Furbush v. Goodwin

Woods, J. By means of the conveyance from James W. Lougee, whose title is admitted, to the plaintiff, and the reconveyance of the premises in question, together with other adjoining'lots, to said Lougee in mortgage, the plaintiff became seized of an equity of redemption in the same, which would enable him to maintain a writ of entry, or an action of trespass, against any person entering into the premises, excepting the said Lougee, the mortgagee, or some one claiming his rights, and entitled thereto by an assignment of the mortgage interest. These conveyances were executed on the 30th of May, 1845. At the trial, the defendant set up a claim of right in the locus in quo, alleged to have been derived from certain immediate assignees of the mortgage interest of James W. Lougee. The case finds that on the 28th day of July, 1847, for the consideration of $273, James W. Lougee, the mortgagee, duly assigned all his interest in the mortgage and mortgage debt, as to lot 6, the locus in quo, conveying four tenths thereof to Franklin W. Lougee, one tenth to Bracket Merrill, and one tenth to Tebbets & Brooks, and the other four tenths to other persons, and the note, to secure which the mortgage was made, was placed in the hands of one Bartlett, for the benefit of all the assignees. By that assignment, the assignees acquired the mortgage title t'o the lot. On the 13th day of April, 1849, Franklin W. Lougee, one of said assignees, executed to the defendant a deed of assignment, transferring and making over all his interest .and claim in the mortgage and mortgage debt. The de — 443 — iendant gave that deed in evidence, and the plaintiff, to rebut and control the effect of it, by showing the mortgage discharged to the extent of the interest of F. W. Lougee, gave in evidence a receipt of the following tenor, viz: “ 28th Dec. 1847. Received of David Furbush ten dollars, in full for the amount of money paid by me to James W. Lougee, to procure his discharge of a mortgage which he held against said Furbush on certain lots of land sold to me by said, Furbush, by his warranty deed, situated on. the westerly side of New street, &e. &c. (Signed) FRANKLIN W. LOUGEE.” Prior to the 28th day of July, 1847, Furbush had conveyed by deed with warranty to said Franklin W. Lougee four of the ten lots conveyed by James W. Lougee to him on the 30th of May, 1845, which lots were situated as described in said receipt. The deposition of Franklin W. Lougee was given in evidence by the defendant, in which he testified, among other facts, that the plaintiff never paid the amount of his interest in the note and mortgage given to James W. Lougee, and assigned as aforesaid. . That the deponent gave the receipt described, for the amount of $10, and that the consideration therefor was the giving up by the plaintiff to the witness of a note which the plaintiff held against him for about $10, payable in window blinds, which note had at one time been put into the hands of Samuel Stillings, and that after Stillings had called on the deponent for the payment of the note, the deponent saw the plaintiff, and agreed to give him a receipt that would discharge the plaintiff from his covenants of warranty in the deed of the lots from him to the deponent, if the plaintiff would get back the note from Stillings, and give it up to the deponent. a The deposition-thus far was read without objection. The deposition contained also the following additional statement — 444 — of facts, viz: “ The true intent and meaning of the receipt, was understood by me, at the time, as simply and solely discharging him from his covenants of warranty in his deed or deeds to me, and not as- relating, in any manner to the rights I had acquired under the assignment of mortgage from James W. Lougee to me and others. Nor did I suppose that I could, in any manner, relinquish my title or lien to the street or lot before spoken of by me, save by a regular form of deed, under seal, and subscribed by my own-hand, in the presence of witnesses, or by making an assignment on the back of the mortgage; neither of which would’ I have done, except for a much larger sum,” This testimony was material, if admissible, as going to show that the receipt was not given or designed to discharge the mortgage, but the covenants in the deed of warranty. The plaintiff objected to the statements last aforesaid, contained in said deposition, as being incompetent evidence, and the same were ruled out by the court. The first question arising upon the case is as to the propriety of the rejection of that evidence. And we are of opinion that the evidence was improperly excluded. The object of the evidence was to explain the design and purpose of the receipt, and to show for what purpose and with what view the receipt was made and executed. Regarding this as a mere receipt, and the evidence of F. W. Lougee as being offered for the purpose of showing upon what account the sum was given, and the object it was designed to effect, and the purpose to which it was, by the understanding of the parties,, to be applied, the evidence, if it had that tendency, was admissible, and should have been received; It is not a rule of law of recent date, or a doctrine of new impression, that a receipt may be explained by parol evidence. If its import be