Ladd v. Putnam

• Decision Date: 24 December 1887
• Citation: 12 A. 628,79 Me. 568
• Parties: LADD v. PUTNAM.
• Court: Maine Supreme Court

12 A. 628

79 Me. 568

LADD

v. PUTNAM.¹

Supreme Judicial Court of Maine.

December 24, 1887.

On exceptions from supreme judicial court, Kennebec county.

"Writ of entry to foreclose a mortgage. Defense, failure of consideration in the notes for which the mortgage was given, because of misrepresentations by the mortgagee in the sale of the farm. The defendant offered certain evidence stated in the opinion, which was excluded by the court, and he thereupon alleged exceptions.

J. H. Potter, for plaintiff. L. T. Carleton, for defendant.

FOSTER, J. Plaintiff conveyed a farm to defendant, the consideration therefor being $2,000. Four hundred dollars were paid down. The defendant gave his notes for the balance, secured by mortgage upon the same premises. This action was brought to foreclose the mortgage, and was referred to the presiding justice, with the right of exception. At the hearing, the defendant offered to prove that the plaintiff, when showing the defendant the premises, pointed out to him as the north line a line more than 15 rods north of the true line, making a difference of some 15 acres which the defendant would have got if the line had been where the plaintiff pointed it out; and that, during the negotiations for the purchase, the plaintiff took the defendant into his barn and showed him the hay, representing that all the hay then in the barn was cut from the premises the previous year, whereas in fact it had been accumulating there for years, and only 10 or 15 tons of the hay then in the barn were cut from the premises as represented; and that the defendant was damaged by means of these representations; and asked to be allowed to go into these matters, and have the damages suffered by him allowed in reduction of whatever might be found due on the mortgage. The court excluded the evidence offered, ordered judgment for the plaintiff, and, on motion, conditional judgment as of mortgage.

From the case as presented, it may properly be inferred that the defendant did not understand nor intend his defense to strike deep enough to defeat the plaintiff's action. Taking the whole case as presented by the pleadings and the evidence offered, and viewing it in the light of the alleged fraud, and the claim of the defendant that the damages should be allowed on whatever might be found due on the mortgage, it is evident that he understood that there was something due upon the mortgage, and that the plaintiff was entitled to judgment. The contract had never been rescinded, nor did the defendant claim that the land was not worth more than the sum paid down at the time of the purchase. The evidence was not offered for the purpose of defeating the action by showing that, even with the damage allowed, nothing would be due under the mortgage, and was not admissible upon that branch of the case; yet, in adjudging the amount due under the motion for the conditional judgment, we think the evidence should have been received, and therein the court erred in excluding it. The statute contemplates that in proceedings like this there may be two separate and distinct judgments,—the one as based upon the title put in issue by the pleadings, and the other as to the amount. The former may be the result of a verdict, or if referred to the court, as in the present case, the judgment of the court in the place of the jury; the latter, under our statutes, (Rev. St. c. 90, §§ 8, 9,) the work of the court. These provisions involve the necessity, when raised by the pleadings, of inquiring, not only into the title, but also the existence and amount of the debt claimed to be due, in order to a proper entry of the conditional judgment. It may appear that the debt has been wholly paid, and that nothing is due; in which case no conditional judgment can be entered. Or it may appear that something is due, or that the conditions have not been fully performed;...