21 Wis. 63 | Wis. | 1866
Lead Opinion
The plaintiff testifies that an arrangement was made at the time he made the first payment, that the mortgage was to be transferred to him, and he was to hold it until he was paid. If such arrangement had been perfected with the mortgagees, or with Randall Whiting, who was one of them, little or no difficulty would have been presented by the case. The plaintiff would then have come in purely in the character of assignee, and, as such, his rights would have been paramount to those of the defendant Daniel B. Knapp under the lien of the judgment in Ms favor. But the inference from the plaintiff’s testimony is, that the arrangement was made with Farmin, the mortgagor, and not with the mortgagees or with Randall Whiting, though he says that Randall Whiting “ understood the arrangement I had with Farmin." If there were any cor
The conclusion that the mortgage was extinguished as to all the sums paid except the last, seems to me very plain. Those sums were received by the mortgagees, or- by Webster -for them, either as payments, or as so much money to be applied on an agreement to. assign the- mortgage when the whole should be paid. There was. no such agreement on the part of the mortgagees to assign, and consequently the money must have-been received in. payment. It was so regarded by the mortgagees; and being so regarded by them, the sums received, con
I am aware that some general expressions are to be found in the books, to the effect that where money is paid by one not a party to the instrument or liable upon it, but by some third person, the debt will be extinguished or not according to the intention of the party paying. But such expressions are not to be separated from the facts of the cases in which they occur. They are to be taken in connection with those facts, and not as independent propositions of law. It will appear from examination, that the intention of the party paying was invariably communicated to the creditor at or before, the time of payment, and that the creditor consented to receive the money not in payment but in consideration of a transfer of the debt or demand. Such was the case of Harbeck v. Vanderbilt, 20 N. Y., 395, where the note was delivered to the plaintiffs in the judgment, and the judgment was at the same time assigned as an indemnity for the endorser of the note. The same is likewise true of Champney v. Coope, 32 N. Y., 543, in which the assignment was upheld only as to those sums which were paid after the mortgagee had agreed to assign the bond and mortgage. As to the $1200 paid before the mortgagee’s agreement, it was held that the mortgage was extinguished, and could not be.enforced by the assignee. I do not think any case can be found where the mere intention of the person paying, not communicated to the creditor at or before the time of payment, has been held to change the nature of the transaction.
.The foregoing observations are applicable only to the two first payments. As to the last, it appears that the plaintiff furnished the money with which Farmin was to go to Oshkosh and complete the payment of the Webster debt, and take an
Eor these reasons I am of opinion that the judgment as it now stands should be reversed, and tbe cause remanded with instructions to enter judgment for tbe plaintiff for $188 and interest from tbe 12th day of May, 1854, being tbe amount of the last payment with interest from its date.
Concurrence Opinion
I concur in the opinion of the chief justice as to the two first payments made on the note to Webster signed by the mortgagees. But I disagree with the majority of the court as to the last payment, bolding that the mortgage ought not to be enforced even for that amount, and that the lien thereof is entirely extinguished. Farmin testifies as to the time of making the assignment: “It was after the Webster debt had been paid in full. I think it was three or four days after Webster’s debt bad been paid. It [the assignment] was delivered to me personally.” If the mortgagees had themselves paid the last installment to Webster, they would then have had a right to enforce the mortgage to the amount of such payment; but they never paid any part of the debt, %o indemnify them against which the mortgage was given, and consequently never had any right to foreclose the mortgage, nor any interest which they could transfer to Pelton, certainly ’none after the debt to Webster was paid by Farmin, their principal, or by Pelton at his request. If Pelton desired to keep alive and avail himself of the mortgage as a security to reimburse hiipself for the money advanced, he should have first
By the Court. — Judgment reversed, and cause remanded with instructions that judgment be entered in favor of the plaintiff for $138, and interest from May 12th, 1854.