1 Fla. 409 | Fla. | 1847
delivered the following opinion:
This case was brought up by writ of error from the Jefferson Circuit Court.
The suit was commenced by petition to foreclose a mortgage under the Act of Doer. 11th, 1824, “ To regulate the foreclosure of mortgages at Common Law,” &c. Duval’s Comp., page 38.
The record shews that the mortgage was given on the 19th day o.f Deer., 1836, by the said Thomas Randall to the said Smith & Parramore, the petitioners in the Court below, upon certain lands in the mortgage described, to secure the payment of three certain promissory note of the same date, amounting in the whole to nine thous- and seven hundred and fifty-four dollars and ninety-two cents, one of which said notes was payable one year after the date thereof for the sum of $3027 39 ; one other of said notes was payable two year's after the date thereof for the sum of $3251 64, and the other was payable three years after the date thereof for the sum of $3475 89. The two notes first mentioned were paid before the institution of this suit. The foreclosure is sought, therefore, for the alleged non-payment of the last mentioned note. To this petition the defendant Randall put in three pleas. The first and second áre pleas of payment. In the third plea, the defendant alleged that after the execution of the said deed of mortgage, he did by deed of mortgage duly
- Whether the note for $3,475 89, included in the mortgage now sought to be foreclosed, has been paid or not, depends upon the manner in which the proceeds of that check were appropriated. The general rule as to the appropriation of payments, was correctly laid down by the counsel for the plaintiffs in error, and was not understood to have been controverted by the counsel on the other side. — ■ Indeed, it is too well settled for controversy, that where a debtor indebted on several accounts, makes a payment, he may apply it to either account. If he does not, the creditor may do so. If neither does, the law will appropriate it according to the justice of the case, provided there are no other parties intei’ested. Tlie United States vs. Kirkpatrick, 9 Wheat., Reps, 720. 5 Cond. Reps., S. C., 740. Gass vs. Stinson, 3 Mason, C. C. R., 110. Postmaster General vs. Novell, Gilpin’s C. C. R., 134. Cremer vs. Higginson and others, 1 Mason, C. C. R., 337 ; and Devaynes vs. Noble, Baring vs. Noble, 1 Merivale R., 605-6.
It was contended, in the argument of this cause, by the counsel for the plaintiff'in error, that this case comes within the exception above stated, viz., that there are other parties interested, and that the law applied the funds of Randall in the Union Bank to the payment of the note secured by the mortgage now sought to be foreclosed, and that he had no right to make a different application of them and leave this note unpaid. • To sustain this proposition, they referred to and relied upon the 8th section of the charter of that Bank. By the 1st section of that charter, (Duval’s Comp., 442), it was provided, that a Bank should 'be established in the city of Tallahassee .under the title of “ The Union Bank of Florida,” with a capital of one million of dollars, and with the privilege of increasing it to three millions op dollars; which capital was to be raised by means of a loan on-the
Under this provision of the charter, there is no doubt but that the Union Bank might, if such deduction were not made, have applied so much of the money loaned to the plaintiff in error on his stock, as would have extinguished the lien-of his mortgage,to Smith and Par-ramore, or that it was its duty to have done so. But the parties injured by the misapplication of the funds, if indeed any injury has been sustained, or any misapplication has taken place, are not before the Court; and for the reasons above stated; wé have no power, as this case is situated, to bring them here. No one is here complaining of this matter, but ithe plaintiff in error himself; and it will appear, we think, for reasons hereafter to be stated, that he cannot avail himself in this case of that provision of the charter. But has any injury been sustained by any one, in consequence of the non-application of any portion of the proceeds of the check of $11,866 09 to the pay. ment of the note .which is the foundation of this suit 1 Was there any imperative rule of law requiring such application ? It is to be recollected that the whole amount of the loan of the Bank to the plaintiff in error, was $38,733 34. This was raised, as appears by the testimony of Rutgers, the Cashier of the Bank, upon the mortgage of land and negroes. Considerably less than one half of the sum of $38,733 34, it would appear from the testimony before us,
It was insisted in argument that the charter of the Union Bank is a public act, and that consequently Smith and Parramore were bound to take notice of it; and that, they having appraised the lands which Randall proposed to mortgage to the Union Bank, under an appoint, ment from that institution for that purpose, they were apprised of the intention of Randall to mortgage to the Bank the same lands on which they held this mortgage, and were therefore bound to see that their mort. gage was paid out of the first money loaned to Randall on his stock. Without stopping to determine whether the position in relation to the charter is well assumed or not, it is deemed sufficient to say that if it be, Smith and Parramore had the same right to notice the provision in the 8th section in relation to the deduction above mentioned, and also the provision in the 29th section of the charter, “ that each and every stockholder shall be entitled to a credit or loan equal to two-thirds of the total amount of his shares, (Duval’s Comp., 451), by which they would have seen that Randall would be entitled to draw from the Bank on the lands they had appraised, a sum more than equal to the amount of their mortgage and the check together. So that there seems to be nothing in the provision of the 8th section of the charter relied upon, to affect them in this matter so far as now appears.
