Wilson v. McCullough

The opinion of the Court was delivered by Woodward, J. The validity of the marriage articles having been established, when the case was here in 1852 (7 Harris 77), the great question on the last trial of the cause was, whether the*bank had notice of them when the mortgage of 12th December, 1821, was taken. The bank was a mortgagee without constructive notice, for the articles were not recorded until some months after the mortgage was duly executed and recorded. Had the bank actual notice ? The plaintiffs held the affirmative of this question, and the burden of proof was on them. The evidence produced and relied on by them was that of General Forster, the cashier of the bank in 1821. He described the negotiations which led to the — 444 — loan to Wilson and wife, and proved the letters addressed by him to Mr. Clark, as attorney of the bank, and then added, “ I heard articles of marriage settlement, between James Wilson and wife, talked of very frequently in bank and out of bank. It was before the mortgage was taken, and while they were negotiating for the loan. When spoken of in bank, it was before" the board of directors, but whether in session or individually I cannot say. I did not know the terms — it was spoken of as such a thing existing. The board did not seem to regard it as of much importance in the transaction with Wilson and wife.” On his cross-examination he stated, “ I never heard whether it was in regard to real or personal estate, or anything about it, and did not know Avho the trustees were. I merely heard there was such a thing. I cannot tell how I acquired the knowledge — it must have been from some of the directors or before the board. I, perhaps, said, on a former trial, I got the information from Jacob M. Haldeman. I say now from him or the president of the bank. Mr. Elder, the president of the bank, was a lawyer......I had no written communication with Clark and Wilson other than what is contained in the letter-book. I never mentioned to Mr. Clark the existence of the marriage settlement. I never spoke of it, that I recollect, either to him or James Wilson.” The defendents then proved, by Peter Keller and Jacob M. Haldeman, the only two surviving directors of 1821, that they had no knowledge of the marriage settlement when the loan was made to Wilson and wife, and Mr. Haldeman fixed the time when he first heard of it — seven or eight years afterward when he went to Carlisle to attend the sale of this property on the mortgage. “ Mr. Foster was then along — no sale was made at that time. I cannot say what year that was — that was the first I ever heard of this thing. I heard General Alexander speak of it at that time. General Foster was present.” General Foster being recalled by the plaintiffs, stated, “ I heard of this marriage settlement before and after the mortgage ivas executed. I got my information at Harrisburg, all that I got. I did attend sheriff’s sale of this property with Mr. Haldeman. I don’t remember anything about the conversation with Mr. Alexander spoken of by Mr. Haldeman.” The Court was called on to say that if the jury believed General Forster, the bank and all claiming under it were affected with notice of the marriage articles; but the learned judge laid down, with commendable brevity and precision, the law as to notice of an unrecorded deed, and referred all the evidence to the jury for them to decide Avhether such notice had been proved or not. Herein there Avas no error of which the plaintiffs have reason to complain. We are of opinion that the Court might have assumed higher ground, and ruled that General Forster’s testimony, taken — 445 — without any allowances on account of age, infirmities of memory, or of conflicting proofs, failed to prove such notice to the. bank of the marriage settlement as would entitle that instrument to preference over the mortgage. The mortgagee here was a bank, governed by a president and directors, and to affect the corporation with ■ notice it must be brought home to them, for it is the president and directors in the aggregate, with whom strangers have to do, and by whom all corporate acts are to be performed. Hence notice to a single corporator, is not notice to the corporation unless communicated to the board: Bank of Pittsburgh v. Whitehead, 10 Watts 402; Custer v. Tomkins County Bank, 9 Barr 27. Where a by-law, or the course and usage of business, have devolved certain duties on a particular officer of the bank, notice to him of matters relating to the routine of business intrusted to his charge, is notice to the bank, for the law presumes the directors to have employed a faithful agent, who will communicate to them what is communicated to him, and if he do not, the responsibility is on his employers. But in the negotiation of a loan of a character and upon a security so much out of the course of ordinary bank accommodations, as that made to Wilson and wife, and especially when an attorney has been employed to act for the bank, notice of an unrecorded deed communicated to the cashier could