20 F. Cas. 235 | U.S. Circuit Court for the District of Rhode Island | 1824
So far as the answers in this cause set up new facts by way of discharge or avoidance of the matter of the bill, or allege separate and independent agreements, they are not evidence for the defendants; but all such allegations must be substantiated by proof aliunde. This is the general doctrine in equity, and is not now susceptible of any real doubt. Parteriche v. Powlet, 2 Atk. 383; Brace v. Taylor, Id. 253; Ridgeway v. Darwin, 7 Ves. 405; Thompson v. Lambe, Id. 587; Kirkpatrick v. Love, 2 Amb. 589; Blount v. Burrow, 1 Ves. Jr. 546; Robinson v. Scotney, 19 Ves. 583; Hart v. Ten Eyck, 2 Johns. Ch. 62. There is also an allegation in the answer of the defendant, Jeremiah Phillips, of an independent oral agreement previous to, or, at the time of the execution of the conveyance and defeasance in 1792, that he should hold the estate as security for the payment of an account duo him, &c. beyond the terms of the agreement in the defeasance. As to this point it is sufficient to say, that no parol evidence can be admitted to vary or contradict the terms of that agreement; and therefore the case must stand upon those terms, and the rights of Phillips be judged of accordingly.
One of the questions, which meets the court in the threshold of this cause, is. whether the conveyance of 1792 is a conveyance in joint tenancy, or in common. The answers set it up as a conveyance in joint tenancy. And so, certainly, it would be construed at the common law. But a statute of Rhode Island has broken in upon the doctrine of the common law. In the digest of 1798 (page 272, § 8), it is provided, “that all gifts, grants, feoffments, devises, and other conveyances of any lands, &c. which have been, or shall be made to two or more persons, whether for years, for life, in tail, or in fee, shall be taken &e. to be estates in common, and not in joint tenancy, unless it is, or shall be therein expressly said, that the grantees &c. shall have or hold the same lands &e. as joint tenants, or in joint tenancy, or to them and the survivor or survivors of them, or unless other words be therein used, clearly and manifestly showing it to be the intention of the parties to such gifts, grants, &c. that such lands &c.
The more important point is, whether the .assignment by William West, set up in the bill, is good and valid in point of law. First, it is said, that it was a mere voluntary conveyance without any consideration to support it. It it were so. still it is not perceived. how it would help the defendants. A voluntary conveyance is sufficient to pass an equity of redemption, so as to entitle the .assignee to redeem. It is of no consequence to the mortgagee how the party obtained his title, or what is the consideration for it, if, as to him, it is a legal assignment. If his debt is paid, any farther inquiry is wholly immaterial to his interests. But the assignment itself purports to be for the valuable consideration of $1000, the receipt whereof is in the deed itself acknowledged by the assignor. The assignor could not be permitted to aver against the very terms of his -deed, that he never received any consideration, if he were now attempting to controvert it; and, a fortiori, it does not lie m the mouth of a stranger to make that objection, whatever might be the right of creditors. Then again it is said, that the assignment was fraudulent and void, because it was intended merely to make the assignor ::i witness by a pretended sale in fraud of the parties claiming Jenks’s mortgage. Assuming the fact to be, as it is contended, still such a deed, made for such a purpose, is not a mere nullity. It is good as between the parties, and binds them and their privies. It may be avoided by any third persons, whose interests are intended to be defeateo by it; but it is not absolutely void. The general doctrine is. that a conveyance in fraud of the law binds parties and privies, and cannot be acted upon, so far as respects them, as a nullity. There is nothing in the present case to extract it from the operation of this principle. But bow is the assignment proved to be in fact fraudulent? Independently of the testimony of the heirs •of William West, there is nothing in the ■ cause, from which such a conclusion can be justly deduced. Their testimony has been objected to, upon the ground of its incompetency on account of their interest. The objection appears to me well founded. They are directly interested in the matter in issue. If the assignment be set aside, as void, their title to the equity of redemption, as heirs, is completely established. So that, in effect, they are now to testify directly to their own interest and title. Under such circumstances I think their testimony inadmissible. At law it has been held, that a party, claiming a rigln to the thing in controversy, is an incompetent witness to establish that right. See Buckland v. Tankard, 5 Term R. 578. Whether this rule be universally correct, it is not necessary to inquire; but if, as in the present case, the testimony establishes the right of the witness, as an heir, it appears to me, that .he has a direct interest in the event by defeating the plaintiff. It has been stated, in a late work on Evidence, that a devisee is not a competent witness in a suit by another devisee against the heir to establish the sanity of the testator. 1 Phil. Ev. p. 50, c. 0, § 1. That is precisely like the present ease, in principle. If the plaintiff should not succeed in the present suit, his equity of redemption will be entirely defeated. The heirs of William West will thereby indirectly obtain a power to sell and release it; and thus by their own testimony vest in themselves a valuable interest. Nor, as at present advised, do I perceive, in such an event, what remedy the plaintiff could have against them; at least, it. would be attended with serious difficulties and embarrassments.
Another objection is. that the assignment is not sufficient to carry the legal estate in Rhode Island, the execution not being attested by any witness. This objection was taken in West v. Randall [Case No. 17,424], and overruled by the court, it is unnecessary to add any thing to the reasoning there stated on this point, as, upon farther reflection. it has my entire assent. And if the law were otherwise, the answer given to the objection in that case would be decisive here, that the assignment is a sufficient contract to assign the defeasance, and to create a right to compel a legal conveyance of the estate. Under such circumstances, the defendants would be in no jeopardy by receiving payment of the debt due on the mortgage, and surrendering the estate to the. equitable owner, leaving him and the heirs; to contest their ulterior rights.
My opinion on the facts is, that the execution of the assignment is sufficiently proved, and that it is of legal validity to pass the whole title to the equity of redemption at law. ns well as in equity. (The judge here commented on the facts at large.)
As to the allegations in the answer, that Smith’s share was purchased on joint account, and the assignment • of the equity, if made at all, was on joint account, for the.
Upon the whole, my opinion is, that by the assignment, the plaintiff has a right to redeem the estate in the possession of the defendants on payment of the mortgage money, and I shall so decree accordingly. An account must be taken between the parties before a master; and upon his report the cause will stand for a farther decree. Decree accordingly.