Edgell v. Stanford

3 Vt. 202 | Vt. | 1831

Hutchinson, C. J.,

pronounced'the opinion of tbe‘Court.— It is now well settled law, that the title of mortgaged premises is in the mortgagor, till a foreclosure. The title of the mortgagee is merely a collateral security for the payment of the debt, des* cribed in the mortgage deed. After the payment has fallen due; and no payment made, the mortgagee is entitled to possession of the premises ; but he takes and holds possession as collateral security for his debt; and must account for the rents and profits as payment, pro tanto, of his debt. When his debt is gone, his title is gone with it. And there ought to be no decision for his recovery of the possession, thus to hold as security, and part payment of his debt, unless it appears; in some way, that he has a debt, which ought to be paid. The note is the most direct and proper evidence of this debt. The plaintiff is the owner and keeper of this note. According to every correct rule of evidence, this debt should be proved by the production of the note ; and it must be produced by him; who both has it in his power, and has an-interest, to produce it. Moreover; the mortgage deed and note are to be considered as one instrument; and both should be read together, to make aprima facie title in the plaintiff. This answers the suggestion, that the mortgagor acknowldged the note by giving the deed. It is true, he acknowledged the giving the plaintiff- a note, to secure which the de£d was given ; but he did not thereby acknowledge, that the deed should be of any force any longer than the note continued in force. In short, every suit predicated upon a mortgage deed; whether it be ejectment to obtain possession, or a bill in chancery to foreclose the equity of redemption, is substantially a suit to compel payment of the debt. The mortgagee can obtain no decree in chancery without producing the note, or accounting for its non-production. If the plaintiff sued the note directly regardless of the mortgage, which he may do, if he choose-, he must produce the note on trial. The production of the mortgage would not, in that case, prove the note, so as to produce a recovery. And there is no more hardship in the plaintiff’s being obliged to produce his note in one of these cases than, in either of the others. It is urged, however, that, if the note is paid the proof of payment should come on the part of the defend'ants. This might as well be urged if the action tivere directly upon the note. The usual evidence of payments on notes, is the indorsements made at the time-of such payments. Wheh the debtor sees his payment indorsed, he rests satisfied, that the note, which shows his indebtedness, will also show his payments, And, having relied upon this, as he well might, common law proof of payment might be difficult, if not impossible. Upon the whole, the plaintiff'must produce his note, or show its loss as in other cases,-

TJnon the other point raised no authorities are produced, and “ A . , 1 e We know of none, that warrant the admission of parol proof, to show the note of $440, named in the mortgage, was intended to be written $449, the sum in the note produced ; nor to show, that such proof would vary the legal effect of the deed, if it were admitted. As well might the plaintiff sue one of these notes, and produce the other in evidence, and endeavor, by parol proof, to show, that the one produced was the one intended to be described. Such proof would not remove the variance ; and a recovery, upon one of these notes, would be no bar to a suit upon the other. The proper remedy in the case before the Court would be by a bill in chancery; in which the court would compel the mortgagor to give a new mortgage, to rectify the mistake ; or, set forth the -facts in a bill of foreclosure : and these being admitted, or established, the court could make such a decree as equity should require.

It is urged, however, that it is unnecessary to apply to chance-ryi because the legal and chancery powers are vested in the same judges, by the laws of this state. Those powers truly are vested in the same judges ; but they are no less distinct on that account. The court must decide what the parties choose to bring before them. A suit at law must be decided upon legal principles ; and a suit in chancery upon chancery principles. We might as well say, that it makes no difference whether the plaintiff brings an action of trespass or assumpsit, because either would come before the same court. In every case, the evidence must correspond with the action, and the remedy must result from both.

The judgement of the county court must be affirmed unless prevented by some motion on the part of the plaintiff.

Royce, J.

By the mortgage deed the defendant admitted the giving of the note therein described, and by the long settled rule of pleading in analogous cases the fact thus admitted under hand and seal is not open to dispute in an action founded on the deed. Hence the deed alone established a title in the plaintiff, on which .ejectment might be supported after the law day should expire. The question now is, whether in such ejectment it shall be sufficient for the mortgagee to rely, in the first instance, upon this evidence of title furnished by the deed, or whether he shall also be required to exhibit the note in evidence. I do not perceive much resemblance between this action, and an action of assumpsit on the note, or a bill in chancery to foreclose the mortgage. The production of the note, or an excuse for the non-production, would be required in both those cases, because the direct and professed object in each would be to compel the payment of it, and because it would be the proper evidence to support the allegations upon the record. But in this action the only ostensible object of pursuit is the land sued for, and the matter in issue is the right of possession. When this right is shown to have been acquired by the plaintiff, as I think it is by the production of the deed, it would seem that the other party should be put to his defence : — instead of requiring of the plaintiff to establish his debt, in order to give validity to the deed, I would require the defendant to show a satisfaction or discharge of the debt, to avoid the operation of the deed.

Fletcher, for plaintiff. Davis & J. Mattocks, for defendants.

It is true, that the rule of evidence on this subject, as on many others, may be settled either way, without much inconvenience in ordinary cases. But it becomes of the utmost importance in a case like the present, where a mistake has happened in describing the evidence of the debt. For, by the rule as adopted by a majority of the court, the mortgagee, being unable to produce on trial a note or other demand precisely like that described in the deed, is at once defeated of his whole security. I am not prepared to admit, that for such a cause as this the execution of the mortgage should be treated as a nugatory act; or that the hazard and expense of taking measures to correct the mistake, should be transferred from the party who executed the deed to him who received it. And it appears to me to be more consonant to acknowledged principles, as it surely is to the justice of the cause, to regard the mortgage deed as containing a description of the debt not liable •in this action to be controverted, unless for fraud or positive illegality, than by means of this requisition upon the plaintiff to enable the defendant to avoid his deed, in consequence of a blunder which his own inattention or design must have chieflly contributed to produce.

The plaintiff’s counsel then requested leave to become nonsuit. The Court were disposed to favor this request, and directed the 'entry of a judgement of reversal, pro forma, so that the plaintiff might become nonsuit: and a nonsuit was entered.