37 N.H. 268 | N.H. | 1858
This is a bill in equity, in which the plaintiff seeks for a decree to confirm and assure the title to two farms, one in Albany and the other in Tamworth, and for an injunction upon one of the defendants — Dearborn Doe — to restrain him from prosecuting a suit at law, now pending in his favor against a third person, not a party to the bill, for the recovery of the Tamworth farm.
The plaintiff, Joseph B. Doe, is a son of John Doe and Esther Doe; and the defendants, Benjamin Doe and Dear-born Doe, are his brothers. The Tamworth farm was formerly owned by their father, John, and was for a long time occupied by him as his homestead. In 1827, as charged in the bill, and as admitted by the answer of Dearborn, and as appears from the proof, but in 1888, according to the recollection of Benjamin, as stated in his answer, the father deeded this farm to Benjamin. The ground assumed by the plaintiff in the allegation of his bill is, that the conveyance was made by the father to Benjamin upon the condition that the father and mother should be supported and the father’s debts paid by him, as
In the spring of 1834, Benjamin executed a deed to the plaintiff, purporting, as it now reads, to convey the Albany and Tamworth farms. It bears date March, 1834; was acknowledged before a magistrate in Frankfort, Maine, where Benjamin then and has ever since resided, but with no certificate of the date of the acknowledgement appended; was attested by the magistrate as the only subscribing witness, and was recorded July 30, 1834. The
Upon receiving the deed, in the spring of 1834, the plaintiff went into possession of the Tamworth farm, having the open and visible occupation, and so continued in possession until October, 1838, when he conveyed to one Blaisdell, with warranty, who entered, took possession, built a house, and made other improvements, and kept possession until March, 1841, when he conveyed with warranty to one Bussell, who has ever since remained in possession.
In reference to the deed of March, 1834, from Benjamin to the plaintiff, the ground taken in the bill, is that it was given in pursuance of an agreement between them; assented to by the father and mother, that the plaintiff should have the two farms in consideration of his supporting the parents, and paying certain debts of the father and Benjamin; and that this arrangement was entered into in consequence of the dissatisfaction of the father at the conduct of Benjamin, in leaving him and neglecting to pay his debts, in violation of the alleged agreement, in consideration of which the Tamworth farm was conveyed to him. All the allegations of the bill on this point are denied in the answers of both defendants. They deny that Benjamin ever executed or intended to execute any deed of the Tamworth farm to the plaintiff, or that he ever agreed to make conveyance of it to him upon the consideration charged, or upon any other consideration, or that the father was dissatisfied with the conduct of Benjamin. The answers admit that Benjamin executed a deed of the Albany farm, but not upon the consideration or under the agreement alleged in the bill; and further admit the deed exhibited is the one executed by Benjamin as a conveyance of the Albany farm, but allege that after its execution and acknowledgment, the description of the Tamworth farm was fraudulently inserted. The answers
IJpon the matters at issue in reference to the deed as conveying the Tamworth land, proofs have been taken by both parties.
The allegation of the answers, that the description of this farm has been inserted since the deed passed from the hands of the grantor, to be delivered to the grantee, is supported by the testimony of David Doe. He is a brother of the parties, and, as he states, lived with Benjamin, in Frankfort, at the time he executed the deed. He testifies that he saw Joseph Hobbs, deceased, the person who, from the hand-writing, appears to have drawn up the deed, at his brother’s house, in Frankfort, in 1838, and heard a conversation between them relative to a conveyance of the Albany farm, but that nothing was said about the Tamworth farm. He farther testifies that he was present when Benjamin, in 1834, acknowledged the deed; that it was then read in his heating by the magistrate ; that previously to this he had heard it read by the .wife of Benjamin, and, as read by both, it purported to convey only the Albany land ; that after it was acknowledged it was inclosed in a wrapper, without being altered, and left with the magistrate, who was also post-master, to
The plaintiff produces testimony bearing upon the credibility of this statement. Two witnesses testify that in 1847 David made inquiry about the controversy between his brothers, and was told that it was in reference to this deed, and the forgery alleged to have been committed ; and that he said he had never seen it, and knew nothing about it. There is no other testimony in support of the answers on this point.
