Fuller v. Hodgdon

25 Me. 243 | Me. | 1845

The opinion of the Court was drawn up by

Shepley J.

The first question presented by the bill of exceptions is, whether the depositions of Mary Pratt, John Hitchborn and Lucy Hodgdon, were properly admitted. The objection is, that the statute, c. 133, <§> 17, requires, that the certificate of the magistrate should state “ by whom the deposition was written;” and his certificates, annexed to those depositions, state, that they were “ reduced to writing by me excepting the interrogatories.”

The fifteenth section of the statute provides, that the deponent, after being sworn, shall be examined “ first by the party producing him, on verbal or written interrogatories; and then by the adverse party, and by the justice or the parties afterwards, if they see cause.”

The word deposition, in common parlance and in some clauses of the statute, is often used to designate the document containing the interrogatories, answers, and certificate of the magistrate; while in other sections, it is more appropriately used to designate the narrative of the witness, made under the sanction of an oath, and reduced to writing. Such an interpretation of it, as used in the seventeenth section, as would deprive the parties of the right to examine the witness upon written interrogatories, framed by themselves, would deprive them of rights secured to them by the fifteenth section. These depositions were properly admitted.

The next question presented is, whether the deposition of Nathaniel Treat was properly excluded. It appears to have been excluded on the ground, that the deponent was interested in the event of the suit. The promissory note in suit had been indorsed to him with others, after it had become payable and without recourse, and the mortgage made to secure the notes, had been assigned to him. .By an instrument in writing on the back of the mortgage he had, without indorsing the notes, conveyed all his “ right, title, and interest, in and to the within mortgage, and the premises described therein and also the mortgage notes named therein” to the plaintiff. It is not necessary to consider, whether, on a sale of the notes without any contract in writing, Treat would have been liable to the plaintiff upon an implied warranty, if he had failed to recover them on account of a plea of infancy made by the defendant. For any such implied contract in this case is excluded by the written one. The plaintiff, if he should thus fail to recover, could not call upon Treat for damages upon any indorsement or implied warranty. He had made none. The law implied none. The plaintiff’s only claim must arise out of the written contract, by which Treat had sold and conveyed the notes and mortgage to him. That is only a conveyance of his right, title and interest in and to them, whatever it might be, without any covenant, stipulation, or averment, respecting their validity. If Treat and the plaintiff had been fully informed of the facts respecting the sale and conveyance of the land by Fiske to the defendant, and of his infancy, when he made the notes and mortgage, and of his subsequent proceedings, and had agreed, the one to purchase and the other to sell only the title, which Treat might have, the assignment or conveyance of them, which was made to the plaintiff, would have been entirely appropriate. Whether they were thus informed or not, their rights must depend upon their written contract. That does not oblige Treat to make good any loss, which the plaintiff may suffer by failing to recover the amount of the notes. He could have no interest in the event of the suit, and his< deposition should have been admitted.

The counsel for the defendant insists, that the plaintiff would not be entitled to a new trial on that account, because the jury found on another branch of the defence, that the note was obtained by a misrepresentation respecting the character of the deed, by which Fiske conveyed the land to the defendant. The case states the testimony in relation to this subject to have been, that Fiske represented to the defendant “ that the deed he was giving was just as good as a warranty deedthat it was a quitclaim deed; that there was no evidence, that the defendant had been disturbed, or that any adverse claim to the premises had been made by any one. It does not appear, that there was any testimony in the case tending to prove, that the title conveyed by Fiske to the defendant was not a perfect title, or that the defendant had suffered, or could suffer the least loss or injury by reason of the assertion, that a quitclaim deed of the land was as good as a deed with covenants of warranty. To enable one to recover damages for a false representation, it is essential, that there should be some proof, that he has been thereby injured. The testimony presented in this case respecting the deed, and the representations of Fiske in relation to it, would not constitute any valid defence to any portion of the note.

The privileges and duties of infants were stated in the case of Boody v. McKenney, 23 Maine R. 517. But as the testimony may be different on a new trial of this case, it will be of little use to attempt to apply those rules to the testimony as now presented.

It may be useful to observe, that the Court has decided, in the case of Gardiner v. Gerrish, 23 Maine R. 46, that it is the duty of a mortgagor in possession, who has conveyed with covenants of warranty, to pay the taxes and prevent a sale of the estate; and that if he acquires a tax title, that enures to the benefit of the mortgagee.

The exceptions are sustained

and a new trial is granted.