Isham v. Higbee

after stating the case, delivered the opinion of the Court. — The demurrer of Lewis Higbee to that part of this bill which charges a promise to indemnify the orator, is overruled. There might be a remedy at law, as urged by his counsel, but not a complete remedy. A complete remedy would include an injunction upon the title. Further, this is not charged as a substantive ground of relief, but only as a part of the inducement held out to the orator to give the deed, or convince him there was no danger to him in doing so-.

There is great difficulty in doing perfect equity in this case. Consistent with ’any rules of chancery proceedings. «That the deed from the orator to Lewis Higbee was obtained in fraud of Isaac Higbee, and that with the full knowledge of said Lewis, we entertain no doubt, He confesses, in his answer, his knowledge of the deed from the orator to Isaac, which was defeated in its operation by his deed thus obtained. Lewis ought to derivó ho benefit whatever from this deed; yet Isaac is the person most directly injured by it, and he does not complain-, but choo* ses to take his remedy upon the orator, in his suit at law. While we hear the complaint of the orator Upon this subject, We, in the outset, are saluted with the rehearsal of his having given 'this deed Which is the source of all his difficulty, and that when he must have known that Lewis wanted it to use against Isaac. Moreover, the bill, as against Lewis, is not very highly embellished with descriptions of the artifices of Lewis to deceive the orator, and make him believe that to be right,which was fraudulent and wrong. Had Lewis, under a pretence of purchasing a different piece of land, imposed upon the orator a description in the deed, which would cover the land in question, there would be no difficulty, *362The orator would appear the subject of delusion, and not be suspected of intentional fraud.

Again, were Isaac'Higbee the complainant, and all the facts as ^eyIlow aPPearJ we should have no difficulty ; for the deed from the orator was ipso facto a fraud upon Isaac. Again, if there were clear, legal proof, as against Isaac, that his deed was lodged with Lewis, the town clerk, for record, and taken back, or laid aside, with the knowledge of Isaac, to give place fo,r Lewis’ deed upon the record, that would establish the whole claim of the orator. It would so establish the fraud of Isaac in perfecting the deed to Lewis, we might well enough presume him concerting with Lewis in its conception. But there is no testimony against Isaac upon this subject. The sayings of Lewis are good evidence against him, but are no more evidence against Isaac than if Isaac were not joined with Lewis in the bill. As to him it is mere hearsay testimony, and wholly inadmissible. There is no other testimony of a concert between them, which would render this admissible testimony. Indeed, it is resorted to as evidence of the connivance of the two, and, without it, the testimony upon that point does not appear very strong. It would seem difficult to infer a fraudulent connivance from that which a man had a right to do, though it may have weight with other circumstances. When the orator requested to use the name of Isaac in a petition for a new trial, his refusal might be evidence of such connivance, if no reasonable motive were assigned for such refusal. But Isaac, wheg he refused, assigned as a reason, that .the orator had joined with Lewis in a successful fraud to deprive him of his land, and chooses to rely upon a supposed covenant in his quit-claim deed, rather than recover the land itself. He not only had a right to say this, and say it with some plausibility, but if he was sure of his remedy upon the orator on his covenants, and thought his land poorer property than the money, it would be natural for him to take that course. So when he found the deed from the orator to Lewis brought in to defeat his title, if he. really believed that the orator had designedly given that deed to his injury, he might deem it useless to apply to the orator for a remedy to defeat said Lewis’ deed. And surely the orator had no légal right to be vouched in by Isaac to defend against a deed of which the orator had better knowledge than Isaac could be supposed to have. Yet Isaac ought not to be too uncharitable. He ought, as a neighbor, to have been willing to hope, at least, there was some mistake in the business, and made that inquiry of the orator which might probably have ended the difficulty before the action of Isaac against Lewis was abandoned. It would, also, have been more *363congenial to moral feeling for Isaac to have permitted the orator to use his name in a petition for a new trial. For, if he had his remedy against the orator, it was hardly correct to punish him wholly, and let Lewis go off with the land, if the remedy against him was plain, or could be rendered so by the petition for anew trial, as the orator contends. Moreover, while the orator prays that Lewis may be decreed to quit his title to Isaac, the latter resists the bill, in toto. This he probably does to prevent its intended effect to enjoin his action of covenant broken. But, if Lewis should quit his title to Isaac, and he should receive the acquittance, it would not necessarily operate further than to mitigate the damages. This assurance of Isaac, that hiá remedy is good against the orator in that action, furnishes the only reason why he did not resort to the most effective course, whether by petition foranew trial, or by a bill in chancery,to getridofthe deed to Lewis.

