Dillett v. Kemble

The Chancellor. One of the tiro points made in this cause, and which were ■argued very elaborately before me, was passed upon by the late ■Chancellor, as appears by bis opinion in Dillett v. Kemble, 8 C. E. Green 58. He there held that the complainant had no ■ title U> relief on the ground of mistake. I fully concur in that opinion. The complainant’s mix,take was the result of culpable negligence. He took the title to land he had purchased, paid the consideration money, and built upon the property, before lie discovered that it was “subject to the lien of the judgment, the payment of which the defendants were ■seeking to enforce against it when the bill was filed. He Lad, indeed, caused a search to be made for encumbrances, ■but it did not extend to the records of the Supreme Court, where i’lie judgment in question was recorded. His excuse for the omission is, that lie did not know that there was such court as the Supreme Court, in New Jersey. Ignorance of the general laws of one’s own country, is presumed to be gross ¡negligence. Every man in this state will be presumed to know of the existence of its judicial system, of the jurisdiction of its ■ courts, and of the effect and operation of their judgments and ■ decrees upon property. In this case the complainant was .aware of the importance of investigating the title, but from want of full knowledge of the subject, and his omission to obtain flic information lie needed, lie tailed to learn of the existence of the encumbrance in question. Equity will not assist a man whose condition is attributable to bis failure to exercise that diligence which may be fairly expected from a reasonable person. This rule has been applied where the negligence was that of counsel. Where a purchaser was evicted by reason of a delect of title which his counsel had overlooked, it was held [68] that he had no claim in equity to be repaid the purchase money.. See Wakeman v. Duchess of Rutland, 3 Ves. 233, 235. The other point made, is that the holders of the judgment,, being aware of the fact that the complainant was building a. house on the land on which the judgment was a lien, inequitably stood by, keeping silence as to the lien or existence of' the judgment, until the complainant had expended a large sum of money in the erection of the building, and then proceeded by execution to enforce their lien upon the premises.-. The judgment appears to have been recovered by Allen and McLaren against John Scott, the complainant’s grantor, January 17th, 1868, for $576.03, and execution issued thereon the same day to the sheriff of Burlington, by whom it was returned with a levy on other premises than those conveyed to-the complainant. The premises so levied on, appear to have-been sold under a prior execution on a senior judgment against Scott, and nothing was realized from them on the-Allen and McLaren judgment. Scott conveyed to the complainant the lot on which the latter has built his hotel, May 16th, 1871. It was then vacant, and was sold to the complainant for $50. Scott assured the complainant that it was free from encumbrance. The complainant began to build,. May 20th, 1871, and completed the house about the 18th of the following August. The defendant, Messmore, got an assignment of McLaren’s interest on the 6 th of July of that year. An alias fieri, facias de bonis et terris was issued on the-judgment, July 29th, 1871, and levied on the property in-¡ question on the 7th of August. Messmore testifies that when, he first heard of the existence of the Allen and McLaren judgment, he thinks the cellar of the house was dug and the frame up. Dillett says the mason began to wall the cellar on the 24th of May, and it took him about eight or nine days to do-it, and that the carpenters commenced on the 6th of June. Messmore says that it was within two weeks after he first. learned of the existence of the judgment, that he purchased. McLaren’s interest in it. The assignment is dated, and appears to have been executed, on the 6th of July. According; [69] to his testimony, it was not a great while after the assignment was made, that he informed Allen, who lived and did business in the city of New York, that the building was being erected on the lot. He says it might have been within a week, From this 'statement, the truth of which I see no reason to doubt, the house had been so fir constructed, when Mcsstnore acquired his interest in the judgment, that the improvement had added to the value of the property more than the amount duo on the judgment. It is admitted by Mess-more, that he knew of the building from about the time when it was commenced, but he says he had no knowledge whatever of t lie existence of the Allen and Mol jaren judgment when the. complainant began to build, if ho had known of it, and if, io go farther, he had contemplated purchasing it, or an inf crest in it, with a view to getting’ payment out of the propel iv as improved by the complainant, Í cannot see how those fiefs can operate as an estoppel against him. His conduct may have been the dictate of malevolence. ITe may have been actuated by a desire for revenge for a l’eal or fancied insult or injury, sustained at the hands of the complainant. Hut, conceding these things, he was clearly, up to the time he obtained an interest in the judgment, in no situation to he estopped by his silence. I le was, up to that time, certainly under no obligation to inform (he complainant of the existence of the judgment. Me wsh perfectly at liberty to buy the judgment, or an interest in it, and there could be no equity between him and the complainant up to the time when he purchased McLaren’s interest. He appears to have purchased it for §50, and he seeks to compel payment of the judgment out of the complains) nt’s property. I would be glad to be able to relievo the complainant in the premises, but I cannot do so consistently with the rules of law or equity. The injunction will be dissolved and the bill dismissed, but without costs.