Riddle v. Bowman

27 N.H. 236 | Superior Court of New Hampshire | 1853

Woods, J.

This action was commenced to recover the amount of a note for $3800, signed by the plaintiff, as surety for the original defendant, Bowman, and one Stevens, to the Derry Bank.

The plaintiff paid the amount to the bank, excepting a part of the interest, in the several instalments. The plaintiff, then, is entitled to recover of the defendant, Stevens being dead, the amount paid in discharge of the note, unless he has received moneys for which he is obliged to account. Stevens conveyed to the plaintiff, in mortgage, several tracts of land, to indemnify him generally for signing the note. A portion of the land thus mortgaged was encumbered by a mortgage to F. G. Stark, and upon the death of Stevens, the mortgager, his widow claimed dower in another portion. Two of the lots of land embraced in the mortgage were sold by the plaintiff for $1,725,73, and another lot for $1,500. If no other facts appeared in the case, then the plaintiff, we think, would be legally bound to account for those two sums, amounting in the aggregate to $3,225,73, upon the. sum paid by him to the bank.

But he paid to Stark the amount of the mortgage to him, being $703,31. And he also paid to Mrs. Stevens, for her right of dower in the land, $275. And there is no suggestion that that sum was not its fair value. The plaintiff, then, is entitled to have those two sums, amounting to $978,31, deducted from the sums realized by him upon the sale of the lands in question, leaving a balance of $2,247,42, for which the plaintiff is to account.' Interest should be added to the receipts and payments. Simple interest is to be cast upon the several payments made by the plaintiff, from the date of each payment respectively. And simple interest is also to be allowed upon the several sums received by him, from their respective dates.

The fact that the plaintiff, upon the payment of the Stark mortgage, took an assignment of it, cannot relieve him from his accountability for the residue of the money realized by him for the land sold, over the amount of that mortgage. The same remark is applicable to the payment made for the dower, and the conveyance taken of it. The title to the residue of the estate, beyond the value of the mortgage and dower, was holden as collateral security, and must be accounted for accordingly. Moreover, he is not relieved from his accountability for what he realized from the sale, by the fact that it does not appear that the Stevens’ mortgages had been, at the time of the sale, foreclosed. By the mortgage, the plaintiff, or his grantee, can hold the possession of the land, free from all right to redeem by any one, and all risk of ejectment, until the entire bank debt shall be paid, or at any rate, until he is fully indemnified for having signed the note in question. And having given his deed of warranty to his grantee, he is thereby only liable for what he received of him, and interest thereon, in any event. But before he is obliged to surrender his title and possession, he will receive such sum as will at least indemnify him against his liability, by reason of his covenants of warranty. There is no equitable ground, therefore, as we conceive, upon which he can be holden not liable to account for the money realized upon the sales made.

The plaintiff is entitled to judgment, therefore, for the balance -which shall be found due him, upon the principles before stated.

Judgment for- the plaintiff.