18 N.H. 600 | Superior Court of New Hampshire | 1847
The evidence tended to prove that the mortgage upon which the plaintiffs rely was made and executed by the defendant, when neither of the plaintiffs •was present; that they had no knowledge of the transaction at the time, and that the defendant caused it to be put upon the record, and then took it away, and has ever since had the possession of it. The court ruled that this showed a sufficient delivery as between the parties ; and it is contended that there is a presumption of law, arising
Assuming that the case had stated that these facts were proved, instead of setting forth that the evidence tended to establish them, they would not necessarily constitute a delivery of the deed.' Delivering a deed to the register to be recorded, may be with the intention of still holding the deed under control, until a consideration is paid or a condition performed. It is evidence from which a jury, on consideration of all the circumstances, may find a delivery or not, according as they find the intention of the party. The conclusion is one of fact merely, and the court cannot draw it.
If the deed was delivered, it was a security for the benefit of both the plaintiffs; and, assuming that the money was paid by Hayes, Boody could not discharge the suit. It is true that he may be said to have an interest in the security, for it was intended to indemnify him, and he is not yet discharged from his liability. He has such a contingent interest as the court will protect. But if his co-surety has paid, and he is not yet damnified, he has no right, on account of any contingent interest he may have, to attempt, by his release, to prevent the co-surety who has paid from availing himself of the security. This is in no way to the prejudice of his rights, but is to his exoneration. If the security had been in the name of Boody alone, Hayes, having paid, would be entitled, by way of subrogation, to the benefit of it. If Boody, after his co-surety had paid, could not lawfully discharge and give up the security in case it had been taken to himself, because the co-surety had an interest in it, it is very clear that he cannot discharge it, under the circumstances,' when it is taken to them jointly.
Verdict set aside.