Troup v. Haight

The Chancellor. The mortgage of the lands in Bath, from Haight to Troup, was executed on the fourteenth day of March, 1815, and was registered on the thirty first day of that month. _ _ The mortgage of the same lands from Haight to Lowman, was executed on the sixteenth day of February, 1820, and was duly registered on the twenty fourth day of February, 1820. If the mortgage to Troup was duly registered, it has preference to the mortgage to Lowman; but it is insisted by Lowman, that the mortgage to Troup was not legally registered. The certificate of acknowledgment upon which the mortgage to Troup was registered, states, that Samuel S. Haight well known to the officer w7ho took the acknowledgment, personally appeared before him, and acknowledged that he executed the mortgage, for the uses and purposes expressed in it. The objection made to this certificate is, that it does not state, that Haight was the person described in and who had executed the mortgage deed. This certificate is not in the terms of the act concerning deeds; and it is urged, that the terms of the statute, or others fully equivalent, must be used in every certificate of the acknowledgment of a deed. The complainant insists, that this certificate though not expressed in the words of the statute, is a substantial and sufficient compliance with the sense of its provisions. The statute is susceptible of either of the different constructions which are now urged; and each of these constructions, is supported by arguments of great weight. If this were an . original question upon a new statute it would present difficulty ; but I do not think myself at liberty, to treat it as an undecided question. From the first enactment of this provision concerning the acknowledgment of deeds, in 1797, until this time, certificates of acknowledgment have been made in different forms, and have been expressed in various terms. The most usual form has I believe, been that which adopts the language of the statute; but various other forms have been used; and certificates expressed in the language used in ihis instance, have certainly been very usual in all parts of — 268 — the state. Certificates like this, have been considered and treated as sufficient, during twenty seven years; and a decision that they are not valid, would subvert titles to lands, to a very serious extent. They have been held sufficient, not merely by the recording officers, but by judicial officers who have taken acknowledgments and have composed their certificates in this form; by judges of the supreme court, judges of the county courts, masters of this court and commissioners, This general usage thus long continued and hitherto unquestioned, has great force ; and the practical construction of the law by so many public officers, though not given upon adverse litigation, must still have much of the weight of judicial decision. The construction which considers these certificates as a substantial compliance with the law, is liberal, but it is not violent or unreasonable. This construction has prevailed so extensively and for so long a period, that it possesses high authority; and to pronounce these certificates void, would be a most dangerous innovation. I shall therefore, in pursuance of the received interpretation of this law, consider the certificate upon which the mortgage to Troup was registered, as sufficient, and the mortgage as duly registered. Construction by many law officers. General usage, long continued and unquestioned, has great weight in the construction of the act, though such construction be not given upon adverse litigation. Accounts voluntarily stated without fraud, &c. not opened. And limited by special agreeThe two settlements made between the complainant and Haight, the bonds, the mortgages and the special agreements, were the voluntary acts of the parties; and all these acts were wholly free from fraud or coercion, The two accounts having been freely and fairly adjusted by the parties, this case affords none of those reasons, upon which courts of equity vacate securities or open settled accounts. This case is not only free from coercion or fraud, but the special agreements made between the parties upon the two settlements, show clearly, their own sense and intentions, in respect to the extent and effect of these settlements. They show the rights which were adjusted and relinquished by those settlements, and likewise, the rights which were reserved by the parfies. When the first account between Troup and Haight, was settled and the first mortgage was given, a written agreement concerning the extent and effect of the settlement theti made, was executed between the parties. This special agreement — 269 — recites, that the mortgage was given for a debt due from Haight to the Pulteney estate, upon an account stated; and that errors might be discovered in undercharging and in overcharging in that account. The agreement then stipulates, that errors in the account, may be corrected, notwithstanding the bond and mortgage. One great object of this agreement, evidently was, to determine how far the settlement then made should be conclusive, and how far it should be open to reexamination. By this agreement, the parties determined for themselves, the extent of their own rights, in respect to a reexamination of this account; and their rights in this respect, now rest entirely upon this contract. This account is accordingly open, to correction: and the sense of the contract is, not that any new charge or credit may he introduced into the account, but that any of the items of the account, may he varied in amount, or may be totally rejected. Each party is therefore, now entitled to show any error or errors in this account. The next stipulation of this