Opinion
03-23-1820
Colquhoun v. Atkinsons
David Robertson for the appellant. Leigh, Call and Wickham for the appellees.
[Syllabus Material] [Syllabus Material] [Syllabus Material]
John Le Messurier of the town of Petersburg, on the 9th day of November 1804, executed a deed, conveying a tract of land in Dinwiddie county, to Robert Atkinson, in trust, for the purpose of securing the payment of a debt of 16901. 4. 10 to Thomas Atkinson; with a clause empowering the trustee to sell the land, if the debt should not be paid on or before the 1st day of Feb. 1805; to pay the debt, with lawful interest, & c.; and the surplus, if any, to pay to the said Le Messurier, or his order. This deed was re-acknowledged the 9th of July, and admitted to record the 16th of December, 1805.
A bond was given by the said John Le Messurier to Thomas Atkinson, May 16th 1805, for 751. payable the 1st of September following. A negotiable note, for the accommodation of the said Le Messurier, amounting to two thousand dollars, was endorsed by the said Thomas Atkinson, July 25th 1805, and paid by him at Bank, on the 28th of November ensuing.
On the 15th of July 1805, the said Le Messurier, being indebted to Walter & Thomas Colquhouns in a large sum by bond, protested bills of exchange, and indorsements of negotiable notes, conveyed the same tract of land, with some other real property, by deed of trust to Robert Colquhoun for their indemnity, with power to the said trustee to sell, & c.; which deed was recorded December 16th 1805. By another deed of trust, dated the 10th of August 1805, the said Le Messurier conveyed to the same trustee, for the benefit of the same creditors, sundry slaves. This deed was not attested by the witnesses to the other deed, but by other persons, and was recorded the 2d of December 1805.
In February 1808, Robert Colquhoun, Walter Colquhoun and Thomas Colquhoun filed a Bill in the Superior Court of Chancery for the Richmond District, stating, in substance, that, between the 9th of November 1804, (the date of the first mentioned Deed,) and the 3d of April next ensuing, John Le Messurier paid Thomas Atkinson 8401. of the said sum of 16901. 4. 10; leaving due thereof only a balance of 8501. 4, 10, principal money, with the accrued interest; that the plaintiffs were advised that their lien by virtue of the Deed of July 15th 1805, (the said Deed of November 9th 1804, in favour of Atkinson, having not been recorded within eight months from that date, but only reacknowledged on the 9th of July 1805,) took effect immediately, subject to the payment of the said balance of 8501. 4. 10, with interest, to the said Thomas Atkinson, for which, and no more, the trustee Robert Atkinson was authorized to sell the land; but that Thomas Atkinson pretended he was entitled to tack his claims, under the bond aforesaid for $ 250, and negotiable note for $ 2000, to the said balance secured by the deed of trust in his favour, although' there was no written agreement between him and Le Messurier that the land should be bound for either of those claims, and as to the said bond, there was no such agreement at all. The plaintiffs considered it an established principle, that a prior mortgagee, having also a claim by bond, shall be postponed, as to the bond, to a second mortgagee, or assignee of the equity of redemption, having no notice of such bond claim; (in which situation these plaintiffs stood; ) that, tho' the heir of the mortgagor would be compelled to pay the bond, as well as the mortgage, before he would be permitted to redeem, yet subsequent encumbrancers and creditors would not be affected by such bond, but their claims would be preferred thereto. They also contended that, where the legal estate is vested or standing out in a trustee, equitable incumbrances must be paid according to their priority in time; that the claim of the plaintiffs was equally just with, and prior in point of time to, the two claims attempted to be tacked by Thomas Atkinson to his said deed of trust, and therefore ought to be preferred. The trustee Robert Atkinson had nevertheless sold the land, (tho' forbidden by the plaintiffs to do so,) and had actually paid or threatened to pay Thomas Atkinson the said two sums of $ 2000 and $ 250, in preference to their said claim. They prayed therefore that the said Le Messurier and Atkinsons be made defendants to the Bill; that the said trustee, if he had not paid the said sums to Thomas Atkinson, or the said Thomas Atkinson if he had received them, should be compelled to pay the same to the plaintiffs; and for general relief. The bill was afterwards dismissed as to Le Messurier, for want of prosecution.
