Commonwealth v. Harriman

• Decision Date: 23 July 1879
• Parties: Commonwealth v. John K. Harriman
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

127 Mass. 287

Commonwealth v. John K. Harriman

Supreme Court of Massachusetts

July 23, 1879

Middlesex. Indictment on the Gen. Sts. c. 161, § 59 alleging that the defendant, on May 4, 1875, at Maynard unlawfully and fraudulently conveyed a certain parcel of real estate for a valuable consideration to John Joice, which was then and there incumbered by a mortgage to Simon Tuttle made by the defendant and dated May 2, 1873, without informing Joice of the existence of the incumbrance before payment of the consideration.

At the trial in the Superior Court, before Bacon, J., the government offered in evidence a warranty deed of the real estate in question from the defendant to Joice, dated May 4, 1875, and recorded May 12, 1875; and evidence tending to show that the consideration named in the deed was paid by Joice a few days after the date thereof; and that, at the time of the payment Joice did not know of any incumbrance thereon, and had no notice of the mortgage hereinafter mentioned from the defendant to Simon Tuttle. The government then offered in evidence a mortgage deed of a large parcel of land, including the land described in the deed to Joice, from the defendant to Tuttle, dated May 2, 1873, but not recorded until May 26, 1876, and a note for $ 1600 of even date with the mortgage, and secured thereby. Tuttle died in April 1876, and the mortgage and note, bearing sundry indorsements of payments of interest, were in his possession at his decease. A son of Tuttle testified that the defendant paid him one year's interest on the note in May, 1878. There was no evidence as to the capacity or right in which the son of Tuttle held the note and mortgage, nor whether any probate proceedings had been had upon the estate of Tuttle.

Asahel Balcom, the scrivener who wrote the note and mortgage and witnessed the same, testified for the government that he thought no money passed at the time he made the mortgage and note; that the defendant told him that he owed Tuttle for lumber he had bought of him, and this indebtedness formed part of the consideration for the note and mortgage, and the balance of the consideration was to be for lumber thereafter to be bought by the defendant of Tuttle, and for money in the latter's hands for the defendant's use; and that Tuttle was not present during this conversation. On cross-examination, the witness was asked "whether he gave, at the same interview, any advice to the defendant about the effect of this conveyance by mortgage to Tuttle while not recorded," and he answered, "No." He...