Ayres v. Wattson

The opinion of the court was delivered, by Sharswood, J.

The mortgage by the appellant to the defendant, Thomas B. Wattson, was “ for the better securing the payment” of two promissory notes, drawn by George R. Ayres to his own order, to the holders thereof who were the firm of Thomas Wattson & Sons, of which the mortgagee was a member. The condition of the mortgage was, that if the said George R. Ayres should pay the said notes “ on the days they respectively mature and become due or payable,” the mortgage and the estate thereby granted should cease and determine. The answer admits that when the notes fell due, George R. Ayres requested a renewal thereof, which was acceded to, and the old notes delivered up and renewal-notes taken, and these again from time to time renewed, until the defendants became the holders of one note for $2800, dated January 10th 1861, payable in four months, being the aggregate of the sums for which the two original notes were given. It is plain that the mortgage, in law as well as in equity, was not a security for the renewal-notes. But it is alleged that the appellant is equitably estopped from setting up the claim that the mortgage is satisfied. It appears that George R. Ayres had given also to the defendants a mortgage on the bark Florida, of which they took possession, and that the appellant, who had obtained a judgment against George R. Ayres, levied on the said bark. Thereupon the defendants instituted an action of replevin against the sheriff of King’s county, New York; and on the trial of that action, the appellant being present in court, and we may assume, for the purposes of this case, the real party defending the action in the name of the sheriff, called George R. Ayres as a witness, who stated in the course of his examination that Thomas Wattson & Sons held a mortgage on a ground-rent as collateral for the note of $2800. This is relied on as an estoppel sufficient to preclude the appellant from now asserting that the mortgage was satisfied when the original notes, to secure which it was given, were delivered up and new notes taken in their places. But it is difficult to see how such a ground can be maintained. An estoppel in equity arises from some act or declaration of one party by which an injury to *364 the other party has been caused or at least attempted: Grilkeson v. Snyder, 8 W. & S. 200 ; Cook v. Grant, 16 S. & R. 198; Commonwealth v. Moltz, 10 Barr 527; Bitting & Waterman’s Appeal, 5 Harris 211. If the fact that the defendants held another existing security'for the debt of $2800 had been a defence to the action of replevin, and had been set up as such by the appellant, whether a recovery was secured by that means or not, there would be some show of reason and authority for it. It is very plain, however, that it did not affect in the least the validity of the defendant’s mortgage on the bark Florida, how many, or what other independent collateral securities for the debt secured by that mortgage they may have held at the same time. A creditor may hold an unlimited number of collaterals, and can- avail himself of any of them as long as the debt remains unpaid. In point of fact, no such question was raised or submitted to the jury, as appears by the record of the replevin suit in the Supreme Court, second judicial district for King’s county, New York, which is in evidence ; and moreover the defendants recovered a verdict in that proceeding, and the bark was valued by the jury at $14,000, which was about the amount of the debt secured by the mortgage, including the note of $2800 now in question. To hold that a party who calls a witness on the trial of a cause is estopped in equity by the statement of a fact by that witness, which is entirely immaterial to the issue joined, and which cannot and does not affect the result, would carry the doctrine of equitable estoppel to an unheard of and dangerous extreme. Even the honest mistake of the witness ought not to prejudice the party who invokes his testimony on another and material point. It would be most unjust in that case to give it effect, and we can easily perceive how dangerous such a doctrine would be in the hands of a corrupt or designing witness. Estoppels close the mouth of the party to ' allege or plead the truth; and among Lord Coke’s rules on the subject the fourth is, that a matter alleged that is neither traversable nor material, shall not estop : Co. Litt. 352, b. If this be so when the estoppel arises from pleading of record, much more is it when it is only from what transpires orally in the excitement and hurry of a jury trial. The maxim Allegans contraria non est audiendus is a valuable one, but it is not to be pressed beyond its legitimate limits. Like the ancient estoppel it shuts out the truth, is odious and must be strictly made out: Broom’s Legal Maxims 268. A party to a cause who offers a witness for the purpose of proving a particular fact, and by means of that evidence, either standing alone or linked with other testimony, attempts to defeat. a claim or defence of his adversary, may possibly be held in any subsequent proceeding against the same party to be concluded by that allegation. But evidently such is not this case. We think, *365 therefore, that the appellant was entitled to the relief which was prayed in his bill.

The decree of the court below is reversed. And now it is decreed by this court that the defendant, Thomas B. Wattson, do deliver up to the complainant, William Ayres, the indenture of mortgage mentioned in his bill, and that on payment of the costs thereof, he satisfy the same of record; and that he deliver up at the same time the ground-rent deed in the said indenture of mortgage mentioned; each party to pay his own costs.