The acts of 1715 and of 1766 of Maryland 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.
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 states 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.
A mortgage was executed and recorded in 1809, and the mortgagee
took no measures to enforce the payment of the money clue upon it
until 1821. In the meantime, the property mortgaged was sold by the
mortgagor, the mortgagee having given no notice to the purchaser of
his lien. By the court:
"If the mortgagee never did assert any claim or intimate its
existence to the purchaser or her friends, he was not restrained
from doing so by having released it. But the mortgage deed was
recorded, and this is considered in law as notice to all the world,
and dispenses with the necessity of personal notice to purchasers.
A deed cannot with any propriety be said to be concealed which is
placed upon the public record, as required by law, nor can a
previous conveyance and delivery of title deeds to a purchaser be
justly denominated collusion because a subsequent encumbrance is
taken on the same property. Common prudence would have directed the
purchaser to search the records of the county before she paid the
purchase money. Had she done so, she would have found the deed on
record. It is not in proof that he has done any act to deceive or
mislead her. He has been merely silent respecting a deed which was
recorded as the law directs."
In the circuit court, a bill was filed to foreclose a mortgage
dated on 4 August, 1809, and executed by John Peter to Thomas B.
Beale to secure the payment of three promissory notes for $1,000
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
Page 33 U. S. 31
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 16 April,
1810, sold and conveyed in fee to Elizabeth Peter, who then paid
$6,500, 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 lifetime, 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 27 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
Page 33 U. S. 32
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 favor 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.
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 4 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 afterwards, on 16
Page 33 U. S. 33
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 & 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 favor
of the defendant, was carried before the Court of Appeals. The
counsel for the plaintiff in error contended that as the acts
requiring the enrollment of conveyances do not say that a copy of
the enrollment 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 enrollment 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
Page 33 U. S. 34
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 27 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, had
sustained heavy losses by fire. Several of his friends and
creditors agreed to receive a conveyance of all his remaining
property, to be distributed ratably among them, and to advance him
a considerable sum of money to set him up again in business. The
defendants in error allege that this agreement was on the condition
that all his creditors should sign a release of his debts so as to
leave his future acquisitions exonerated from their claims, and
that some of his creditors refused to sign the release, in
consequence of which refusal the whole became inoperative.
The deed conveying his property to a trustee for the use of his
creditors and the instrument of release were both produced and
appear in the record. The deed of release enumerates
Page 33 U. S. 35
the creditors of John Peter, some of whom have not executed it.
It is absolute on its face, and the plaintiffs in error deny that
it was intended to be conditional. They also contend that no parol
evidence is admissible to vary a written contract by introducing
into it a condition which entirely changes its character. The
argument has turned chiefly on the admissibility of this testimony.
The court will not inquire whether the parol evidence offered in
this case can be introduced to vary the contract, because a
preliminary question arises to which the testimony is, it thinks,
certainly applicable. That question is has the contract been
executed? It is set up by the defendants in their answer, and the
general replication puts it in issue. It was therefore incumbent on
those who sought to avail themselves of it to prove it.
Thomas Nevit, the subscribing witness to the signature of Thomas
B. Beale, has not been examined. If this omission can be accounted
for, inferior evidence would undoubtedly be admissible to establish
this all-important fact, but the whole of this evidence must be
examinable. The delivery itself, and the circumstances under which
it was made, are open to both parties. The questions whether the
instrument ever became a deed, whether it was delivered as an
escrow whose completion depended on subsequent events which never
happened or was a complete contract when signed by those whose
signatures are affixed to it are entirely distinct from the
question how far a written contract may be varied by parol
evidence.
The plaintiffs in error rely on the fact that the instrument was
left in possession of Mr. Peter. This circumstance is certainly
entitled to consideration, but it is not conclusive. It is open to
explanation, and all the testimony shows that it was placed in his
hands to obtain the signature of his creditors. Clement Smith
expressly avers it.
The deposition of Mr. John Peter was taken on the part of the
plaintiffs in error for the purpose of showing, among other things,
that the release was unconditional. But he is a party to the suit
on the record, and his deposition is not admissible.
The deposition of George Peter, one of the creditors of John
Peter who executed the deed of release, is also taken for the same
purpose. He was one of the devisees of Elizabeth Peter,
Page 33 U. S. 36
but released his interest in the property before he gave his
deposition. He also is a party on the record, and this objection is
made to his testimony.
All objections to the competency and admissibility of these
depositions, were reserved by the defendants in error, and may be
now made. They cannot, therefore, be read.
The defendants in error produced the record of a suit in
chancery in which John Peter and George Peter, among others, were
plaintiffs, for the purpose of showing that the release was not
fully executed. But the devisees of Elizabeth Peter were not
parties to that suit, and cannot be affected by it. They also
produced several depositions.
Francis Dodge was one of the creditors of John Peter, but did
not execute the release. He was applied to by Mr. Peter to sign it,
who stated, as well as the deponent recollects, "that if any one of
his creditors objected to sign, the whole arrangements would
fail."
Clement Smith, who was trustee of the effects of John Peter
which were assigned for the benefit of his creditors, was asked
"Was it not a part of the said scheme that it should be
inoperative and void in respect of all parties, including the said
John Peter, his friends, and releasing creditors, in case any of
his creditors should refuse to release said John Peter from his
debts?"