not .what the parties designed it should be, or if, in its terms, it be not what it was intended to be, the true intent and meaning of it may be shown by parol. In fact, no principle, perhaps, is better settled — 445 — than that receipts may be explained by parol, and their true - meaning 'and purpose shown, although the same may not be in accordance with their provisions; and in effect, in that way, the terms of the written instrument may be varied, explained, limited and controlled by parol evidence. The precise ground upon which the plaintiff claims to sustain the ruling of the court below, is, that that portion of the deposition which was ruled out, contained, as he alleges, a statement only of the secret understanding and suppositions of the defendant’s grantor, and that they are wholly inadmissible to explain or vary the receipt. But we do not understand the statements of the deponent, that were ruled out, to be precisely of the character suggested. They are, in fact, the statements of the deponent, who is a party to the receipt, as to his understanding of the intent and meaning of the «receipt at the time of making it, and as to the purpose which the payment and ■receipt were intended to accomplish in reference to certain deeds of conveyance then existing between the parties. The plain effect of the statements is, to furnish evidence of what one of the parties understood was the meaning and intention of both the parties, in reference to the transaction which resulted in the giving of the receipt in question. It was, then, nothing more or less than evidence of the intentions of the parties, showing the same to be different from that expressed in the instrument. And we think the evidence entirely admissible for that purpose. The very object of every explanation of a receipt is to show that the purpose of it was not the same as that plainly expressed upon the face of it. If the true and proper meaning and intent of the parties were plainly expressed in the receipt, no evidence by way of explanation would be wanted. The object of proofs let in by way of explanation, is to show that instruments to be explained do not express the true intent of the parties, and to show that the same were not designed to have, and should not be allowed to have, the — 446 — effect which, by their terms, they would properly have. The statement by the party to the agreement, as to his understanding of the intent and purpose of the receipt, was merely a statement of what the contract was, made at the time, as to the effect to be given to the receipt, and that the same was different from that expressed in the receipt itself. But if it might be supposed that the receipt in question was in truth a contract between the parties to it, and as such, as between them, could not admit of the explanation offered in this case, still, as it is not a contract between the parties to this suit, upon that ground it was admissible. The rule excluding explanatory parol evidence applies only in a case where the contract to be explained is between the parties to the suit, and not where it is between other persons. The ruling of the court in the particular under consideration, was erroneous. The evidence should have been admitted. Woodman v. Eastman, 10 N. H. Rep. 357; 1 Greenl. Ev. 317 § 279; Krider v. Lafferty, 1 Wharton Rep. 303, 314. Another question arises upon the exception taken to the admissibility of the testimony of Samuel Stillings and Royal Eastman. Stillings was a witness on the part of the plaintiff, and testified that he never had in his possession a note against Franklin W. Lougee for about $10, payable in window blinds, but that in 1847 he took of the plaintiff, as collateral security for a claim which he had against the plaintiff a note for about $40, signed by said F. W. Lougee, payable in window blinds, and that in the summer of that year the witness ealled on said Franklin for the blinds upon the note, and he declined to deliver them, &c. The evidence as to the amount of the note, as well as in other respects, tended to contradict the testimony given by said Franklin; said Franklin having testified that the note described, and which both witnesses testify — 447 — was given up to the plaintiff upon the occasion of the making of the receipt, was a note for about $10, while Stillings testified that it was a note for about $40, and that he never held a note for. about $10 against said Franklin, who was the admitted debtor in the note, whatever might have been the amount thereof. Royal Eastman, a witness for the plaintiff, testified in confirmation of the testimony of Stillings, and in contradiction of that of F. W. Lougee, that he was present when the receipt in question, signed by Franklin W. Lougee, was given to Furbush, the plaintiff, and that the plaintiff then gave up to said Franklin a note which he held against him for about $40, payable in window blinds, and also a written contract for painting and blinding a house, and that the receipt was given in consideration of the giving up of said note and contract, &c. The objection to the testimony of Stillings and Eastman was, that it went to vary and control said receipt, and also on the ground that it was offered to prove the contents of said note and contract, when the same were not produced, nor their absence