Shattuck v. Gay

| Vt. | Aug 15, 1872

The opinion of the court was delivered by

Redfield, J.

- This is a bill in equity to reform a mortgage deed, and give it preference to the mortgage deed on the same premises held by the defendant Gay,

No question is made in argument that the order of the court of chancery, suppressing certain testimony, was improperly made.

The oratrix, in the bill, avers that it was agreed between herself and Orville R. Kelsey, her mortgagor, and assented to by defendant Gay, that her mortgage should take the precedence. Defendant Gay sold the farm to Orvilíe R. Kelsey, then incumbered by a mortgage to Hiram Kelsey for $2,800. Orville R. hired of the oratrix $1,000, and paid the same to Gay as part of the purchase money. There is no doubt, upon the testimony, that it,was fully agreed between the oratrix and Orville R. that she should have security for the loan by mortgage on said farm, subject only to the Hiram Kelsey mortgage. The town clerk, who wrote the two mortgages, testifies that Gay, being present, was aware of this arrangement, distinctly assented to it, and instructed him to give the oratrix’s mortgage precedence in the record; and that, by mistake, he made the oratrix’s mortgage subject to Gay’s mortgage. Orville R. Kelsey, fully and in detail, affirms the contract between the oratrix and himself, the assent of Gay to that arrangement, and supports the testimony of Chase, the town clerk, as to the distinct agreement of Gay at the time the mortgage deeds were executed. The oratrix’s mortgage was first recorded. The defendant Gay, both in his answer and his testimony, denies such agreement or assent on his part; and the answer is responsive to the bill- Where the material facts upon which the orator relies in his bill are denied in the answer, the rule is well settled that something more than the testimony of one witness is required to sustain the averments of the bill — what is deemed equal to the testimony of two witnesses. And we entirely concur with the defendant’s solicitor, that equity law requires clear and full proof to warrant the reforming of'a contract, and especially a deed. Yet, every case of this kind has its own circumstances, which give to it a character, and each makes its own impression upon the minds of the court.

The defendant Gay knew that the $1,000 paid to him as part of the purchase money, was borrowed of the oratrix. It is not reasonable that he was thoughtless and silent upon the manner and quality of her security. Nor is it probable that the town clerk should have made two mortgages upon the same land, and placed one on record, in the presence of the parties, or their agents, and no enquiry or suggestion made as to which" should have priority. In short, we believe the testimony of the town clerk is natural, is corroborated by the circumstances, and is substantially true. And the evidence satisfies the court that “ there was a plain mistake, clearly made out by satisfactory proofs.” 1 Story’s Eq. § 157.

We feel no inclination to modify the just and conservative rule, that written contracts, and more especially deeds, must be held to express the deliberate purpose of the parties, and should not be changed but upon the most clear and full proof, and such as shall establish the fact beyond reasonable doubt.

The decree of the court of chancery is affirmed, and the cause ■remanded.