36 Vt. 303 | Vt. | 1863
As to the exception taken by the defendant to the charge of the court: it seems to us, that the case falls within the decision in Burgess v. Dewey et al., 33 Vt. 618, in which it was held, that a mere executory agreement to pay usury does not constitute a valid consideration for an agreement to extend the time of payment of an existing debt, so as to operate a discharge of a surety on such debt; and that a payment made in pursuance of such agreement to pay usury, after the term of extension had expired, would not operate to make valid such agreement, as a consideration for the agreement to extend the time of payment. The only difference between that case and this is, that in this the agreement to pay usury was evidenced by a promissory note for the amount thereof. We think such a note can be regarded only, as an executory agreement. It did not, of itself constitute any payment, because it was not given for, or in discharge of, any existing claim or debt. The cases, in which it is held that the giving of a note operates a payment, are when the note is given for some value of property, or in place of some existing indebtedness. And it is just in this respect that this case differs from that of Austin v. Chittenden, 33 Vt. 553, in which Austin held a valid note against Bradley & Canfield, on which the defendant was liable as endorser. She received another note from the principals, signed by John Bradley, and endorsed by Harry Bradley, to cover the amount of said note and two others which she held against said Bradley & Can-* field; and, in consideration that they would give her said new note, she agre,ed to receive it in payment of said three notes with the right to hold said three notes as collateral security for the new note, and agreed to await the maturing of said new note. It is clear that the giving of such new note was
As to the exception taken by the plaintiff to the judgment discharging the trustees, the case does not show any privity between the defendant, Hyde, and the trustees. The trustees had purchased and taken a deed of real estate encumbered by a mortgage to secure the payment of a note given by Stanley to Waterman, and assigned to the administrator of R. B. Hyde’s estate, on which was then due $422. Assuming (what the case does not show), that Caroline N. Hyde was such administrator, and held said note either as such, or in her own right, it is not shown nor claimed that the trustees have ever entered into any contract with her to pay that note. The only qontract they are under in respect to it, is that contained in the deed, and that inures only to the grantors in said deed. Having taken a conveyance of the property subject to the mortgage, their only liability to the holder of said note is in virtue of the mortgage security, and that gives no claim* or right against them personally, but only a right against the property, to be enforced by a foreclosure. This clearly is not within the scope of the trustee process.
The judgments are both affirmed.
