Sweetser v. Lowell

| Me. | Jul 1, 1851

Tenney, J.

— The definition of the word “ expert” in Webster’s Dictionary is, “ properly experienced; taught by use, practice and experience ; hence, skillful and instructed ; having familiar knowledge of.”

The testimony of William B. Smith, and Ignatius Sargeant, severally brought each fully within this definition, when applied to the term in reference to skill and experience in judging of handwriting. They are not the less experts, because they did not profess to know the precise meaning of the word .expert, or because, they had not been in situations, where their duty required them to distinguish between genuine and counterfeit handwriting. When handwriting is a subject of controversy in judicial proceedings, witnesses, who, by study, occupation and habit have been skillful in marking and distinguishing the characteristics of handwriting, are allowed to compare that in question with other writings, which are admitted or fully proved to have come from the party, and to give opinions, formed from such comparisons. Hammond's case, 2 Greenl. 33; Richardson v. Newcomb, 21 Pick. 315.

Parol evidence is admissible to show a note, produced in evidence, to be the one secured by a mortgage, when it does not correspond in all respects, with that described in the condition. Brown v. Littlefield, 29 Maine, 302. The refusal of the Judge to give the instruction first requested, was correct.

The second instruction requested, was given in the general charge to the jury, as fully as the law demanded, or as it is believed to have been necessary in. order that they should understandingly apply the law to the facts of the case ; and was not essentially different from that requested.

There is no evidence in the case, which made the former part of the fourth and the whole of the fifth instruction requested, material.

The attempt was not made to show that the mortgager was holding adversely to the mortgagee : his possession is deemed in law to be that of the one, who has the legal title, and by whose permission he retains the possession. Such occupations continued for twenty years, cannot be regarded as adverse, so long as the debt secured by the mortgage is unpaid. The jury were instructed, if the mortgage deed was obtained by fraud, it was ineffectual to convey the estate; and that the burden of proof Avas upon the tenants to make out the fraud. Of this the tenants could not justly complain; it was as favorable to them under the latter part of the fourth request, as the law authorizes, and Avas not substantially unlike in principle, that requested.

It is the province of the jury to judge of the testimony of Avitnesses, and to weigh the evidence. If that on one side is irreconcilable Avith that on the other, they are to decide between the parties from all the facts and circumstances before them. The Judge had instructed them, that more than twenty years having elapsed after the maturity of the note, before the commencement of this suit, the presumption of law was, that the debt secured by the mortgage was fully paid; but this presumption eould be rebutted by parol testimony, the burden being upon the demandant, to show, that the note had not been paid. The jury could not ha\'e misunderstood this instruction. They were at liberty to consider of the evidence in any mode, which approved itself to them, and come to a determination upon the whole question, as they should believe a careful examination of the evidence required. The Judge was not required to give rules, as to the manner in which they should analyze the testimony of witnesses Avhich Avas in conflict. There was no error in withholding the sixth and seventh instructions requested.

The eighth and ninth instructions, which the Judge was requested to give, were properly refused. A deed has no effect till its delivery. The date is prima fade evidence that it was then delivered. But it is not conclusive. The actual time of delivery may be proved by parol. And any fact tending to show the time, when it was delivered, is also competent. No parol evidence can be more satisfactory to show that the delivery was at a time subsequent to its date, than the fact, that the deed did not exist at the day of the execution, apparent upon its face. The Judge was requested to instruct the jury as an inflexible principle of law, that the assignment of the mortgage to the demandant, being dated on March 10, 1848, he is estopped by his quitclaim deed of January 10, 1849, in which he recites that he holds under no other title than that of Lorenzo D. Harmon, dated January 15, 1848, from claiming any title in the premises under the assignment; and also is estopped by the covenants in his deed from setting up a title, afterwards acquired in fact. Evidence, uncontradicted, was adduced, that no assignment was made till a time subsequent to the deed «of demandant, of January 10, 1849. Although he had made an agreement for the purchase of the mortgage and the note secured thereby, prior to that time, the- legal title was in the mortgagee, till afterwards; and the demandant’s deed was only of the equitable interest in the land, which he claimed to own. He acquired no interest in the mortgagee’s right, till the assignment was made by deed. . And he could not convey an estate, which he did not own; nor could there be an estoppel by means of that which did not exist.

The covenant, which the tenants rely upon as an estoppel, was the one which is usual in quitclaim deeds against incumbrances made by the grantor. A title does not enure to the grantee under such a covenant, when it is acquired subsequently to the conveyance in which the covenant is inserted. Pike v. Galvin, 30 Maine, 359.

According to the agreement of the parties, judgment is to be rendered as upon mortgage.