He says
"I answer without hesitation that such was my impression. I did
then, and do now, believe that it was so understood by all the
parties who on that condition alone signed the release."
This witness signed the deed of release as attorney for some of
the releasing creditors. He also states several circumstances
confirmatory of the opinion, that the release was not to take
effect unless signed by all the creditors of John Peter.
The record also contains two letters, addressed while the
transaction was depending, to William Fowle & Co., who were
among his creditors.
The first is dated 25 April, 1820. In that, speaking of his
friends, he says
"They have come forward and agreed to loan me a cash capital of
$15,000, but on the special condition that I obtain a release from
all my creditors and keep my old and new business entirely
separate. "
Page 33 U. S. 37
His second letter, dated 28 April, expresses his regret that
William Fowle & Co. were not at liberty to sign the release,
repeats the idea that his friends, who had promised him a loan of
$15,000, had made a condition that he should obtain a release from
all his creditors, and after renewing his application respecting
the release from Fowle & Co. adds
"every day's delay may diminish the zeal of my friends;
therefore let me hear from you by return of mail, with an
authority, I hope, to Clement Smith to release as it respects
me."
Clement Smith says that
"J. Peter called on him for the notes and funds which his
friends had deposited with Smith, to be delivered to Peter when the
condition on which they were to be delivered should be performed.
The deponent declined complying with this request because he
understood that some of the creditors had refused to sign the
release."
He left the room and returned in a few moments with a letter in
his land, and said, "The business is all at an end, Mr. Fowle, or
some other person to whom he had written, having refused to sign or
release his debt."
The letter to Mr. Fowle and that part of the deposition of Mr.
Smith which has just been cited refer particularly to the contract
for advancing money to enable Mr. Peter to recommence business, but
they are not without influence on the question whether the release
was completely executed. That instrument was dated on 27 April,
1820. It purports to be made between John Peter and his creditors,
endorsers, and sureties -- that is, all his creditors, &c. It
states the assignment made by Peter of all his remaining effects to
Clement Smith for their benefit, their purpose to advance him a sum
of money that he may again go into business, but their
unwillingness to do so so long as the new capital of the said J. P.
may be liable to his former debts; that they
"are willing, in consideration of the premises, to release him
from all his debts and liabilities so that he may hold his future
property and stock in trade exempt from their respective
claims."
After reciting the names of the creditors and stating the amount
of their several claims, it proceeds to say that
"in consideration of the premises, the creditors, &c., have
released, &c., and do release, &c., the said John Peter,
his heirs, &c., from all their aforesaid several claims,
&c."
The same instrument proceeds to appoint Clement
Page 33 U. S. 38
Smith, who is a party thereto, trustee of all the estate and
effects assigned by John Peter, for their benefit.
The release is in consideration of the assignment. The advance
of money and the release are obviously parts of the transaction,
and are closely connected with each other. The purpose intended by
all those who signed the release could not be accomplished unless
it should be signed by all.
It is in evidence too, that the failure of the release prevented
the trustee from carrying the deed of assignment which constituted
its consideration, into execution.
On a full consideration of these circumstances, we are of
opinion that the release was never fully executed, and did not
become the deed of the parties.
The plaintiffs in error also contend that Thomas B. Beale, by
his conduct in his lifetime, forfeited his right to enforce the
payment of the mortgage debt against the said Elizabeth Peter or
her representatives. The answer alleges
1st. That though he lived more than eleven years after the
execution of the mortgage, he never did assert any claim, or even
intimate to the said Elizabeth, or to any of her friends or
advisers, the existence of such claim.
2dly. That by concealment of the said mortgage debt, lapse of
time, and collusion with the said John in the said sale to said
Elizabeth, he and his representatives have lost all claim, either
in law or in equity.
These objections, it may be observed, cannot be connected with
the release. That bears date in 1920, and the mortgage deed was
executed in 1809. If, therefore, he never did assert any claim or
intimate its existence to the said Elizabeth or her friends, he was
not restrained from doing so by having released it. But the
mortgage deed was recorded, and this is considered in law as notice
to all the world, and dispenses with the necessity of personal
notice to purchasers. A deed cannot with any propriety be said to
be concealed which is placed upon the public record, as required by
law; nor can a previous conveyance and delivery of title deeds to a
purchaser be justly denominated collusion because a subsequent
encumbrance is taken on the same property. Common prudence would
have directed Mrs. Peter to search the records of the county before
she paid the purchase money. Had she done so, she would
Page 33 U. S. 39
have found the deed to Mr. Beale. It is not in proof that he has
done any act to deceive or mislead her. He has been merely silent
respecting a deed which was recorded as the law directs.
We are opinion that there is no error in the decree of the
circuit court.
It is
Affirmed with costs.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Columbia holden in and for the County of Washington and was argued
by counsel, on consideration whereof it is the opinion of this
Court that there is no error in the decree of the said circuit
court in this cause. Whereupon it is considered, ordered, and
decreed by this Court that the decree of the said circuit court in
this cause be, and the same is hereby affirmed with costs and
damages at the rate of six percent per annum.