It is alleged, further, on behalf of the plaintiff in error, and in sup. port of the issue in this case, that he appropriated so much of the
From the view we have taken of this case we might, perhaps with propriety, spare ourselves the trouble of examining the several errors assigned; but as some of them seemed so strongly relied upon by the counsel for the plaintiff in error, we proceed briefly to consider such of them as appear to be deserving of special attention. The first is, that the Court erred in refusing to let exhibits B. and C. to the deposition of H. L. Rutgers, offered in evidence in the Court be
The second error assigned is, that the Court erred in allowing the answer of Thomas Randall to the bill of complaint of the Union Bank, exhibited against said Randall and Smith & Parramore, to be read in evidence to the jury without the bill of complaint, to which the same was an answer.
In order to a correct determination of the question here presented, it becomes important to ascertain the. purpose for Which a bill should be before the Court, when the answer is offered in evidence.- It is not as proof, because a bill cannot be used as evidence. Doe on the demise — Bowerman vs. Sybourn, 7 Durnf. and East, 2. The bill, in this case, most certainly could not j for it was the bill of a third party. The reason given in the books why an answer cannot be given in evidence without the bill, is, “because without the bill there does not appear to be a cause depending.” 3 Bac. ab. Title Ev. 559, Archd. Pv. 219. An answer is proved by shewing the allegations in the Court, by shewing the bill which is the charge, and the answer which is, as it were, the defence of the bill. 1 Starkie Ev. 287, 288. An answer in Chancery is proved by the production of the bill and answer, or of examined copies of them; but on proof of the proper officer that the bill has been searched for in the office and
Wfi do not deem it necessary to remark upon the other errors assigned, all of whieh are founded either upon instructions given, or asked and refused to be given to the jury, further than to say that we have examined them all, and do not find that the Court below erred either in. the one or the other.
But if it had, the verdict in this case is conformable to the law and the evidence, and should not be set aside, merely because the Court refused to give instructions which might have been properly given. Thomas et ux, 6 Monroe’s Rep. 61 — Breckenridge vs. Anderson— 3 J. J. Marshall Rep., 717. Nor, if the effect of the instructions be such as the facts authorized, will the judgment be disturbed, merely because the opinion of the Court (in his instructions to the jury,) was given in an improper form, or was founded on a misconception of the law, Lee vs. Chambers, 3 J. J. Marshall, 508. So the refusal of
After a verdict in favor of either party, he has a right to demand of a Court of Errors that they look to the evidence for only one purpose, and with a single eye to ascertain whether it was competent in law to authorize the jury to find the facts which make out the right of the party on a part, or the whole of his case. If, in its judgment, the Appellate Court shall hold that the evidence was competent, then they must found their judgment on all such facts as were legally in-ferrable therefrom, in such manner and with the same legal results as if they had been found, and definitely set out in a special verdict, So, on the other hand, the finding of a jury on the whole evidence in a cause, must be taken as negativing all facts which the party, against whom their verdict is given, has attempted to infer from, or establish by the evidence. Hepburn vs. Hubois, 12 Peters, 376.
Testing this case by the principles here laid down, we think the law is for defendants in error, upon the facts found by the jury.
The judgment of the Court below is therefore affirmed with costs, Per curiam*