13 Minn. 301 | Minn. | 1868
By the Oourt This action was brought to remove a cloud from the title of one of the plaintiffs to certain real estate. In 1858 the plaintiff, Ignatius Donnelly, and the defendants made a contract in writing, in the words following:
Whereas, The said parties of the first part are the holders of three certain promissory notes of the said Ignatius Donnelly, to their order, for the sum of four thousand, eight hundred dollars, the said parties of the first part agree, in consideration of the covenants hereinafter recited, to be performed by the said Ignatius Donnelly, to deliver up the said notes to the said Ignatius Donnelly, in consideration whereof the said Ignatius Donnelly agrees, within ninety days from the date hereof, to deed by warranty deed to the said T. D. Simonton, attorney in fact for the said parties • of the first part, the undivided one-third part of block thirty-eight, in Nininger City, with the undivided one-third part of the improvements thereon erected, being the present residence of said Ignatius Donnelly; the said undivided third part to be free of all incumbrances, and the balance of the said property to be used in settling up'with John Nininger. And if the mortgage now existing against the said premises, held by said McKinzee, of Lyons, New York, can not be released as to the undivided one-third of the same, then the parties of the first part agree to take the undivided one-third so encumbered, provided the said John Nininger will agree to pay the'same. And the said Ignatius Donnelly further agrees to assign the said parties of the first part all his reversionary interest in a certain policy of insurance for $5,000 now on the said property, and held by the said McKinzee, of Lyons, New York.”
The notes referred to in this contract were secured by a
The referee who tried the cause has found as a matter of fact, that the defendants surrendered and delivered to the said Ignatius Donnelly the 'three promissory notes referred to in the mortgage, and that Donnelly has performed on his part, and “That no satisfaction piece of said mortgage has ever been executed, and said mortgage still remains unsatisfied of record.” As conclusions of law the referee has found:
First. That by the surrender and delivery of the said three promissory notes the same’ and the debt secured thereby were fully paid.and discharged, and the mortgage given to secure the payment of said notes was fully paid and safcisfied.'
Second. That said mortgage remaining unsatisfied of record is a cloud, &c.
¥e think it cannot be said, as a conclusion of law, that the surrender and delivery of the notes operated as a payment and discharge of the debt. The construction of a written instrument is matter óf pure law when the meaning and intention of its framers'-is to be collected from the instrument itself; but not so when, as in this case, by extrinsic facts it is made doubtful or uncertain what was intended, or what the meaning of the instrument is. Such doubt or uncertainty
When in the case at bar the plaintiffs established the fact, as a part of their cause of action, that the debt for which the notes were given was secured by a mortgage on real estate, a doubt or uncertainty was raised as to what the parties meant by the contract ato deliver up ” said notes, and by their acts under the contract. The lien of the mortgage was not necessarily discharged by the surrender or cancellation of the notes, for the debt may remain after the notes are surrendered or cancelled. A note is given or required for the purpose of binding the mortgagor personally for the payment of the' debt, and the mere act of surrendering it does not necessarily release the mater from any liability except that which is created by its execution. The mortgage only binds the property pledged, unless it contains a covenant or agreement, express or implied, that thd mortgagor shall pay the debt, which this does not. It is therefore clearly competent for the parties to- release either the personal liability, or the real security, and the release of the one cannot effect the validity of the other. See Tripp vs. Vincent, 3 Barb., Ch. 613.
If it was the intention of the parties that the debt should be extinguished by the surrender of the notes, then.the mortgage is satisfied, for it cannot exist longer than the debt of which it is a mere incident; but if on the contrary it was the intention of the parties to merely release the personal liability of the mortgagor without extinguishing the debt, the mortgage remains a valid security.
The question is, what did the parties in fact mean and intend by the contract /4 to deliver up the said notes ” ? And this contract being involved in doubt and uncertainty, is to be construed in view of any facts or circumstances that may tend to elucidate or explain it.
The error in pleading complained of by the defendants is immaterial.
The general views above expressed cover all the objections urged by the appellants.
Judgment reversed.