*1 Bascom et al. v. Smith. of Ch. J. Davies, et v. Lewis E. al., Respondents, Oliver Smith,
Appellant. Merger place, equitable never takes and estate unite in where person; then, same clear intent all and not it is the even when place. interest-that it shall not take
Appeal from the of the Court judgment Supreme at General Term entered for the affirming up on the verdict of at the plaintiffs circuit. jury E. F. for the Bullard, appellant. Potter, the respondents.
Davies, Ch. J. Collins Joseph Collins, Orange the town of in this indebted Whitehall, State, being Oliver Thomas T. Bascom, T. Vaughn Henry sum for their indorsements Gaylord, $4,500 certain notes of Collins said for that on the first amount, day of' for the September, purpose securing payment оf said harmless the on account .dbbt saving executed and thereof, made, delivered to them a chattel certain therein In mortgage upon case specified. of said notes the makers, the non-payment were authorized take possession property mortgaged and to sell the and out of the avails thereof to samе, said case the at time should deem debt, themselves were authorized to take unsafe, they possession , the to sell the or mortgaged property public same sale.
private and this action was filed, duly brought recover the value covered of two horses and which owned mortgagors, subsequently taken converted the defendant. horses were on an taken attachment issued justice peace ¡Nelson of one mortgagors, application a creditor of Judgment Shurtz, per- mortgagors. et áb v. 1B66.] *2 Opinion Court, per of J.Ch. the Davies, and an execution been feeted on said attachment, having the the sold who attached issued constable same thereon, virtue horses were said by execution, purchased the defendant in this he bidder by action, being highest therefor at such on the that the sale. trial appeared plain- had tiffs amount the notes in the mentioned paid and on 23d mortgage, November, 1857, they demanded of said two horses, possession which he refused.
It further on trial that on the 19th appeared day the said October, 1857, con- Joseph Orange Collins, sideration executed a bill of of all sale $10,000, prop- used them their to the said business by erty one Martin. And the covenanted Alwyn to warrant grantors and defend the title sold, property a chattel held said or a mortgage portion these and it thereof, was declared that said made in mоrtgage thereby confirmed, .was thereto. It also subjection appeared personal prop- included bill of and not covered erty sale, amounted from mortgage, $1,500 $2,000. Joseph Collins testified that the the three pay *3 to rule each counsel then court defendant’s requested refused, as matter of which court law,
of said propositions also and defendant’s counsel excepted. then the court
The for the defendant counsel requested charge jury: this action was com- find that before
1. That they had sufficient received menced, all and October, 1857, pay mortgages the purchase far as so then that said satisfied, liens thereon, mortgage as to the defend- concerned, the two horses question and the defendant so to charge, ant. The court declined excepted. the time at find that that if jury
Also, the consideration money, said out sale, bill secured the debts mortgages, first under said for that purchase pur- sufficient received then that demand the horses question, before the pose nо to recover this action for have right the plaintiffs court which the also and refused, horses in question, the defendant e.xcepted. bill the said of salé October 19 was in that
Also, chattel and if a foreclosure plaintiffs’ effect received bill of under said find the jury and all question sale was is to be deemed satisfied or the said then expenses, аnd will not revive it for the or merged, equity foreclosed these two the value of horses to pay of collecting purpose had creditor who no Een thereon. over value refused charge, The court also excepted. et al. v. Davie8, Court,.per Oil. J.
The to-the introduction of plaintiff objected proof proceedings justice’s court, judgment- execution and sale of on various and the court overruled the grounds, objections, admitted the to which the counsel same, excepted. rendered verdict for which jury plaintiffs, upon the same was affirmed at entered, General Term. The defendant now this court. appeals all the exceptions preceding present questions arise for the consideration of this court:
First. As to the for motion the first nonsuit: ground this motion the sale of October 19, 1857, made sale to purchaser debt, debt is to be deemed paid, plain tiffs’ There is no sound mortgage extinguished. foundation for these If the had been propositions. made to the been the sole solely, then рurchasers, there would have been some for the plausibility argument. *4 But such have seen not we was the fact. The purchase was made and the another by plaintiffs person, agreement made them in was with that other by person, conjunction not themselves But it is from the terms by solely. apparent, of the bill that it was made to the sale, subject аnd with the declared intent to confirm the same. mortgage, The cannot be or as regarded extinguished, v. N. The (Champney Coope, Y., second merged. 543.) warranted, to an contained not request charge assumption by that the viz., was worth over proof, property assigned The from the witness is, who $9,000. proof only its speaks that not over it could have been sold for value, $4,000 Octo circuit would 1857. The have ber, erred judge greatly as matter or had he had either decided this law, charged an third contains, The erroneous also, proposition jury. had this, plaintiffs assumption debt secured chattel had by mortgage, sufficient that received for that the- purpose. proof was made named and not the bill of sale, plaintiffs exclusively, et al. v.
