Buck v. Wood

• Decision Date: 14 December 1892
• Citation: 85 Me. 204,27 A. 103
• Parties: BUCK v. WOOD.
• Court: Maine Supreme Court

27 A. 103

85 Me. 204

BUCK

v. WOOD.

Supreme Judicial Court of Maine.

Dec. 14, 1892.

(Official.)

Action by Clarinda S. Buck against Lydia E. Wood to recover land. Plaintiff had judgment, and defendant brings exceptions, and moves for a new trial. Motion sustained.

From the exceptions it appeared that the plaintiff, on the 18th of May, 1878, gave to one Adna C. Cushman a demand note of $175, to secure which she also gave said Cushman a mortgage deed of the premises in question. The plaintiff claimed that the note was surrendered to her (the plaintiff) on the same day that it was given, and therefore the mortgage, which was given to secure said note, became null and void; and the plaintiff introduced in evidence a demand note of $175, running to Adna C. Cushman, and signed by herself, which she claimed was the identical note above mentioned. The defendant also introduced in evidence a note of $175, on one year's time, running to Adna C. Cushman, purporting to be signed by the plaintiff, Mrs. Buck, claiming that that was the original note to secure which the mortgage was given. On the back of this note, produced by the defendant, were four indorsements.

The only question of fact submitted to the jury by the presiding justice was, which of the two abovementioned notes was the note to secure which the mortgage was given?

The jury returned a verdict for the plaintiff.

The counsel for the defendant claimed:

(1) That if the plaintiff and Adna C. Cushman agreed, after the execution of the mortgage, to substitute the note introduced in evidence by the defendant for the note Introduced by the plaintiff, then the plaintiff would be bound by the mortgage in the hands of an innocent purchaser for value, and could not recover in this action.

(2) That, if the plaintiff made certain payments on the mortgage and note when in the hands of such innocent purchaser, she would thereby be estopped from showing any irregularity between herself and said Cushman in regard to said note and mortgage.

The presiding justice declined to so instruct the jury, but did instruct them as follows:

"If you find that the note which is held by the defendant, and produced by Mr. Hersey, as her attorney, for $175, payable in one year, is the real note which is described in the mortgage, and to secure which that mortgage was executed, it being in the possession of the defendant, and produced by her counsel, then your verdict should be that the defendant did not disseise this plaintiff in manner and form as she has alleged; in other words, your verdict should be for the defendant, Mrs. Wood. If, on the other hand, you believe that is not the note described in the mortgage, and to secure which the mortgage was given, but that the note produced here by the plaintiff herself through her counsel, Mr. McGillicuddy, is the real note that was given, and that it was surrendered and given up to her with the intention thereby to render it Invalid, then the condition in the mortgage was performed, and the plaintiff, Mrs. Buck, is entitled to a verdict that the defendant did disseise in manner and form as the plaintiff has declared against her.

McGillicuddy & Morey, for plaintiff.

O. H. Hersey, for defendant.

PETERS, C. J. The demandant introduced evidence showing that she was entitled to recover the premises demanded, unless a mortgage given by her to Adna C. Cushman on the premises be still in force.

The defendant, claiming her title under such mortgage, dated May 10, 1878, Introduced it in evidence, together with a note bearing the demandant's name as maker, and payable to the order of Cushman, the mortgagee. The mortgage and note had been transferred, either by assignments or absolute conveyances, from Cushman down through different persons, until the property was purchased by the defendant; and the mortgage had been foreclosed. The demandant admitted the mortgage to be genuine, but denied the genuineness of the note.

She testified, although her story was contradictory and evidently disingenuous in some respects, that she made the mortgage, and another and different note from this one in defendant's hands, as an accommodation for her friend Cushman to raise money upon for his own use; that, Immediately after the note and mortgage were delivered to Cushman, some difference arose between her and him, in consequence of which he gave up the note to her, although he retained the mortgage; and that she has had the note in her possession ever since; and that the note offered in evidence, and bearing her name, was never signed or authorized by her, and is a forgery. The intimation is that Cushman forged the note in order to obtain money with which to buy himself out of a threatened criminal prosecution of some kind.

The demandant produced the note which she declares was the genuine original note accompanying the mortgage, and the evidence quite satisfactorily shows it to be so. The two notes are alike, excepting one is on demand and interest, and the other is with interest on one year. The conditional clause in the mortgage describes either note,...