Hunt v. Haven

52 N.H. 162

• Court: Supreme Court of New Hampshire
• Decided: July 15, 1872
• Status: Published

Opinion

Sargent, J.

It is said, in 1 Ch. Pl. 226, that the rule relating to duplicity in pleading “ precludes the parties, as well the plaintiff as the defendant, in each of their pleadings, from stating or relying upon more than one matter, constituting a sufficient ground' of action in respect to the same demand, or a sufficient defence to the same claim, or an adequate answer to the precedent pleading of the opponent.”

But he adds, on page 227, that “ it is important to remember that several distinct facts or allegations, however numerous, may be comprised in the same plea or other pleading, without amounting to the fault of duplicity, if one fact or some of the facts be but dependent upon, or be mere inducement or introduction to the. others, or if the different facts form together but one connected proposition, or entire matter or point.” “ If a man pleads two things, where he is compellable to show both, this does not make his plea double.” 4 Bac. Abr. Pleading, K. 2, p. 221. Duplicity in a plea consists in alleging two or more distinct grounds of defence where one of them would be as effectual in law as all of them. And in subsequent pleadings, in stating two or more matters in answer to the preceding plea, where one of them would be sufficient. Gould’s Pleading 419. But a single ground of defence is not necessarily confined to a single fact, since several connected facts may be, and very often are, necessary to constitute one single and complete answer to the action. And the same remark is true of the subsequent pleadings. If several facts are necessary to constitute one single and complete answer to the case made by the previous pleading, the replication or rejoinder is not double. Tibbets v. Tilton, 24 N. H. 120, 122, 123, and cases cited; Galusha v. Cobleigh, 13 N. H. 83; Watriss v. Pierce, 36 N. H. 232; Russell v. Rogers, 15 Wend. 353.

In this case the plea is, that Joshua Woodward mortgaged the Samuel Ladd farm to Joseph Bell before the deed to James Woodward, and that this fact has been settled by the former judgment, and that this plaintiff is bound and concluded by that judgment because he has no title except one derived from said Joshua Woodward through James Woodward, and that he had notice of said former judgment.

The replication to that plea is, that Joshua Woodward did not mortgage said Samuel Ladd farm to Joseph Bell, and that however that fact may have been decided in the former judgment, yet such judgment does not bind or conclude this plaintiff, because he had no notice of such judgment. Now the mortgage to Bell was prior to the mortgage from James Woodward to this plaintiff, or to Spaulding, his grantor; and, therefore, to deny notice of the former judgment alone would be no answer to the plea, because, if the land was first mortgaged to Bell, and the title of this plaintiff was subsequent to that mortgage and of the same land contained in that mortgage, he could only hold subject to that mortgage, whether or not he had notice of the judgment. The plaintiff must deny notice of that suit and judgment in order to be at liberty to set up the fact that the land was not included in the Bell mortgage. He must necessarily set up both these facts in order to make a perfect answer to the defendants’ plea. They are separate and distinct facts, but both together must be alleged to meet the case stated by the defendants, — which does not constitute duplicity.

The second replication stands on the same ground. It denies notice of the judgment in suit Bell v. Woodward, and then alleges that though Joshua Woodward may have mortgaged the premises to Bell before the deed to James Woodward, under whom the plaintiff claims, yet that Joshua., when he mortgaged to Bell, held the farm subject to a resulting trust to James Woodward, who paid the money for the same, and that' Bell, when he took his mortgage, had notice of that resulting trust. These facts are all necessary to be stated in order to make out the case which the plaintiff sets up to meet the defendants’ plea; and although several facts are necessary to make out the plaintiff’s answer to the plea on this ground, we do not see how he could make a perfect answer to it and leave any of them out. The demurrers to the plaintiff’s first and second replications to the defendants’ second pleá are therefore overruled.