Opinión Court, per Davies,-Oh. there was no that had fact proof received plaintiffs The fourth and last was anything. proposition equally similar for unsound, reasons. The had not under the bill of possession, sale, the debt secured Their mortgage. possession other with the and no jointly purchaser; mergеr.of the mort could take sale and transfer of place to the with another. gaged property conjunction never takes where Merger place except equita ble estate are united the same clearly person, not the case in the But in such instance. present merger the intent w'hen may contingency always prevented to the transaction shown to have been that is clearly it should not take v. Coope, place. (Champney supra.) Here not it was stated in bill that was of sale only distinctly made in but the subjection and confirmed. ratified requests expressly found in the contain the same as is vice grounds charge have the motion to nonsuit the As been plaintiffs. in the consideration of commented already sufficiently upon them. that it cannot be motion, necessary recapitulate to consider exception unnecessary of the evidence the attachment and admission pro- defendant claimed virtue which the thereon, ceedings at a If arrived different con- title to hоrses. we than clusion the defendant’s motion exceptions have been examination would then such already.stated, had to we should have ques- essential, dispose *5 think the defendant’s tion. But as we that exceptions plaintiffs’ it is untenable, pass upon unimportant title, admission of defendant’s to the proof exceptions time, the at the hоrses he as had not title any clearly at the time attachment issued served, was valid plaintiffs sale; provided, it that of opinion and a clearly Being security. subsisting its valid- to impair had been was, nothing shown be affirmed, from should with ity, appealed judgment costs. et v. al.
Opinion of the X Morgan, n in action J. The issue whether only in or owned question The defendant hаs at the time of the conversion. alleged in of his which was set out his answer evidence title, a for after all the must show quite unnecessary, a title before can recover; good general or-possession in the all that was neces- denial of inasmuch as the defendant had the unless sary,' possession, to show that the title colorablе intended and then he fraudulent as should have creditors, against trial, his however, raised that pleadings. a such to have seems upon theory ques- proceeded must and the verdict of the jury tion was case; in favor of the to have deemed disposed it is one of the of law to be not now disposed questions this court. of by Collins were the owners of the
J. and O. property, original the first of 1857, it, September, mortgaged together Oliver Theodore T. other Bascom, Vaughn with as accommo- T. secure liability Henry Gaylord, dation of three several notes endorsers at the Bank one which Commercial of Whitehall; payable one in three from 28,1857, due months became August in three and the other from 1,1857, days fifty-five September contained 1857. months from September notes, a condition that case non-payment take possession dispose mortgagees might at to take .case liberty possession, of it. So they themselves unsafe. time deem should of the notes became before either 10th October, On the and Collins attached оf J. 0. a creditor due, the same to constable sold and subsequently
question, issued under an execution the defendant nine the 19th of October, days On attached suit. and 0. Collins, suit, the attachment mortgagors, to the mort- all the mortgaged negotiated to defend and covenanted Martin, and one Alwyn gagees “ question, title *6 et al. v. Smith. .T. is and this is sale hereby confirmed, mortgage (say they) thereto.” subject
It the trial that the .assumed to purchasers appeared upon of this the notes as consideration sale. pay part delivered to the was .this property sale on the same in horses, day, except in this three horses Fort question suit, Edward, afterwards obtained suit. by replevin It does not the notes wеre appear when the paid demanded the plaintiff of the defend- ant on the 23d nor is there day November, 1857; ' evidence that unless it the'mortgage satisfied, virtue of the extinguished by for a mortgagee Alwyn sum sufficient Martin, exclusive of the notes, question. There no made that Martin is not objection Alwyn in this it is evident that party plaintiff action, although very awаs owner of the when part the demand was made. I parties may, determined rights think,
without reference to the taken to the attachment objection proceedings. attachment and the
Assuming regular judg- conclusive ment as action, title obtained only mortgagor’s prop- which was reduced to a mere erty question, equity- forfeiture If there hаd redemption, mortgage. no between the been subsequent arrangement mortgagors title would have vested mortgagees, absolutely the failure of mortgagor *7 Bascoji et al. v. Smith. Opinion Court, per of the J. of the made The between the effect agreement mortgagors the 19th of is one October, of some mortgagees I think not much novelty, though difficulty. in
The consisted of two of the horses, as value' of one found dollars, verdict by’the hundred The the of the did not liability exceed jury. mortgagees it dollars, five thousand while appears mortgaged if its value is estimated which the property, price for would exceed that sum it, purchasers agreed thousand
