Gould v. Williamson

21 Me. 273 | Me. | 1842

The opinion of the Court was drawn up by

Whitman C. Ji

Upon a careful review, and critical examination of the evidence in this cause, the Court are well satisfied of the truth of the- allegations of the plaintiff. The defendant, Williamson, in his answer, has denied all such as ■ impute a fraudulent combination between him and Joseph White. Having made oath to the truth of his answer, we are bound to take it to be true, unless the proof to the contrary be overwhelming. It is said, and truly, that, to control the answer, the evidence against it must be equivalent to that of the testimony of two- credible witnesses, testifying to the contrary. This evidence, however, may in this, as in other cases, be by way of inference from circumstances, • which are sometimes more convincing than direct testimony. In the developement of fraud it furnishes almost the only source to be relied upon. It is not often the case, that any but the participators in fraud are conusant of it; and the perpetrators of it will deny it. If fraud' therefore could not be established by circumstantial evidence, even in opposition to the denial of the defendant in equity, under oath, the remedy,' under a process in equity, would be, in almost every case, illusory.

What are the circumstances,-then, to establish fraud and collusion in this case. The first is, that the land in controversy had, for some time anterior and nearly up to the time of the purchase of it by Williamson, been notoriously the subject of litigation between his grantor, White, and the person finder whom the plaintiff claims; and a judgment had therein been entered up, that White should convey to his adversary or his appointee, who was the plaintiff, upon certain terms, to which the plaintiff liad conformed, so as to become entitled to his conveyance. Of this the defendant denies that he was conusant. But whether he was or not, the circumstances hereafter noticed may tend to show. The disclosures in his answer show that he must have been the confidential friend of White. He purchased of him all of his visible property, consisting of three parcels of real estate, lying remote from each other, two of which he avows that he was reluctant to purchase, and only purchased at the urgent solicitation of White, he admitting that he was about to go off, to be absent a long time. Ho admits further, that he paid for those parcels wholly in negotiable notes, amounting, as it appears, to seven hundred dollars, on a credit extending from one to seven years, in equal annual instalments. It is in evidence, and not controverted, that he was utterly destitute of property, and that White took, as collateral security, a mortgage only of one of the parcels of. the real estate : and that one under a previous mortgage, made by him for its full value, leaving the other two parcels, including the premises in controversy, unincumbered. It further appears that said Williamson had never actually occupied either of said parcels. And he states in his answer, that a writing was given by him to White, evidencing an agreement between them, that the latter should have, wdthin a specified time, a right to have a re-conveyance of the land, on surrendering the notes given for the consideration. What that specified time was he has not disclosed. Again, he says that he was to give four hundred dollars for the two parcels of land, which he at first declined to purchase, and gave his negotiable notes therefor, payable in four years. But the whole consideration for the three parcels, as appears by White’s deed to Williamson, was seven hundred dollars; and, by the mortgage of the worthless parcel back, that the whole seven hundred dollars was divided into seven hundred dollar notes, payable annually, in from one to seven years. All this tends to show that but little reliance ought to be placed upon. Williamson’s statements in his answer.

In his answer, he further states, that, at the time of the conveyance to him, he was at the office of the registry of deeds, and examined the records, to see that White had a right to make the conveyance of the several parcels; yet he was content to take the parcel, incumbered with a mortgage, to its full value ; and to give his notes for three hundred dollars, in payment for it, as would seem to be apparent from his mortgage deed, taken in connexion with what he says was the price of the two unincumbered parcels.

Again, he says, in his answer, that he has been informed, and verily believes, that before the 28th of October, 1839, the said White had conveyed, by deed duly recorded, the premises in question to Samuel Hutchins, and that the latter had conveyed the same to the plaintiff, according to the terms of the award set forth in the plaintiff’s bill. This statement is made and filed within a few rods of the office of the registry of deeds, where the fact, which he, under oath, avers that he believed to be true, could have been verified, if there were any foundation for such belief; yet the registry of deeds, if examined, would have negatived thé existence of any such fact. When a person will, under oath, state that to be a fact, which he believes to be true, when he has at hand the means of ascertaining whether it be true or not, he can scarcely be considered as many removes from the commission of downright perjury, if it be not true. He says, besides, that, before taking his deed from W hite, he examined the registry to see if White had a right to convey the parcels to him. Why did he not then discover this pretended conveyance to Hutchins, if it existed ? and, if he did not, with what claim to be considered as having been innocently mistaken, in asserting his belief of the fact, can he present himself here ?

Again, in his answer, he states, that, for the two parcels, which he was reluctant to purchase, he gave his negotiable note, payable in four years, for four hundred dollars ; yet, in the deed of the three parcels, the consideration for the purchase is stated to be seven hundred dollars ; and in his mortgage back, of one of the parcels, the seven hundred dollars was secured in seven hundred dollar notes, payable annually in from one to seven years. Whence it is inferible that this statement is untrue.

On the whole, the conclusion seems inevitable, that there must have been, between White and the defendant, Williamson, a fraudulent conspiracy to enable W hite, among other things, to evade the making of the conveyance, which White had been ordered to make to Dudley, or his appointee, the plaintiff; and, furthermore, that the conveyance to Williamson by White was but colorable, and under a secret trust and confidence for the benefit of White.

It is therefore ordered and decreed, that the said Williamson do, forthwith, execute to the plaintiff, a good and sufficient deed, conveying to him and his heirs and assigns forever, the land set forth in the bill of the plaintiff, as having been ordered to be conveyed by the said White to the said Dudley or his appointee: and that the defendant, Child, do forthwith cancel the deed, in his possession, conveying the same land to said .Moody; and that he recover of the plaintiff costs up to the filing of his answer, and including the costs of the same.

And as to the defendant, Hutchins, it cannot from the evidence, be questioned, that he was aiding said White, his father-in-law, in his endeavors to evade a compliance with the terms of the award of the said referee, Emmons, as set forth in the plaintiff’s bill; and was in fact guilty of a deception in admitting the statement made by said White to the plaintiff, as set forth in the bill, to be true, when it was clearly otherwise; and by undertaking to convey the premises claimed by the plaintiff to him, in fulfilment of the award, when he must be believed to have known that he had no lawful right so to do; and thereby inducing the plaintiff to believe that he had acquired through him, a good title from White to thq premises, when in fact he had not. It is therefore further ordered and decreed, that the plaintiff recover of the said Williamson and Hutchins his costs; including the bill of costs taxed and allowed to said Child.