accounted for. The first ground of objection cannot be sustained, for reasons already assigned in relation to the admissibility of the evidence of F. "W. Lougee. It was explanatory of the receipt, and was clearly admissible for that reason and for that purpose, if upon no other ground, and the evidence could not have been properly rejected. But if it were not admissible upon the first ground, we think it was clearly receivable, notwithstanding the second ground of exception. It is not necessary, in the view \ve take of the matter, to determine the question, whether the case falls within the operation of the very well settled rulé of law, that when the object and purpose of the evidence is to prove the contents of a written contract or other writing, the contract or writing must be. produced, or its absence legally accounted for. Evidence of a like character had been previously — 448 — given, on the part of the defendant, relative to the note. By the testimony of F. W. Lougee, it had been described as being a note for about $10. And the evidence of Stillings and Eastman described the note as being a note for about the sum of $40. The evidence of each party, then, was of the same character, and the purpose was the same, namely, to furnish proof of the amount of the note by parol evidence. It is objected that the plaintiff, in order to do that, gave in evidence the contents of the note and contract, without the production of either, and without showing any legal reason for the omission. If the plaintiff’s evidence be exceptionable for the reason assigned, and it is to be rejected for that cause, it is quite evident that thereby the defendant would be allowed to avail himself of a great advantage, to which he is not well entitled. And that view presents the question, whether he is, in point of law, entitled to that advantage, and that the court are required to yield it to him. It would seem but even-handed justice, that, if one party should give evidence in proof of some point of his case, of a particular character, not strictly competent, in point of law, for the purpose for which it was offered, the opposite party should be allowed the benefit of proofs of a like character, in disproof of the fact in issue. It would seem but just and proper to hold the party first offering the incompetent proof, to be precluded from regarding it as incompetent, when the same character of evidence is offered in the same cause, and to the same point, by the other party. The whole object of the testimony of Stillings and Eastman, so far as the same relates to the contents of the note and contract, was to contradict F. W. Lougee as to the amount of the note that was in the hands of Stillings, and thereby to affect the weight of his testimony generally. In the case of Grafton Bank v. Woodward, 5 N. H. Rep. 301, this precise point arising in the case would seem to be decided. It was there determined that where improper testimony is admitted on one side, it furnishes no ground for — 449 — granting a new trial, that, to rebut such testimony, improper evidence was admitted on the other side. The court there say, that “ it is very clear that it is no ground for granting a new trial, that improper evidence was admitted on the side of the plaintiff, merely to meet evidence which ought not to have been admitted on the other side.” In that case, as in this, the improper evidence, on the part of the defendant, was admitted without objection, while that offered by the plaintiff was excepted to. In the present case, if the evidence on the part of the plaintiff was improper, or incompetent for the purpose for which it was offered, so was that produced by the defendant equally exceptionable, and for the same cause, and upon the same ground. The case, then, comes fully within the principle decided in the case of Grafton Bank v. Woodward; and we see no reason to doubt the correctness of that decision, and are, therefore, of the opinion that the exception taken to the evidence of Stillings and Eastman cannot prevail. Royal Eastman was objected to as incompetent to give evidence, on account of his interest in the action and the fruits thereof. The action is brought to recover damages for trespasses committed upon lot No. 6, one of the ten lots sold by J. W. Lougee to the plaintiff, between the first day of August, 1849, and the twenty-sixth day of April, 1850. It does not appear that Eastman had any interest in the lot prior to the said twenty-sixth day of April, 1850. Fur-bush alone, then, is entitled to the damages that may be recovered in the present action. Eastman is not entitled to the whole, or to any part of the same, unless Furbush has transferred his rights therein to him. That fact is not shown by the case. Any conveyances of the land, or mortgage interest to him, after the time of the trespass, would give him no right to damages. We are, therefore, of the opinion that Eastman had no such interest in the event of the action as would disqualify him to give evidence in the cause. The — 450 — exception to the verdict, on the ground of his interest, must be overruled. Brackett Merrill’s deed to the defendant, on the 9th of January, 1849, releasing and quitclaiming all his right and title to lot No. 6, passed nothing. This may be stated upon two grounds. In the first