30 Mass. 69 | Mass. | 1832
delivered the opinion of the Court. The questions presented in this case arise upon a bill in equity, brought to redeem certain parcels of real estate, lying partly in the county of Hampshire and partly in the county of Worcester.
It is conceded that in 1822, Nathan Powers, the brother of the plaintiff, having received a conveyance of the same estate from Peter Russell the defendant, who was then his wife’s father, on the same day duly executed and delivered to tile defendant a mortgage deed, conditioned to perform a bond then entered into, to support and maintain the defendant
The claim of the plaintiff is, that the same Nathan Powers, who has since deceased, immediately after making the deed above mentioned, executed another mortgage deed to the plaintiff, in virtue of which he claims a right to redeem.
The execution and delivery of this last mortgage are denied by the defendant, and the points raised and considered have turned wholly upon this question. It is very clear, that to enable the plaintiff to maintain his bill to redeem, he must prove affirmatively, that he stands in the character of a grantee of the premises from the original mortgager, and that in regard to this point the burden of proof is upon the plaintiff.
The mode in which the questions of fact are brought before the Court, is peculiar, but we can perceive no objection to it. The case has been by consent referred to an auditor, who has reported the facts and the evidence, and it is agreed by the parties, that such is the evidence, and all the evidence, applicable to the cause, and that it is submitted to the Court, subject to any exception in regard to its competency, in the same manner as if it had been regularly taken in the cause. The case, therefore, stands upon the same footing as if tried upon concessions or an agreed statement of facts ; and derives its character, not from the fact of its having been reported by an auditor, hut from the consent and admissions of the parties.
One point affecting the character of the evidence relied upon, it is proper to consider, as a preliminary question, that namely, whether it was competent for the plaintiff in this cause, and in this stage of the cause, to go into evidence showing that the deed from Nathan Powers to Chester Powers, under which the latter now claims, was made to delay, and defeat creditors. So far as that consideration could be relied on as a substantive ground of defence, showing that although the deed was executed and delivered with all the formalities and solemnities requisite to give it effect as a deed, still that it is void, we are of opinion, that the defendant is not in a condition to avail himself of it, being neither a creditor himself, nor standing in such a relation
But, inasmuch as the question of delivery involves a consideration both of acts and motives or intentions, in other words, both overt and mental acts, the evidence in question is competent and relevant, as to the intent and motive with which certain acts were done.
The question then recurs, whether upon the evidence there has been a legal delivery of the instrument in question, to give it effect as the deed of the mortgager. It is very clear, that to give effect to a deed, there must be a delivery, actual or constructive, by the party, making it, to the grantee, or to some person for his use.
Whether the evidence of the loss of the deed, and of its contents, by the production of a copy from the registry of deeds, would, under the circumstances, have been admissible and sufficient, it is not now necessary to inquire. The affidavit given by the plaintiff to lay the ground for the introduction of that evidence, is not attached to the report; but it is remarkable, taking the contents of it as stated in the argument, that the plaintiff does not allege that it was delivered. But supposing that the affidavit of the plaintiff was sufficient, and the evidence from the production of an office copy, without further proof, would have been prima facie evidence of execution, it would have resulted from the presumption of law, arising from the common attestation of the witnesses, in their certificate, that it was signed, sealed and delivered. It is a well known rule of evidence, that where the production of an original deed is dispensed with and an office copy is competent evidence, the deed must be presumed to have been executed as certified, in presence of the attesting witnesses, and the necessity of calling them is dispensed with. In most cases, an attesting witness could not be expected to remember the fact of attesting a deed,
In the supposed state of the' proof, therefore, a delivery would have been presumed from the attestation, and this presumption would not be rebutted from the fact, that the deed was not in the possession of the grantee. The evidence of loss would be presumptive evidence, that it had been in the hands of the grantee, and if it had been so in the hands of the grantee, this would be prima facie evidence of delivery, and in the absence of countervailing proof, would establish the title of the party claiming under it.
