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The mortgagor

February, 1842. Wright

v.

Whithead

et al.

comport with the pledging of property to near its value, WINDHAM, ought not to be received under our statute. is the real owner of the land, and is to be regarded as such to every purpose except the right of possession, (Barkhamstead v. Farmington, 2 Conn. 600,) and his title cannot be taken from him but by a judgment of court, where he is protected, or by a writing, or its equivalent, speaking for itself, as lapse of time, &c., and if a power to sell can be proved by parol, in this way the statute would be rendered nearly useless. Especially ought it not to be allowed in these cases where the courts, from the unequal condition of the parties, look with jealousy on endeavors of the mortgagee, by private bargains, to divest the mortgagor of his equity. 4 Kent, 137. Holdridge v. Gillespie, 2 J. C. R. 34. Accordingly, the cases are predicated on written instruments. Catlin v. Washburn, 3 Vt. R. 42; Harrison v. Phillips' Academy, 12 Mass. 465; Austin v. Bradley, 2 Day, 466. The same remarks apply to the attempted inference of a release of the equity of redemption, from certain confessions supposed to have been made by Elmore long ago in certain conversations with persons having no particular interest in recollecting the expressions. It was once,' says Chancellor Kent, observed in the supreme court, 6 J. R. 21, that acknowledgments of 'the party as to title to real property are generally a danger'ous species of evidence, and though good to support a ten'ancy or to satisfy doubts in cases of possession, they ought not to be received as evidence of title, as it would counteract 'the beneficial purposes of the statute of frauds.' That doctrine strikes me as just and sound, and principles are essentially the same in both courts. Marks v. Pell, 1 J. C. R. 598. Nor is it like the case of a discharge of a mortgage, which is but a chattel interest; Toby v. Reed, 9 Conn. 216; 4 Kent, 152; for there the performance of the condition or redemption of the pledge is a matter in pais, although our statute has provided a manner of proving it by the record if parties so choose. But this is a complete release of the title, if any thing, and amounts to a quit-claim by the party. If, however, we were to take the testimony as admissible, it no where appears that Elmore intended his right of redemption. It may be said of this defence as was said by the Chancellor, in Marks v. Pell, 1 J. C. R. 599; 'it rests entirely

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WINDHAM, on certain conversations which arc extremely liable to be. 'misunderstood or perverted, and yet are very unavailable

February, 1842.

Wright

v.

Whithead

et al.

'as they are sworn to under the cover of time and the death ' of the party.'

On the whole, the orator contends that he is entitled to redeem, and that an account should be taken.

J. D. Bradley argued for defendants, and, to the point that the sale of the premises, by Hunt, with the approbation and consent of Elmore and the acts and admissions of Elmore in relation thereto, operated to convey the equity of redemption, cited Gregory v. Mitchel, 18 Ves. 332; 1 Dane's Ab. 246; 1 Story's Eq. 196; 1 Maddock, 255, 262, 3-4; 10 Ves. 306; 1 Story's Eq. 202, 203, in note, 216, 217, in note; Pilling v. Armitage, 12 Ves. 85; Burrows v. Lock, 10 Ves. 145; Am. Ch. Dig. 339, referring to 6 Johns. Ch. R. 393; Id. 355; 2 Pet. Cond. R. 408; and, to show the defendant's possession adverse to orator's claim of title, he cited Stevens v. Dewing, 2 Aik. 112; Tuttle v. Reynolds, 1 Vt. R. 80; and, to the point that the purchase by the orator of Elmore's right to redeem was champerty, and, consequently, void at common law, he cited 6 Dane's Ab. 740, 1, 2; Woods v. Downs, 18 Ves. 125, 6-7; Stevens v. Bagwell, 15 Ves. 156; 8 Johns. R. 483; Id. 228; Van Dyck v. Van Buren, 1 Johns. R. 357.

The opinion of the court was delivered by

WILLIAMS, Ch. J.-The conclusion which we arrive at, in relation to the facts in evidence, renders it unnecessary that we should pass on all the principles of law which have been discussed. The object of the bill is to redeem the premises from a mortgage executed by one Rufus Elmore to to Arad Hunt.

From the facts found by the court, it is beyond controversy that Pomeroy, in purchasing the premises, intended to purchase an estate in fee; that Hunt intended to sell such an estate, and that Elmore consented that he should do so, and receive the proceeds of the sale. Under these circumstances, Elmore would have been compelled, in chancery, to deed to Pomeroy, if such a conveyance were necessary to perfect the title of Pomeroy, and neither Elmore, nor his assignee,

the orator, can now disturb the defendant's title or posses- WINDHAM, sion.