place, the deed was of the lot only, and did by no means pass the interest in the debt secured by the mortgage of the lot. Bell v. Morse, 6 N. H. Rep. 205, and Ellison v. Daniels, 11 N. H. Rep. 274. But if it were otherwise, and, by force of the terms of the deed, the interest assigned to Merrill by James W. Lougee would have passed, still that interest did not pass, for the reason that so far as the interest of Merrill was concerned, the land had been redeemed from the Lougee mortgage, as shown by the receipt mentioned in the case, of the 2d of September, 1847, from said Merrill to the plaintiff. The conveyance of Brackett Merrill, then, to the defendant, was at a time when he had no interest in the mortgage debt, or in lot No. 6, the locus in quo. The same remarks are applicable as to the effect of the deed of Tebbets & Brooks, of the 9th of January, 1849, to the defendant, so far as concerns its effect to pass any interest in the land. It purported only to be a release and quitclaim of one-tenth of the lot No. 6 to Goodwin. The grounds and reasons upon which conveyances of the character under consideration, have been uniformly held in this State not to transfer the interest in the land, are fully stated and discussed in the cases above referred to, and do not require repetition at this time. The doctrine of the cases is, that a mere quitclaim deed, purporting to be a conveyance of the land mortgaged, will not pass the debt secured by the mortgage, and, consequently, will not pass any interest in the land itself, attempted to be conveyed, when the mortgagee is not in possession. For the pul-pose of sale, the mortgagee is regarded as holding only a chattel interest, and can only sell the debt, and thereby pass the land as an incident to the — 451 — debt. The debt and the land mortgaged.cannot be separated, and the title to the debt reside in one party, while the interest in the land mortgaged resides in another. By a sale of the debt only will the interest of the mortgagee in the land pass. The law will not tolerate the separation of the principal from the incident. Thereby great injustice would be done to the rights of the mortgagee. It appears in the present case, that none of the assignees of the mortgage were ever in possession of the land. At the trial, the defendant introduced Ebenezer A. Tebbets as a witness, who, on cross-examination by the plaintiff, testified to the contract, on the part of Tebbets & Brooks, to execute to the defendant a quitclaim deed of their interest in the land. Upon re-examination by the defendant’s counsel, the following question was put to the witness, viz : “ State whether or not the purpose of your negotiation with the defendant was to assign all your interest in the note, and whether you did or not assign and transfer to him all your interest in the note, at the time of executing your deed to him ?” The question was objected to, and the court sustained the objection. In this particular, we think the ruling of the court below erroneous. The deed of conveyance, as we have seen, was inoperative to pass the land or the debt. And it is objected that the deed, in this case, operates to exclude all parol evidence of the real contracts of the parties beyond what is expressed in the deed. This objection is placed upon the ground that the bargain, being reduced to writing in the form of a deed, cannot be explained, varied or controlled, limited or enlarged, beyond the true meaning of the parties, as the same is expressed in the writing itself. That this doctrine is perfectly sound and well established as between the parties to the contract, and in any controversy between them, involving an inquiry as to its true intent and meaning, and that such contract must be judged of by its own terms, viewed — 452 — in the light of surrounding circumstances, are legal positions admitting of no doubt. But where the question arises between others, not the parties to'the instrument, and the instrument is offered in evidence, collaterally, the same is open to explanation by parol, and it may be shown that more and other contracts were entered into, in connexion with, or in addition to, the written contract. We would refer, in support of this view, to the authorities already cited in this opinion, upon another point in the case. The application of the doctrine stated, to the present case, is entirely appropriate. The contract in question was not between the parties to this litigation, but between one of them and a third person. This, however, does not differ from the case of a contract which is between persons, neither of whom is party to the litigation, and which it is proposed to vary, limit or enlarge by parol evidence. The proposition was to prove, by the testimony of Tebbets, that his design was to assign all his interest in the note to the defendant; that he did in fact assign and transfer all his interest in the note to him; in short, that he transferred the note to the defendant, independently of the deed of the land. The inquiry proposed was calculated to elicit an answer to the effect and extent stated, and it must be taken that such answer would have been given. There was no occasion for any writing, to enable Tebbets to transfer his interest in the note, (Rigney v. Lovejoy, 13 N. H. Rep. 247,) nor was it necessary to