It may not be inappropriate to say, in this connection, that if the fact is, as claimed by the defendants, that the description of the Tamworth farm was interpolated in the deed after the lapse of sufficient time to admit of its being forwarded to Frankfort, executed and returned, whether the interpolation appeared in the same hand-writing as the other part of the deed, or in a different hand, it would be quite probable that the deed itself would now exhibit appearances indicative of the fact. It is a matter of common observation and experience, that writings made by the same hand, at different times, are less likely to present that degree of uniformity and similarity in all particulars, in the appearance of the writing, which may be expected when no interval has occurred in the course of the writing. If such interval of considerable extent has occurred, entire uniformity in every particular throughout the writing, is not to be expected; more especially if, as in this ease, it is manifestly the work of one unskilled in the use of the pen. A difference in the style of penmanship, or in the shade of the ink, often more apparent years afterwards, from the -unequal fading of the ink, than at first; a heavier or lighter stroke of the pen, or some such indication, will usually be seen, slight it may be in its character, but sufficient to mark the boundary between the two parts of the writing. Upon examining the deed exhibited in this case, the writing
The defence, then, upon the evidence in its support as to this point, stands in this position: the answers deny the conveyance, the agreement to convey, and the alleged consideration upon which the conveyance is claimed by the plaintiff to have been made; and they are unsupported in the material matter advanced as the ground of the denial, namely — the interpolation of the description of the Tamworth farm by any appearances exhibited by the deed itself, but are supported by the testimony of David Doe, so far as they may derive support from testimony given under the circumstances, and in relation to the facts which are the subjects of his testimony, and contradicted, as it is, by the proof of his anterior declarations. His testimony was given twenty-three years after the transaction to which it relates. His attention was called to the matter ten years earlier, by the conversation between himself and the two witnesses who have testified to it. His memory, then, would seem, from their testimony, not to have been as distinct on the subject as from his own it would appear to have been ten years later. He appears to have had no personal interest in the transaction of which he testifies, and no reason is suggested why his attention was particularly drawn to the fact that the deed contained only the Albany farm. It must be understood either that the recollection of the fact was revived after that long period of time, by the unaided efforts of his memory, when the statement of Mrs. Hobbs, one of the two witnesses to his contradictory statement, that she knew that the deed contained the description of the Tamworth farm, for the reason that she read it before it was sent to be executed, failed ten years earlier to restore it to his remembrance,
To meet the answers on this point, the plaintiff produces the testimony of four witnesses, of whom three read it or heard it read before it was sent to be executed; their attention being called to the fact that it contained a description of the Tamworth farm, by reason of a discussion which arose among them upon the question whether there should be two deeds drawn, one for each farm, or whether both might be embraced in one deed; and of whom two read it or heard it read after it was executed, and before it went into the hands of the plaintiff, or of Joseph Hobbs, deceased. They agree in the fact that it contained a description of the Tamworth as well as the Albany farm, and that the deed exhibited corresponds in all respects with that, and is believed by them to be the same deed.
Testimony is produced by the defendants, affecting the credibility of Joseph Varney, one of these witnesses for the plaintiff. Two witnesses testify that, in separate conversations between them and Varney, subsequent to the time when, according to his testimony, he read the deed, he stated that he knew nothing about it, never read it, and did not know what was in it. This throws doubt upon the reliability of his statement. But, independent of his testimony, this evidence, considered in connection with the early recording of the deed and the uninterrupted possession under it, is clearly sufficient to disprove the statement of the answers, that the defendant, Benjamin, did not execute the deed as a conveyance of the Tamworth farm, however strongly supported it may be considered to be by the testimony of David, and whatever degree of discredit may be considered to be thrown upon Varney by the proof to contradict him.
The deed was inoperative to pass the legal title. Under the statute of June 29, 1829, which was in force at the time of its delivery, no deed or other conveyance in fee is „ effectual to hold the land conveyed, unless executed in the manner prescribed in the act, signed and sealed by the grantor, attested by two or more witnesses, and acknowledged. A deed under this act, attested by one witness only, is inoperative, even as against the grantor. Stone v. Ashley, 13 N. H. 38. The want of the statutory attestation is not cured by actual notice of the deed. Barker v. Bean, 25 N. H. (5 Foster) 412. By the express terms of the act, the attestation by two witnesses is made essential to render the deed “ effectual to hold the land.” Without such attestation it is equally ineffectual, ex proprio vigore, to give an equitable title as to pass the legal. Considered as a conveyance “ to hold the land,” whether by way of the legal or of an equitable estate, it is utterly void. If, therefore, the title of the plaintiff to the relief which he seeks in the decree of the court, confirming the title of his grantee to the farm, rested solely on the fact that the defendant executed the deed with the intention to convey it, it is obvious that he must fail. To decree that the deed is valid would be in direct contravention of the statute, while a decree that the defendant, Benjamin, should now execute a valid conveyance, would avail nothing as against the intervening rights of others; and, if it might avail because of no such intervening rights, or because the persons having such rights, being made parties to the hill, their equities are found to be inferior to the plaintiff’s, still the mere fact that the defendant
In reference to the Albany farm, the answers admit that the plaintiff stands in the position of a purchaser for value. An agreement to convey, and upon a valuable consideration, is stated. But the consideration admitted is not that alleged in the bill. This is material to the plaintiff’s right. The rules of equity pleading, upon the subject of variance between the case alleged in pleading, and that shown by the proof, closely follow the rules of law upon the same subject. The substance of the case made by the pleadings must be proved. Here the material matter alleged in the bill, and put in issue by the denial of the answers, is not that there was an agreement to convey, and upon a valuable consideration, but that the consideration was such as charged in the bill. A consideration was necessary to be averred, to make out the plaintiff’s title to relief. Without it he would not appear to be purchaser for value. This, then, is material to be proved, and it must be proved as laid. It is not enough that the defendant, by his answer, substitutes a different consideration and agreement from that charged. 2 Dan. Ch. 996-1000 ; Gresl. Eq. Ev. 165-167, (2d Amer. Ed.;) 241-245, (Lond. Ed.) The plaintiff has produced no evidence on
In some cases, where the plaintiff alleges an agreement in his bill different from that admitted by the answer, he is allowed to amend the bill by abandoning the agreement, as charged in the bill, and insisting on that stated in the answer. Railway Co. v. Winter, Craig. & Phil. 62; Lyndsay v. Lynch, 1 Sch. & Lefr. 1.
