Myers v. Brownell

Skinner, Ch J. delivered the opinion of the Court. The plain, tiff, Myers, claims in his declaration eleven acres and forty-three rods of land in Pownall, being part of a fat m of one hundred and sixty acres, formerly owned by Samuel Card. The action was tried at the last term under the general issue. The plaintiff to maintain the issue on his part, showed in evidence copies of the record of the County Court, from which it appeared-that on the 15th of November, 1820, the farm was attached at the suit of Myers against Card; judgment in that suit was rendered June term, 1821; and the lands m question appraised, and taken upon the execution, in satisfaction thereof, on the 3d of August, 1821. The defendant, [453] Brownell, then showed in evidence a deed of the whole farm executed by Card to him on the 3d of March, 1817, conditioned, that it Card should pay three several notes of hand, executed by him and Brownell to other persons, amounting in the whole to $4350, according to the tenor of said notes, then the deed to be void. The notes all became due within one year. He further showed in evidence, that he had paid some part of the sums due on the notes; also the record of the Court of Chancery, August term, 1821, by which Card was decreed to pay Brownell the sum of $4530 49, .and the interest thereon, by the 1st of August, 1822, or be foreclosed. The plaintiff then offered in evidence the copy of a deed of warranty, from Card to Brownell, dated the 3d of February, A. D. 1821, of the whole farm; together with evidence tending to show, that at that time, Brownell having paid no part of the notes, it was agreed between Brownell and Card, in consideration of the conveyance, Brownell should pay the amount of the notes ; and also, that Card then indemnified Brownell against the encumbrance of the plaintiff’s attachment, and that Brownell has since received a large portion of the money; all which evidence was excluded. The defendant offered Samuel Card as a witness — his interest having been discharged. The plaintiff objected to his testifying, and the objection was overruled. Verdict for the defendant. The plaintiff excepts to the opinion of the Court in rejecting the testimony by him offered; and in the admission of Card as a witness. The defendant having shown a prior encumbrance to that of the plaintiff under the attachment, it becomes necessary for the plaintiff to show this right of the defendant extinguished or removed. The ground taken by the plaintiff’s counsel, if rightly understood,as to the legal effect arising from the facts offered to be proved, is, that the interest of Brownell, acquired by the deed of 1817, was merged in the interest acquired by the deed of 1821; or that the execution of this deed, and the agreement of Brownell, in consideration thereof, to pay the demands referred to in the condition of the first, was in law a performance or satisfaction of the condition, or, in other words, a payment of the debt, (for the case, on principle, is not dis‘inguishable from one in which the deed of mortgage is executed iirectly to the creditor). The lien of Myers, the attaching credit- or, is to be regarded in the same point of view, as that of a second mortgagee; and in deciding the question, it is proper to consider [454] what his rights were at the time of his making the attachment. If deed of February 1821 had not been executed, Myers coiild not have had the benefit of his lien without paying off the incumbrance, and this is all he is now required to do; he cannot therefore in just¡ce ga^ t(lat he is prejudiced by being postponed. If he has the precedence, it has been cast upon him without any act of his, and without the aid of any of the effects of Card, by which his debt might have been satisfied. If payment by Card in property other than the lands.mortgaged, had been made, there can be no doubt Myers would be prejudiced, if the same had not been applied to the encumbrance, and the law would have made the. application. If the taking of the deed of February 1821 by Brownell is to have the effect of destroying his rights under the mortgage, he must be injured. The injustice of adopting the principle would be more strikingly exemplified, had the demand of Myers equalled in amount the value of the property ; and without some authority to support the doctrine (he Court cannot be justified in so deciding. No authority is shown to support the position, that the legal estate o.f the mortgagee is merged by the purchase of the equity of redemption by him; and no case can be found, in which the law will declare the union of two estates in the same person a merger to his prejudice. Whether the legal inference from the evidence offered would have been that the condition of the mortgage was performed or satisfied, or the claim of the mortgagee under the deed thereby relinquished, must be decided from the manifest intention of the parties ; for the law will raise no contrary presumption. It would seem that there could hardly be a contrariety of opinion as to the intention manifested by the facts offered to be proved, which in substance are these: Card has executed a deed of his farm to Brownell, with a condition of defeasance on the payment of certain notes of hand, executed by himself and Brownell as his surety, according to their tenor. Card fails to perform the condition, and proposes to discharge his rights under the defeasance, in consideration that Brownell relieve him from the payment of the demands. — Brownell complies ; and Card discharges his equity of redemption in the most natural and ordinary way, by executing an absolute deed of the premises. In lieu then of performing the condition the pledge is surrendered. — This surely is not a release of the pledge by the person taking it; the condition is not performed, nor the debt paid, — That only is done, which the [455] parties originally agreed upon, that is, the estate should be absolute in Brownell, if the condition was not performed. The cases cited from Connecticut and Massachusetts support the decision made upon the trial, and we are apprized of no authority, that would justify the granting of a new trial on this ground. The circumstance of Card’s having given security to Browned against the lien of Myers in no way subjects him to the payment of the debt, nor is it perceived how any inference arises therefrom, that Brownell considered it as interfering with his claim under the deed of February 1817- That he had an interest in having this lien rein oved, which was prior to his purchasing the equity of redemption, and would take precedence to his rights acquired thereby is apparent. As to the other point, there is no rule of law that excludes a witness because he is in the chain of title. If he is thereby interested in the event of the suit, he is excluded on the ground of interest. If this interest is removed, he may testify. The case states Card’s interest was discharged, but the manner in which it was done, does not appear; the Court, therefore, are obliged to consider it as having been effectually and legally done, if bjr any possibility the case would admit of such procedure. That the grantee may release the covenants, so as to discharge any right which he may have, is clear; and if such release accompanies the deed on record, the Court consider, that if, as is insisted, his assignee, without this, would have a right to pursue the first grantor, this would destroy such right. It is not necessary, therefore, to decide whether Card’s interest was equally balanced between the parties. As no sufficient ground is shown in the opinion of the Court to set aside the verdict, judgment must be rendered thereon.