Administrator of Auble v. Trimmer, 17 N.J. Eq. 242

Administrator of Auble v. Trimmer

17 N.J. Eq. 242 | New York Court of Chancery | 1865

The Chancellor.

The bill is filed to foreclose a mortgage given by Jacob D, Trimmer to Charity Auble for *246$1000, bearing date on the 16th of April, 1860. The defendant claims a credit of $200 on the amount of the mortgage debt, which is disputed by the complainant.

The bond and mortgage were taken through the agency of William Farley, who acted in this behalf as the agent of the mortgagee. It is clearly shown that at the date of the mortgage, there was only $800 due from the mortgagor to the mortgagee. The balance of the loan was advanced in the shape of a note given by Farley to the mortgagor for $200, bearing even date with the mortgage, and payable one day after date with interest. It is not pretended that this note was accepted by the mortgagor as so much cash, or that he was to look to Farley for its payment. It is admitted that it was a mere memorandum of the amount which remained due from the mortgagee, on account of the loan for which the mortgage was given. The mortgagor, as the consideration of his mortgage, received $800, the amount of his existing indebtedness, and a memorandum that $200 remained to be advanced by the mortgagee. That money has never been advanced by the mortgagee, nor received by the mortgagor. The memorandum of indebtedness is still in the hands of the mortgagor uncancelled.

The withholding a part of the loan, in violation of the agreement of the parties, does not constitute usury. The mortgage stands as a valid security for the amount actually advanced, and no more. Executors of Howell v. Auten, 1 Green’s Ch. R. 44.

An attempt is made, on the part of the complainant, to show that the mortgagor agreed to look to one Daniel Potter, for the payment of the $200 due from Mrs. Auble. The case attempted to be established by the complainant’s evidence is, that Potter was indebted (upon bond and mortgage) to Mrs. Auble, the mortgagee, and that Trimmer, the mortgagor, agreed to look for the payment of the $200 which remained to be advanced to him, not to Mrs. Auble, but to Pocter, her debtor. The whole case rests upon the uncorroborated testimony of Farley alone. The transaction, as *247detailed by him, is highly improbable, if not absolutely incredible. Mrs. Auble, he alleges, had a bond and mortgage against Potter for his debt, which he, on her behalf, cancelled, and surrendered the bond and mortgage, on a parol agreement of Trimmer to look to Potter for the $200 due from Mrs. Auble. But Trimmer had no claim against Potter, and no means of compelling him to pay the debt due from Mrs. Auble. The existence of the indebtedness from Potter to Mrs. Auble, is disputed. His administrators deny the existence of any such indebtedness, and the fact that his bond and mortgage were surrendered by Mrs. Auble, and is now in tho hands of his administrators, is strong corroboration of the truth of their allegation.

It is in the last degree improbable, that a bond and mortgage for a subsisting debt, would have been surrendered upon a parol promise by a third party to assume such indebtedness. But the conclusive evidence upon this part of the case is, that the note of the witness for the $200 due to the mortgagor, is still in his hands uncancelled. This evidence cannot be overcome by the uncorroborated testimony of the maker of the note, even if it were much more probable and credible than it now appears.

The mortgage must stand as a security for $800 only, with interest, and the decree will be made accordingly.