Upon the case presented in the bill, the plaintiff fails to make out title to relief in reference to the Albany farm, because he does not prove that Benjamin agreed to convey that farm upon the consideration stated, viz.: The support of father and mother, and the payment of debts. The answer admits an agreement to convey, upon the consideration that the plaintiff should sell and account for one half of the proceeds. This does not support the case stated. To entitle the plaintiff to the decree as to this farm, the bill should be amended, to conform to the agreement admitted, or evidence adduced to prove the agreement as alleged.
In reference to the Tamworth farm, the plaintiff has produced evidence, which, if it were competent to be considered, would probably be sufficient to control the answers. As it now stands, it is incompetent. This testimony consists of the depositions of Louisa Hobbs, Henry Nickerson, S. D. Hobbs, and Ann I). Fowler, all testifying to the facts that a short time previous to the execution of the deed from Benjamin, he wrote one or more letters to his father, requesting him to make arrangement for the support of himself and wife, with some other person, and agreeing to convey the farm to any person with whom he might make such arrangement; that upon receiving these letters the father made the arrangement with the plaintiff*. The witnesses state that they know nothing of Benjamin’s agreement except as it appeared from the letters. The production and authentication of the letters, or proof of their
It would seem to be not improbable that the evidence as to this farm may be supplied. It is in the power of the court, upon application, to give the plaintiff opportunity to supply it. "When, through accident or inadvertence, the plaintiff has failed to prove some particular fact necessary to his case, it is not unusual in practice to permit him to supply the defect by taking farther testimony to prove the fact omitted. 2 Dan. Chan. 998. If the plaintiff shall be advised to make the application, and the court shall see cause to grant it, the bill must necessarily stand over, to enable him to exhibit further interrogatories. For this the other party may properly ask that terms should be imposed. The interests of neither party, however, will be promoted by further delay and expense in this long protracted litigation, unless, by anticipating other questions upon which the final decree may depend, it shall be seen that such farther delay and expense will probably be followed by some useful result. I shall, therefore, proceed to consider other questions which may arise in this case, assuming that in reference to one or both of the farms the plaintiff will be able to maintain his case upon the points which have already been discussed, by the production of farther evidence, or by an amendment of the bill. '
The plaintiff, then, is to be considered as having agreed for the purchase of the farms, upon what are to be regarded as valuable considerations, in contradistinction to such as being merely good in law, like blood or natural affection, render the conveyances founded upon them voluntary. In equity, purchasers for value, when they are in a situation to enable them to call for the legal title, are considered to be the owners of the land, whether they hold a conveyance of the legal title or not; and it is, construe-
Assuming, then, that the plaintiff may be able to establish the fact, by competent evidence, that he agreed with the defendant, Benjamin, for the conveyance of the Tamworth farm for a valuable consideration, which he has executed wholly or in part, and that he is therefore entitled to a decree as against Benjamin, confirming the legal title to that farm in him or his grantee, the farther inquiry arises, whether Dearborn, the other defendant, has equities such as to forbid the decree against him. The allegations of the bill in reference to this defendant are substantially that he and Benjamin cotabined together to defraud the plaintiff and render him liable on his covenants in the deed to Blaisdell, and that for that purpose Benjamin, in January, 1846, executed to Dearborn a deed of the Tamworth farm, with a condition therein inserted that if Dear-born should support his father and mother during their natural lives, the deed should remain in force, otherwise should become void; that Dearborn did not become bound to fulfill the condition, but that it was inserted in the deed for a mere pretence; that no consideration was paid or secured for the deed, and none pretended to have been given, except a promissory note for $100, to be paid when Deai’born should come into possession of the farm, and a farther writing, lodged with a third person, promising the payment of $50 more, and which was agreed should be delivered to Benjamin only in the event that Dearborn should hold the farm; and that it was agreed between them that both writings should be given up to Dearborn without payment of any part of either of said sums, if he did