Thomas Atkinson, by his answer, averred that, on the 25th of July 1805, when he endorsed for Le Messurier the note for $ 2000, it was distinctly agreed between them (tho' not in writing) that the deed of trust in his favour should remain a security for the said $ 2000 and for all posterior money transactions in which the said Le Messurier should become indebted to him; that, but for such agreement, he would not have made the indorsement for a man whose circumstances he knew at the time to be very much embarrassed; that the respondent at that time received no information or hint, and had no reason to suspect, that the said Le Messurier had incumbered, or intended to incumber, the land to any other persons; and in truth he could prove by Le Messurier's own acknowledgment that he then had executed and delivered no deed of trust to the plaintiffs; the deed for their benefit, though bearing date on the 15th of July 1805, having been actually executed and delivered by him on the tenth of August afterwards, and not before. The respondent insisted that, since the claim of the plaintiffs rested on a conveyance from Le Messurier, who had before conveyed the same estate to his trustee Robert Atkinson, and therefore would not have been permitted to redeem without paying whatever he owed to the respondent, the said Le Messurier could not impart to the plaintiffs a right which he did not possess him-self; that the doctrine contended for by the plaintiffs did not touch the present case, of an additional sum agreed to be secured at the time it was lent, by a pre-existing mortgage, when too there was no other lien on the property; and that the existence of a second Mortgage is no bar to the first mortgagee's being secured, from the mortgaged subject, for money advanced after the first mortgage was executed, if the first mortgagee had no notice of the second mortgage at the time of the advance.
Robert Atkinson, by his Answer, acknowledged that, being called upon by Thomas Atkinson, he advertised and sold the land as authorized by the deed, and paid to the said Thomas the amount which was due after deducting such credits as the said Thomas thought proper to allow; to wit 14771. 14s. 9 3/4 d; and the balance of the purchase money, after deducting costs, & c., to wit, 6021. 16s. 2 1/2 d, was paid to the plaintiffs, by virtue of an order drawn in their favour by the said Le Messurier.
The deposition of Le Messurier was taken by the plaintiffs, in which he stated, (among other things,) that the Deed of Trust in their favour, dated the 15th of July 1805, was drawn by himself on the day of it's date, without the knowledge of any person whatever, and remained in his possession, but a few days, not exceeding a week, until he should have an opportunity of delivering it to Walter Colquhoun, which he then did; and it had not been in the deponent's possession since: that the plaintiffs did not speak to him of the previous incumbrance to Atkinson until his failure became public; and he was pretty sure he did not inform Walter Colquhoun, of any of his transactions with Atkinson, before November 1805: that, when he executed the bond for $ 250 to Atkinson, there was no understanding or agreement whatever, expressed or thought of by him, that the payment thereof should be secured in any shape; though, after his failure became public, it was very possible that, on Atkinson's becoming urgent, he might assent to the said bond's being tacked to the deed of trust in his favour, so as to be equally protected by it; but it was expressly understood and agreed, when Atkinson lent the deponent the note for $ 2000, that the deed of trust should be valid as to the amount of that note, and that only; for the deponent then did not expect any farther loan from Atkinson.
The depositions of two witnesses in behalf of the defendant, proved acknowledgments by Le Messurier that the deed of trust conveying the land to Robert Colquhoun for the benefit of the plaintiffs, was not signed and acknowledged by him until the day when he signed and acknowledged the deed for the Negroes.
Chancellor Taylor decreed, as follows:
" This cause came on this day to be heard on the Bill, Answers, Exhibits and examinations of witnesses, and was argued by Counsel; on consideration whereof, both parties disclaiming the necessity of making John Le Messurier a party in this cause, and the Court being of opinion, as the plaintiffs in their examination of him admit that the deed from him to the plaintiffs, dated the 15th of July 1805, was not acknowledged before witnesses 'till about the tenth of August next ensuing, this should be regarded as the date from which that deed was to take effect: and, as John Le Messurier could not, at the time of the delivery of that deed to the plaintiffs, have redeemed the trust without payment of the said two thousand dollars, it follows that the plaintiffs, claiming under the said John Le Messurier, can not be in any better condition in relation to that sum: but, as the said John Le Messurier might at that time have redeemed the said trust without payment of the said two hundred and fifty dollars, which fell due by bond on the first of September following, it also follows that the plaintiffs claiming under him have the same right, doth adjudge, order and decree that the said Thomas Atkinson pay to the plaintiffs the sum of two hundred and fifty dollars, with interest thereon from the 1st day of September 1805 'till paid, and the costs by the plaintiffs expended in prosecuting this suit.
