7 Barb. 22 | N.Y. Sup. Ct. | 1849
We think that the bill in this cause should be dismissed, upon grounds which we will proceed to state with as much brevity as possible.
I. We are of the opinion that the inference may be justly drawn from the acts of Wheelock, and his agreement with Mr. Clarke, that as between him and Penniman, he had assumed to pay the debt which the mortgage in question was executed to secure.
(1.) The debt was, when contracted, due from the defendants jointly, and though payable in one year, was suffered to remain unpaid until the 15th of April, 1843. At that time Whee-lock did in fact assume the satisfaction of the debt, upon himself, and on that day executed a bond and mortgage for $1565 to Mr. Clarke, who was then the holder and owner of the mortgage in question, to secure an individual debt of Wheelock, and also the balance that remained due on the joint bond and mortgage of Penniman and Wheelock. Why did Wheelock do this, unless, by some arrangement with Penniman, he had assumed the joint debt ? If he had paid it up in money, it would excite less surprise; but why should he mingle it with his own indi
(2.) The mortgage in question was not extinguished; for Mr. Clarke, as a prudent man, was unwilling to relinquish any secuiity which he possessed. But it was kept alive solely as a collateral security for the amount of the balance then due upon it, to the same amount secured by the new $1565 mortgage. The important point in this transaction is, that the new bond and mortgage became, hy the agreement between Wheelock and Clarke, the principal debt, and the old bond and mortgage, that is, the joint obligation of Penniman and Wheelock, a collateral security only. In other words, the individual obligation of Wheelock was substituted as the principal debt, and the joint obligation of Penniman and Wheelock took the place of a mere surety fund. That I am right in the conclusion, that the joint mortgage was merely kept alive as a collateral security until the mortgage for $1565 was paid, I refer to the statement of this fact contained in schedule A. annexed to Whee-lock’s general assignment: to the admissions in folio 8th, that Mi-. Clarke drafted and witnessed the said assignment and schedule; and to the testimony of Mr, Clarke in folio 26 of the evidence, when he testifies unequivocally to the fact, Now, it is entirely clear, that the object sought, by including the debt secured by the old mortgage, in the new one, was not to increase the security merely, for that would have been effected by retaining the old joint mortgage as the principal debt, and making the new one collateral to it pro tanto. But the object must have been that Wheelock should assume the joint debt as his individual obligation, and secure it with his own separate
II. We think that the mortgage has been substantially paid and satisfied; and that Mr. Clarke had no power to transfer it
The pretence upon which this most inequitable proceeding is attempted to be upheld and defended is, that Penniman has never paid his part of the mortgage debt, and that he ought to pay it. I have already advanced some reasons why we are at liberty to infer that Wheelock paid that debt, because some arrangement existed between him and Penniman, by which he had assumed it as his own. But suppose we are mistaken in that conclusion. Who now owns the claim against Penniman ?
The complainant’s bill must be dismissed, with costs.
Decree accordingly.