Neither Spaulding nor this plaintiff was made a party to the original bill in equity (Bell v. Woodward), as it would seem they might have been; neither was either of them ever cited in as a party after the entry of the bill, as they might have been; nor did either of them obtain leave to come in, in any capacity ; nor did Spaulding or the plaintiff ever employ counsel to appear, and none ever did appear, for them in the case. The offer of the defendants is to prove that they, Spaulding and the plaintiff, assisted Woodward in making his defence in that case, and employed and paid counsel for said Woodward ; but we think that would not make Spaulding or the plaintiff a party to the suit in any such way as to bind or conclude them by the judgment. They were in no sense parties to the suit. Goodall v. Marshall, 14 N. H. 161; Chamberlain v. Carlisle, 26 N. H. 551; Hayward v. Bath, 38 N. H. 183.

The term parties includes all persons who are directly interested in the subject-matter in issue, who have a right to make defence, control the proceedings, or appeal from the judgment. Strangers are persons who do not possess these rights. Duchess of Kingston's ease, 20 How. State Tr. 538, note; 3 Bouvier’s Inst. 373. Parties are not only bound by a judgment, but all persons who are represented by the parties, and claim under them or are privy to them, are equally concluded by the same proceedings. 4 Bouv. Inst. 173. By privity is meant the mutual or successive relationship to the rights of property; and there are privies in estate, privies in blood, and privies in law; and the reason why persons standing in this relation to the litigating party are bound by proceedings to which he is a party is, that they are identified with him in interest; and wherever this identity exists, all are alike concluded. Privies are therefore estopped from litigating that which is conclusive upon him with whom they are in privity, The rule with regard to privies is, that its operation be mutual upon both parties : both litigants must be concluded, or the proceedings cannot be set up as conclusive for either. Bouv. Inst. 374.

There must be a privity in or to the judgment between the party to the suit and the other person, in order to constitute him a privy. But what privity was there between Joseph Bell, or his executors, and this plaintiff, in the suit which Bell brought to foreclose his mortgage ? To be sure, they both derive title, or claim to do so, originally from the same person, Joshua Woodward, but not by the same deed or at the same time. Woodward and the plaintiff have no more privity of estate than Bell and the plaintiff have. Both Bell and the plaintiff hold whatever rights their grantor had, at the date of the deed to each, to the land conveyed to each. The grantor may have had very different rights in the same land at the dates of the different deeds. He may have had a good title to the land conveyed at one time, and no title to the same land at the date of the other. There is no privity, that we can see, between this plaintiff, or Spaulding, and either of the parties to the former suit, either Bell or Woodward.

There might be collusion between Woodward and Bell in their suit, and Woodward might become defaulted, or might fail to put in a defence which he had it in his power to make, or make unwarranted admissions, and Bell might thus get possession of the mortgaged premises ; and when this plaintiff came to bring his suit he should not be bound by Bell’s judgment, to which he was no party, but might contest Bell’s title upon any ground, and, among others, on. the ground that Joshua Woodward had no title to the property when he gave Bell his mortgage, but that the same belonged to James Woodward, who had good right to convey, and that he did afterwards convey good title to Spaulding.

Bell, J., in Dickinson v. Lovell, 35 N. H. 16, says,—“ A privy in estate is any person who must necessarily derive his title to the property in question from a party bound by a judgment, &c., subsequently to such judgment.” That is, to constitute any person a privy in estate to any judgment, such person must necessarily derive his title to the property in question subsequent to such judgment, and from some party who is bound by such judgment. Judged by this rule, neither the plaintiff, nor his grantor Spaulding, was privy to this judgment. Their title to the land in controversy was derived long before the commencement of the suit in which the judgment was rendered.

And we think the authorities, go clearly to this extent. In Flanders v. Davis, 19 N. H. 139, 149, it is said “ the witness, Morse, was incorrectly excluded. Bradish, under whom he claimed, took his deed from the tenant before the commencement of the suit. The judgment for the plaintiff', then, would be inoperative as to him, for he would not be privy to it. The tenant might have disclaimed that part. This witness might still litigate this question with the demandant. Had he claimed by a title subsequent to the suit, he would .be bound, for he would take subject to the contingency that the title on which his own rested might be defeated; and if it should be, his own title would be affected, of course.”