deliver the same to the defendant, in order to effect that object. The note being in Bartlett’s hands, for the benefit of the assignees, a parol sale, upon a good consideration, would alone, without more, pass the interest in the note to the defendant. In this view of the case, we feel no hesitancy in holding that the court erred in refusing to allow Tebbets to answer the inquiry proposed by the defendant. Since the inquiry was calculated to call out an answer which might have — 453 — shown a valid sale of the debt in a competent and proper way, the defendant was clearly entitled to such answer as the truth might warrant, which alone, it is to be presumed, the witness would have given. In Woodman v. Eastman, before referred to, (10 N. H. Rep. 365,) the language of Chief Justice Pcvrker is as follows : “ Nor is the evidence of Averill exceptionable, because it goes to prove an agreement which is not contained in the written receipt or agreement, signed when he received the note or draft, on the 25th of August. So far as it shows an agreement for delay, it does not contradict any thing in that instrument, but is entirely consistent with it. But if it had contradicted it, the defendant would not be precluded, by any writing between the plaintiff and Averill, from proving all the terms of the agreement. The rule that evidence cannot be admitted to contradict or add to the terms of a written instrument, has no application to third persons who are not parties to the written agreement.” We regard the doctrine, as stated by the chief justice in that case, as fully sustaining the view adopted in the present case. The same principle is fully recognized in a very well considered case in the supreme court in Pennsylvana. Krider v. Lafferty, 1 Wheat. Rep. 303. This was a writ of error to reverse a judgment of the court below, recovered by Lafferty v. Krider, in an action of trespass guare clausum. The plaintiff claimed the land under one Lentz, senior, by virtue of a lease. The defendant, Krider, claimed the land under a sheriff’s sale, in virtue of proceedings had in the district court for partition, after the death of Lentz, which occurred in 1817. A question arose whether Lentz, junior, was ever in possession of the willow lot, as the locus in quo was called, and evidence was introduced upon the point. In that connexion, the defendant’s counsel offered in evidence, having proved the hand-writing, a paper signed John Lentz, dated the 14th of September, 1830, which was al — 454 — leged to be an acknowledgment of the receipt of the sum of $10, as a consideration for delivering immediate possession of the,land purchased by the latter at the sheriff’s sale. Krider then called Lentz, and on cross-examination by the counsel of Lafferty, he was asked, “ "What the money, mentioned in the receipt, was paid for ?” and it was admitted, although'objected to, and he answered that it was paid for the possession of the land which he occupied, that it was not paid for the possession of the willow lot, and that he never considered that lot in his possession. In reference to the error assigned upon the exception stated, the court say, “ We think there is nothing in the third error assigned. As Lafferty, the plaintiff below, was no party to the receipt, he was not estopped from gainsaying the truth of the matters alleged in it. It was competent for him to show, if he could, that it was all a fiction or a contrivance between Krider and Lentz,” “ and this he was at liberty to show by the evidence of Lentz himself, as well as that of any other.” “ And even if it had been concocted for a fraudulent purpose, he would have been bound to disclose it, if it had been material to the issue, as long as it was of such a nature as would not subject him to criminal punishment.” • “ The authorities, cited by the counsel for the plaintiff in error, showing that written agreements or instruments cannot be altered, changed, or contradicted, have not the least application. The rule laid down by them is only applicable to cases of controversies between the parties to the agreements, their representatives, and those claiming under them, but not strangers, whose rights and interests would truly be in peril, if this rule were to be extended to them in such a manner as to conclude them from giving evidence tending to contradict such agreements.” The court, among other things, instructed the jury, in substance, that if, prior to the assignment of the 13th of April, 1849, from Franklin W. Louge’e to the defendant — 455 — the plaintiff had paid to said Lougee the amount which he had contributed towards the mortgage debt and interest, or had .paid him any other sum, or had given up any claims which he held against the defendant, under an agreement that the same should be in full satisfaction and payment of the money so contributed, such payment or giving up of claims, would operate to extinguish all the right and interest which said Franklin had in: the mortgage, and the debt secured thereby, and that, consequently, nothing passed by his assignment to the defendant. We think the.ruling was entirely correct. The supposed payment, or satisfaction, was made prior to the assignment. And it is well settled that nothing more is necessary to divest the interest of a mortgagee, and to revest the mortgage