
    Beers against Broome.
    An error apparent on the record cannot be taken advantage of, on a motion for a new trial.
    
      Fairfield,
    June, 1822.
    Where land was mortgaged to A. and B., by separate deeds, executed, delivered and recorded, on the same day; and the question was, whether the delivery of A.'s deed was not prior to the delivery of B.'s; it was held, that a writing signed by A., while in possession under his deed, declaring that there was to be no priority, was a mere admission by him, and was subject, like a parol declaration, to be explained or contradicted.
    The grantor of separate deeds to A. and B., before they were signed or acknowledged, informed D., that as soon as they were completed, he should send them to him by P., and directed D., on receiving them, to carry them to the town-clerk, and deliver the deed to A. for record five minutes before the deed to B., as he intended A.'s deed should take effect first. P. brought the deeds to D., and repeated to him the instructions previously given by the grantor. D. carried and delivered them, pursuant to such instructions, to the town-clerk; who entered on the back of A.'s deed, “Recorded, February 3d. 2 o'clock, and 5 minutes, P. M.;" and on the back of B.'s-“Recorded, February 3d, 2 o'clock and 10 minutes, P. M." Held, that D., in this transaction, was the agent of the grantor, and acted according to the authority delegated; that the acts of D., in delivering the deeds, and giving the directions to the town-clerk, were of the same legal effect, as if done by the grantor personally; and that, consequently, the delivery of these deeds took place, when they were received by the town-clerk, and not before.
    In such case, evidence that P. repeated the instructions of the grantor to D., having been received; it was held, that although the fact proved, had no positive efficacy in the delegation of authority; and the evidence itself was incompetent; yet as it did not detract from the power previously given, the admission of such evidence furnished no ground for granting a new trial. The entries of the town-clerk on the back of the deed, were admissible, to confirm the recollection, and corroborate the testimony, of a witness, adduced to prove the delivery.
    On a bill for foreclosure, the plaintiff’s grantor, who had conveyed the premises to a third person, with covenants of seisin and warranty, was held to be a competent witness to support the plaintiff’s title; as a decree in chancery taking away an equity of redemption, can be no evidence, in a court of law, and between other parties, of a breach of covenant.
    
      A decree of foreclosure cannot affect the liability of a person, not a party to the bill, for rents and profits, depending on a question of legal title.
    This was a bill in chancery to foreclose the equity of redemption in mortgaged premises.
    The principal facts stated in the bill, and found by the court, were the following. On the 3rd of February, 1812, Isaac Hawley mortgaged the premises to Truman Minor, to secure the payment of six promissory notes, amounting to 3.143 dollars. Afterwards, on the same day, he mortgaged the same lands to William Wright, to secure the payment of two notes, amounting to 5,500 dollars. Minor and Wright, respectively, obtained decrees of the superior court, passed in February, 1813, foreclosing Hawley of his equity of redemption in the premises. On the 22d of June, 1814, Minor, being in possession, mortgaged the premises, by a deed containing the usual covenants of seisin and warranty, to the plaintiff and Philo Booth, to secure the payment of two notes, payable to the plaintiff, for 1812 dollars, 32 cents, and of two notes, payable to Booth, for 719 dollars, 47 cents. On the 6th of May, 1815, Minor again mortgaged the premises, by a similar deed, to Elijah Terrill and Isaac Babbit, to secure the payment of one note, payable to Terrill, for 350 dollars, and one note, payable to Babbit, for 478 dollars, 33 cents. On most of these notes suits have been brought, and judgments recovered; but they remain wholly unpaid, otherwise than by foreclosure.
    In December, 1819, the plaintiff and Booth obtained a decree of foreclosure against Wright, Terrill and Babbit and Minor, limiting the time for Wright to redeem to the second Monday of July, 1820; for Babbit and Terrill, to the first Monday of September, 1820; and for Minor to the first Monday of November, 1820; who all failed to make payment according to the decree, and the foreclosure became absolute against them.
    On the 11th of September, 1820, Booth released his right and title in the premises, and assigned his collateral securities to the plaintiff.
    By a deed of release, dated the 10th of June, 1815, and recorded the 26th of July, 1815, Wright mortgaged the premises to the defendant, to secure the sum of 1014 dollars, 56 cents; a fact recently discovered by the plaintiff.
    The premises were stated to be of the value of 3000 dollars, and no more.
    On the hearing of the cause, before Brainard, J., at Danbury, September term, 1821, it was proved, and found by the court, that Minor, on the 30th of June, 1812, made and delivered to Wright a writing, in the following words: “Whereas I received a mortgage deed of Isaac Hawley of certain lands and buildings therein described, dated the 3rd day of February, 1812; and William Wright holds a mortgage deed, given and executed by said Hawley, of the same lands and buildings, dated the same time and place as mentioned in my said deed; and whereas my said deed was, by mistake, or mis-direction of the bearer of the same to the recorder, entered for record five minutes before the said William's deed aforesaid; therefore, this may certify, that there is to be no priority between the said two deeds, but they are to be considered as both standing on the same ground, and of equal dates, and no priority of date or claim in any respect. As witness my hand,
    