The answer of Dearborn denies that there was any combination or intention to defraud the plaintiff, but admits the taking of the conveyance with the condition as alleged, and that the only consideration therefor, in addition to the obligation to support the father and mother, arising from the condition in the deed, was the promise by him to pay $150 if he held the farm under the conveyance. It admits that Dearborn had knowledge of the deed from Benjamin to the plaintiff, containing a description of the Albany farm, and intended as a conveyance of that farm only; admits that, prior to taking his deed from Benjamin, he had heard of a deed from Benjamin to the plaintiff, of the Tamworth farm ; that he had knowledge of the possession by the plaintiff of that farm — of the support by bim of the father and mother from the time of the conveyance to him, in 1884, until 1845 — of the conveyances to Blaisdell and Bussell — of their possession and of the improvements made by Blaisdell; but denies that he had knowledge of any agreement between Benjamin and the plaintiff for the conveyance of the Tamworth farm, or of any consideration paid or agreed to be paid therefor.
These admissions of Dearborn are clearly sufficient to charge him with notice of the transactions, in respect to the Tamworth farm, between Benjamin and the plaintiff", and thus to render his title, under the deed from Benjamin, subservient to the equitable ownership of the plaintiff. He must be held to have had knowledge of all the facts relating to the title of the party in possession, which he
But upon another ground, even if he should not be held chargeable with notice, his title must yield to the superior equities of the plaintiff. To entitle the defendant, Bear-born, to the preference, even without notice of the plaintiff’s prior claim, he must be shown to be a bona fide purchaser for value. 4 Kent’s Com. 179-80. And the purchase money must be actually paid — not merely agreed to be paid or secured. Patten v. Moore, qua supra.
Thus it is laid down in Tourville v. Nash, 3 P. WEms. 306, that if the party having a lien in equity gives notice before actual payment of the purchase money, it is sufficient to secure the lien against the subsequent purchase, as the purchaser, upon bringing his bill and showing that he has received notice of the equitable lien, will be protected against a suit upon his bond or other agreement to pay the money. The same doctrine is stated in 2 Mad. Ch. 255, and it is one of the points decided in Patten v. Moore. To constitute a purchaser for value, whose subse
Another question, however, deserves consideration, whieh must be disposed of before the final decree, namely: whether the bill now contains all the necessary parties. The general rule is that all persons whose interests are involved in the issue, and whose lights are to be affected by the decree, must be made parties. Story Eq. Pl., secs. 94, 96 ; Wendell v. Van Rensselaer, 1 Johns. Ch. 349. Daniels says it is required, in all cases, that where a party comes to a court of equity for relief, he should bring before the court all such parties as are necessary to enable it to do complete justice, and that he should so far bind the rights of all persons interested in the subject, as to render the performance of the decree perfectly safe to the party who is to perform it, by preventing his being sued or molested again respecting the same matter, either at law or in chancery. 1 Dan. Ch. 241.
The specific relief which the plaintiff seeks is a decree cop-firming and establishing the title intended to be conveyed to both faims, by the deed from Benjamin, and ordering Dearborn to execute a conveyance of the Tamworth farm to the plaintiff, or to such other person, his heirs and assigns, as may be proper; and enjoining and restraining him perpetually from the prosecution of the suit at law commenced by himi against Bussell, for the recovery of that farm. To this relief the plaintiff is entitled, if the objections which now exist are obviated. But it would seem that Bussell — the validity of whose title may depend upon the decrees prayed for, and who is the defendant in the suit at law against the prosecution of which the injunction is sought — has sueh intei’est in the subject as to bring him
The plaintiff has been vouched in as warrantor, to defend the suit against him. He may have cause of action at law against the plaintiff, upon his covenants, which equity requires should be barred by the final decree in this suit, but which will not he thus barred unless he is made a party. Hpon application to the court, a bill may be amended by the addition of persons as defendants, or by making them co-plaintiffs. Such amendment, after answer, is not a matter of course, but is discretionary with the court. 1 Dan. Ch. 341, 458. New parties may be brought in by a supplemental bill, though the most usual way of adding parties is by amendment. If the plaintiff shall he advised that his case requires Bussell to be made & party, application should be made, to the court for. an order to amend, or for leave to file a supplemental hill for that purpose.