“ It is a general principle, that transactions between A and B, whether in or out of court, shall not have such an effect as will take away the previously acquired rights of third persons.” Taylor v. Ranney, 4 Hill 621.

“ But although a verdict and judgment for a party is evidence for one claiming in privity with him, this must be understood of a claim acquired subsequently to the verdict.” Stark. Ev., 9th ed., *328.

A mortgagee is not estopped by a judgment between his mortgagor and a prior mortgagee, in a suit commenced after the execution of his mortgage—Campbell v. Hall, 16 N. Y. 575; nor by a decree of foreclosure in such a suit—Haines v. Beach, 3 Johns. Ch. 459; 4 Kent’s Com. 185.

The subject of privies and estoppel is discussed in 2 Smith’s Leading Cases 437, *442, *443, and the cases are cited and commented on, and the above views are fully sustained; — also, in 2 Leading Cases in Equity, 3d Am. ed., 175, and cases cited.

In some cases, third persons, standing in particular relations to the parties, have been held to become privies to the judgment by a notice in pais not appearing on the record of the proceedings: as, where a vendor with warranty has received explicit notice to defend an ejectment under .which his vendee is evicted, he was held estopped, in a subsequent suit on the warranty, from denying that such eviction took place by title paramount. Collingwood v. Irwin, 3 Watts 311; Paul v. Witman, 3 Watts & Serg. 409. And although it may be doubted whether to produce this effect a rule of court should not have been required,-yet the danger from that informality in practice has been diminished by holding that mere knowledge- or information that the suit exists will not produce an estoppel, even if derived from the vendee, and that, in order to conclude the vendor, a formal requisition for his appearance as defendant must be clearly established. Kelly v. The Church, 2 Hill 115.

But it is claimed that in this case the plaintiff or Spaulding must be held to have purchased with notice of Bell’s claim upon the land; and there are some authorities who hold that a person who purchases pendente lite takes with notice of the claim in litigation ; and that such notice need not be given in any particular form, but that it is enough if the suit is entered in court to operate as notice of record in the same way that a deed recorded is notice to every one of its existence and its contents. Whether there is any good ground for that theory or not, there cannot be any doubt that in this ca’se there was such notice to Spaulding of the pendency of the suit Bell v. Woodward, as to charge him with knowledge of Bell’s claim, provided he took his mortgage after that suit was commenced.

But that was not so. The bill in which Bell’s claim is established as against Woodward was not commenced until 1859, some nine years after the date of Spaulding’s mortgage. But it is said that there was a former suit brought by Bell against Woodward, which involved the same subject-matter, and in which the same claim was made by Bell to this land ; and that the former suit was a part of the same litigation, and was sufficient as notice to Spaulding of Bell’s claim to this land.

But this case finds that the Spaulding mortgage bears date in 1850 : the particular date is not given. The first suit of Bell v. Woodward was entered at the April term, 1851, and the writ was dated March 17, 1851 (see case in Bell v. Woodward, 47 N. H. 539); so that it seems that Spaulding’s deed was before the date of the writ in the first suit of Bell v. Woodward, and therefore he could xxot be charged with notice of any claim made in that suit.

But suppose the fact were otherwise, and that that first suit had been brought before Spaulding’s deed was dated: that suit was terminated adversely to the plaintiffs’ claim in 1856, July term, and the plaintiffs were ordered to becoxne nonsuit. (See Bell v. Woodward, 34 N. H. 90, 102.) And after that, it seems no further proceedings wex’e had by Bell or his representatives for some three years, or until 1859. We tlxinlc that upon these facts it could not be held that Spaulding was chargeable with notice of anything contained in the last bill, in Bell v. Woodward. All the notice he could have had was of Bell’s claim in 1851. But that case was terminated against Bell after a litigation of five years; and then the parties rested upon their arms for three years more, before any further warlike demonstrations were made. Spaulding may well have understood, after that lapse of time, that his title was secure and undisputed, even though he had notice of Bell’s claim in the first suit. But, his deed being dated in 1850, he had no such notice.