      Truman Minor.”
    
      "Brookfield, June 30th, 1812.”
    To rebut this writing, the court admitted parol testimony, and found the fact therein stated, not true.
    It was further proved, and found by the court, that the defendant, after obtaining judgment against Wright, and before taking the mortgage, applied, by his agent, to the plaintiff, and enquired of him, whether Minor's deed was entitled to priority over that to Wright; and that the plaintiff, having full knowledge of such judgment, then informed such agent, that the deeds were delivered at the same time, and that Minor's deed was entitled to no priority, and that Minor had given a writing to that effect; whereupon the defendant took his mortgage from Wright on the premises, for the security of his judgment, Wright being a bankrupt, and having no other property by which the debt could be secured.
    It was admitted, that the deed to Minor, and that to Wright, were received for record on the same day, and in a reasonable time. The defendant claimed, that there was a simultaneous delivery of them at Brookfield. The plaintiff claimed, that the deed to Minor was delivered before the deed to Wright, and was entitled to priority; to prove which, he offered, with other evidence, the following entries on the back of the deeds, by the town-clerk, viz. on Minor's deed-“Recorded, February 3rd, two o'clock and five minutes, afternoon, 1812;" and on Wright's deed-“Recorded, February 3rd, two o'clock and ten minutes, afternoon, 1812.” To the admission of these entries, for the purpose stated, the defendant objected; but the court admitted them.
    In further proof, that the deed to Minor was delivered before the deed to Wright, the plaintiff offered as a witness Cyrus Dunning, who testified, that Hawley, while engaged, with his counsel, on the night of his failure, in making out conveyances of his property, told Dunning, who lived with him, as a hired man, that he was making mortgage deeds to Wright and Minor; and wished him to carry them, when completed, to record in New-Milford, and there deliver them; that he might first go to a place specified, about two or three miles distant, and that as soon as the deeds were completed, he would send them to him, by one Newton Platt; that he must deliver, at the town-clerk’s office, the deed to Minor, five minutes before that to Wright, as he intended Minor’s should take effect first; that the witness received the deeds from the messenger, who repeated Hawley's instructions with regard to the delivery of them: and that the witness went forthwith to New-Milford records, and delivered the deeds pursuant to such instructions, when the entries of the town-clerk, before mentioned, were made thereon. To the admission of this evidence the defendant objected; but the court admitted it.
    In the further progress of the hearing, the plaintiff offered Minor as a witness; to whose competency the defendant objected, on account of the writing, above recited, which he gave to Wright; on account of the mortgage deed, which he gave to the plaintiff and Booth; and on account of the mortgage deed, which he gave to Terrill and Babbit; both of which mortgage deeds contained the usual covenants of seisin and warranty; and on account of the rents and profits of the lands, which Minor had received, while in possession of the mortgaged premises. The plaintiff offered evidence to shew that Minor, had been released, by him, from all liability on his covenants, and from all claims and demands; and that he had assigned to the plaintiff all his right in the mortgaged premises, and the debt to secure which the mortgage was given. The court overruled the objection of the defendant, and admitted Minor as a witness.
