Robinson v. Sampson , 23 Me. 388 ( 1844 )

The opinion of the Court was drawn up by

Whitman C.

The allegations in the plaintiffs’ bill, aside from the pretence of a design to defraud the creditors of T. R. Sampson, if substantiated by proof, would be abundantly sufficient to entitle them to the relief prayed for, on surrendering the security, and cancelling the mortgage they now hold. But the proof, at present, is entirely deficient; for the answer of C. C. Mitchell, one of the defendants, is not evidence against the defendant, Abigail Sampson. The answer of one defendant cannot be used as evidence against another. Field v. Holland, 6 Cranch, 8, 24; Clark’s Ex’ors v. Van Reimsdyke, 9 ib. 153, 156. This is the general rule. There .are exceptions; but this case does not come within them, the defendants not being copartners, nor in a situation to authorize the admissions of one to become evidence against the other. The reason of the rule is, that the defendant sought to be affected, could have had no opportunity for cross-examination.

An order might have been obtained to examine C. C. Mitchell, as a witness ; in which case he would have been subject to a cross examination by the other defendants ; and if he had testified unqualifiedly to the facts contained in his answer, and his testimony had remained unaffected by discrediting testimony, we could have had no doubt, that, therefrom, in con-nexion with the other testimony in the case, the cancellation of the mortgage held by him, was an act done entirely through mistake, arising from false and deceitful representations made to him by the defendant, T. R. Sampson, and by the accidental oversight, notwithstanding due precaution taken to avoid it, in not discovering the record of the second mortgage, made by the said T. R. Sampson to his mother, the said Abigail. It is observable in this connection, that Abigail Sampson did not advance any thing, by way of consideration, to induce the cancellation ; and was in nowise instrumental in procuring it to be done; and that, if the cancellation were annulled, she would be precisely in the condition she would have been in, if the mortgage held by C. C. Mitchell had been assigned, uncancelled to the plaintiff, instead of the making of the new mortgage ; and which would have been done, but for the mistake originating as before mentioned.

There is not a more appropriate head of equity jurisprudence, than that of mistake. And the jurisdiction in such cases in equity is expressly conferred upon this Court. Human sagacity is inadequate to the attainment of a perfect knowledge and comprehension of every combination of circumstances, under which it may become necessary to act, and especially when the influence of the acts and wiles of the designing and knavish are superadded.

The language of the learned Chancellor of New Jersey, in Trenton Banking Co. v. Th. L. Woodruff & al. 1 Green’s C. R. would be precisely applicable to this case, if the proof were, as it seems probable it might have been. He says, “ It has been settled in this Court, that the cancellation of a mortgage on the record is only prima facie evidence of its discharge, and leaves it open to.the party making such objection to prove, that it was made by accident, mistake or fraud. On such proof being made the mortgage will be established, even against subsequent mortgagees without notice.” To this position we cannot hesitate to yield our assent, if the subsequent mortgagee, as in this case, becomes such anterior to the cancellation.

But as the case here, as now presented to us, is, we do not feel ourselves authorized to conclude, that the plaintiffs were lulled into security by reason of influence, arising from misrepresentations on the part of T. R. Sampson, or that they ever examined the registry of deeds, before taking their mortgage, to ascertain whether any conveyances were there recorded, which could interfere therewith ; and therefore should not be warranted in coming to the conclusion that any thing was done by them otherwise than in conformity to what was intended between the parties. And unless the case can be opened to a re-examination of testimony, so that the testimony of C. C. Mitchell can be introduced against the other defendants, or the facts set forth in the bill be otherwise legally established, making out a clear case of accident or mistake, or both, in reference to the cancellation of Mitchell’s mortgage, the bill must be dismissed.