Peters v. Hignutt

²⁵ Boyd, C. J., delivered the opinion of the court. This is an appeal from a decree which declared void and vacated a mortgage front James E. Hignutt to Dr. John W. Hignutt, dated the first day of January, 1892, and recorded in the land records of Caroline County on the next day, which purported to he for an indebtedness then duo the mortgagee by the mortgagor in the sum of $1,000. On the 4th day of March, 1901, the mortgage was assigned to Annie H. Peters, now deceased. She was the mother of Elizabeth.

P. Peters, and wife of William E. Peters, the defendants in this case, who are alleged to be “her sole heirs at law and personal representatives.” There is nothing in the record to show that they ever qualified as executors or administrators, but .no point is made of that, and the answer admits the allegations of the paragraph of the hill in which that statement is contained. The bill alleges that on January 1st, 1892, at a time when plaintiff was extremely ill with pneumonia, and considered in a dying condition, at the1 house of John W. Higmitt, he was coerced into executing a mortgage of one. thousand dollars on a farm owned by him to the said John W. Hignutt, a certified copy of which is filed. It also alleges that he ivas not indebted to John W. Higmitt, but on the contrary the latter was indebted to him, that he never at any time received any consideration for executing the: mortgage, that Annie II. Peters was not a purchaser for value of the mortgage, and that the plaintiff had demanded that it be released, which was refused.

The plaintiff admits that he signed the mortgage but in his bill alleges: “That without any previous consultation whatever with him a discussion took place in the sick room between the said John W. Hignutt and others as to how much the mortgage should he; this your orator recollects, hut as to the execution of the said mortgage your orator has not now nor has ever had any recollection, so that he has no personal knowledge of the actual execution of the said mortgage.” ²⁶ The case presents some peculiar conditions. The plaintiff is a member of the bar of Caroline County. lie was eighty-three years of age when he testified in March, 1919, and hence was fifty-six years of age when the mortgage was given. He testified that Messrs. B. G. Stevens, Robert J. Jump, William W. Lowe and Dr. Hignutt were in his room at the time mentioned above; that someone said, “what shall be the amount, consideration of the mortgage, Dr. Hignutt said that $500' was enough- Mr. B. G. Stevens says, make it $1,000.

D'r. Hignutt said it didn’t make any differnce what the amount is.” He was then asked: “What if anything further do you remember about the transaction?” and replied: “I don’t remember anything further. Mr. Jump- appeared to be at work on the paper and I went off, I was unconscious, after that. Part of the time it roused me up', their being in there and talking about a mortgage, that aroused me.

I remember a good many things when I was side, that is when I was aroused up-, but as soon as I got to rest I knew nothing.” He said he did not know that those persons were coming there, and nothing had been said to him about a mortgage. Dr. Hignutt died on the 13th day of January, 1903, eleven years after the mortgage was given, and did not assign it until March 4, 1901. William W. Lowe was the justice of the peace who took the acknowledgment, and the mortgagee made oath as to the consideration before him. . There is no evidence that plaintiff was “coerced into executing” the mortgage, as the bill alleges.

There is no testimony on the subject excepting that of the plaintiff, every one of the others present at its execution being dead before the bill was filed, and the plaintiff was positive that he rer membered nothing about the execution, although he admits his signature. When we remember that the plaintiff is an attorney, and could recall what he testified to as occurring twenty-seven years before his testimony was given, it is difficult to understand why he did not, upon his recovery, or at least in a reasonable time afterwards, follow the matter up and see what had been done, if he did not owe his brother ²⁷ anything. It is almost inconceivable that the brother and the three other persons present would deliberately commit such a fraud, as it was if the plaintiff is correct. There is nothing, else in the record to indicate that Dr. Hignutt would thus, take advantage of his brother, and there could have been no possible reason, so far as the record discloses, for the others present entering’ into a conspiracy to defraud this' ill man, -who was apparently of very limited means.

Dr. Hignutt swore to the consideration named in the mortgage as provided in the statute. If what we have already said stood alone, it would be exceedingly dangerous to grant tho relief prayed for, so long after the death of the mortgagee and the other three persons who were present, but there is strong documentary evidence in support of the contention of the defendants. Dr. Hignutt and the plaintiff, on the 16th day of June, 1900, in consideration of $300, conveyed to George R. Hea] three-parcels of ground in Caroline County, which are described by courses and distances, and at the end of the description is this, statement “being three parcels of the same land named in a mortgage dated the first day of January, in the year eighteen hundred and ninety-two, from James E. Hignutt to Dr. John W. Hignutt,” and then giving the place of record. That is the mortgage in dispute!, as shown by the names of the parties, the date and the place of record set out in the certified copy filed.