scarcely be considered notice to the bank. The correspondence of Mr. Forster shows that the board was deliberating and acting in regard to this loan, and that he sent such instructions, and such only, to the attorney, as the board directed. The transaction did not fall within the circle of his ordinary duties as cashier, but was peculiar and extraordinary, and he did not communicate to the board what he says he heard about the marriage articles. Under these circumstances, had he received full and explicit notice of the articles, it might be well doubted whether it could, in reason or law, be treated- as notice to the bank. But he never received such notice. He heard a marriage settlement spoken of, but who were the trustees, what was settled, whether real or personal estate, and on what terms, and Avhen made, he did not hear. Was this notice of the. conveyance, AA’hich had been made of the particular premises, described in the mortgage ? Obviously it was not. Nor was it sufficient to put the bank on inquiry. For, of whom could they inquire ? If of the grantors, the conveyance was denied, for the mortgage made by them Avas a solemn assertion of their ownership of the premises. Indeed it is a fair presumption from the transaction, especially from Mrs. Wilson’s joining in the mortgage, that all proper inquiries were made in that quarter, and that the title AAras represented as in her. Of the trustees, the bank could not inquire, for even Mr. Forster had not heard them mentioned. Nor was any person in possession of the premises under a title inconsistent with that — 446 — of the mortgagors. The public register was searched in vain, and no clue whatever was furnished to Mr. Eorster, by which he or the directors could come to a knowlege of the truth. Whatever puts a party on inquiry, amounts to notice, provided it would lead to the knowledge of the requisite fact, by the exercise of ordinary diligence and understanding; but evidence that it was generally reported in the neighborhood that a person had sold land to another, and that the report was communicated to the defendant, is not sufficient: Jacques v. Weeks, 7 Watts 267; Epley v. Witherow, Id. 167; Hood v. Fahnestock, 1 Barr 470. And an intimation by one not interested in land that another title is outstanding, is not notice to a purchaser: Miller v. Cresson, 5 W. & Ser. It is a settled principle, said Chief Justice Gibson, in Koons v. Swope, 2 Watts 78, that the vague reports of strangers, or information given by a person not interested in the property, are insufficient to affect a purchaser with notice. Now, a mortgagee, as well as a purchaser, is within the recording Acts, and equally entitled to notice of previous conveyances ; and if these rules be applied, it is evident from the testimony of General Foster that no person in interest ever gave him notice of the marriage articles, and that vague rumor, which was all he had, never furnished him with such facts as would have enabled the hank, with the use of ordinary diligence and understanding, to discover their relation to this land. In equity a purchase with notice of a secret trust is regarded as a fraud, and therefore it must be made out by clear proof of actual notice. My opinion is, said Duncan, J., in Peebles v. Reading, 8 Ser. & R. 496, that in such a case “the notice should he actual, circumstantial in the transaction,” and “ by the party in interest.” “ It must be proved that he knew exactly the state of the party having the equity, and knowing that acquired the legal estate. Nothing short of this, which is actual fraud, will postpone his legal title; and the fraud must be very clearly proved.” This is a pretty strong statement of the rule, and must be taken with the modification settled in subsequent cases, already referred to, that what is sufficient to lead to the fact, is notice of the fact; hut where, as in this case, neither the special agent and attorney of the corporation, nor any officer of it having the business in charge, ever heard an intimation of the secret trust, and the cashier heard only such vague rumors as General Foster describes, there is not the least difficulty in saying that there was neither actual notice, nor its equivalent, and the Court might very properly have taken the case from the jury and ruled it against the plaintiffs on this .point. Of course they were not injured when, instead of doing this, the Court submitted the question to the jury. The four propositions of the plaintiffs in regard to the validity of the judgment on the mortgage, are in direct conflict with the — 447 — ruling of this Court, when the cause was last here, and therefore they were all properly negatived. It is not necessary to notice the answer of the Court to the defendants’ first point. As the decisive point in the cause might have been ruled by the Court, and was found by the jury against the plaintiffs, this alleged error is wholly unimportant. In the other answers of the Court, and in admitting the deposition of Peter Keller, there was no error. The judgment is affirmed.