29 Vt. 82 | Vt. | 1856
The opinion of the court was delivered by
The orator’s title to the mortgage and notes on which this bill of foreclosure is brought; does not rest on the fact that they were originally executed and made payable to him ; but is derived from an assignment to him by Jesse Thompson on the 5th of November, 1852. The mortgage deed and notes were executed by Luther G-. Bingham to the orator on the 25th of November, 1845, and were transferred to Hurlbut May 8th, 1851. On the 22d of December 1851, the mortgage and notes were assigned by Hurlbut to Jesse Thompson, and by Jesse Thompson, on the day above stated, to the orator. The notes were overdue at the time of the assignment from Hurlbut to Thompson. The orator, therefore, took the notes subject to all the defenses legal or equitable which could have been made to them when they were in the hands of Hurlbut. If Hurlbut could have sustained no action
The important inquiry in the case arises, whether this mortgage debt was paid to Iiurlbut while he was the assignee and owner of the mortgage deed and notes. If it was so paid, it is obvious that neither he nor any one claiming under him can sustain this bill. On the assignment of this mortgage by the orator, L. G. Bingham became indebted in its amount to Hurlbut, and any payment made to Hurlbut on the mortgage, or to other persons by his directions, will operate, to the extent of that payment, as a satisfaction of the mortgage debt. In showing payment of these notes the onus of proof is cast upon the defendants. The possession of the mortgage deed and notes by the orator is prima facie evidence that the notes are due and unpaid. The same presumption arises that the notes were not paid to Hurlbut, as the securities were in his hands at the time of his assignment to Thompson, and of Thompson’s assignment to the orator. It appears from the testimony in the case, that in the spring or summer of 1851, Hurlbut became indebted to George W. Chittenden for money borrowed, in the sum of two thousand dollars, and that these notes and mortgage were transferred to him by Hurlbut as collateral security for the payment of that debt. It also appears that on the 2d of October, 1851, Luther G. Bingham paid to Mr. Chittenden the sum of one thousand four hundred and fifty dollars at the request of Mr. Hurlbut, which went for the benefit of Hurlbut on the two thousand dollar note he held against him, and that on that occasion these notes and mortgage were returned by Mr. Chittenden to Mr. Hurlbut. The payment of this money by Bingham Was virtually a payment to Hurlbut, and prima facie operates as payment to that extent of the mortgage debt which was then due from Bingham to Hurlbut. That is the legal presumption. The onus of proof is changed, and if any other application of the money is made, it is for the orator to show the existence of a claim other than the mortgage debt, and that by a mutual understanding the payment was made on that debt. The circumstances attending that payment are very strong in showing that the money was to be applied in satisfaction of the mortgage
The premises described in the mortgage deed were conveyed by L. Gr. Bingham to the defendants Hall and Skinner on the 21st of July, 1852. The conveyance was by warranty deed and with covenants against incumbrances. The deed on its face purports to have been executed and recorded on that day, and it is so averred in the bill and admitted in the answers. At the time of its execution Messrs. Bingham, French, Hurlbut, Skinner and Hall were present, and the deed was witnessed by Hurlbut and French. The deed not only purports to convey an unincumbered title, but Hall testifies that he supposed the property was unin-cumbered, and made the purchase under that belief. Hurlbut knew of that conveyance ; he saw and read the deed and witnessed it. No one can read the testimony, particularly' that of Mr. French on that subject, and entertain any misgivings on that question. The silence of Hurlbut during that negotiation, his neglect to disclose the existence of that incumbrance, and his permitting them to complete the purchase under the belief that no such incumbrance existed, if they do not operate as an estoppel, are controlling evidence that he regarded that mortgage satisfied. These circumstances are evidence of too solemn a character to be affected by any other evidence in the case. We entertain no doubt that under the English authorities he would be estopped from setting up that mortgage as an existing encumbrance against Hall and Skinner, We are aware that the orator has testified that he was present at the time of that conveyance, and that Hurlbut then stated that he held the mortgage, and that Bingham observed the mortgage was due and had never been paid. Hurlbut also testifies to the same fact and that the orator was present. That the orator was with these parties on the 22d fully appears from the testimony, particularly from that of French, by whom tlie ’deed and papers were
From the several hearings which have been had in this case, and from our subsequent examination of it, we are fully confirmed in the opinion we at first entertained that the money paid by Bing-ham to Chittenden at the x-equest of Hurlbut, was paid to apply on that moi-tgage; that it was so understood by the parties at the time; that it was so represented by Hurlbut to Hall and Skinner at the time of the conveyance to them, and that they took a deed of the premises under that belief and with that understanding. Under those cii'cumstances that mortgage should not be set up by Hurlbut or his assignee, as a subsisting incumbrance oa the land, as against Hall and Skinner; not even for the trifling balance that remained after the payment of that money by Bingham to Chittenden.
There is another feature in this case which renders this defense wholly insufficient. The payment of the money by Bingham to Chittenden, at the request of Hurlbut, is not disputed; that Hurlbut was the owner of the notes and mortgage at that time; and that they were then in the hands of Chittenden as collateral security for Hurlbut is equally undisputed. Hurlbut is, therefore, under obligation to account for that money, and to account for it on that mortgage debt, unless some other application was made of it consistent with legal principles and the understanding of the parties. If Hurlbut has made such an application, it is in his power, more than in that of any other person, to show the existence of a debt on which the application could be made, as well as the application itself of the money. The onus of proof in this matter rests on him, or on those who, as his assignees, claim that such an application was made. The evidence in relation to a
We do not not find it necessary in this case to examine the question, what application of the money the law would make if this wool balance had existed at the time of the payment, as we think no such claim is proved to have existed. But if such a claim did exist, we are satisfied from the proof, and the circum
It must be confessed that the case is somewhat complicated in its details, and perhaps it is impossible to reconcile all the testimony which has been introduced by the parties. Still there are prominent features about it which cannot be overlooked in the examination of the case, and which lead to the result to which we have arrived; a result which does no violence to any part of the testimony upon which we feel we can act in safety.
The decree of the chancellor is affirmed with costs.