24 Vt. 270 | Vt. | 1852
The case was heard and reserved till the circuit term at Woodstock, in Windsor county, on the second Tuesday in September, when the opinion was delivered by
The bill in this case seeks a foreclosure upon two mortgages. In regard to the first there is no controversy.
In regard to the second, the bill is in the ordinary form of a
The bill is taken as confessed, against Chamberlain, and is answered by Flint. Flint admits the execution and recording of this mortgage, before his levy, but denies its delivery, until after that date. He also denies the bona fide character and consideration of the note secured by this mortgage. This answer is traversed and testimony taken upon both sides.
1. It is claimed by the defendant Flint, that his answer-is to be regarded as evidence in the case, in regard to the time of the delivery and the consideration of the note.
But this we think is clearly not admissible, for two reasons. First. Flint has no actual knowledge in regard to either of these points, does not profess to have any, and is not supposed to have any in the bill, and is not either by the form of the bill, or the interrogations, called upon to make answer upon either of these points. Under such circumstances, it is now regarded as settled in this State, that the answer is a mere denial, a traverse of the bill, and leaves the point to be proved by the orator, by the ordinary measure of proof, the same as where the defendant formally commends the orator to such proof, as he may be able to make, acknowledging his own utter ignorance upon the point.
Secondly. Even where the defendant in a bill of foreclosure, is the original mortgagor, and has actual knowledge of the execution and delivery of the deed, bond, or note, his answer is never regarded as evidence to impeach the consideration of the mortgage securities. Possibly the answer might under some circumstances, be regarded as evidence upon the question of the execution of the mortgage securities, which would include the matter of delivery, but could never be regarded as extending to a subsequent incumbrance, who knew nothing of the facts. This point was expressly decided by this court .in the case of Loomis v. Fay & Patchin, in the circuit term, in Rutland county, in June.
This is attempted in two modes. First. By what is claimed as an estoppel in pais. But we cannot think the testimony shows what amounts to an estoppel in pais upon the orator. To have that effect, he must have had his mind brought to the very point of the subsistence of the second mortgage upon this very lot, and either have been told that Flint wished to levy, or some other creditors, or in some way have been made aware of the importance and necessity, for the safety of others, that he should state the extent of his claim upon the land. An estoppel of this kind is an equitable abandonment of a claim; a kind of perpetual disclaimer, and a party cannot be covertly led into it. It goes upon the ground of the obligation resting upon one owner, or part owner of the property, to disclose the true state of his title to another who is, or who is about to become interested in the same thing. And the party, to be affected by the estoppel, should be made fully aware of the interest of the party making the inquiry, or that the declaration is going to be, or will be likely to be relied upon by some one.
The proof, in the present case, is altogether bare of any such ingredient. The manner in which Lyman Ellsworth approached the orator was calculated, and was very obviously intended to put Wooley off Ms guard, and lead him to suppose Ellsworth had in fact, no interest in this particular land, but the contrary. The idea that one is to disclaim his rights, beyond all recovery, without being made aware what he is doing, is certainly very far from the fair import of an estoppel in pais. We think the old doctrine, that estoppels are odious, might very justly be applied to one of this character, which one is to be made to incur, covertly, and so to speak, by a kind of slight of hand.
Secondly. The only remaining ground upon which it is claimed that the orator should not have a foreclosure upon this second mortgage, is that the proof, fairly weighed, fails to show its continuing force and obligation. The testimony seems to show the existence of the note for $500 at the time of the hearing before
This note then, being shown in the orator’s possession as early as October, 1848, and being secured by a mortgage, duly executed in 1843, and then recorded, and the note bearing that date, it will be fairly entitled to be regarded as having existed and been delivered at that time.
It is then incumbent upon the defendant to impeach it. This he cannot do by his answer, for he has no knowledge upon that point, and if he had, his answer at the most, is only testimony to the fact of delivery and not to impeach the consideration. Adams v. Adams, 22 Vt. R. 68 et. seq. And upon the point of the delivery of this note, it must be very obvious to any one, that the conviction of the mind upon this subject would stand very different if the party executing the note, declared in his answer, that it was not, in fact, delivered until after Flint’s title accrued, from what it now does, upon the simple denial of Flint.
In regard to this proof, aside from the issue, for the bill and answer in this case, amount to nothing more, it will very readily occur to any one, that the hypothesis assumed by Flint, is a very possible one, and there are, no doubt, some circumstances tending to induce us to apprehend that the truth even, may lie in that direction. The declarations of Wooley, made to Ellsworth, if faithfully reported by him, certainly look as if orator probably would not have said all he did, if this $500 mortgage, and $300 more of debt, had then b.eeii owing to him from Chamberlain, and a mortgage in present existence for the $500.
But there is doubtless something to be' said in regard to Ells-worth’s testimony. Wooley may not have felt bound, under the circumstances of that conversation, to state all his private matters of deal with Chamberlain; some men would, and more perhaps, would not have done it. The appearance of Ellsworth, and his declarations to Wooley, seem to represent him at that time as acting the part of a dealer in wild lands and in wool, and beyond this, Wooley would not have been bound, by terms
■ The testimony of Chamberlain on the other hand is full to the point of consideration and delivery, and it seems to us probable, and very considerably confirmed by the old notes and the conduct of the parties at the interview in October, 1848. This latter matter, however, could scarcely be regarded as of much weight in a legal point of view.
The testimony of Trask does not seem to us to detract at all from that of Chamberlain. A recollection of his “hesitation" at that length- of time, under the circumstances, is certainly not much to be relied upon.
Notwithstanding then we might believe it possible, or even have some doubts, we could not set aside this mortgage short of some satisfactory evidence. And it does not seem to us to exist in the case.
The rents and profits, ought to be deducted from the amount due, but we do not learn that that was insisted upon in the answer or before the master, and if it is now denied, the chancellor will no doubt order it done in the proper form, if it is deemed of any importance, and upon proper terms. The decree of the chancellor is affirmed, and the case remanded to the court of chancery to be there carried into effect.