    The court found the sum of 5,082 dollars, 81 cents, due to the plaintiff, and passed a decree of foreclosure against the defendant; who moved for a rehearing, on the ground that the court, in deciding upon the points above stated, and in passing the decree, had mistaken the law.
    N. Smith and Staples, in support of the motion,
    contended, 1. That the plaintiff was not entitled to relief, because the defendant was induced to take his mortgage from Wright, upon the representation of the plaintiff, that the deeds were delivered simultaneously. If this representation was true, the plaintiff has no equity. If it was, false it was a fraud upon the defendant, which will forever preclude the plaintiff, as against the defendant, from deriving any benefit from the priority of his deed. A mere concealment of facts, is, in equity, sufficient to postpone a security. Hunsden v. Cheney, 2 Vern. 150. Raw & ux. v. Pole, 2 Vern. 239. Bac. Abr. tit. Fraud B. 13 Vin. Abr. 535. Burrows v. Lock, 10 Ves. jun. 470. If the plaintiff was mistaken, and made the representation innocently; yet as he thereby induced the defendant to take security on an unsound title, he must himself sustain the loss. Hobbs v. Norton, 1 Vern. 136. S. C. 1 Eq. Ca. Abr. 356. Teasdale v. Teasdale, 2 Eq. Ca. Abr. 391. Pearson v. Morgan, 2 Bro. Ch. Rep. 384. 389.
    2. That the writing given by Minor, while in possession, dated the 30th of June, 1812, acknowledging that there was no priority, was binding upon the lands charged. 5 Bac. Abr. 48, 9. (Gwil. ed.) The plaintiff could take no more than Minor had.
    3. That the town-clerk’s entries on the back of the deeds were improperly admitted as evidence of priority of delivery. The presentment of the deeds, at the town-clerk’s office, for record, had no bearing upon the delivery of them as deeds. Priority of recod is not, of itself, evidence of priority of delivery. Beers & al. v. Hawley & al. 2 Conn. Rep. 467.
    4. That the declarations of Hawley, made previous to the delivery of the deeds, were inadmissible. The res gesta was the delivery of the deeds. But these declarations, previously made, constituted no part of the delivery. Barrett & ux. v. French, 1 Conn. Rep. 354. 365. Beach v. Catlin, 4 Day 284.
    5. That the testimony of Dunning, as to what Newton Platt said to him, was mere hearsay, and as such ought to have been rejected.
    6. That Minor was an incompetent witness. First, by reason of the covenants in his deed to Terrill and Babbit. If the defendant prevails, Minor will be liable to Terrill and Babbit on the covenants in his deed; but if the defendant is defeated, Minor will be saved harmless on those covenants; for this decree will be evidence against him, on a writ of ejectment. Secondly, Minor was interested, by reason of the rents and profits, which he had received, and was accountable for. Thirdly, Minor had a direct interest to swell the debt due from Hawley, as that was the amount for the defendant to pay, and all beyond the plaintiff’s debt against him went to pay his debt due to Terrill and Babbit.
    