Every species of notice is ineffectual as a restraint on existing rights, and can only operate on those rights which are subsequently acquired. But the institution of a suit for the recovery of a specific property or demand is notice only to those who acquire an interest in the subject-matter in controversy after the suit is instituted, and by purchase or grant from the parties or privies. French v. Loyal Co., 5 Leigh. (Va.) 627; Stuyvesant v. Hone, 1 Sandford’s Ch. 419; Stuyvesant v. Hall, 2 Barb. Ch. 151; White v. Carpenter, 2 Paige 217; and Parks v. Jackson, 11 Wend. 442, where it was held by the court of errors that the institution of a suit was not notice to a prior purchaser, who had gone into possession and made expenditures on the faith of the purchase, although his deed was not in fact executed until after the institution of the suit. Trimble v. Boothby, 14 Ohio 109; Gibler v. Trimble, id. 323.

It results, moreover, from the definition of notice by lis pendens, that it cannot continue after a final decree or judgment, which puts an end to the pendency of the suit which constitutes the notice. Pierce v. White, 1 Bailey Eq. 234; Blake v. Hayward, id. 208.

A purchaser, consequently, cannot be charged in one proceeding on the ground that he bought during the pendency of another, even when both are founded on the same equity; though it was held that it would be otherwise if the original suit abated by the death of the party, and is duly revived and prosecuted by the executor or administrator, because then it is considered as the same suit or proceeding. Newman v. Chapman, 2 Randolph (Va.) 102; French v. Loyal Co., 5 Leigh. 721,—in the last of which cases it is said that “ a lis pendens is not notice; and even if it were notice, it could operate merely as to those who were purchasers, pendente lite, from a party to the suit.” And Chancellor Kent says, in Murray v. Ballou, 1 Johns. Ch. 566, 576,—“ The established rule is, that a lis pendens, duly prosecuted, and not collusive, is notice to a purchaser so as to affect and bind his interest by the decree ; and the lis pendens begins from the service of the subpoena after the bill is filed.”

This plaintiff had no such notice of even the first suit between Bell v. Woodward; and we think that, if he had,-it would be unreasonable to charge him with notice in this suit, which was not begun for some three years after the former suit was terminated adversely to the plaintiff in that case. Watson v. Wilson, 2 Dana 406; Debell v. Foxworthy, 9 B. Mon. 228.

The plea is bad in attempting to set up the plaintiff’s title for him : it is a matter of substance, and might have been demurred to upon that ground. But as it is not demurred to, but the plaintiff replies other matters of substance, which make a good case for the plaintiff if made out, and the demurrer to these replications is special, assigning only the cause of duplicity, it is claimed that the defect in the plea is cured or waived. But that is quite like the case of Leslie v. Harlow, 18 N. H. 518, where the declaration was bad upon demurrer, but no demurrer was filed. A plea was filed, which attempted to answer the declaration, and to defend, and to this plea there was a special demurrer; and although the plea was clearly bad, yet the court gave judgment for the defendant because the plaintiff’s declaration was bad, although it had not been demurred to, — Parker, O. J., saying that this case well exemplifies the rule that the court will look to the first fault, and decides that there must be judgment in favor of the defendants on the plaintiffs’ demurrer to the plea, notwithstanding the demurrer was well taken, and because the declaration was bad. A stronger case could not well be stated, and the doctrine of that case would seem to apply to and control this case. Whittemore v. Shaw, 8 N. H. 393; Potter v. Baker, 19 N. H. 166; Claggett v. Simes, 31 N. H. 22. Case discharged.