On another ground, the court would feel bound to dismiss the bill of the orator. He does not stand in as favorable a light as the prowling assignee who bought in an equity of redemption for an inconsiderable sum, and in whose favor Lord Hardwick felt bound to decree a redemption. Elmore has permitted the defendants and Pomeroy, under whom they claim, to remain in possession for a period of over thirteen years, making large improvements and having no reason to doubt their title. He has not disturbed nor attempted to disturb them. The orator purchased this suit, under an agreement to divide whatever sum should be recovered. If he succeeded, he was to pay one hundred and fifty dollars; if he failed he was to pay nothing. This was a species of champerty or maintainance which cannot be countenanced in a court of equity. It was an unlawful bargain, to deprive the possessors of the land of a title which they, and others, supposed and believed to be legal and beyond question. The orator should not be permitted, under this unlawful bargain, to have a remedy in this court, even if it were doubtful whether Elmore could not have had relief in equity.

On either of these grounds, we think the orator cannot maintain this bill, and the decree of the chancellor, dismissing the bill, must be affirmed with additional cost.

February,

1842.

Wright

ข.

Whithead

et al.

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WINDSOR COUNTY.

FEBRUARY TERM, 1842.

PRESENT, HON. CHARLES K. WILLIAMS, Chief Justice.

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STEPHEN ROYCE,
JACOB COLLAMER,

Assistant Justices.

CAREY ALLEN, administrator of SYLVESTER EDSON, v. ASAPH
FLETCHER, Jun., BUSHROD W. RICE and GROVER DODGE.

Where mutual claims are allowed by commissioners in favor of and against an estate represented insolvent, and the administrator, within twenty days after the return of the commission to the probate court, files objections to the allowance against the estate, and the creditor does not prosecute his claim against the estate at the term of the county court next after the filing of such objections, and the administrator does not procure an affirmance of the allowance in favor of the estate at that term, he cannot have such affirmance at any subsequent term of the court.

THIS was a complaint filed in the county court, at the November term thereof, 1840, but entitled of the May term, 1840, by Carey Allen, administrator of the estate of Sylvester Edson, deceased, intestate, setting forth that commissioners were appointed by the probate court for the district of Hartford to receive, examine and adjust all claims and demands against said estate, and those exhibited in offset thereto; that the defendants presented to said commissioners, for allowance, a note for $2,032.32, executed by the intestate and one Demmon, on which several payments were indorsed; that the complainant, as administrator as afore

February, 1842.

Allen, adm. of
Edson,

v.

said, presented certain notes in favor of the intestate against WINDSOR, the defendants, in offset to the note presented by the defendants; that the commissioners allowed the defendants' claim at 1408.09, and allowed the complainant's claim in offset at $696.07, leaving a balance due the defendants of $712.02; Fletcher et al. that the commissioners reported said allowances to said probate court at a session thereof held at Woodstock, on the 19th day of March, 1840, which report was then and there accepted by said probate court, and duly recorded; that, within twenty days thereafter, to wit, on the 25th day of March, 1840, the complainant filed in said probate court his objections, in writing, to the allowance of the defendants' said claim, of which the defendants were duly notified under an order of said probate court, to wit, on the 25th day of March, 1840, and that the defendants wholly neglected to enter and prosecute their said claim in the county court at the May term thereof, 1840, and the complainant prayed the county court for leave to enter said complaint as of the May term, 1840, and have a continuance entered to the November term, 1840, and for an affirmance of the judgment of the commissioners, allowing $696.07, against the defendants, with costs.

Upon the hearing in the county court, that court found the matters stated in the complaint to be true; but dismissed the complaint without costs to either party.

The complainant excepted to the decision.

T. Hutchinson, for complainant.

This case probably presents a question rather new, but one which may often occur; and it seems important that it should be so decided as to form a rule, just and practicable, by which like cases will be governed, without that uncertainty which genders controversy.

One result to be thought of is that the state of things, here presented, leaves the claims in favor of the estate in statu quo, to be sued and litigated, and liable to be met with proof of payment, or any other defence, just as if sued without having been laid before the commissioners. This would render useless that provision of the statute which requires the commissioners to report what claims they allow, and what they disallow, on both sides. Comp. Stat., Slade's Ed. 353.

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