Heard v. Evans

1 Free. Ch. 79 | Miss. Chanc. Ct. | 1844

The Chancellor.

These two cases are, by agreement of counsel, submitted together, to be considered of as an original and cross bill, as t the relief respectively prayed by the parties, complainants and defendants. The bill of Heard states that in August, 1835, he sold and conveyed to the defendant, Evans, divers lots and parcels of land for the sum of three thousand, two hundred dollars. That in November of the same year he took from Evans his note for that siim, payable January 1, 1838, as also a mortgage on the land so sold, and on other lands belonging to Evans, for the purpose of securing the payment of said note., That the mortgage was duly recorded; that for the accommodation and convenience of Evans, he subsequently surrendered to him said note of §3,200, and took in lieu thereof a note on one Wm. S. Jones -for part, and a new note from Evans for the remainder, with, as he alleges, the express understanding that this transaction was not in any way to impair his mortgage lien. That the note on Jones, not being paid at maturity, was returned to Evans, as well as Evans’ second note; that thereupon Evans executed a third note for the sum of $3,200, thus placing the matter in its original form. That the defendant, Isham, has since purchased a portion of said mortgaged premises from Evans. And'that the defendant, Blanchard, purchased the remainder of said mortgaged premises under a deed of trust, and under judgments, all junior in date to the complainant’s mortgage. That at the time of the purchases 'by Isham and Blanchard they were fully advised of the complainant’s mortgage, and well knew that the transaction of the temporary substitution of notes between Evans and complainant was not intended as an extinguishment or abandonment of his mortgage lien. The bill prays for an account and for a decree of foreclosure and sale of the mortgaged premises.

Evans answers and says, that while he was negotiating with Isham for a sale of a part of the land aforesaid, Isham objected to making the purchase until Heard’s mortgage was removed. That he informed Heard of the contemplated sale to Isham, and of his desire to have the mortgage released, and that the substitution of the note of Jones and his own note were intended for that purpose, and was agreed to by Heard, with an express view to the contemplated sale to Isham, and that there was no qualification or condition annexed to the arrangement so made.

Isham reiterates the same facts in his answer, and states that he purchased under a full conviction that the mortgage was extinguished by the arrangement which Evans stated he had made. That Heard was fully advised of his (Isham’s) contemplated purchase, and assented thereto. That the time Evans made the arrangement aforesaid, he was fully solvent, and in high credit.

Blanchard answers, and relies upon his purchase made as aforesaid, and says it was made upon the information and belief that the complainant’s mortgage had been satisfied. ' Isham and Blanchard have filed their bill against Heard and Evans, relying upon the facts stated in their answers, and which they reiterated in their bill, and pray that Heard’s mortgage, which they allege has been released, may be decreed to be null and void. " The only question to be decided is, whether Heard actually relinquished, waived or abandoned his mortgage lien.

Several depositions have been taken, but none of- them seem to have any very material bearing' upon the question in controversy, save those of Hugh C. Stewart, Evans, one of the' defendants, and William Furland. Stewart says that he was present when Evans told Heard he could sell the land in controversy to Tsham, if the mortgage was released. Heard said he would release the mortgage if the debt was otherwise well secured; he would take Jones’s note or notes, or any as good) or that he would take Evans’s own note loell secured, and does not know that Heard ever released the mortgage. Evans shortly afterwards showed him a note which he had taken up from Heard, and told him the mortgage was released. Furlow says, that, after Isham had purchased, he inquired of him whether he had got a good title from Evans, and told him of Heard’s mortgage. Isham replied that he knew of the mortgage, and was not uneasy about it; that he understood Isham, from their whole conversation, to mean that the price paid by him to Evans would enable Evans to lift the mortgage. Hilliary Furlow says, that, in a conversation had by him with Evans, in 1836, about Heard’s mortgage debt, he (Evans) said Isham was to pay, or would, pay, that debt. Samuel Heard testifies that he was present when Evans received back the note of Jones. Evans said he thought it was but fair he should have it, as Heard refused to release .the mortgage. The deposition of Evans states that his answer is correct, except as to the time and manner of Isham’s purchase. The facts were, Isham knew of the mortgage, but deponent promised to lift it, and thereupon the contract was closed. He adverts to the transaction of the exchange of notes, and says he believes Heard considered the mortgage released. No receipt seems to have been taken; no release executed; no satisfaction entered, nor any writing of any kind showing that such was the intention.

It will be seen from this review of the testimony, that no one of the witnesses deposes to any distinct act on the part of Heard abandoning or relinquishing his mortgage lien. Stewart is .the only witness whose testimony remotely approaches the point. He merely proves a. proposition by Evans to procure a release, which Heard said could be had upon terms which he mentioned. There is no testimony showing a compliance with those terms. If a lien, solemnly secured by a formal instrument of writing and spread upon the records of the country, may be displaced or destroyed by testimony so vague and indefinite, the country would place but little reliance upon such form of security.

A party having a specific legal lien upon property, cannot be divested of it, except by some distinct act of his own, amounting to a waiver or absolute abandonment of it, or is guilty of some fraud or concealment, which would induce a postponement of his lien in favor of junior incumbrances.

I take it to be clear that mere treaty and negotiation, for a change or variation in the terms of a contract, will not amount to a waiver, unless they constitute evidence of an actual waiver or abandonment. And where a party resists the enforcement of a contract upon such ground, the defence should be made out and established by full, clear and positive testimony. See Robinson v. Page, 3 Russell, 114; 3 Cond. Eng. Ch. R. 318. In this case the mortgage was spread upon the records of the country, of which Tsham and Blanchard had notice. The legal title was in Heard, subject to Evans’s equity of redemption. They were bound to have inquired whether that legal title had been divested out of Heard and vested in Evans. This could only have been legally done in one of two ways — either by a reconveyance from Heard, or an absolute payment or satisfaction of the mortgage money, which, according to modern authorities, would have worked the same eifect.

The bill of Isham and Blanchard must be dismissed, and a decree for an account and foreclosure on the bill of Heard. But, inasmuch as the conduct of Heard may have served to some extent to mislead the defendants, he will be decreed to pay the costs of both suits.