Turner v. Whidden

The opinion of the Court was prepared by Sbepley J. — The plaintiff being the owner of part of lot numbered seven in Calais, on April 23, 1836, conveyed the same in mortgage to William Spring; and on March 6, 1838, [123] conveyed the equity to Manly B. Townsend in trust to secure the payment of debts or claims, for which he was liable to Hall and Duren, Abner Sawyer, and Samuel Dunn. The claim of Dunn arose from his becoming surety for the plaintiff on a bond payable to Hey wood and Lovejoy. On May 24, 1839, the plaintiff conveyed the premises to the defendant, and received from him a contract to settle and pay the claims secured by the deed to Townsend on condition, that the wife of the plaintiff should within six months release to the defendant her right of dower in lot numbered seven. The defendant introduced a deed from Luther Brackett, as sheriff, bearing date on May 23, 1838, purporting to convey the equity to George S. Smith as the purchaser of it on a sale at auction. This sale must have been known to the defendant before he purchased of the plaintiff, for he had the day before purchased the title under it from Mr. Bradbury, to whom Smith had conveyed it. The plaintiff was not married to his wife until after the sale of the equity by the sheriff; and it is now said, that the defendant could receive no benefit from a release of the wife’s dower. It appears from the dates of the conveyances, that the arrangements for a sale to the defendant must have been made at or about the time, when the plaintiff’s right to redeem would be extinguished; and when, by redeeming from all the incumbrances, her right of dower would have become perfect. And even if the parties were in error in supposing, that she had a right of dower, it would seem, that in estimating the price to be paid by the defendant that right was esteemed to be a valuable one. The defence however rests principally upon the fact, that the deed releasing the dower was not delivered to the defendant within six months. McAlister, who had acted as the attorney of the plaintiff in making the conveyance to the defendant, testifies, that in the course of the summer the defendant inquired of him, if the deed releasing the dower had come, and was anxious, that he should get the deed. It appears, that the deed was duly executed on November II, 1839, and was sent to McAllister, who soon after saw the defendant at Calais, and who being inquired of by him [124] if he had got the deed, answered, that he had received it, but had forgotten to bring it out. To this the defendant replied, well, bring it out. McAllister also testifies, that he carried the deed to the house of the defendant before the expiration of the six months, who was not at home; and that a few days after the expiration of the six months he offered him the deed, and he refused to receive it; and it appears from other testimony, that he did so, because, as he said, it was too late, and he should hot accept it. If the deed within the six months was delivered to one authorized by the defendant to receive it, or to one not so authorized, but who was afterwards authorized by him to retain it for his use, it would operate as an effectual conveyance within the six months; and the plaintiff would have performed the condition of the contract. McAllister making no objection, when the defendant desired him to get the deed, and when he desired him after it was in his hands to bring it out, may be considered as consenting to hold the deed for the use of the defendant. And the defendant, when informed that McAllister had the deed, making no intimation, that he wished him to bring it to him within any particular time, may be considered as assenting, that he should thus hold it until it should be convenient for him to present it or forward it. If the defendant, after the expiration of the six months, had demanded the deed of him, and he had refused to deliver it, such testimony in addition to that before stated and connected with the fact, that he had carried it to the defendant’s house for delivery would have authorized a jury to find, that he had consented to receive it for the defendant and. to deliver it to him. And the defendant might have maintained trover for it. There does not therefore appear to be any substantial objection to the instructions of the presiding Judge, In the contract the claim of Dunn is stated to be for about one hundred and fifty dollars.” But this is only a part of the description of the claim, and the intention is clear, that the defendant should relieve the plaintiff from it, whatever might prove to be the amount of it. The testimony, that Dunn had agreed to receive his own note for one hundred and [125] ten dollars in discharge of that claim, not being executed, could not destroy the right of the plaintiff, secured by the contract, to be relieved from all liability on account of it. Judgment on the verdict. •