45 Me. 412 | Me. | 1858
The opinion of the Court was drawn up by
On Nov. 21, 1853, D. D. Nichols conveyed to the defendant, in mortgage, certain real estate for the security of the sum of $1000, for which he gave seven promissory notes of hand, one payable in one year from date, and the others in successive years afterwards, with interest. Six of these notes were for the sum of $150 each, and the other, which was payable in seven years, for the sum of $100. The mortgage was assigned, and the notes transferred to the plaintiff on March 6, 1854, by the defendant, who made upon each of the notes, over his signature, the following: — “I hold-myself responsible for the payment of the within note, agreeable to the mortgage, by which this note is secured.”
On or about Oct. 20, 1856, no payment having been made on the notes, the plaintiff entered into a contract with William H. Wilson to transfer all the notes, excepting the one which was to become payable in three years from date, and the same
By the evidence, the value of the mortgaged premises at the time of the transfer of the mortgage to Wilson was the sum of $1000, and no more. It is admitted, that demand upon the maker of the note in suit and notice of the nonpayment was made and given in due form.
The counsel for the defendant contends that, upon a proper construction of the writing signed by the defendant upon the back of the note, if payment cannot be obtained by the plaintiff in full from the mortgage, he is bound to pay the balance and no more.
The defendant was not privy to any of the proceedings touching the transfers of the notes and the mortgage, conveyance of the right in equity of redeeming the premises, &c. The construction, therefore, to be given to the contract on the back of the note, independent of those proceedings, is to determine the question, whether or not the defendant is liable, and, if liable, to what extent.
An unqualified indorsement of the note by the defendant, at the time the one in controversy was made, with such demand and notice as is required ordinarily to fix the liability of an indorser, would render him liable on this note in the same manner that he would be if the mortgage had not been given.
But he contracts that he will be responsible for the payment, agreeably to the mortgage by which the note is secured. The design, in the use of this language, is not very apparent. The note described in the mortgage corresponds with that in suit in every particular. By the condition of the mortgage, if the maker did not make payment of all the notes, the deed
But, upon the construction contended for in defence, the plaintiff must prevail. Wilson became the owner of the mortgagee’s title on Jan. 29, 1857. He had previously acquired the right of the mortgager. The defendant was a stranger to both these interests, and to the conveyances thereof he could make no objection. The union of these titles in Wilson may be treated as tantamount to a foreclosure of the mortgage, and was payment of the notes to the amount of the value of the premises. Haynes v. Wellington, 25 Maine, 458. The balance was a personal claim against the maker of the note, and the defendant, as indorser. The sum due upon the notes, on Jan. 29, 1857, was not far from $1190. There being no evidence that the mortgager had not continued in