Thomas Arnold to him in 1807, I have not thought it necessary to enter upon any general argument to establish its incompetency.
Upon the whole, my opinion is. that the bill ought to be dismissed, with costs.