    7. That Minor was estopped, under the circumstances of this case, from swearing in opposition to the terms of the writing, which he had given.
    
      
      Daggett and Sherman, contra,
    contended, 1. That the plaintiff’s representation to the agent of the defendant, as to the simultaneous delivery of the deeds, did not preclude him from relief. The defendant was placed in no worse situation in consequence of that representation. His judgment was not given up, or discharged; nor was the execution stopped or delayed. He did not lay out any money, or forego any security, in consideration of taking the mortgage. In all the cases, in which a prior security has been postponed, on account of concealment or misrepresentation, the other party had, in consequence of it, contracted marriage, advanced money, or been in some way injured. But the defendant did not expect to gain any thing, by the enquiry; and he has lost nothing, by the answer.
    2. That the writing given by Minor, furnished no ground for setting aside the decree. This was a mere declaration-an assertion of a fact-by a third person. Beers & al. v. Hawley & al. 2 Conn. Rep. 467. But if it were otherwise, an innocent purchaser, without notice, could not be affected by it.
    3. That the entries on the back of the deeds, in connexion with the other evidence, were relevant and proper to prove priority. In the first place, it appears from all the evidence, that there was no delivery of the deeds, until they were deposited with the town-clerk. There was clearly no delivery of them, before they came into Dunning's hands. His instructions were to carry them to New-Milford, and “there deliver them.” It was there, that they took effect as deeds. But secondly, these entries, aside from other evidence, were admissible. There is no precise rule, determining the manner in which the delivery of a deed shall be proved. Prima facie, priority of entry in the town-clerk’s office, is evidence of priority of delivery. It is generally true, that the deed first recorded shall prevail. Beers & al. v. Hawley al. 2 Conn. Rep. 469. 472. Thirdly, these entries were admissible to confirm the recollection of the witness.
    4. That the instructions of Hawley to Dunning, and also to Newton Platt, relating to the delivery of the deeds, were admissible. Where one man delivers a deed, through the agency of another, his instructions to the agent must necessarily precede the act of the agent, which is to perfect the delivery; but as such instructions relate to the delivery, and operate directly to effect it, they are a part of the res gesta.
    
    
      5. That the circumstance that Newton Platt, a messenger from Hawley with the deeds, repeated the same instructions to Dunning, as coming from Hawley, which Dunning had previously received from Hawley, was properly received in evidence, to corroborate the testimony of the witness, and shew that he was not mistaken.
    6. That Minor was a disinterested witness. If, on the decree of foreclosure, in December, 1819, Minor or Terrill and Babbit had redeemed, then the defendant would have had a right to redeem from him or them, by paying the debt of Hawley only; and could hold the land against all the world. The plaintiff prays, that this same right of the defendant may be foreclosed. If it is decreed, and the defendant redeems, he can get the land, on paying the Hawley debt only, against all the world; and as the plaintiff owns that debt, he can hold the money. Therefore, Minor, if this decree is fulfilled, can never have any remedy, either for land or money. The land must go to the defendant, who holds under Hawley, the mortgagor; and the money must go to the plaintiff, who owns the debt. Here the land and money must eventually settle. Here they are settled, by this decree. Minor's mortgage to the plaintiff, and his mortgage to Terrill and Babbit, were void, as against the original morgagor, and all claiming under him, as the defendant does; for a mortgagee cannot one rate the premises, as against the mortgagor. If the defendant, therefore, redeems, there is an end of the whole business; as he will get the land; the plaintiff, the money; and each be entitled to what he gets. Minor, therefore, gets nothing, by the decree.
    7. That the writing given by Minor,-the mere assertion of a fact,-did not preclude him from telling the truth, on another occasion, when he was a competent witness. There is nothing like an estoppel in the case.
   Hosmer, Ch. J.

On motion for a new trial, the court will not decide any question arising on the record. Of this description, is the objection founded on the admission of Minor, that the delivery of the deeds to him and Wright were contemporaneous. The same observation is applicable to the defendant’s argument relative to the decree of the court. If the above objections are of any validity, as they are founded upon facts apparent of record, they are the proper subject of a writ of error.

It has been argued, that the written declaration of Minor, affected the title to the mortgaged premises, and estopped him from giving any opposing testimony. This remark is founded in a misconception of that instrument. In Beers v. Hawley, 2 Conn. Rep. 467. it was adjudged to be nothing more than an admission, and equally subject to be explained as if it had been a parol declaration. This determination precludes the necessity of further argument on this subject.

The testimony of Dunning and the entry on the deeds of Minor and Wright, by the town-clerk, specifying the time in which they were respectively recorded, have been the subject of distinct objections; but they are so intimately connected as only to require a joint consideration. To show that the delivery of Minor's deed was prior to the delivery of the deed to Wright, a connected train of facts is disclosed, establishing the proposition, that the deeds never went out of the grantor’s possession, until by his agent, they were put into the hands of the town-clerk for record; and that then, the deed to Minor was delivered five minutes, anterior to the deed to Wright. The evidence admitted, was to the following effect. Before the above deeds were signed or acknowledged, Hawley, the grantor, told Dunning, the witness, that so soon as they were completed, he should send them to him, by one Newton Platt. He directed Dunning, on their reception, to carry them to the town-clerk, and deliver the deed given to Minor, for record, five minutes before the one given to Wright, “as he intended Minor's should take effect first.” Platt brought the deeds to Dunning, and repeated the above instructions; upon which they were received by the witness, carried and delivered to the town-clerk, pursuant to the preceding direction; and the entries were made upon them as they now appear.

