Buswell v. Davis

We do not perceive any ground upon which the defendant is entitled to put in evidence his own stateménts of what passed between the plaintiff and himself; made to third persons when the plaintiff was not present ; and respecting which the plaintiff has introduced no testimony on his part. The declarations of the defendant to the attorney who made his writ, (stating what had previously passed between himself and the plaintiff, and similar, in effect, to the allegations of the answer upon this point,) were not against his interest; do not in any way tend to give a character to his order for a writ, and for an attachment of the land; nor do they elucidate or explain the act of procuring the writ. That act explains itself. The statements seem to have been the defendant’s account of what had transpired at a previous time, which induced him then to act; but they are not, of themselves, part of what was then transacted, having a bearing upon this case. 8 N. H. Rep. 260, Gordon vs. Shurtliff; Sessions vs. Little, (9 N. H. Rep. 271;) Gresley’s Eq. Ev. 219, 232. If, however, the evidence was weighed, it could not alter the case. Evidence of the defendant’s declarations in his own favor, at such a time, could not outweigh evidence offered by the plaintiff, of his declarations made before and afterwards.

The merits of the case depend upon the conversation which was actually held between the plaintiff and the defendant, and the advice which the latter gave in consequence of the plaintiff’s application to him. There is no controversy between the parties relative to the existence of the debts and mortgage ; the change of the security; or the time it was changed j nor respecting the existence of the defendant’s debt, and his attachment of the land in question.

*423It appears that the plaintiff held a note, signed by Damon and others, payable to Estabrook, and indorsed by him. It was understood that the note was an accommodation note, and that the debt was in fact his. To secure the signers for this and other liabilities, a note and a mortgage of the premises, the title to which is now in question, were made to some of them ; and this had been assigned to the Merrimack County Bank, to secure debts there. Estabrook had failed, and the equity of redemption seems to have offered no security to any of his creditors. The defendant, who had a debt on which he had obtained judgment, and which was secured in part by a mortgage of other property, had not seen fit to levy upon, or attach it. Under these circumstances, an agreement is made between Estabrook, and those who were under liabilities for him, the plaintiff, and the bank, by which the mortgage then in the possession of the bank was to be discharged, and other security made to the bank ; the plaintiff was to give up the note he held, and take a mortgage of the same property ; a further mortgage was to be made to one of the sureties, and other security in some form was to be given for the remainder of his liabilities to them. This agreement was carried into execution. It took a considerable portion of the day and evening to draw the writings, and perfect the arrangement. After the parties to it had begun to carry it into effect, the defendant caused the land to be attached, and this was not known to the plaintiff and others until their agreement was completed and the deeds recorded.

As the matter now stands upon the records, the mortgage given to secure Damon and Stickney, for their liabilities, and which was assigned to the bank, is discharged ; and the defendant has an attachment upon the land, made some hours before the plaintiff’s mortgage was executed and recorded ; and this results not from any payment of any debt having been made by Estabrook, to any of the parties, but from an arrangement for a mere change of securities between *424himself and some of his creditors, the plaintiff being one, by which the plaintiff was to have had a mortgage of this land free from any incumbrance.

If the attachment of the defendant is a valid security as against the plaintiff, he has derived a benefit from this alteration of the security, which it was not intended he should have had.

We are not required to give an opinion upon the question, whether a creditor can, by means of an attachment, avail himself of the benefit of a mere change of mortgages, in a case where he had no knowledge that such change was intended, but designed merely to avail himself of his right to attach the equity in redemption. If in such case the change was to his prejudice, the mortgage substituted being of a greater amount than that previously existing, he might well contend that his rights could not thus be affected by transactions to which he was no party, and of which he had no notice. Even if the new mortgage upon the land was of less amount than that previously existing ; still, if he had no knowledge respecting the intention to make an exchange, and attached in good faith, he might, perhaps, well claim the benefit of the accidental advantage he had derived, and hold the land discharged wholly from incumbrance, because the prior mortgage was removed, and the new one executed subsequent to his attachment. We do not undertake to say that such would be the result.

Nor is the case presented one where the attaching creditor has mere knowledge that a change of security is intended, and attaches with an intention of availing himself of the change, by interposing his attachment before the new mortgage, in case the parties to the contemplated change shall perfect it, without the caution of examining the records, to ascertain whether any creditor has attached. That would be a much stronger case than the other ; but whether the creditor might not, in such case, legally avail himself of the want of caution, asserting his right to attach, and take the *425chance of the removal of the existing incumbrance, so long as he in no way participated in advising to the change itself, is a question we may pass by at this time.

The evidence carries the present case still further. The answer of the defendant shows that he had good reason to believe that such a change was probably in progress, and admits that the plaintiff had applied to him, stating that Estabrook had proposed to remove the incumbrance from this or another lot, and to give him a mortgage, and wishing to advise with him on the subject, and that he informed the plaintiff he should consider either of those lots, free from incumbrance, abundant security for his debt. But he avers in his answer, that he at the same time informed the plaintiff that he had himself made some examination of the records, and then had his eye upon the property, with the intention of securing his own debt, which was only partially secured— that he further told the plaintiff, if he would rely upon his advice he would not allow him to take any course by which he should be injured — that the plaintiff was to call on him again, before making any arrangement, but did not — that he twice sought an interview with the plaintiff, without success — .and that afterwards, on the 31st of August, seeing the plaintiff passing to and from Estabrook’s store, he concluded he had determined to act without consultation with him, and perhaps in a manner to defeat his plan of securing his own debt in the way he had in part disclosed to the plaintiff; whereupon he thought it proper to take care of his own interest, and made the attachment.

