Harvey v. Hurlburt

3 Vt. 561 | Vt. | 1831

Per Curiam.

The last question which arises from the bill of exceptions, viz. whether the action was still pending against John Brittol, in whose favor two verdicts had been rendered before the last trial, has not been considered, as the Court are of opinion that the plaintiffs have failed to establish any title against either of the defendants.

The plaintiffs claim under a mortgage deed executed by one Samuel D. Brainerd, to indemnify them from a note which they executed to Samuel Mattocks, as surety for Brainerd, and which Harvey, one of the plaintiffs, had paid. It appears that Brainerd, after the mortgage in October, 1820, conveyed the premises to Harvey, one of the plaintiffs, and to one Lewis Scott, and in that deed, after mentioning the incumbrances, and among others, the mortgage to the plaintiffs before mentioned, there is this clause ; “ which incumbrances and the demands due “ on them, the said JYathaniel R. Harvey and Lewis Scott are 11 to pay and discharge in full.” This, as between Brainerd and Harvey, was a full indemnity, and was in fact a payment to Harvey of the amount of the note to Mattocks, and laid him and Scott under an obligation to pay the same. It appears that while Harvey was the owner of the premises, either of the whole or a moiety, he did pay to Mattocks the amount of the note. This payment was a performance of an obligation which he was under, and was a payment of a debt which heeand Scott were to pay, in consequence of their receiving the deed from Brainerd, and a ful-filment of the conditions of the mortgage deed. The claim on the mortgage was then extinguished, and could not be revived or set up again by eithecofthe plaintiffs, as they were thereby fully indemnified from the note which they had signed. _ '

It does not appear what became of the title of Scott to the undivided half of the premises; but the probability is it was conveyed'to Harvey, as Harvey afterwards, in January, 1822, conveyed the whole premises to Stow, with the usual covenants of seizin and warranty. In Harvey’s deed to Stow he mentions the 6ame incumbrances which were named in the deed from Brain-erd to him and Scott; but Stow conveys to Hurlburt, one of the defendants, without naming any incumbrance. The now contend, that in consequence of this mortgage being mentioned as an incumbrance in Harvey’s deed to Stow, that it is still an existing incumbrance on the land, and that they can hold the • land until Harvey is repaid the amount which he paid to Mattocks. But'their is no possible foundation for this claim. If such was Harvey’s intention when he conveyed to Stow, he cannot carry it into effect. He cannot revive a mortgage which has been’once-discharged and satisfied. The plaintiffs have, therefore, no title by virtue of that mortgage against any person whatever.

The judgement of the county court is therefore affirmed.