Upon this brief statement, certain inferences are indisputable. 1. That Dunning was appointed the agent of the grantor, and acted according to the authority delegated; and that the repetition by Platt, of instructions antecedently given to the witness, although it had no positive efficacy, and was incompetent evidence, did not detract from the power before communicated. 2. That the acts of Dunning in delivering the deeds, and giving the directions to the town-clerk, are of the same legal effect, as if they had been done by the grantor personally. 3. That consequently, the deeds remained in the grantor’s possession, and were not delivered, until the town-clerk received them.

The entries made by the town-clerk, were competent, in corroboration of Dunning’s testimony, to show that he was not mistaken; and of the same relevancy, as a private memorandum of the witness would be, in authentication of the same facts, by establishing the correctness of his memory. The entries of the town-clerk were not admitted to prove priority of delivery, but to confirm the recollection of the witness. So soon as the deeds were put into the town-clerk’s possession for record, they were delivered, and not before; and to admit testimony, in proof of the preceding facts, was proper, to show, that when the deeds commenced a valid existence, the one to Minor had the priority.

An objection has been made to the admission of Minor as a witness; but the facts, on which it was founded, are so imperfectly disclosed, that the court cannot know either the object or nature of his testimony. Admitting, for the sake of the argument, that the witness had an interest in the points mentioned; there is no statement that his evidence bore in that direction. If competent to answer any question, he ought not to be rejected generally. Bent v. Baker, 3 Term Rep. 35. Smith & al. v. Carrington & al. 4 Cranch 62.

Waiving, however, the insufficiency of the objection, as it appears on the motion, and assuming, that Minor’s testimony related to the matter supposed, I can discern no interest in the witness.

For the sake of perspicuity, I will state the objections made, and attend to them, in the order in which they were presented.

1. It was said, that the court erred in admitting Minor as a witness, because he gave deeds containing covenants of sei-sin and warranty to the plaintiff and Booth, and to Terrill and Babbitt.

With respect to the supposed claim under the deed to the plaintiff and Booth, that is entirely out of the question; as the witness was released by the plaintiff, who holds the entire title, from all claims and demands.

It has been contended, that if Broome prevails, Minor will be liable to Terrill and Babbit on the covenants in his deed; but the ground of this assertion, it is difficult to apprehend. Is it insisted, that the title is in controversy, on a bill of foreclosure; (2 Pow. Mort. 1044.) and that the determination either way, can affect the legal rights of Minor? Can a decree in chancery, merely taking away an equity of redemption, be evidence to show the infraction of covenants in a court of law, and evidence in favour of a person, and against a person, who were not parties to the suit? It is unnecessary to enquire, whether Minor is interested in the question; it is sufficient to say, that he has not the least shadow of interest in the event.

2. It has been insisted, that if the title of the defendant is not postponed, Minor will be liable for the rents and profits; but if it is postponed, and the defendant foreclosed, he will be discharged from all liability. I ask, is this the operation of a decree of foreclosure, in favour of one person against another, who are not parties to the record? The objection is too unfounded to require discussion. The effect of the decree, is merely to extinguish the defendant’s equity of redemption. It has no relevancy to the question of rents and profits, founded on legal title; nor is it admissible evidence, on this point, for or against any one; much less, for or against a person, who was no party to the suit, in which the decree was pronounced.

3. It has been contended, that Minor had a direct interest to enlarge the debt due from Hawley, which the defendant was bound to pay, if he would prevent a foreclosure; but the proof of this position has not been established. On the contrary, Minor neither directly, nor remotely, derived, or could derive, any benefit from the decree.

Peters, Brainard and Bristol, Js. were of the same opinion.

Chapman, J. gave no opinion, having been of counsel in the cause.

New trial not to be granted.  