The evidence however fails to sustain him in this part of the case. It is not contended that the mortgage to Damon and Stickney was invalid, and there is evidence to show that the property was not, at the time, of sufficient value to satisfy that incumbrance. It appears, by the answer, that the defendant, although aware that he had only partial security for his debt, had made no attempt to obtain farther security by an attachment of the equity of redemption. That *426he had had an eye upon the property, with any supposition that he could make any security out of it while Damon and Stickney’s mortgage existed, is not to be supposed ; for it has not been suggested, in the hearing, that there was any way in which it could have been rendered available to him. Why then should he have wished to see the plaintiff further ? In what way did he propose that, the plaintiff' should act, under his advice, so that the plaintiff’s project should be promoted, and he obtain further security at the same time ? And how was the change of the security, without his concurrence, to be prejudicial to him ? We have no information upon this part of the subject. No reason is apparent, why he should have desired the plaintiff' to refrain from taking the mortgage, or why, if he thought the property would furnish good security, he should not have said so. And, upon the evidence before us, he went further than he admits in his answer.

Edwin W. Buswell states, that his father, the plaintiff, was taken sick early in the afternoon of the 29th, and was confined to his bed through the day following — that in the course of this last day the defendant called at the shop of the witness, and enquired for his father, and was told that he was sick at the house — that the defendant then said the plaintiff had consulted him in relation to exchanging his security for the Estabrook debt, and taking a mortgage of the property in question, and that he had told the plaintiff he thought the security would be good, but he would consider further of it, and see him again — that the defendant then added, “ I think the security will be good, and advise your father to make the arrangement.” The witness states that he understood, at the time, that the defendant wished him to communicate what he had said, to his father, which he accordingly did. The witness further states, that neither at this or any other time did the defendant say that he was desirous that the arrangement for the new security should not be made till further consultation with him, or any expression of that import.

*427W. VV. Estabrook states, that not long after the defendant’s attachment was made, he saw the defendant, who said to him, “ Old Buswell has been down, and is rather savage, is’n’t he. He had better keep still, for if he do’n’t, we can cheat him out of his debt : for I can levy the whole amount of my debt on the property attached, and release the property mortgaged to me, and I could, if 1 was disposed, buy up some of your Boston debts, and secure them on that property” — that the defendant then said, “ I met Mr. Buswell opposite to Walker’s, and Buswell said he did not consider himself perfectly secure on his demand against you, and that he talked of relinquishing his security, and taking security on real estate, and wanted to enquire of me in regard to it”— that the defendant further said the plaintiff named to him the house where the witness lived, and the Call place, and said he told the plaintiff that either of those places, if made perfectly clear, and he had the first mortgage, would be good security — that the plaintiff appeared to be in a hurry, and he said to him, “ I advise you to go on and take the security”— that the plaintiff then said he would call on him again, and he replied, “ I shall be glad to assist you in any way. I have a demand against Estabrook which 1 do’n’t think perfectly secured.” This witness further states, that at a subsequent time, while trying to negotiate with the defendant in regard to his claim, the defendant said he liad been watching an opportunity to secure his debt ever since the witness failed, and that when the witness was building he thought his property might not be covered, and examined the records, and made enquiries at the Merrimack County Bank.

The evidence of these two witnesses shows not only that the plaintiff applied to the defendant for advice about taking the mortgage, but must be regarded as establishing the fact that the defendant advised to the changing of the security. In his conversation with E. W. Buswell he made no mention of his own demand, nor desired to see the plaintiff further before the arrangement was made ; and although it does *428appear, according to the statement he made to Estabrook, that he said to the plaintiff he did not consider his own debt secure, it was not with any suggestion that he expected to make any security out of this property, or that he desired the plaintiff to act with any reference to his interests. There is no attempt to show how the defendant could have obtained any security on this property, or how the plaintiff might have provided for the defendant's interest in the proposed arrangement, or that the plaintiff acted in any way to his prejudice.

Without going into the question, whether the testimony does not prove that the defendant advised to the arrangement with the very purpose of interposing an attachment, after the mortgage to Damon and Stickney was removed, and before that to the plaintiff was executed, it is sufficient that, being consulted respecting the arrangement, he advised the plaintiff to effect it. If he desired to have any provision made in that arrangement for himself, he should have so stated explicitly. He cannot be permitted, after giving such advice, to avail himself of the exchange of the mortgages, and thereby obtain a security against the plaintiff, which he could not have had against Damon and Stickney. An attachment, with the purpose of obtaining a security prior to that of the plaintiff, under these circumstances, would not be a fair exercise of superior diligence, but would operate as a direct fraud upon the plaintiff’. 1 Brown’s Ch. R. 357, Beckett vs. Cordley; 6 Vermont R. 240, Temple vs. Hooker; 10 Johns. R. 461, Jackson vs. Burgott; 13 Mass. R. 51, Chickering vs. Lovejoy.

A decree must be entered, therefore, according to the prayer of the bill, that the defendant he enjoined from claiming any thing in the land, by virtue of his attachment, against the title of the plaintiff under the mortgage, and that all claim under the attachment he subject to that incumbrance.