Margaret Dick and Others, Appellants v. Stephen Balch and Others

• Decision Date: 01 January 1834
• Parties: MARGARET DICK AND OTHERS, APPELLANTS v. STEPHEN B. BALCH AND OTHERS
• Court: U.S. Supreme Court

33 U.S. 30

8 Pet. 30

8 L.Ed. 856

MARGARET DICK AND OTHERS, APPELLANTS v. STEPHEN B. BALCH AND OTHERS.

January Term, 1834

APPEAL from the circuit court of the United States for the county of Washington in the district of Columbia.

In the circuit court a bill was filed to foreclose a mortgage dated on the 4th of August 1809, and executed by John Peter to Thomas B. Beale, to secure the payment of three promissory notes for one thousand dollars each, given by the mortgagor to the mortgagee.

The original mortgage having become lost or mislaid, the complainants, in the circuit court, gave in evidence a certified copy thereof, taken from the land records of the county of Washington, in which office the said mortgage had been duly recorded.

The premises conveyed by the mortgage were a house and lots in Georgetown, which the said John Peter, afterwards on the 16th of April 1810, sold and conveyed in fee to Elizabeth Peter, who then paid six thousand five hundred dollars, the purchase money therefor, and under whom the defendants claim and hold the premises.

The answers of the defendants set up this title, and call upon the complainants to prove the mortgage debt, and insist, that at the death of the complainants' testator, there was no such subsisting mortgage debt. That if it ever subsisted, it had been released by the testator in his life time—and further, that he knew of the sale to Elizabeth Peter, and suffered her to buy and pay the purchase money in ignorance of his mortgage—and that he also in his lifetime treated the debt as extinguished, and gave the defendants reason to believe that no such debt subsisted.

The defendants, in order to prove that the mortgage debt, if it ever existed, was released by the testator, Thomas B. Beale, produced an instrument, dated 27th April 1820, which was signed and sealed by several of the creditors of John Peter, and by Thomas B. Beale among them.

This instrument, the complainants allege in their bill, was only to take effect in case all the creditors of John Peter should sign it, and that all the creditors not having signed it, the same never took effect.

They produced two witnesses, Francis Dodge and Clement Smith, to which latter witness the defendants objected as incompetent from interest; who proved that they so understood it, and that they believed it was so understood by the other creditors, and by John Peter. They produced also a deed from John Peter to said Smith, dated April 24, 1820, referring to the deed of release, and in consideration of which, the said deed of release was to be subsequently executed, which they proved by the same witness, was never carried into full execution, but set aside and revoked by a decree of the court on certain chancery proceedings subsequently instituted by said John Peter and certain of his creditors against said Smith. They also relied on the imperfect and incomplete execution of the instrument called a release, to show that it never took effect.

The defendants produced two witnesses, John Peter, to whom the complainants objected as incompetent from interest, and George Peter, who proved that they understood there was no such condition to the operation of the release—and it was so understood (as they believed) by all the parties—and they proved it was so expressly declared and represented by the testator, Thomas B. Beale. And they relied on the instrument itself, and the deed of trust to C. Smith, as conclusive of its intended operation—and denied that parol evidence is admissible to contradict it. They relied also on the proof of John Peter's having possession of the release, as showing it was delivered and treated as the deed of the parties. They relied also on the said Beale's statement to the persons interested in the property, of his having relinquished an old debt to said Peter, as precluding his executors from setting up this claim against it, even if the release had not the operation they contend for. Also upon his suffering John Peter to have and keep possession of the release, by which he was enabled to show it to the defendants as releasing the property from the claim of this mortgage.

The circuit court gave a decree in favour of the complainants, from which this appeal was prosecuted.

In the opinion of this court, those facts which were particularly relied upon in the argument, are stated more at large by the court.

The case was argued by Mr Key, for the appellants; and by Mr Coxe, for the appellees.

Mr Chief Justice MARSHALL delivered the opinion of the Court.

The bill filed in this case is for the foreclosure of a mortgage, dated on the 4th of August 1809, to secure the payment of three promissory notes, given by the mortgagor John Peter, to the mortgagee Thomas B. Beale, the testator of the complainants.

The mortgaged premises were a house and several lots in Georgetown, which the mortgagor afferwards, on the 16th of April 1810, sold and conveyed to Elizabeth Peter, who then paid the purchase money. The bill is filed in 1821 against John Peter and Elizabeth Peter. Soon after the service of process, Elizabeth Peter departed this life, and the suit was revived against her devisees. These defendants, in their answer, do not admit the mortgage, and require proof of its existence.

The proof offered by the plaintiffs is an office copy of the deed, and the first question in the cause is on the admissibility of this copy.

The law of Maryland is the law of this part of the District of Columbia.

The acts of 1715 and of 1766 require that all conveyances of land shall be enrolled in the records of the same county where the lands, tenements or hereditaments conveyed by such deed or conveyance do lie, or in the provincial court, as the case may be. The courts of Maryland are understood to have decided, that copies of deeds thus enrolled may be given in evidence.

In a case reported, 6 Harris and Johnson 276, the defendant offered in evidence the record of a deed, to the admission of which the plaintiff objected; but the court overruled the objection. A bill of exceptions was taken, and the judgment, which was in favour of the defendant, was carried before the court of appeals. The counsel for the plaintiff in error contended, that as the acts requiring the enrolment of conveyances do not say that a copy of the enrolment shall be evidence, the general principle of law is, that the deed itself, unless shown to have been lost, must be produced.

Chief Justice Buchanan, delivering the opinion of the court, said, this case comes before us on three bills of exceptions. The first presents the question, whether the enrolment of a deed of bargain and sale is competent evidence of title to lands in the trial of an action of ejectment, or whether the original must be produced? The court before whom the cause was tried, decided that it was, and that the original need not be produced; and certainly it is too late, at this day, to question the correctness of that decision. Copies of deeds that are not required to be enrolled, cannot be admitted in evidence; but deeds of bargain and sale are, by the laws of the state, required to be enrolled, and by the uniform tenor of the decisions of the courts of the state, exemplifications of records of deeds of bargain and sale are as good and competent evidence as the originals themselves.

In the circuit court, the plaintiff offered testimony to account for the absence of the original deed. Objections were made to the reception and sufficiency of this testimony; but as, by the settled law of Maryland, the copy of the deed was admissible without proving the loss of the original, it is unnecessary to examine the validity of these objections.

The original existence of the mortgage being established, we proceed to inquire into the validity of the objections raised to its being still in force, so as to avail the plaintiffs in the circuit court. These objections are,

1st. That it has been released.

2d. That the silence of the said mortgagee, during his whole life, respecting his claim, thus concealing it from Elizabeth Peter for more than eleven years, whereby she and her representatives have lost all possibility of recovering the purchase money from John Peter; has forfeited his right, both in law and equity, to proceed against the mortgaged premises.

The instrument by which, as the defendants in the court below contend, this debt was released, is dated the 27th of April 1820. It was signed and sealed by several of the creditors of the mortgagor, and among others, by Thomas B. Beale the mortgagee.

John Peter, who was engaged extensively in commerce,...