1849. January

Washing

V.

Same

v.

When a party is ignorant because of his own culTerm. pable neglect, the same principle applies, as when he acts with full knowledge. Although ignorant, yet if ton the means of knowledge are fully within his reach, and Pollard. he fail to avail himself of them, he will be treated in the same manner as if he had full knowledge. If money be paid with a full knowledge of the facts, it cannot be Lumpkin. recovered back. Neither can it, if the party paying it have the means of knowledge within his reach, and fail to avail himself of them. 1 Leigh's N. P, 57; Elliott v. Swartwout, 10 Peters' R. 137; Martin v. Morgan, 5 Eng. C. L. R. 87; Milnes v. Duncan, 13 Eng. C. L. R. 293. The means of knowledge were fully in Robert Pollard's power-in his own office-under his eyes every day. He was culpably negligent not to avail himself of them.

Judge Roane says an equity may be lost "by length of time." The delay of Robert Pollard in asserting his equity in this case may not of itself be sufficient to defeat his equity. But, taken in connection with the "other circumstances;" his relation to J. C. Pollard, his acquaintance with his affairs, and his culpable negligence in not ascertaining the existence of his equity, and making it known to Lumpkin in time for him to secure himself, it is sufficient, and should defeat him in favor of innocent assignees for value. He does not seem to have asserted any equity until judgments were about to be rendered against him upon his bonds, more than twelve months after the date of the new bonds, and more than three years and four months after the execution of the original bond. In the meantime, J. C. Pollard died insolvent, and the remedy of the assignees is gone. Nor will he be permitted to say that J. C. Pollard was not solvent at the date of the new bonds. He himself offered him as good security.

No doubt he thought him good, and was willing at that time to look to him to exonerate the land, by dis

charging the mortgage debt. Equity will not relieve him at the expense of innocent assignees, with the law in their favour.

1849. Janu ary Term.

Washing

ton

V.

Pollard.

Same

V.

To affect the assignees of this bond with any equity R. Pollard may have had against the obligee, such equity must be made to appear clearly and manifestly, he having promised payment to Lumpkin. Mayo v. Giles's adm'r, 1 Munf. 533. R. Pollard has not made Lumpkin. his equity appear clearly and manifestly. If he had notice of the mortgage when he gave the new bonds, then he had no equity. Hoomes v. Smock, 1 Wash. 389. If he had the means of knowledge within his power, and failed to avail himself of them, he has no equity. 1 Leigh's N. P. 57; Elliott v. Swartwout, 10 Peters' R. 137; Martin v. Morgan, 5 Eng. C. L. R. 87; Milnes v. Duncan, 13 Eng. C. L. R. 293. To say the least, it is a question of great doubt whether he had notice of the mortgage or not. It is quite certain he had the means of knowledge fully within his power and neglected to avail himself of them. But even conceding his ignorance, without fault, still, unless he was compelled to liquidate the mortgage debt, he has no equity. If J. C. Pollard's estate was sufficient to extinguish the mortgage debt, or if it did actually pay it then his equity is gone. Upon this point the proof is deficient. It is not clear and manifest and J. C. Pollard's estate was insufficient, nor indeed that it need not pay the debt. Evidence of its general insolvency, (even if there were such evidence,) of its inability to pay all his debts, is no evidence of its inability to pay a specialty debt secured by specific lien. But there is no evidence even of a general insolvency of J. C. Pollard's estate. Robert Pollard, then, has utterly failed to make his equity clear and manifest.

If vendee of land pay money to assignee upon his bond for the purchase money, he cannot recover it back in equity. What vendee pays voluntarily, assignee has

1849. January Term.

Washing

v.

Same

Lumpkin.

a right to retain. Crawford v. M'Daniel, 1 Rob. R. 448; opinion Allen, J., other Judges concurring, p. 455, 6. In this case R. Pollard has paid the bond given ton for the purchase money. He has given new bonds, with Pollard. security, upon a new and valuable consideration, and taken in and cancelled the old bond. This amounts to payment in law. If debtor give to his creditor in payment of a precedent debt, either his own note, or that of a third person, and it be given and received as payment, it is absolute payment, and the original contract extinguished. Tobey v. Barber, 5 Johns. R. 68; Johnson v. Weed, 9 Johns. R. 310; Sheehy v. Mandeville, 6 Cranch's R. 253, 264. Nor does it make any difference that the precedent debt is evidenced by a contract of the same dignity as the note received in payment. Tobey v. Barber, 5 Johns. R. 68; Burdick v. Green, 15 Johns. R. 247. If it were expressly agreed that the new bonds should be payment of the original one, then they were payment. Such agreement is conclusively shewn by the surrender and cancellation of the old bond. It was taken in-extinguished-paid, by the agreement of both parties. When the giving of a note is not payment, the original contract may be sued when at law. The original bond can never be sued upon. Its vitality is gone.