several dollars. It. be assumed therefore, may, property mortgaged a worth more than deal great secure necessary Was for their indorsements. mortgagees But in the absence of the 19th of agreement Octo- would be ber, mortgagees entitled, forfeiture, take all the that is claimed as well as the and it would rest; be no to' answer that there say was other sufficiеnt to debt without discharge the two in houses The taking question. mortgagees it a entitled to even without but foreclosure; they neglect under the sell of sale contained power be treated as of the they may and be purchasers made to account for the same at its fair value to mort- or his or and those gagor assignees; mortgagоr claiming under him redeem subsequent mortgage, may debt. In payment case of a I however, they cannot, redeem redemption, think, parcels. there of the 19th of
ÍTowwhat.is October If which ? changes rights obligation was satisfied as to the mortgagors mortgagees, was a sale to them the satisfied by very property question. and the title to the two horses bulk, passed well as the title to the balance of the purchasers never to take part property. particular price mortgage. to sell fact, nothing But, That however, redemption. equity et al. v. Court, per Mobqah, consideration a contract support *8 a undertook to certain for the allow them price property, out of which the were to notes. This, mortgagors’ left a in their other credit- doubtless, hands large surplus ors and those a lien to the the ; upon prior having entitled to out of to sale, are, be perhaps, paid surplus of it the extent until is exhausted. liens, it be admitted that the Sow may parties mortgage could cut off not the defendant’s by any аgreement equity of nor did the undertake redemption, agreement to it off. If he let cut does to not, redeem, desire however, .make his him claim That arrangement upon surplus. his was for benefit he elects to take of but it; advantage if he takes the benefit same of at the it, time, cannot, it. repudiate all the itself a conditional prоp mortgage to all liens or claims anterior ánd
erty superior subsequent a is to contend that such sale title. is absurd upon releases defeated a which agreement, subsequent and fixes equity mortgagors, gross redemption the- sum to allow for which property, mortgagees a While such an without foreclosure sale. formality does not crеditors, right junior impair a it lien to redeem neither does it, upon having divest Let us .to title of mortgagees. operate legal in the the suppose stipulated mortgage itself that should a sum allow for the gross case of what forfeiture, rule of mortgage in the absence of could an law, fraud, execution creditor seize of it and hold it aftеr parcel on to forfeiture, because he was able to show that the balance merely worth a claim enough debt ? Such not would differ from a claim to hold on to a principle of the parcel' where forfeiture, mortgaged no there was such stipulation mortgage, although would, be as perhaps, show in the case as in the one easy that the balance other, worth enough .the debt. et v. ail. can be doctrine of merger There nothing mort- from the lien of invoked discharge are considered holding The mortgagees gage. would and the effect merger after forfeiture,
title redemption, equity unite to prior claim however, equitable without prejudice, to redeem. (cid:127) of real the title of is the effect wpon mortgagee Such in an v. (Jones who equity redemption estate, purchases I do not difference 2 Cow., perceive any Mooney, 246), that case and this. between principle *9 of no it should case, is, importance perhaps, if conceded debt was extinguished by of Octоber So would be extin- 1857. had taken the without mortgagee guished In both as to the cases the any agreement price. aas but is executed as sale of the security, extinguished as between the to it and those claiming
under them. should be affirmed.'
All the judges concurring, affirmed.
Judgment
Tiffahy— Von. VII. notes mentioned the chattel and to mortgage, discharge from That said notes. liability about for $11,000. the whole pay sold. witnеss further did testified not think the whole covered the bill of sold sale, 1857, October, have could over The defendant $4,000. moved for brought a nonsuit on the following grounds: 1. That and the sale of October 19, agree- ment to is to be said debt deemed pay debt, and the paid, extinguished. 2. That worth of receipt $9,000 under said were bound to agreement, notes mentionеd in the for purposes this action said debt is to be deemed and the said paid without the two horses mortgage extinguished reaching question. Tiffany—Von. VIL v. et al. of Oh. J. Davies, 3. That said debt; plaintiffs having agreed are to have deemed sufficient purpose, having the debt and from it. denying paid estopped That mort- 4. possession by and bill of sale- to satisfy gаge so far as to deemed satisfaction debt, relieve the horses from said mortgage; motion and the defendant’s counsel was denied, excepted,
Notes
notes notes. will be seen that one of the became due and this before the demanded I fact, was "sufficientto divest of their think, them well as those title title, through subsequent claiming to the mortgage. This I absence of result, fraud, follows think, as I have be deemed to be which, observed,"must already of- out the case