From this decree, William Colquhoun executor of Robert Colquhoun surviving partner of the original plaintiffs, (as to whom the suit had been revived,) appealed, to this Court.
Decree reversed.
David Robertson for the appellant.
Leigh, Call and Wickham for the appellees.
OPINION
Judge Brooke delivered the Court's Opinion as follows.
The Court is of opinion, that the Deed from Le Messurier to Colquhoun, dated on the 15th of July 1805, is to be regarded as executed on that day, or within one week succeeding it. The rule is, that a deed is to be taken to be executed on the day of it's date, unless it appears to have been executed on some other day. The testimony of Le Messurier fixes the execution within the period last mentioned; and the testimony of the two witnesses, to his supposed acknowledgment to the contrary when not on oath, is not considered by the Court as outweighing his testimony. He is entirely disinterested, and no bias is imputable to him. That the deed in question was executed with the deed for the personal estate on the tenth day of August in the same year, as is stated by the witnesses to have been acknowledged by Le Messurier, is not probable. The contrary would be inferred from the circumstance that they are witnessed by different persons. The note that is claimed to be tacked by the appellee to his deed of the 9th of July 1805, is dated on the 25th of that month, and of course is posterior to the deed to the appellant; and the claim of the latter under that deed must be first satisfied, unless it can be repelled by the right asserted by the appellee to tack the two thousand dollars due on the note to the balance due on his deed of the 9th of July 1805. On this question the Court, (not deciding in what respects deeds of trusts may be considered to differ from mortgages, and putting them on an equal footing as regards the present controversy,) is of opinion that the right of the appellee, thus asserted, can not be sustained. --In the case of Shepherd v. Titley, 2 Atk. 348, the attempt was to tack a loan of 8001., upon bond, to a prior mortgage on which 8001, had been paid, in exclusion of a subsequent mortgage: but the Court held that a bond could not be tacked, without a written agreement; not being a lien on the land, except as against the heir, to prevent circuity of action; that the new loan could not be considered as a part of the old debt; there being a receipt for the 8001., and a stoppage of the interest. In the case of Heams v. Bance, 3 Atk. 630, the same doctrine is advanced; and the Court decided that, even against creditors under a devise to pay debts, the bond was only a claim upon the general assets, and could not be tacked to a prior mortgage. The cases referred to, in which a deposit of Title-papers, explained by oral testimony to be a pledge for the payment of money loaned, has been held to amount to a mortgage, and to give priority to a subsequent lien on the property, the Court is of opinion do not apply. If they did, the Court would not incline to countenance decisions which the English Judges complain of, as having opened the door to frauds which the Statute intended to close.
In these cases the Courts in England have considered the delivery of title-papers as prima facie evidence of the part execution of a contract, and the foundation for an explanation of the nature of it by parol evidence. The giving the note in this case for $ 2000, has laid no such foundation. It can not be pretended that per se it is any evidence of an intention to create a lien on any specific property; and to let in parol evidence to that effect would completely defeat the object of the Statute against frauds in this respect. The case of Williamson v. Gordon, 5 Munf. 257, the Court is of opinion, under this view of the case, does not touch the present question. Williamson had purchased the property from the Trustee, had his contract to make him a title, and had paid the purchase money to the creditors of Sinclair, without notice of the subsequent lien of Gordon. His claim was not to a lien on the property, but to a legal title to the property itself; and this Court held that, having that claim, he ought to be considered as holding the legal title.
2 Bro. Ch. cas. 269.
Without resorting, therefore, to the date of the deed to Colquhoun as giving him priority, the Court is of opinion, that neither the Bond, nor the note for $ 2000, can stand in the way of the claim of the appellant under that Deed.
The Decree of the Chancellor is on these grounds reversed; and the cause is to be sent back, to be proceeded in according to the principles of this decree.