Atwood v. Chapman

• Decision Date: 28 October 1877
• Citation: 68 Me. 38
• Parties: CALVIN ATWOOD v. SANFORD S. CHAPMAN.
• Court: Maine Supreme Court

68 Me. 38

CALVIN ATWOOD v. SANFORD S. CHAPMAN.

Supreme Judicial Court of Maine.

October 28, 1877

ON EXCEPTIONS.

CASE FOR DECEIT in the sale of the defendant's interest in two pieces of real estate described in a quitclaim deed to the plaintiff, dated August 29, 1873; the first piece " containing fifty acres more or less, being the same lot conveyed to the said Chapman by sheriff's deed, June 15 1872, and recorded," etc.; and the second " being the same conveyed to said Chapman by Llewellyn Grant [by deed dated] June 18, 1872, and recorded," etc.

At the trial, the plaintiff proved the following facts: The defendant's title came by a levy of an execution obtained in an action, Grant v. Cynthia Hussey and her husband, John J. Hussey, brought on account annexed to recover the price of a certain mare, alleged by Green to have been sold by him to Cynthia and her husband for $30. Judgment was obtained in that action at the March term of this court, in 1872, by default.

That judgment before the commencement of this action was wholly reversed on review, the petition for which was entered at the September term, 1872. The defendant had full knowledge of the proceedings in review from the entry of the petition to the final judgment and appeared as counsel for Green. The sheriff's deed was of an equity of redemption from a mortgage to M. S. Parker, to secure a note of $150, which Cynthia testified she had fully paid and taken up. The conveyance from Green to Chapman was a levy by appraisement on the aforesaid execution set off to Green.

The plaintiff, after introducing the quitclaim deed, the note of Cynthia Hussey to M. S. Parker, his own testimony and that of Cynthia Hussey, offered evidence tending to prove that Green sold the mare to John J. Hussey, the husband of Cynthia, that the consideration of the sale was $10, paid at the time of sale, and a note of Cynthia originally given to her husband for $20, on which there was still unpaid $15, making in all $25 for the mare; that she had nothing to do with the purchase of the mare, and that the defendant brought the action of Green v. Hussey et al. with a full knowledge of these facts, which testimony was excluded. The presiding justice ordered a nonsuit; and the plaintiff alleged exceptions.

S S. Brown, for the plaintiff.

I. The nonsuit was improperly ordered, as on the testimony the jury might have found a verdict which would have been sustained by the court. Fickett v. Swift, 41 Me. 65.

II. The defendant's conduct at the time of the sale, with his positive assertion that the title was good, was a material misrepresentation of the condition of the title. 2 Parsons' Con. 271 et seq. ; Kerr on Fraud and Mistake, 92 et seq.

III. The defendant has no title to first piece of land, as the mortgage was discharged before his purchase of the equity. His ignorance of this payment, under the circumstances, is no excuse. Broom's Com. Law, 341 et seq.

IV. Defendant's concealment of review proceeding was a fraud. " Suppressio veri " as actionable as " allegatio falsi. " 16 Me. 30; 2 Parsons' Con. 274, 275.

V. The exclusion of the evidence offered was wrong, as it had a direct bearing upon the question of fraud.

S. S. Chapman, pro se, with whom was D. D. Stewart.

DANFORTH J.

This is an action to recover damages for an alleged deceit in relation to the title to certain lands conveyed by quitclaim deed from the defendant to the plaintiff. It is before us upon exceptions to the exclusion of certain testimony offered, and to the order of a nonsuit upon the testimony.

The first count in the plaintiff's writ alleges mainly a general statement by the defendant that his title, with the exception of certain incumbrances, was good, with an averment that he had no title to one parcel, and that the title to the other piece was subsequently defeated by a suit then pending in court. Were this the only count in the writ, the action could hardly be maintained. The general statement that a title is valid involves questions of fact and law and might be fairly understood as an expression of an opinion rather than an existing fact. But what is of more consequence here, it does not appear from the testimony that this statement, in relation to one of the pieces at least, was not true. The judgment and levy upon which the title depended, though afterwards annulled, at that time so far as appears gave a good title. The judgment was then in force and the levy valid.

The second count is more full, and though the cause of action may not be stated with entire accuracy, it is, perhaps, sufficiently so to enable us rightly to understand the " person and case" as presented by the testimony.

In this count the cause of complaint is that the defendant falsely stated his title to be good, and fraudulently concealed a material fact connected with it, which rendered it defeasible and subsequently defeated it, whereby the...