Battle v. Griffin

Wilde J.

delivered the opinion of the Court. This is a suit in equity, founded on the provisions of St. 1821, c 85.1

The plaintiff alleges in his bill, that before the commence ment of the action, he requested the defendant truly to state an account of the sum due on the mortgage mentioned in the bill, which he refused to do. The plaintiff, therefore, prays to be heard in equity, and offers to pay whatever sum may be found due on such hearing ; averring, however, that in fact nothing is due, and that the mortgage was procured by fraud and imposition ; and praying that the defendant may be ordered to discharge the same, and to reconvey the mortgaged premises to the plaintiff. The case has been elaborately argued; but the opinion of the Court will be stated very briefly, since, as to several of the questions raised by counsel, and those the most difficult, we do not find it necessary to express an opinion.

1. The first question to be determined is, whether there has been such a demand and refusal to render an account as is sufficient to sustain the bill. We think the affirmative of this question is established by satisfactory and convincing evidence. It is proved, that the defendant expressly refused m render an account, except by reference to one which had been stated in 1823, which he said was correct. It appears by the evidence, that this account is in several particulars incorrect, so that there was a refusal to render a true account; and whether it was caused by mistake or otherwise, is immateria. If the defendant wished for time to prepare a new account, he should have expressed his wish, or qualified his refusal.1 The remark made by the defendant about con suiting his son, was not sufficient. Whether that remark was made before or after the refusal, is left doubtful; nor does it appear that there was any intimation given of an intention, in any event, to render a new account. To allow the effect of a direct refusal to account, to be qualified or done away by evidence thus loose and unsatisfactory, and to turn the plaintiff over to a new action, would be unreasonable.

2. The next, and most important question to be considered, is, whether the plaintiff is entitled to the relief prayed for against the original mortgage, as a contract obtained by fraud and imposition. It has been objected, that we have no jurisdiction over the question ; but we waive the discussion of this objection, because if we have the power to grant relief, we are satisfied that a case has not been made out, which would authorize us to exercise it. There is no proof of any fraud or imposition practised by the defendant, and nothing to show that the settlement of 1802 was not fair and agreeable to equity and good conscience. The plaintiff had conveyed a lot of land to the defendant with warranty, and the defendant no doubt supposed he had received a valid title. He accordingly took possession, and conveyed nearly half the lot to others, who entered and made improvements. Afterwards, he and they were evicted, and the plaintiff thereupon agreed to pay, in discharge of the covenants in his deed, a sum equal to the supposed value of the land at the time of the eviction; and whatever was the rule of law at the time, we can see nothing in such a settlement contrary to equity. It seems to be founded on the principle of indemnity, and the sum agreed to be paid was no more than it would have cost, to purchase in the title of the prevailing party, as the plaintiff at one time proposed to do. But it is said the plaintiff was only liable by law to repay the consideration money and interest, because he was not seised at the time of the sale, and nothing passed by his deed; that he acted under a mistake as to his lega. rights, and that therefore the settlement was not oinding This inference, however, I apprehend, cannot be supported. Parties are not to be relieved from their contracts fairly made, with a full knowledge of facts, because they mistake their legal rights or liabilities. But it is not necessary to discuss this point, for it does not appear that the parties were ignorant of the law. The legal presumption is otherwise, for every man is presumed to know the law. This, it is true, is frequently presumption against fact, but in this case there is nothing to control the legal presumption. It is rather confirmed by facts and circumstances. The plaintiff had an opportunity to inform himself of his legal rights and liabilities at the time of the settlement in 1802, which was made with the assistance of intelligent counsel. It was afterwards confirmed by repeated payments, and was finally ratified by a new adjustment m 1823, after a lapse of more than twenty years, and after the rule of law relating to the subject had been long established and promulgated. These facts cannot easily be reconciled with the plaintiff’s supposed ignorance of the law. If, therefore, the rule of damages, on which the plaintiff’s counsel rely, had been established at the time of the first settlement, the presumption would be, not that the plaintiff was ignorant of it, but that he was induced to accede to the defendant’s claims by equitable motives and a sense of natural justice. The fact however is, that no such rule of damages had at that time been adopted by the courts, either in this commonwealth, or in New York. The rule was first adopted in New York in the case of Staats v. Executors of Ten Eyck, 3 Gaines’s R. Ill, in the year 1805, and afterwards in this State in 1807, in the case of Marston v. Hobbs, 2 Mass. R. 433.1 Before these decisions, damages for the breach of the covenant of seisin were assessed by the jury, without any fixed rule to guide or restrain them. This fluctuating course was properly corrected by the introduction of a general rule, fixing a standard of justice for all subsequent cases; but this could not vacate prior contracts, although by the agreement of the parties founded on a different measure of justice. This principle is fully supported by the case of Lyon v. Richmond, 2 Johns. Ch. R. 60. £t To permit,” says Chancellor Kent, ££ a subsequent judicial decision in any one given case, on a point of law, to open or annul every thing that has been done in other cases of the like kind, for years before, under a different understanding of the law, would lead to the most mischievous consequences. Fortunately for the peace and happiness of society, there is no such pernicious precedent to oe found.”1

3. The two sums charged in the bill, as paid by Cowden and Porter, are satisfactorily proved to have been paid on the mortgage, and are to be allowed accordingly.

4. The plaintiff’s claim for expenses incurred in litigating the suits commenced by Fisher and Clark, cannot be allowed, nor the notes for 192 dollars and 25 dollars.' The expenses were relinquished in the settlement of 1823, and the evidence is not sufficient to show that the notes were given in payment of the mortgage ; and Ebenezer Griffin testifies that they were not.

The master will be directed to ascertain the amount due on the mortgage pursuant to the decision now made, computing simple interest; and also to make a computation of compound interest.2

The question as to the allowance of interest is to be postponed until these computations shall be made.3

1 See Revised Stat. c. 107, § 18,19j Putnam v. Putnam, 13 Pick. 129.

1 See 2 Mass. R. (Rand’s ed.) 440, n. (a).

1 See Fay v. Valentine, 2 Pick. 546; Whitwood v. Kellogg, 6 Pick. 420.

1 See Story’s Comm. Eq. ch. 5, pp. 141,142 et seq., 121, n. 2.

2 See Kennon v. Dickins, Cameron & Norw. 357. The taking of compound interest is not usury. Otis v. Lindsey, 1 Fairfield, 315; Kellogg v. Hickok, 1 Wendell, 521. See Doe v Warren, 7 Greenl. 48; Watkinson v. Root, 4 Ohio R. 373; Breckenridge v. Brooks, 2 Marshall, 340; Childers v. Dean, 4 Randolph, 406; Dow v. Drew, 3 N. Hamp. R. 40.

As to the manner of computing interest in settling the amount due on a mortgage, see Reed v. Reed, 10 Pick. 400, 401; Porter v. King, 1 Greenl. 297: Gibson v. Crehore, 5 Pick. 146; 3 Powell on Mortg. (Rand’s ed.) 909 a, notes.

3 As to the costs in this case, see Battle v. Griffin, 5 Pick. 167.