Cobb v. Dyer

• Decision Date: 26 May 1879
• Parties: LEMUEL COBB, in equity, v. CATHARINE F. DYER & another.
• Court: Maine Supreme Court

69 Me. 494

LEMUEL COBB, in equity, v. CATHARINE F. DYER & another.

Supreme Judicial Court of Maine.

May 26, 1879

BILL IN EQUITY, heard on bill, answer and proof, whereby the complainant seeks to establish, as an existing charge upon the land mortgaged, two mortgages given by the defendant Wallace, one to the city of Portland and the other to the complainant.

When Mr. Dyer was about to convey the land in controversy to Wallace, Mrs. Dyer declined to execute the deed, and thereby relinquish her right of dower therein, unless Wallace would agree to reconvey the premises to her after he had raised money on the premises by mortgaging the same to the city of Portland. Wallace finally consented, and thereupon Mrs. Dyer signed the deed with her husband, and relinquished her right of dower.

Wallace testified, in substance, that he did not know the contents of his deed to Mrs. Dyer, but supposed it conveyed the land and not the house. But Mrs. Dyer, her daughter and Mr. Stackpole testified that the deed was read to Wallace and fully explained to him before he signed it.

The remaining material facts appear sufficiently in the opinion.

S. C Strout & H. W. Gage, claimed that both mortgages should be made a charge upon the land.

On upholding the city mortgage they cited Twitchell v Mean, The Reporter, July 10, 1878, 40. Jones Mort., §§ 736, 751. Sweetsir v. Jones, 35 Vt. 317. Cox v Hoxie, 115 Mass. 120. 2 H. & W. Lead. Cas in Eq. 242.

On estoppel to deny the mortgage in amount. Freeman v. Auld, 44 N.Y. 50. Jones Mort., §§ 874--876, 877. Ellsworth v. Lockwood, 42 N.Y. 89-97. Russell v. Pistor, 7 N.Y. 171. Barus v. Mott, 64 N.Y. 294. Cox v. Hoxie, supra. Bailey, v. Myrick, 50 Me. 171. 2 H. & W. Lead. Cas. in Eq. 230, 231.

On construction by registry. Champlin v. Leighton, 18 Wend. 421. Jones Mort. §§ 971-969. Bruce v. Nelson, 35 Iowa 157. Banta v. Garnio, 1 Sandf. c. 383. Bruce v. Barney, 12 Gray 107. Smith v. Smith, 15 N.H. 55. Lambert v. Leland, 2 Sweeney (N. Y.), 218.

Counsel contended that deed to Mrs. Dyer was a voluntary conveyance and actually fraudulent.

A. A. Strout & G. F. Holmes, for the defendant, Mrs. Dyer, submitted an elaborate brief, contending, among other things, that no accident placed the plaintiff in his present position. There were here no " such unproven events, misfortunes, losses, acts, or omissions, as are not the result of any negligence or misconduct in the party." 1 Story's Eq., § 78.

It was the deliberate act of the complainant, acting in his own interest, disregarding the dictates of common prudence, shutting his eyes to what the law says he shall see.

In law, and in equity, too, a party dealing in real estate is informed of all conveyances duly executed and recorded. Scamman v. Cole, 3 Cliff. 472. Davis v. Rodgers, 64 Me. 159. 1 Story's Eq., § 105. Sedam v. Williams, 4 McLean 51. Hunt v. Hunt, 2 Wash. 127.

Common prudence directed him to search the record. Dick v. Balch, 8 Pet. (U. S.), 30, 38, 39.

Ignorance is not mistake. Perry v. Martin, 4 Johns. c. 566.

VIRGIN, J.