interest in the mortgager, than the payment of the money, or the performance of the duty, the payment or performance of which the mortgage is intended to secure. The money, in this case, was advanced by the several assignees, each for himself, so far as his portion was concerned, and each acquired an interest in the mortgage by the assignment, in proportion to the amount advanced by him, by the express terms of the assignment ; and, we think, that when the portion advanced by any one was fully paid by the mortgager, and accepted by such one, his interest in the mortgage must be regarded as fully discharged. The court further instructed the jury that neither Merrill nor Tebbetts & Brooks had any such interest in the lot as would pass, by their deeds, to the defendant, without a transfer of the mortgage debt, until said James W. Lougee, of some one of those to whom he assigned the mortgage, set up a claim to the mortgaged premises, by making an entry upon the land, or other proceedings, for the purposé of enforcing the mortgage. This direction, we think, was unexceptionable. It at least furnished no ground of complaint to the defendant. For the purpose of sale, the interest of the mortgagee and of his assignees was a mere chattel in — 456 — terest. which, it is well settled, would not pass by a quitclaim deed, purporting a conveyance of the land only described in the mortgage. Bell v. Morse and Ellison v. Daniels, already referred to. See also Smith v. Moore, 11 N. H. Rep. 55. We think, also, that the ruling of the court was correct, refusing to instruct the jury that “ if, at the' time of the bargain, Tebbets & Brooks and the defendant believed that their interest in the mortgage and mortgage debt would pass by the quitclaim deed of said Tebbets & Brooks, releasing their interest in the lot, and the consideration expressed in the deed was then paid for that interest in the mortgage and mortgage debt, and the deed was delivered for the purpose of passing the same, then the interest of Tebbets & Brooks did pass by the deed from them to the defendant. The belief of the parties, as to the effect of the deed, could neither add to nor diminish its force. Deeds will take effect according to their legal import, if at all, and not according to the erroneous opinion of the parties as to what that effect may be. The deed, whatever might have been its supposed force, purported only to carry an interest in the land, which, as we have seen, is insufficient to pass the debt secured by the mortgage, and, consequently, as has been already shown, was wholly insufficient to pass the land, or any interest therein. The court further instructed the jury, that if by the evidence of what transpired between Tebbets & Brooks and the defendant, at and prior to the bargain, it appeared that it was the intention of Tebbets & Brooks to sell, and of the defendant to buy their interest in the mortgage and mortgage debt, and that the consideration was paid for that interest; then the interest of Tebbets & Brooks in the mortgage and mortgage debt, passed to the defendant, although there was no written or formal assignment thereof, and the entry upon the locus in quo, and the other acts complained of, would be justified. But if it appeared that it was the in — 457 — tention of Tebbets & Brooks to sell, and of the defendant to buy, only such interest as it was supposed they had in the land, and the consideration and deed were given for that, then the defendant acquired no such interest in the land, or right to it, as would justify his entry upon it. These last instructions were, we think, sufficiently favorable to the defendant. Indeed, to the first branch of them we suppose the exceptions are not intended to apply. The exceptions are only intended to apply to the second branch. This was to the effect that if the consideration was paid only for what interest these assignees had in the land, and it was intended to sell that only, then nothing passed to the defendant. Tebbets & Brooks had, in fact, no interest in the land that would pass by sale, without the debt, as we have already seen; and it is supposed that by the latter part of the instructions nothing else was assumed to have been intended to be sold or paid for, and there is not shown to have been any other sale and conveyance designed or intended, excepting what was effected in reference to the real estate, by the operation of the deed. And as, for the purposes of sale, Tebbets & Brooks had nothing in the land excepting in connexion with the debt, and which would pass only with a sale of the debt, nothing could pass, upon the state of facts assumed by the instructions. On the whole, we see no ground to doubt the correctness of the judge’s ruling in this particular. The fact disclosed by the case, that a short time prior to the conveyances from Franklin W. Lougee, Brackett Merrill, and Tebbets & Brooks to the defendant, the defendant called on Charles E. Bartlett, wl»o had the note and mortgage in his hands, and examined said note and mortgage, can have no influence in the decision of this cause. Those acts could in no way give form to the other facts and transactions disclosed in the case. — 458 — The verdict must be set aside for the errors already stated in the rulings of the court below, and a New trial granted.