The learned judges below were of the opinion that the plaintiff did not have any interest in the lots sold to Heal when he made the mortgage or afterwards, and that hence Dr. Hignutt did not join in the deed to release the mortgage, but the plaintiff testified that hisi father had sold parts of tho property to several colored persons, who had not paid anything for them, and, in order to get the titles in such shape that they could be readily sold, he as trustee of his father joined with those parties in a deed to Dr. Hignutt for that purpose, hut “he paid me no consideration for the lot.” Indeed he testified that he paid the three hundred dollar’s received from Heal to Dr. Hignutt, but claimed that it was, on ²⁸ what is spoken of as “the Ann Thomas mortgage,” thus showing that he did claim the consideration paid by Neal. But regardless of that, the reference to the mortgage in the Neal deed shows that he did know of it on June 16, 1900, two years and seven months before his brother’s death, and not only knew of it, but he and his brother, for some reason, retferred to it in their joint deed to Neal. It would be difficult to find more conclusive evidence of his knowledge of the existence of the mortgage, and that too eighteen years before he filed his bill to have it declared null and void for the reasons stated. We do not know whether he drew the deed, but he must have known that the mortgage was referred to in it.

That payment of three hundred dollars becomes a very important question in the case. As we have seen, the plaintiff claims that he paid it on account of what is spoken of as “the Ann Thomas morlgage,” which on the 18th of March, 1886, he had given to John W. ITignutt, attorney in fact for Ann Thomas, to secure a loan of five hundred dollars. The defendants claim that the sum of three hundred dollars was paid on account of the mortgage now before us. The record shows that “the Ann Thomas mortgage” was released by J. W. Hignutt, attorney for Ann Thomas, on the 6th day of February, 1890 — over ten years before the three hundred dollar payment was made — and hence it could not have been paid on that mortgage.

In the opinion of the lower court it is said, “the date of the recordation of this release does not appear in the record,” but the certified copy of the mortgage and release thereon states: “The above mortgage was released on the record as of the sixth day of February, 1890,” and the release was attested by L. H. Gadd, clerk. The plaintiff testified 'that he did not know that it had been released, but if he had forgotten that, John W. Hignutt certainly knew it, and would not have credited three hundred dollars on a mortgage which had been long since released, when he held one that was unpaid. William R. Peters, one of the defendants, was asked whether he was present at a conversation in his house between ²⁹ the plaintiff and Dr. Hignutt in regard to the purchase money for a certain piece of land that had been sold to George R. Heal, and, if so, to state what was said. He answered as follows: “A. James E. Hignutt came to my house, I think in 1900.

Without referring to* the papers, I cannot just tell the date, and brought $300 and gave it to Dr. Hignutt. Dr. Hignutt, in James E. Hignutt’s presence told me to* get Jimmie’s mortgage and credit this on it. Q. Well, what did you do? A. I got the mortgage out of the little safe there was there and credited the $300* on the* mortgage* and while in there Mr. Hignutt asked Dr. Pligynutt — meaning James E. Hignutt — asked the doctor for $25 and he gave it to* him, told me to, which I did in his presence.” He also testified that he wrote a receipt for the three hundred dollars, which hei gave to* the plaintiff.

Upon production of the receipt it appears that the plaintiff, and not Mr. Peters, wrote it, but such a mistake might readily he made after the expiration of nineteen years between tbe time it was written and tbe date of the testimony. Tbe receipt was written by the plaintiff, and is as follows: “Received this thirtieth day of June, 1900, of James E. Hignutt, three hundred dollars ($300) in part payment of the principal on the mort> gage against James E. Hignutt,” and it was signed by J. W. Hignutt. There was written on the* original mortgage: “1890 June by cash $300. ETom sales of lots sold to G. R. Heal.” It is impossible for us to* agree, in the face* of this evidence, with the contention of the plaintiff that the three hundred dollars were not paid on the mortgage now being attacked.

That was the only mortgage which the plaintiff then owed Dr. Hignutt, and, as we have seen, the Ann Thomas mortgage, to which he claims to* have applied the three hundred dollars, was not then and had not been in existence for over ten years. When we remember that the plaintiff had joined with his brother in the deed to Heal which refers to the mortgage, just two weeks before tbe payment, and that said sum was received frorn Heal as the consideration for that deed, we can reach no other conclusion than that the payment ³⁰ was intended by the plaintiff and was accepted by Dr. Hignutt