Mix v. Cowles

20 Conn. 420 | Conn. | 1850

Cijürch, Ch. J.

On the 2d day of September, 1846, Brown and Beecher mortgaged the land in question to Rosetta M. Cowles, to secure the payment of several notes. On the 17th day of January, 1848, Brown, who then owned the entire equity of redemption, executed to the plaintiffs a mortgage deed of the same land, conditioned to pay a note of two hundred dollars, dated the same day, and made payable to the plaintiffs, or order, at the Meriden Bank, four months after date. If this last was a valid mortgage, the plaintiffs, as second mortgagees, have a right to redeem the first mortgage.

As to the mortgage to the plaintiffs, the facts are, that, although the deed was executed on the day it bears date, it was not delivered to the plaintiffs, nor accepted by them, un-till the next day : then it became effective, as a valid mortgage. Merrills v. Swift, 18 Conn. R. 257. Ten Eyck v. Richards, 6 Cowen, 617.

When the mortgage deed and note were delivered to the plaintiffs, it was upon an arrangement then made, by which, as a consideration of the note and mortgage, the plaintiffs then agreed to deliver to Brown, the mortgagor, goods, to an amount equal to the sum of the note, and to deliver them as Brown should require or call for them; or, as the court, in the finding, has expressed it, that the plaintiffs should receive the note, “ as a basis of credit, to that extent, which credit the plaintiffs agreed to give.” And at the same time, under that arrangement, the plaintiffs delivered to Brown goods to the amount of 103 dollars, 63 cents. All this was but one transaction, and so must be treated.

The note given by Brown, was not conditional; nor was it intended to be given upon any contingency. The contract between the parties was an absolute one. The plaintiffs agreed to furnish goods to the amount of two hundred dollars ; and Brown agreed to pay for them, by his note and mortgage. There is no discrepancy between the substance and form of this transaction. The record speaks the entire truth, in its legal effect, without detailing the circumstances. The distinction between this mortgage, in the feature of it, and the mortgages set forth in the cases of Sanford v. Wheeler, 13 Conn. R. 165. and Belden v. North, Id. 176. is very obvious. In this case, the payees of the note were under an absolute obligation to deliver the goods, as called for, to the full amount of the note. In the cases referred to, they were mere sureties, who might, or might not, be subjected to payment : there was no debt, as the note and -mortgage pretended, but only a contingent liability.

But even the case of Sanford v. Wheeler, furnishes an authority in support of this mortgage, to the extent of 103 dollars, 63 cents. The plaintiffs, at the time of the note and mortgage, actually advanced this amount of goods upon the note ; and so far, the mortgage is good, upon the principle of that case. And this will give to the plaintiffs a right to redeem.

There are other considerations, which favour the plaintiffs’ right to redeem. If this mortgage was in fact voluntary, still it was good between the parties ; and the mortgagee might avail himself of it, by redeeming the prior mortgage of Mrs. Cowles. And if she stands only in the condition of a first mortgagee, she cannot complain. She receives her money, her debt; and this is all she is entitled to.

But she claims to be a purchaser, for a valuable consideration. She was not. Although Brown, after his mortgage to the plaintiffs, released to her all his equity of redemption, she paid nothing for it. As between them, the relation of mortgagee and mortgagor ceased ; and she gave up the notes, upon receiving the land; and this she ought to have done. By this transaction, Mrs. Cowles was placed in the same position. in which she would have been, if she had foreclosed the equity of Brown, without foreclosing the right of the plaintiffs, as second mortgagees. This would have left the plaintiffs with their right of redemption unimpaired

It is said, that in some way, Mrs. Cowles has some peculiar and superior equity, because she made a new arrangement with Brown, supposing the plaintiffs’ mortgage was satisfied. But the plaintiffs had done nothing to induce such a belief. The note secured by and described in their mortgage, was never paid, nor given up to Brown, but was always retained by them.

The plaintiffs’ mortgage remains a lien upon the land, to the amount due from Brown to the plaintiffs, as found by the superior court; of course, they have right to redeem, and their bill should be granted.

The decree of the superior court is reversed.

In this opinion the other Judges concurred.

Decree reversed.