Dana v. Binney

7 Vt. 493 | Vt. | 1835

The opinion of the court was delivered by

Royce, J.

It is questionable whether the conduct of Wether-bee was fraudulent in a legal sense, and if it was so, the plaintiffs are not shown to have been privy to the fraud. Consequently, that part of the case which relates to the alledged fraud of Wetherbee is not material, except as it goes to show the consideration of the new notes, that the original debt was not satisfied, and that Binney had no intention to relinquish or affect his lien on the land. The only important question is, upon the effect of exchanging the notes in the manner stated, without a corresponding alteration in the mortgage security.

This mortgage was conditioned for the payment of four promissory notes correctly described in the condition, and those notes were afterwards given up and cancelled, in exchange for other notes which remain unpaid. Should the second set of notes be deemed a payment of the first, so as to satisfy the condition of the deed? As this stipulated, for effect, in the payment of the debt evidenced by the first notes, no satisfaction of those notes should be recognized as a performance of the condition, which was not at the same time a payment of that debt. In the case of Hutchins vs. Alcott, 4 Vt. Rep. 549, |it was decided, that a promissory note taken for a previous book account, and receipted as in full of the account, was prima J'acie a payment. And a note taken under like circumstances, or with equal evidence of its intended effect, would probably be regarded as payment of any debt by mere simple contract. In the present case there was only a substitution of new notes for those described in the mortgage, without any other evidence of an intent to extinguish the previous debt, than what necessarily arose from the mer'e act of substitution. That was sufficient to defeat a remedy on the prior notes themselves, because they were cancelled ; but it should be available to no other purpose, without further proof of an agreement or understanding on the subject. Hence we conclude, that as between Binney and Wetherbee the condition of the morgage deed has not been substantially fulfilled.

It is contended, however, that there would be a difficulty in the evidence, and that according to Edgell vs. Sanford, 3 Vt. Rep. 202, the new notes could not be received, even as against Weth-erbee, to show the original debt still subsisting. They certainly could not, without evidence to connect them with the former notes, evidence of the substitution. The difficulty in the case cited was, that the party never had a note corresponding with the condition of the mortgage deed ; it was merely a question of variance. Consistently with that decision the plaintiff might have exhibited a judgment, or some other form of a debt, with evidence showing it founded on the note described in the mortgage; and the second set of notes were equally admissible here, with proof of their substitution for those described in the mortgage. It must be admitted that this doctrine is capable of being pressed too far, and that difficulties may sometimes occur in fixing proper limits to its application ; since we may readily imagine such a substitution of new parties, and such an intermixture of new considerations, as would render the application of the principle alike impracticable and unjust. But the present case is attended with no such embarrasments.

Such is our view of the case as between the original parties, and we do not perceive that it admits a different consideration in reference to these plaintiffs. The record of the mortgage deed, without any satisfaction appearing of record, was evidence to other creditors, of Binney’s incumbrance. In proceeding against the mortgaged premises, they would necessarily encounter the risk of being obliged to show some extinguisement of that title. These creditors have failed to show what can be regarded as such, between the mortgagee and their debtor. Having notice of the mortgage, they were bound to make all reasonable inquiry as to any payments or satisfaction of it. And if in the end they should have a fair ground to believe it paid or discharged; in other words, if they should appear to have been misled by what happened between the mortgagee and mortgagor, and thus induced to levy on the land, the mortgage ought not to stand in their way. But the case discloses nothing to warrant such an inference in favor of the plaintiffs. The course they took is rather to be regarded as an experiment to save a doubtful or desperate debt, and not the result of any misapprehension as to facts.

Judgment of the county court affirmed.