3 Ind. 337 | Ind. | 1852
Bill in chancery to foreclose a mortgage. The bill states that, on the 12th day of January, 1847, Daniel and Charles B. Sherman were indebted to Benoni Sherman in the sum of 800 dollars, as evidenced by a promissory note of which the following is a copy:
“$800. Two years after date, we, or either of us, promise to pay to Benoni Sherman, or order, eight hundred dollars, without relief from valuation or appraisement laws, for value received. January 12, 1847. Daniel Sherman, Charles B. Sherman.”
That, being so indebted, they did, at the date aforesaid, execute to said Benoni a mortgage upon certain real estate to secure the payment of said indebtedness, which mortgage was conditioned “ that if the said Daniel and Charles B. Sherman shall well and truly pay, or cause to be paid, unto the said Benoni Sherman, their certain promissory note of even date herewith, in favor of the said Benoni Sherman, for the sum of eight hundred dollars, without relief from valuation or appraisement laws, due and payable two years from the date hereof, for value received, and according to the tenor and effect thereof, then,” &c.
The bill further states that the time fixed for payment has passed, and the money has not been paid; that no proceedings at law have been had for its collection; that said Benoni is dead, and Shedar Sherman, the plaintiff in the bill, is administrator on his estate. The bill prays a foreclosure, &c.
The defendants answered, admitting the note and mort
The usual replication was filed, and depositions were taken. The Court decreed a foreclosure of the mortgage, &c.
It sufficiently appears by the evidence that Benoni Sherman, deceased, was the owner of the land covered by said mortgage, and that he deeded it to his two sons, Daniel and Charles B., taking back from them, at the time, the note and mortgage in question; that he had previously aided his other children, and that he intended the land conveyed to said Daniel and Charles as a gift, subject to the support of himself and wife; that he took the note and mortgage as a means of securing that support, and to operate as a check upon the conduct of his sons, and not to be collected; or, as he himself expressed it to one of the witnesses, four days before his death, “he had given to Charles and Daniel the place and had taken a mortgage for his support,” &c., “as Charles was a wild, rambling, young man, and he did not know what might happen. But now, as Charles had married and settled, he did not hold the mortgage against the place any longer.” It further appears that said Benoni and wife were supported by his said sous while he lived, and that
We shall not inquire whether the delivery of the note and mortgage in this case can be supported as a donatio mortis causa; nor whether the support of Benoni and wife constitutes a consideration that will uphold their surrender. There are other principles upon which, in equity, the case can be determined.
“Acts and declarations may amount to what, in the Court of Chancery, will be equivalent to a release of a debt.” 2 Spence Eq. 912.
A Court of Equity will order the delivery up and cancellation of instruments, where they are “clearly established by the proofs to have become functus officio according to the original intent and understanding of both parties ; ” and, also, “ where it has been fairly inferable from the acts or conduct of the party entitled to the benefit of the deed or other instrument, that he has treated it as released, or otherwise dead in point of effect.” 2 Story’s Eq. p. 19.
Some of the cases in which these principles have been applied, are as follows:
In Wekett v. Raby, 2 Bro. P. C. 386, “Mr. Piggot, a short time before his death, said to his wife, who was his executrix and residuary legatee, he had Raby’s bond which he did not deliver up as he might live to want it, but added, * when I die he shall have it, he shall not be troubled or asked about it.’ On the death of Mr. Piggot,
Here are two classes of cases in which equity will decree the delivery up of instruments, the evidences of debt: 1. Where they were not intended, originally, to be enforced; 2. Where they were intended, originally, to be enforced, but that intention has been finally abandoned. The case under consideration falls within both these classes. In it, we may remark, the mortgage was but a security for the note, and any act that discharged the lat
Suppose this had been a suit to compel the re-delivery of this note from Charles B. Sherman to Benoni’s administrator, would it have been sustained on the facts now appearing in the record? If not, then, the present suit should not be. It will be observed that this bill is not in behalf of the widow to secure a support for her. She is not complaining; and when she does complain it will be time enough to ascertain what can be done for her. This bill is to collect the note in question for the benefit of all Benoni’s heirs, a part of whom, he intended, should not have any of it; and, if successful, would destroy the claim of the widow to future support, as well
The decree is reversed, with costs. Cause remanded, &c.