Turton v. Dufief
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73 U.S. 420 (1867)
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U.S. Supreme Court
Turton v. Dufief, 73 U.S. 6 Wall. 420 420 (1867)
Turton v. Dufief
73 U.S. (6 Wall.) 420
A gratuitous bailee of money to whom it is given for the purpose of lending it on good and sufficient security and who, lending it to a parson on property worth much more than the sum, and taking a properly executed mortgage, delivers the papers to his principal without having placed them on record, is not responsible for a loss occurring after the efflux of the term for which the money was lent by nonrecording of the papers, the owner of the security having had abundant opportunity to have them recorded himself.
Dufief, acting without compensation and merely as a friend of a certain Mrs. Fowler, then a widow, in July, 1851, lent for her $2,000 (money belonging to her) to Wheeler, taking from him a note payable in one year and a deed of trust or mortgage security amply sufficient to secure the sum lent. These were delivered to Mrs. Fowler sometime previously to October, 1851. Mrs. Fowler received interest in three different payments, up to January, 1853, and in March of that year, $500 of the principal. Sometime between this last date and August of the same year, 1853, she was married to one Turton, and in August and December, he, as her husband, received two payments of interest. Wheeler was a man in good credit and solvent when the money was lent, and continued so till 1855. In that year, he executed another mortgage, or deed of trust, to one Linthicum, dated 20 December, 1854, which was put on record May 4, 1855. The mortgage of the plaintiff had never been put on record, and the security was out and lost on that account.
Turton, the husband, now sued Dufief for this loss.
The substance of the narr., when eliminated from various epithets which tended to give it the character of an action for deceit and not of one on contract and which, as such, the court observed "would be wholly unsupported by the evidence," was as follows:
"That the defendant, having for the use of a certain M. R. Fowler (who hath since intermarried with the plaintiff) the sum
of $2,000, in consideration that she, the said M. R. F., would consent and agree that he, the said defendant, should lend the money to some person on good and sufficient security for the repayment thereof, and in consideration of the authority given by the said M. R. F., undertook and faithfully promised that he would diligently and carefully lend the said money to some person on good and sufficient security for the repayment thereof,"
"Yet, that the said defendant contriving &c., did not perform or regard his said promise, and did not diligently lend and invest the said sum of money to some person on good and sufficient security for the repayment thereof, but, on the contrary, lent the same to a certain Wheeler, and did not take good and sufficient security from him for the repayment of the same, whereby the same was wholly lost."
The court below charged that if the jury should find that the note was given by the drawer to the defendant as agent of Mrs. Fowler, and that the defendant, with her consent, had lent the amount for which the note was given from funds in his hands belonging to her, and that the defendant, shortly after the making of the note and before it reached maturity, endorsed the same to Mrs. Fowler, and at the same time delivered to her the note so endorsed, with the deed of trust executed to secure its payment, and further that at that time, and when the note became due, the drawer, Wheeler, was solvent, and fully able to pay the same, and that the security for its payment was at that time free from the encumbrance of any subsequent deed from Wheeler, and sufficient for the payment of the said note -- then that the plaintiff could not recover, although the jury might find that the debt was lost by the failure to place the deed on record before the recording of the subsequent deed to Linthicum.
The case was now here on exception by Turton to that charge.