But Isaac is not without difficulty in the course he pursues. His deed from the orator is before the Court. It is emphatically a quit-claim deed. To the habendum, to his heirs and assigns, &c. are added these words, “ so that neither I, the said Jehiel Isham, nor any other person or persons in my name or behalf, shall,or will, hereafter claim or demand, any right or title to the premises aforesaid, or any part thereof; but they and every of them, shall, by these presents, be forever barred.” This is what is called a covenant, and that, upon which said action is brought; and the breach assigned, as we understand, is the after-giving of the quitclaim deed to Lewis. This is no covenant at all against future conveyances : it is only a covenant that he has never so- conveyed to any person, as to have that prior title arise, to the prejudice of the title now conveyed. The only remedy of Isaac Hig-Vee would have been an action on the case against the orator, or against him and Lewis, for the fraud in executing the deed to Lewis ; or a bill in chancery to compel a release, <kc. Probably both of these remedies are barred by the statute of limitations during the pendency of these suits ; so that Isaac has now no relief any where, unless we secure it to him in this suit, which he here defends.

Amidst these complicated difficulties, as the parties are all regularly before us, and have presented the merits of their claims in extenso, we are inclined to dispose of things in the way that best comports with those principles by which we must be governed. If we could clearly ascertain the fact, that the orator was the dune of a deception palmed by Lewis, we should have no difficulty. And this does appear in his favour, that the magistrate who took the acknowledgment of the deed, and in whom it is not strange he *364s^ou^ P^ace some confidence, advised that the giving of the deed to Lewis could not injure the orator. It also appears that the orator was illiterate ; could neither read nor write ; and that he was not mosl: sagacious man for business ; and also, that he was most vehemently pressed by Lewis on the subject.. But it does not appear that he was deceived by any misreading of the deed. He fully understood that he was deeding the same land he had before deeded to Isaac, and must have perceived that Lewis wanted it to strengthen his title against laase. He also was warned by his son not to intermeddle, through fear he would get himself into difficulty. He knew what he was about too well to be protected by this court, and treated as wholly innocent in a matter so necessarily fraudulent as the giving of the second deed of the same land. It was giving Lewis, upon his assurances against injury to the orator, the implements which he afterwards used to the injury of Isaac. ’We consider that Leíais cannot equitably receive any benefit from his deed ; that the orator has conducted, at least, so incautiously, as to induce the difficulties for which a remedy is sought, and is entitled to recover no costs of Isaac Higbee that Isaac cannot be entitled to costs in his groundless action at law, nor any costs in this suit, of which he will receive the principal benefit.

We, therefore, decree that the said Lewis Higbee, his heirs and assigns, be forever enjoined against using said deed from the orator to him, and against using the said judgment he recovered against Isaac Higbee, in said action of ejectment, or the record thereof, as evidence in any court of law or equity, or making any use thereof for his or their benefit in any way whatever; and, that the orator tax, against said Lewis, the appropriate cost of prosecuting this suit against him the said Lewis: That said action of covenant broken, in favor of said Isaac and against the orator, be discontinued without cost to either party, and said Isaac, his heirs and assigns be forever enjoined against any further prosecution of the same ; but that no cost be taxed by the orator against Isaac, or in favor of said Isaac against the orator.