65 Vt. 560 | Vt. | 1893
The opinion of the court was delivered by
In ascertaining the sum due under the accruing mortgage of Feb. 25, 1876, the master reports that he holds that the orator Gleason’s entries upon his diary of 1883 are memoranda and not accounts, and therefore not admissible in evidence against the administrator. But if, in the opinion of the court, this diary is admissible in evidence, he then finds that the first three items for money paid for the intestate should be allowed. The items are charges for money paid by the orator to other parties for the intestate. In each instance under the proper date the orator had entered, “Liberty T. Kinney, Dr. To paid-for you.” The entry is in the form of an original entry of a charge in book account, rather than a memorandum from which such a charge could be formulated. The subject matter of each was a proper matter for charge on book account. In subject matter and form there is no objection
II. The master also submits whether the Redfield and Gleason note is secured under the accruing mortgage. The note in terms is payable to Redfield and Gleason or bearer. It is a note of long standing. Mr. Redfield has deceased. The partnership was long since dissolved. If it still is a partnership debt the orator, as surviving partner, takes the legal title to the note, and is under a legal duty to collect it and account for the money. It being payable to bearer, and presented by the orator, the legal presumption is that he has the right to present it, as bearer, and that it is due to him, either as surviving partner or individually. The condition of this mortgage secures the payment of all indebtedness from Kinney to the orator which existed at the time of the execution of the mortgage, or might exist at any time' during its existence. It is urged that this note is stale. But if secured by the mortgage, as we hold, the age of the note does not defeat its recovery under the mortgage so long as the mortgage is a subsisting security. We think the orator is entitled to have this note allowed in ascertaining the sum due in equity.
III. Under the agreement between the orator and administrator the orator is the owner of that portion of the premises covered by the mortgage of February 25, 1876, set off to Newhall & Stebbins, and has been from the time he took the title from the levying creditors before the execution of the mortgage. Hence when Kinney took any of the property covered by the set-off he took the property of the orator.
IV. The amount due under the mortgage of the farm in Orange is specific, and the defendant can redeem the farm, if he so elects, without reference to the accruing mortgage. But the sum secured by that mortgage is also secured by the accruing mortgage. Hence the defendant cannot redeem the property covered by the latter without redeeming the property covered by both mortgages.
The -pro forma decree of the court of chancery is reversed and the cause remanded, with a mandate to carry into effect the views expressed.