On September 28, 1867, one J. W. Dyer, husband of the female defendant, agreed in writing with the defendant Wallace--who had been brought up in the Dyer family--to convey to him a certain vacant lot of land described therein, " as soon as said Wallace shall erect thereon a tenement for his own use." Thereupon Wallace took possession of the lot, and having some $600 in money belonging to himself and wife, commenced the building of a " story and a half frame house" upon it. Having finished the house as originally intended--with a few rooms left unfinished--Dyer, pursuant to his agreement, by his deed of warranty, dated November 7, 1867, but acknowledged November 18, and duly recorded, conveyed the lot to Wallace.

On November 19, 1867, Wallace conveyed the premises in mortgage to the city of Portland, to secure his note of the same date for the sum of $300, money hired and applied to the construction of the house; which mortgage was duly recorded November 30, 1867.

On November 18, 1867, Wallace, by his deed of warranty bearing this date and acknowledged the same day, but not recorded until the sixth of the following January, " in consideration of one dollar," conveyed the same premises to Catherine F. Dyer, the female defendant, " subject to" the mortgage to the city.

In January, 1868, the house was completed, and Wallace occupied it until the death of his wife, in June, 1872, when he rented it, and received the rents and made repairs until the fall of 1877, when Mrs. Dyer took possession to collect the rents.

On January 24, 1868, Wallace, having previously hired $300 of the plaintiff-- $275 of which were paid in October and November before to the builders-- conveyed the premises in mortgage, with the usual covenants of warranty, to the plaintiff, to secure the payment of the money hired.

On January 23, 1871, the plaintiff, at the request of Wallace, as the plaintiff testifies, and having no knowledge of the deed to Mrs. Dyer, paid to the city $326.99--the amount due on the city mortgage--and, instead of taking an assignment thereof, received the note thereby secured with the sum paid by him indorsed thereon by the city treasurer, but allowed the mortgage to be discharged on the record.

On the next day Wallace mortgaged the same premises, with like covenants, to the plaintiff, to secure the sum of $373.16, which included the sum paid on the city mortgage.

The plaintiff prays, among other things, that, in view of his mistake in relation to the existence of Wallace's deed to Mrs. Dyer, the city mortgage be decreed as subsisting for his benefit, and that the sum paid on that mortgage, and interest thereon, be decreed a subsisting charge upon the real estate in question.

Mistake is one of the fundamental grounds of equity jurisdiction. " No one is more appropriate. Human sagacity is inadequate to the attainment of a perfect knowledge and comprehension of every combination of circumstances under which it may become necessary to act, and especially when the influence of the acts and wiles of the designing and knavish are superadded." Shepley, C. J., in Robinson v. Sampson, 23 Me. 388.

Ordinarily the mistake from which relief will be given must be one of fact and not of law. Freeman v. Curtis, 51 Me. 140. Jordan v. Stevens, 51 Me. 78. And it must not be imputable to the plaintiff's culpable negligence. Western R. R. v. Babcock, 6 Met. 352. 1 Story's Eq., § 146. And it must appear that his conduct was determined by the mistake; but this need not be established by direct evidence when the facts can be fairly implied from the nature of the transaction. 1 Story's Eq., § 162. Bruce v. Nelson, 35 Iowa 157.

The cases are numerous wherein courts of equity have corrected the cancellation and discharge of mortgages on the record, when done by mistake, and protected parties from the consequences thereof, especially when such relief would not result prejudicially to third persons. Kinnear v. Lowell, 34 Me. 303. Bruce v. Bonney, 12 Gray 107.

In Robinson v. Sampson, supra, this court as then constituted assented to the proposition, and adopted the language of the learned chancellor of New Jersey (in Trenton Banking Co. v. Woodruff, 2 N.J.Eq. 1 Green 117), " that the cancellation of a mortgage on the record is only prima facie evidence of its discharge and leaves it open to the party making such objection to prove that it was made by accident, mistake or fraud. On such proof being made, the mortgage will be established, even against subsequent mortgagees, without notice," who became such anterior to the cancellation. Illustrating the first part of the same proposition, the court in New Jersey subsequently held that, where a mortgagee who was an aged man and ignorant of business, under a mistaken impression that the mortgage was satisfied, consented to its cancellation,...