Woodman v. Woodman

• Decision Date: 01 May 1825
• Citation: 3 Me. 350
• Parties: WOODMAN & ux. adm'r. v. WOODMAN
• Court: Maine Supreme Court

3 Me. 350

WOODMAN & ux. adm'r. v. WOODMAN

Supreme Judicial Court of Maine, Cumberland

May, 1825

THIS was an action of assumpsit on a note of hand made by the defendant to Richard Burnham, the plaintiffs' intestate June 29, 1816, for 324 dollars, payable on demand; --and it came before this Court upon a case stated by the parties containing the following facts.

In June 1820, the defendant being indebted to James A. Harmon, the brother in law of said Richard, proposed to Harmon to secure both the debts by means of his farm in Hollis, called the Wakefield place, and to meet them on a certain day at a designated place in Buxton, and execute the conveyances. Burnham assented to this proposition, but thought it unnecessary for himself to go to Buxton, observing to Harmon that he might act for them both. Accordingly Harmon met the defendant at the place agreed, where the defendant made and delivered to him an absolute deed, purporting to convey the Wakefield place to him and Burnham as tenants in common, for the consideration of nine hundred dollars. It was part of the agreement of the parties that Harmon and Burnham should give back to the defendant a sufficient bond to reconvey the farm on payment of the debts due to them. But Burnham not being present, and no means being at hand to ascertain the amount due to him, the preparation and execution of the bond of reconveyance was postponed to another day not specified, on which the parties agreed to meet at the same place and execute the bond; and in the mean time Harmon took the deed and caused it to be recorded. Burnham being sick, they did not meet as agreed, but deferred the business from time to time, till his death soon after wholly prevented any farther proceedings. The notes were not to be given up till paid. The defendant then and ever since occupied the farm without molestation; and Harmon, on payment of the debt to him released his moiety of the estate conveyed. The whole farm was worth nine hundred dollars; but no consideration-money was paid, it being intended only as collateral security for the payment of the debts.

After the decease of Burnham, the guardian of his children took the deed from the registry; but the land was not inventoried as part of his estate.

Let a default be entered.

Greenleaf for the plaintiffs, argued that the deed, as it appeared by the facts agreed, was intended only in the nature of a mortgage, as collateral security for the debt; --and this being unpaid, the existence of the deed is no bar to its recovery. Nor is the defendant remediless, if he should be compelled to pay the money. He may have his bill in equity for specific performance of the contract to reconvey, relying on the statement of facts in this case as evidence in writing of the contract. 11 Ves. 593. Or he may have an action for the consideration money. Wilkinson v. Scott 17 Mass 249. Or he may contest on the ground that it was never delivered, the contract not having been completed. Stearns v. Barrett 1 Pick. 449. But if he is remediless, it is through his own inattention.

Adams for the defendant. If the agreement of the parties had been reduced to writing without seal, it would not have controlled the operation of the deed; --much less can it, being only verbal. Kelleran v. Brown 4 Mass. 448. And unless the land conveyed to the intestate can be considered as payment of the debt, it is wholly lost to the defendant, the deed estopping him to claim payment of any part of the consideration. Steele v. Adams 1 Greenl. 1. Nor would any evidence be admitted to shew that the deed was...