But when the original deed was produced, and shown to have been in the custody of the grantor at the time, the presumption of its possession by the grantee arising from its loss was rebutted ; and when it appeared that the grantee was not present, and no person in his behalf, at the time of the attestation,' the presumption of delivery arising from the certificate, was also rebutted. Then the deed stood as it would have done, if the original deed had been produced in the outset by the plaintiff, he having the burden of proof of an execution and delivery.
It may be useful to say a word upon the subject of the burden of proof. It was stated here, that the plaintiff had made out a prima facie case, and, therefore, the burden of proof was shifted and placed upon the defendant. In a certain sense this - is true. Where the party having the burden of propf establishes a prima facie case, and no proof to the contrary is offered, he will prevail. Therefore the other party, if he would avoid the effect of such prima facie case, must produce evidence, of equal or greater weight, to balance and control it, or he will fail. Still the proof upon both sides applies to the affirmative or negative of one and the same issue, or proposition of fact; and the party whose case requires the proof of that fact, has all along the burden of proof. It does not shift, though the weight in either scale may at times preponderate.
To illustrate this; — prima facie evidence is given of t.ie execution and delivery of a deed ; contrary evidence is given on the other side, tending to negative such fact of delivery, this latter is met by other evidence, and so on through a long inquiry. The burden of proof has not shifted, though the weight of evidence may have shifted frequently; but it rests on the party who originally took it. But if the adverse party offers proof, not directly to negative the fact of delivery, but to show that the deed was delivered as an escrow, this admits the truth of the former proposition, and proposes to obviate the effect of it, by showing another fact, namely, that it was delivered as an escrow. Here the burden of proof is on the latter.
Applying these rules to the present case, it is manifest that the burden of proof was upon the plaintiff through tile whole inquiry. The question was, whether the instrument was ever delivered by Nathan Powers to Chester Powers as his deed. This question is to be examined, as if the original deed had been first produced.
It does not appear that the attesting witnesses were called after the original deed was produced, but it does appear that Chester Powers was not present when the deed was executed, and did not know of the fact till afterwards. The certificate of attestation, therefore, is not literally true ; it shows only that the deed was then signed, sealed and acknowledged, not that it was delivered. Besides, it farther appears, that at that time the deed was taken by Nathan Powers the grantor, and was by him sent to the registry. Had it appeared, that when sent to the registry, it had been stated by the grantor that it was so done for the grantee’s use, if it had been said that he might call and take it, and he had called for it accordingly, this might have made
The custody of the deed by Clark Powers, was not as an agent for the plaintiff. He took it from the registry as an act of courtesy, and delivered it to his brother Nathan. Nathan’s declaration that he should soon have an opportunity to send it to his brother the plaintiff, is very slight evidence of his intention to do so, except under limitations, and upon contingencies to suit his own convenience and views ; and the fact that he retained it to the day of his death, is strong evidence that he never in fact executed such an intention, if he then entertained it.
The admission of the defendant, that Chester Powers had a mortgage on the estate, is of no weight. It was sufficient to warrant such a statement, that a deed was on record, purporting to be a mortgage from Nathan to Chester ; but the defendant could know nothing of the validity of such a deed.
The note held by the plaintiff, if that evidence stood alone, would have some weight. But it seems that there were considerable mutual dealings between the parties ; that there were some counter notes ; that although Nathan Powers had failed for a large sum abroad, yet that in these domestic transactions he had a considerable credit; that- his estate was in fact solvent, and, therefore, if the plaintiff’s note was valid evidence of a debt, he has had the means of obtaining payment.
On the whole proof, the Court are of opinion, that there is no sufficient evidence of the delivery of the deed by Nathan Powers to Chester Powers.
There is no analogy between the case of the plaintiff’s deed and the defendant’s, because the deed to the defendant was delivered at the time of execution and before it went to the registry; and then, when handed by Clark Powers
Bill dismissed.