agreement, is, that the bond shall he no bar to the just claims of either party against the other. This reservation obviously relates to demands not comprised in the account. This agreement thus provides for two distinct objects. First, that errors in the account may be rectified, and next, that demands not comprised in the account, shall not be barred by the settlement. The written agreement made between these parties when the second account was settled and the second mortgage was given, declares that this account is not to preclude the parties respectively, from demands upon each other, in relation to other matters. But this agreement does not reserve any right to open or reexamine this second account or the second bond and mortgage. Both these agreements thus resérve to the parties respectively, all claims which each of them may have against the other; excepting those embraced in the two settled accounts. All claims not comprised in the two accounts, are excepted from these settlements: hut these agreements do not stipulate, — 270 — that Haight shall be entitled to set off his other claims upon Troup, against these bonds and mortgages. " It is not the sense of these agreements, that the claims of Haight which were not included in the two settled accounts, should be set up against the mortgages; but the meaning of those stipulations concerning other claims, seems clearly to be, that such other claims may be pursued by either party against the other, with-any ^ar or presumption of satisfaction, arising from the settlements, the bonds and the mortgages. served in^tihe musf'bí'purrate They may te the subject of a cross bill. But can not te set off. But if these agreements do not give to Haight the right to set off his other claims, upon Troup, in this suit, it is insisted, that such a set off may be made, upon general principles of law and equity. The object of this suit, is, to foreclose the equity of redemption. and to obtain satisfaction of the two mortgages, from the mortgaged lands. The suit is in effect, against the land: and it seems inconsistent with the nature of the mortgage security, that such a set off should be made. A mortgage being a specific incumbrance, and the object of such a suit being to foreclose the estate of the mortgagor if he will not redeem, or to obtain satisfaction by a sale of the land, it seems to follow, that the general law of set off is not applicable in such a suit. In this case, many of the counter claims of Haight against Troup, are unliquidated and uncertain in their nature and amount. ^ demands wholly distinct from the mortgage debt, can be set off in a suit to foreclose, the course of proceeding's in . . r a equity seems to require, that such counter demands should he presented by a cross bill. But without discussing these questions, the agreements and acts of the parties in this case, sufficiently decide, that Haight’s counter claims against Troup, can not be set off against these mortgages. These claims existed as they now exist, when the two settlements were made: but the bonds and the mortgages were nevertheless given as securities for the debts ascertained by the adjustments of the two accounts. They were given and intended as securities for particular debts; and they were separated from the other demands -of the par — 271 — ties, not only by the nature, of the securities themselves, but also by the express contracts of the parties. The rights expressly reserved by the parties, were the right to correct errors in the first account, and the right to pursue all claims not embraced in the two accounts. The evident sense of these transactions and contracts, is, that while the claims of Haight against Troup, not comprised in the two accounts, might be enforced, they should not be set up to defeat or diminish the securities given for the particular debts ascertained by the settlements. To open these mortgages to a full examination of all Haight’s claims against Troup, would manifestly contravene the acts and agreements of the parties. To decide this, would be to decide, that the settlements made by these parties have no effect, as adjustments of the demands comprised in the two accounts; and that mortgages given to secure particular debts, shall operate only to secure a balance arising from all the transactions of these parties if any such balance should be found against Haight. The parties themselves having by conclusive acts and agreements, separated these settled accounts and these securities from their other demands neither party can bring his other demands into examination, in this suit. Haight is precluded by these securities and agreements, from setting off his other demands against Troup, in this suit, but all other rights of Haight concerning those demands, are reserved to him; and his remedies must be sought in some other suit. The accounfs back 10 the muster, to be rectified ac-agreement. ‘he Ti,e burden of proof not noofposed»ueitiie1' paliyI am accordingly, of opinion, that these claims of Haight against Troup, can not be allowed by way of set off, in this suit. The account upon which the first settlement was made, being open to correction, a reference is made to a master, e x examine that account, to rectify all errors which may be found in it, and to state a corrected account. The master will act upon the pleadings and proofs in this cause, and such farther proofs as ,the parties may give. As this examinationtakes place in pursuance of the contract of the parties, A 1 * * there is no reason to impose on either of them the burden proof. — 272 — The usual reference is also made, to ascertain the principal and interest due on the second mortgage. The complainant relinquishes the agreement for compound interest; and such interest is not to he allowed.