Thompson v. Sanborn, 11 N.H. 201

11 N.H. 201 | Superior Court of New Hampshire | 1840

Parker, C. J.

The plaintiff was present when the defendant paid $50 towards the debt of Peter Sanborn, on which the property had been attached, and gave a receipt for the property. He knew that this was done under an agreement that Peter Sanborn should execute a mortgage to the defendant of the oxen now in question, along with other property, to secure him for the money thus advanced, and the liability assumed, and also for other existing liabilities of Peter San-born to the defendant. It had been said, just previous to this, that the plaintiff had claimed some title to these oxen, and the defendant had applied to him, to ascertain whether it was a fact. His first answer was entirely vague. He said merely, that “ perhaps writings would show.” Being told that Peter Sanborn, who was his father-in-law, said that he (the plaintiff) did not own a hair upon the cattle, he only replied that his father knew how it was. If this is not a direct assent to what he was thus told his father-in-law alleged, it is certainly not that open dealing which the law requires upon such occasions. The plaintiff was further told by the defendant, either just before or just after this conversation, that if he had any claim to the stock, the defendant would have nothing to do with settling the debts, or receipting for the property attached ; but notwithstanding all this he stood by and saw the proposed arrangement completed, except the execution of the mortgage, without asserting title, or giving the defendant notice that he claimed title to any part of the property which Peter Sanborn thus agreed to mortgage to the defendant. He evidently led the defendant into a belief that he had no claim to the property, and so far induced him to pay the money and sign the receipt; and he must have known this, from the express declaration made to him by the defendant, that he would do nothing about it if he had any claim to the property. If the defendant had sufficient notice to put him on enquiry respecting the plaintiff’s title, he made that enquiry, and had good reason to believe that the plaintiff had none. 8 N. H. Rep. 264, Rogers vs. Jones.

The case, therefore, is not within the principle suggested by the plaintiff’s counsel. The mortgages to the defendant are not voluntary conveyances. He is prejudiced and defrauded by the silence of the plaintiff, if the plaintiff may now hold this property, upon which he relied in part for his security. There is an actual detriment to him; and we are satisfied that this matter furnishes a good defence at law to the plaintiff’s claim, notwithstanding what was said by the Lord Chancellor in Evans vs. Bicknell, 6 Vesey 182. Vide 1 D.& E. 762, Opinion of Mr. Justice Buller; 6 D. & E. 556, case cited by Mr. Justice Lawrence; 6 N. H. Rep. 521, Morse vs. Child; (9 N. H. Rep. 351, Marston vs. Brackett.) The plaintiff must have had, at that time, all the knowledge he now has respecting his title. His conduct was not occasioned by any mistake or misapprehension respecting his rights; and, in the language of Mr. Chancellor Kent, upon another occasion, when officiating as Chief Justice, “ it cannot consist with the honor of the law, or with the wisdom of the administration of justice, that the fraud should remain triumphant.” 10 Johns. R. 461, Jackson vs. Burgott. Effectual relief may be administered at law, without a resort to equity.

Nor is it any answer to this to say, or to prove, that the other property contained in the mortgages is sufficient to pay and indemnify the defendant. He had the right to judge of that. He had the right to say upon what terms he would pay the money and give the receipt; and he said he would not do it, if the plaintiff had any claim. Peter Sanborn might with equal propriety contend that part of the property mortgaged was sufficient to secure the defendant, and on proof of that fact claim and recover the residue. It is as if the plaintiff had actually become a party to the transaction, and mortgaged the oxen himself.

The fact also that the defendant had a prior mortgage of these cattle from Peter Sanborn, of which the plaintiff had no knowledge, cannot affect the case. The defendant parted with his money, and incurred the liability of receipter for the property, when he took the new mortgages ; and this was done partly on the faith that these oxen were a part of the security which he obtained for so doing. It is the same as if only one mortgage had been taken.

And it may -well admit of doubt whether the case would have been different, had the new mortgage been given merely to secure prior debts, with the contraction of which the plaintiff had no concern. If there had been merely a substitution of a new mortgage for an old one which was invalid against the plaintiff’s title, perhaps his silence might have been of no consequence ; but if the new mortgage was taken to secure a greater indebtedness than the first, notwithstanding it was a prior indebtedness, the mortgagee might be defrauded by his silence, as well as if the additional debt was then contracted; for he might rely upon the mortgage thus taken, and omit to take other measures for the security of the debt.

Judgment on the verdict.