Gilkeson v. Snyder

The opinion of the Court was delivered by Rogers, J. Two actions were brought on two several bonds, one for $240, the other for $333.33. The causes were tried by the same jury, and under a charge embracing both cases. The general facts, which appertain to both cases, are well stated by the court, and as to the $240 bond, the cause is placed on correct principles. It is the common case of a bond given in part payment of a tract of land, the title to which has proved defective. Inasmuch, therefore, as the consideration has failed, on the principles settled in Steinhauer v. Witman the defendants have a complete defence. But conceding the defect of title, another question arises depending on other and distinct considerations arising out of the testimony of Andrew and Samuel Gilkeson. If they are worthy of credit, the case was this. The defendants purchased of Samuel Gilkeson a tract of land, the title to which was defective. It was encumbered with a judgment in favour of Andrew Gilkeson for $4000, also with legacies under the will of Andrew Gilkeson, the father, for about $1500, and a dower to the mother, $333 of which, as is admitted by the parties, belonged to Samuel after her death. For the purpose of adjusting their respective claims the parties met at Mr Fallon’s office, who, it is alleged, acted as the counsel of the defendants alone. The $333.33, as Andrew says, was part of the dower fund payable at the death of his mother,- $300 of the principal was to go to Jane Fitzwater; $300 to Harriet Meredith; $166.67 to Elias Gilkeson. There was then a balance of $333.33. Mr Fallon said, if sold at sheriff’s sale, the purchaser would get it; if sold at private sale, Samuel Gilkeson might have it. The will is silent as to a devise over; and he said it would go to Samuel, on her death, with the consent of the heirs. They were willing Samuel should have it. Mr Fallon said Joseph Gilkeson would be safe in buying this and taking Snyder and Hutton’s bond for it; which they were willing to give. Joseph bought it and gave Samuel $200 in cash, and gave a bond or note for the other $133.33. A receipt at the same time was given for the $200. If this be a true account of the case, of which the jury must judge on the representation of Mr Fallon, who was the attorney of the defendants, and in their presence the plaintiff has been induced to advance his money, his act is their act, and they must [207] be answerable for the consequences. The court say if the jury find the consideration failed, the defendants are entitled to verdict, unless Joseph Gilkeson is put in a worse situation by giving the bonds. ' And this is correct, as far as it goes; but we think the court should have instructed the jury further, that if they believed Joseph Gilkeson paid Samuel Gilkeson $200 in cash with the knowledge of Snyder and Hutton, and upon the representation of their counsel, made in their presence, that he would be safe in buying Samuel Gilkeson’s interest, the defect of Snyder and Hutton’s title will constitute no legal bar to a recovery to the amount paid with interest.. If a person about to take an assignment of a bond calls on the obligor and informs him of his intention, who acknowledges it is unpaid, and that he has no defence and that he will pay it, he cannot afterwards be permitted to gainsay his own act. He is the cause of the loss, and cannot be allowed to deny his obligation to pay. For the like reason the defendants are estopped to deny their liability. It may be proper to remark that we cannot perceive that there was any lien on the land for this sum. Samuel was the owner of the land and the money both. The ownership of the land is an extinguishment of the lien, unless under very special circumstances. It is enough to observe that we see no valid objection to the admission of Mr Fallon as a witness. Judgment reversed, and a venire de novo awarded.