| Court for the Trial of Impeachments and Correction of Errors | Dec 15, 1825
(After entering at large into the facts.) There is no question of law in dispute; and but one of fact: and that seems to me to have been virtually conceded by the respondent in his bill. He admits the money was advanced to him; and was to have been applied on the mortgage. Now, when a debtor advances money to his creditor, which is intended to be applied upon the debt due, and is so received by the creditor, it is but another name for payment. An advance pre-supposes that the money is not payable at the time; but in this case it was due. The idea of a deposit, under such circumstances, seems to me extraordinary. The only answer to the admission on the record, and the declarations made to Burdick and Snell, is a promise to pay $500 on the mortgage, made under a belief, as it appears, that Cooper had property sufficient to pay the whole demand. This proves nothing as to the fact in dispute.
The money was clearly delivered in payment; and afterwards re-loaned ; and however just it may be, that the lien should be revived as between mortgagor and mortgagee, the bona fide creditors of the mortgagor ought not to lose the benefit of their security, by the indulgence or negligence of the mortgagee.
Í am clearly of opinion that the decree of his Honor, the late Chancellor, be reversed.
Sutherland, J. concurred.
Woodworth, J. not having heard the argument, gave no opinion.
I should entirely concur in the decree of the late Chancellor, could I agree with him as to the proofs, that the one thousand dollars was not received or applied by Tedder as payment, but merely deposited for a short time and taken back by Cooper .with .Tedder’s consent.
The Chancellor must be understood to speak of the time when Tedder received the money; and unquestionably we must refer to that time for the character of the transaction.
If the thousand dollars were given to Tedder; and received by him as an absolute payment in the first instance, it is of no consequence whether it was afterwards taken back by Cooper, with Tedder’s consent; or whether they, or either of them, when it was so taken back, intended and understood that it should not be applied as a payment.
[Here Mr. C. examined the pleadings and evidence.] I cannot find a single word, that appears to me to warrant the conclusion, that the money was deposited for a short time, and not received by Tedder as a payment. On the contrary, the proofs, arising either from the pleading's or the examinations, appear to me to be full and positive, that neither of the parties had any other idea than that the payment was absolute. The respondent’s bill does not pretend that he received the money as a deposit; and the answer expressly and unequivocally denies that it was so received and insists upon a payment.
Independent of all testimony, how can we suppose that the one thousand dollars were intended by Cooper, or considered by Tedder as a deposit. The amount was due at the time ; and unless an agreement between the parties that it should be considered a deposit be expressly proved, we must consider it a payment. It is very difficult to suppose
Then the question which presents itself for our decision is, whether a mortgagee, who receives a payment on his mortgage, by which his lien on the mortgaged premises is diminished to the amount of the payment, can, at any time afterwards, at his pleasure, revive his lien for the previous amount, by a re-loan to the mortgagor, to the prejudice of a bona fide incumbrancer, whose incumbrance is subsequent to the mortgage, but prior to the re-loan.
I think a mortgagee has no power to do this ; and I understand the late Chancellor to be of the same opinion. He assumes the fact that the one thousand dollars was intended by the parties merely as a deposit, while, as it appears to me, it is very fully proved to have been an absolute payment. ,
There seems to me no doubt, therefore, as to the law; and so far were the counsel for the respective parties agreed on this subject, that not a single authority was cited, at the bar,' on either side.
If Vedder was at liberty to re-establish his lien by giving back the money to the mortgagor at the end of two or three days, he might have done so at the end of two or three years. This would hardly be contended ; and yet I cannot perceive that the lapse of more or less time could make any difference as to the principle; nor can it make any difference whether the receipt of the money was endorsed or not.
I shall forbear, at this time, and on future occasions, to repeat expressions of the feelings of respect and deference with which I differ from the late Chancellor. No man more highly appreciates his learning and abilities than I do. But these are sentiments to which I am not at liberty, in my present situation, to sacrifice the convictions of my understanding. But in this case I have the less reluctance in giving an opinion in opposition to the decree ; because in doing so, I do not differ from the court below on any law point. The case turns entirely upon the proofs; and requires but
My opinion is, that the Chancellor’s decree be reversed ; and that the record be remitted, with instructions that the court below shall permit the appellants to redeem on payment of what may be due, after crediting the one thousand dollars as paid on the first of June, 1815 ; and that they be allowed their costs.
Bowman, Bratton, Burrows, Clark, Cramer, Dud-let, Ellsworth, Gardiner, Greenlt, Haight, Ketes, M’Inttre, Morgan and Wiliceson, Senators, concurred in the result of the opinions delivered by the Chief Justice, and Golden, Senator.
For affirmance, Earll, Lefferts, Ltnde, Mallort, M’Michael, Redfield, Wooster and Wright, Senators.
A majority being f or a reversal, it was, thereupon, ordered, adjudged and decreed, that the decree of the late Chancellor should be, and the same was thereby reversed. Mid it was further ordered, adjudged and decreed, that the appellant should be permitted to redeem the mortgaged premises, upon payment of what was due to the respondent, for principal and interest, on the 12th day of November, 1819, giving credit for the sum of $1000, mentioned in the decree, and upon payment of the respondent’s costs in the court below, until the coming in of the appellants’ answer. And further, that the respondent should pay to the appellants, their costs in the said court, to be taxed, subsequent to the filing of their answer; and that the record, &c. should be remitted, &c.