Gregg v. Thurber

45 A. 241, 69 N.H. 480

• Court: Supreme Court of New Hampshire
• Decided: December 5, 1898
• Status: Published

Opinion

Blodgett, C. J.

The defendant’s contention, that equity has not jurisdiction of the plaintiff’s petition because he “ has a full, complete, and adequate remedy at law,” requires but a passing consideration. Not only is it the general rule that “ the remedy at law, in order to exclude a concurrent remedy at equity, must be as complete, as practical, and as efficient to the ends of justice and its prompt administration, as the remedy in equity” (Walla Walla v. Water Co., 172 U. S. 1, 12; Tyler v. Savage, 143 U. S. 79, 95), but, in addition, it is now the rule in this state that a bill in equity may be maintained where it is a reasonably necessary process and convenient procedure for speedily and economically establishing the plaintiff’s rights. Tasker v. Lord, 64 N. H. 279. Irrespective, therefore, of the question whether the plaintiff has a legal remedy as practical and as efficient to the ends of justice and its prompt administration as the equitable remedy (although we think it is apparent he has not), it would seem to be entirely plain that his petition as to the distribution of property which is now in the custody and subject to the order of the court, and upon a portion of which he claims a lien by reason of the alleged fraudulent conduct of the Trust Company, comes within the New Hampshire rule.

But while equity has jurisdiction, no case is made entitling the plaintiff to relief. The reported facts obviously afford no ground for a decree that the receiver pay him either the full amount of his mortgage, or the outstanding prior mortgages which are the property of third parties. Sargent made no representations whatever as to the plaintiff’s mortgage. He had no knowledge or information in regard to it which the plaintiff did not have. Both in good faith supposed it to be a first lien, as it purported to be. In no way was the plaintiff misled or deceived by Sargent or any other representative of the company. The sale was made entirely on the face of the papers, which the plaintiff examined, and upon nothing else.

But this is not all. The public records showing the existence of the prior mortgages were open to examination, and the plain tiff must be deemed to have had constructive notice of them. Tripe v. Marcy, 39 N. H. 439, 448; Hunt v. Johnson, 19 N. Y. 279; 2 Pom. Eq. Jur., s. 649.

Nor is this all, for while the abstract of title was missing from the papers at the time of the plaintiff’s purchase, and to his-knowledge, he nevertheless made no investigation as to the= standing of the mortgage until September, 1896, and did not even procure a formal assignment of it or have the assignment recorded until July of the following year. This unexplained failure on his part for nearly two years to ascertain the state of" his title,, and for a still longer period to give notice of it upon the record for the protection of others who might have an interest in the property, proves not wrongdoing or fraud on the part of the company,, but gross inattention and carelessness on his own part. He cannot at this late day invoke his own negligence to impeach the transaction, and then call that negligence-the company’s fraud. If he did not intend to assume the risk of the title, it was his plain duty seasonably to investigate and-ascertain how it stood; and if upon its ascertainment he should deem himself to have been deceived and defrauded, an adequate legal remedy awaited him. His failure to do the one or resort to the other, or in any way to treat the sale as void and the company’s possession of the proceeds as tortious until years had elapsed and the company had become insolvent, constitute such laches on his part as to disentitle him to the redress for which his petition asks, and renders the maxim caveat emptor justly applicable. In any equitable view, he can, at most, be preferred; only to the extent of the $1,760 which the company received from the foreclosure of the $1,265 mortgage, and which went-into their general assets.

But it cannot now be held that the plaintiff is entitled to any preference whatsoever, because, there is no finding, nor. does it in-any way appear, that he has been damaged. On the other hand, there is evidence tending to show that he has not been damaged, because it not only appears that the land embraced in his mortgage was of the appraised value of $9,000 when the mortgage-was given, but because one third of it has since been sold for-$2,250. Both of these facts tend to show that the remainder of the land is of sufficient value to pay all the outstanding mortgages upon it, which amount to some $5,500; and if it is, the-plaintiff is of course remediless in equity. Suppose, however,, that it is not sufficient,— as between him and the general creditors of the company, who are the real defendants, equity manifestly requires that he should first exhaust his mortgage security.

Exception overruled..

All concurred.