Rives v. Toulmin

19 Ala. 288 | Ala. | 1851

PARSONS/J.

The notes were payable at certain times, as they originally were, the last one maturing September, 1851. The notes and the bond were made the 1st of September, 1845» The day when the bond was executed is averred in the declaration, and the -date of the notes is stated in the mortgage. The mortgage is dated September, 1845, but it must have been executed on the first of that month, because it is mentioned in the condition of the bond. . For the sake of convenience, we will assume for the present, but endeavor to prove in the end, that the mortgage is to be taken as parcel of the subject matter of the contract, which is shown by the condition of the bond, and, in fact, as part of the condition, in effect. The plaintiff’s right of action on the bond, both as to time and amount, was subject to three conditions precedent, specified by the condition itself, to wit: that Magee should fail to pay said notes; that the mortgaged property should prove insufficient to pay the same on a sale thereof; and lastly, that the plaintiff should be unable “to collect said notes of said Magee, at law.” it appears by the replication, that Magee failed to pay, and that the mortgaged property was sold, and was insufficient. ‘It also appears by the .replication, that the plaintiff brought suit against Magee, in the Circuit Court of Mobile, to recover the aggregate amount of all of said notes, and, in May, 1848, recovered judgment for the sum of $41,245 98, and the -costs, and that-an execution was regularly issued and returned “-no property found.” The case must .turn upon .the question, whether or not .this suit was according to the contract of the parties, as .it appears by the .condition of .the bond.'? They intended either ¡that a suit or suits should be brought on the notes, without regard to any thing contained in the mortgage, by which .the time of payment of the money mentioned .in the notes was .changed, or they intended that a .suit, if necessary, should be brought for the aggregate amount of th©-notes, under a stipulation contained in the mortgage,, which is a® follows :■ “ And should it so happen, that any of said- notes, or any part thereof, shall remain unpaid for the space of ninety-days after the same shall become due, and payable, then and in? that event, each and all of said notes shall become due and payable, notwithstanding some of them shall have a longer time to-, run before maturity upon their faceand said WilliamH. Rives may forthwith commence suit at law, or in chancery, for the recovery of the whole or entire debt covered by said six promissory notes.” All deeds are to operate according to the intention of the parties, unless that is unlawful.—Goodtitle v. Bailey, 2 Cowp. R. 597. And it is proper to look to the subject matter of a contract, and the inducements that led to it, for the-purpose of ascertaining what the parties intended.—Bates & Hines v. The Bank of the State of Alabama, 2 Ala. 451. Now, the circumstances of the contract were these r that the plaintiff’s-ihtestate, and the defendant and others,.were securities of Magee-for a large amount, which the plaintiff had paid. To secure this,, the plaintiff, as the intestate’s administrator, took Magee’s notes, payable at different times, and his mortgage on real and personal estate, to secure the payments, with a provision in the mortgage,, that in the event of a default for- ninety days after maturity of' either of the notes,, a suit might be brought for the entire debt.. It follows that, according- to the mortgage,, the entire debt for which the notes were made- was to- become payable at the time when such default should happen. In view: of this,, and for the purpose of securing the defendant’s share of the loss,, he executed the bond. The language of the condition is, it is true, that Magee’s failure“ to pay the notes,.” and the insufficiency of the mortgaged property “ to pay the same,.” and the inability of the plaintiff “-to collect said notes of said Magee, at law,” are the-contingencies upon which the defendant was to pay “-one fourth of the final amount of the-loss.” Butif the language had been-to pay the money mentioned in the notes,, and to, collect the-money mentioned in the notes, the intention would have been the same. Either way, however, it is reasonably clear, we think,, that the parties looked to a payment or collection of the notes;,, -or of money mentioned in the notes, not according to the tenor and. effect of' the.notes, but according to- the provision, of the moat-gage. The plaintiff’s right of action for the whole, when any default might-occur, was plainly provided for by the mortgage» It could not have been the intention or expectation of -any of the parties that the plaintiff might sue for the whole debt and recover according to the mortgage, and afterwards, for-the purpose of reaching the defendant, have to sue again upon the notes-. .Such unnecessary and unauthorized litigation, delay and expense, were intended, or it was intended that upon -the contingencies which have happened, one suit for the whole amount should suffice, and this last is our opinion, and therefore, -we . think the replication was substantially good, and that there was •error in sustaining the demurrer. Upon this view of the case, .-■the authorities cited by the defendant’s counsel do not apply.

2. It appears by the condition that the notes and mortgage .were in existence when the bond was executed, 'and it-is to be presumed that they were before the parties, for each -of them was recited in the condition -and was part of the subject matter -of the contract, which is evidenced by the bond and its condition. -Some of the authorities upon this point ate collected in 2 Cowen & Hill’s Notes, p. 517-518, ^edition of 1850») It is there said that whore one writing refers to another, either tacitly or 'expressly, both are to be construed together; and one may correct an erroneous description contained in another, or even vary, or add to, as well as explain it. And it is further said, that" two writings executed at the same time, in delation to the same subject matter, have, in many cases, been deemed one instrument, with a view to the construction of either.” In Jackson v. Parkhurst, (4 Wend. 374,) one deed referred to another, and the court said the latter, by the reference, became part of the former-; and in Sewell v. Henry, (9 Ala. 30,) the then Chief Justice of this Court made a similar observation, that “ two writings, connected by a reference of one to the other, may be considered and -construed as parts of an entire transaction, and as if they were embodied in one instrument.” in Habergham v. Vincent, (2 Ves., jr., 203,) the Lord Chancellor observed: "I cannot conceive but that a will may be good by reference to some other paper, no matter what. When the thing referred to is ascertained, .it is as much a part of the will, as if it was within the sheets. I remember one case, where a woihan devised her estate to the same uses to which her husband hatet devised by his will. The ’cdnse-quence was, Ms will became bers. Her will passed her estate, but to know what was done, it was necessary to refer to the other will.” In the same ease, Mr. Justice Wilson, who sat with the Lord Chancellor, said: “ I believe it is true, and I have found no case to the contrary, that if a testator, in his will, refers expressly to any paper already written, and has so described it that there can be no doubt of the identity, and the will is executed in the presence of three witnesses, that paper makes part of the will, whether executed or not; and such reference is the same as if he had incorporated it, because words of relation have a stronger operation than any other; as Lord Coke says in his comment on Littleton, when Littleton is speaking of the word 'heirs’ being necessary to raise an estate of inheritance, Lord Coke makes this exception : if A enfeoff B and Ms heirs, and B en-feoffs A in as full-and ample a manner as A has enfeoffed Mm, that will give the inheritance without the word ' heirs,’ and it shall have effect by relation.” This principle, therefore, is not confined to wills or any other particular instrument, but in reason and justice may apply to all' — to deeds of feoffment and other instruments.

The husband’s will, in the case mentioned by the Lord Chancellor, became part of the wife’s, not in consequence of the relation between them, but because she had referred’to his.

In the case before us, the mortgage was part of the subject of the contract. The amount of Mr. Toulmin’s liability was to depend on it, and the contract gave Mm an interest in it. It was so fully mentioned in the condition of his bond, that it could be readily identified, and in fact, its identity is not controverted. And not only the amount, hut, as we think, the time of liis liability, was to depend upon it, or rather, upon a suit and other proceedings authorized by it. As to the suit upon the event of which Ms liability, in respect of time and amount, -was to become fixed, we only limit the general language of the condition of the bond, by the more specific language of the mortgage, which we take as part of the condition. We do this to carry out what we think was the plain intention of the parties.

The judgment is reversed and the cause remanded.

DaegaN, C. J,, not sitting,