If Robert Pollard intended to waive his equity when he gave the new bonds, he cannot now assert it. Such intention may be presumed from the acts of the parties. Norton v. Rose, 2 Wash. 233. If he knew of the mortgage, he must also have known that giving the new bonds was a waiver of his equity. He will be presumed to have intended to waive it. For a man will always be presumed to intend the legal consequences of his act. If facts be shewn to justify the presumption that he had knowledge of the mortgage, they will fully sustain the presumption of his intention to waive his equity. Such facts exist in the case. They have been

1849. January Term.

Washing

ton

already adverted to. In addition, it may be said, that when he gave the new bonds, he considered his brother J. C. Pollard, the mortgagor, perfectly solvent-he offered him as good security for 1000 dollars-the mortgage debt had been reduced to 1256 dollars 40 cents, Pollard. with two years' interest, and it may very reasonably be presumed, that he was perfectly willing to rely upon J. C. Pollard to discharge the mortgage debt, and exone- Lumpkin.

rate the land from the incumbrance.

But we submit, that R. Pollard has entirely failed to prove any equity. Washington's answer called for proof of the allegations of the bills. None is offered, of the subsistence at the time of the decree of any incumbrance upon the land. Non constat, but that the mortgage debt had been paid by J. C. Pollard's adm'r. It certainly does not appear that R. Pollard ever paid the mortgage debt, nor that the land was ever sold to satisfy it. The presumption is altogether adverse to any such supposition. R. Pollard in his bill refers to the proceedings in the suit to foreclose the mortgage, and Lumpkin refers to them as an exhibit with his bill, and yet no record or other evidence of those proceedings appear any where in this record. This omission is not a little remarkable. And in the absence of all proof that R. Pollard was compelled to pay the mortgage debt, or that the land was sold to pay it, or that proceedings had been instituted to foreclose the mortgage, or that the mortgage debt was outstanding and unpaid at the time of the decree, we insist that he had no equity. For want of such proof at the hearing, both bills should have been dismissed. This view shews the inapplicability of Stockton v. Cook, 3 Munf. 68, to this case.

of

Daniel for Lumpkin.

Lumpkin being an assignee for value without notice any equity against the bond, is entitled to have his

2.

Same

V.

1849. January

Term.

V.

money from somebody. And first as to the liability of Robert Pollard. It is said he knew nothing of the incumbrance on the land for which the bond was given Washington when it was executed. As to this, it would not be difPollard. ficult to shew that he had notice at least when the new bond was given. But it is further insisted, that he is not liable, though he had notice. This is a proposition Lumpkin. which it would be difficult to maintain. Certainly it is not sustained by the case of Stockton v. Cook. In that case the deed to the purchaser contained a warranty against fraud and incumbrances; and the assignee had notice before he took the bond.

Same

V.

If Pollard had notice when he gave the new bond, and Lumpkin had no notice, how can it be maintained that Pollard is not bound to pay it? Then did not Pollard have notice at that time? His bill says he was ignorant of the incumbrance at the time he purchased the land. The bill goes no further, and we must presume he goes as far in his denial of notice as he could go with truth: qui tacet clamat. Again: in Lumpkin's cross bill he called upon Robert Pollard to answer; and yet he is silent, and allows the bill to be taken for confessed. But still further: the person giving the mortgage, John Camm Pollard, was his brother, and they were obviously intimate and confidential relations, and he was the clerk who took the acknowledgment of the mortgage, and it was recorded in his office. These facts lead, in the language of one of the cases cited by Mr. Robinson, to the irresistible conclusion that Robert Pollard knew of the existence of the mortgage. On the other hand, there is not one iota of evidence that Lumpkin knew of its existence; nor is there a fact from which a rational inference of such knowledge can be drawn. Can Robert Pollard, then, come into a Court of Equity, and insist that both these bonds are void in the hands of Lumpkin, who he has induced to indulge him?