8 Paige Ch. 173 | New York Court of Chancery | 1840
Upon the state of facts presented in this case, I should have no doubt that the defendant Thomas was entitled to hold the bond and mortgage as security for the money thus advanced by his son, with the interest thereon, even if the subsequent mortgage by Knapp to the complainant had been given for money advanced at the time, and not merely to secure an antecedent debt. The fact that $380, of the money of Thomas, was advanced to takeffip the mortgage upon the faith of the promise that he should have the benefit of the security then held by the bank, is proved by a credible witness, independent of the testimony of Hinkley. And there can be no doubt of the intention to preserve the existence of that security, from the fact that the mortgage was assigned to Thomas by the proper officer of the bank, at the time the money was paid. As the payment of the money and the assignment of the mortgage were all one transaction, it is wholly immaterial whether the money was paid before or after the assignment was drawn and executed. -Neither is it of any consequence whether Hinkley did or did not state to the cashier the true reason why he wished the mortgage transferred to Thomas. There is no pretence in this case that the complainant has been misled or induced to part with any thing valuable, upon the supposition that the mortgage to the bank had been discharged. If he had made any inquiry of the officers of the bank, they would of course have told him of the assignment, if they had told him the truth. I have examined the bill, and cannot even find an allegation that the complainant had been misled by any statements which Hinkley had made. On the contrary, I am inclined to think he has gotten a security upon this farm for the payment of his debt from Knapp, which ought not in equity to have a preference over Hinkley’s equitable lien upon the farm to satisfy the balance of the incumbrances still existing upon the farm which was received in exchange. Without expressing any opinion, however, on that question, which cannot arise on these pleadings, or between these parties, I am satisfied the defendant Thomas is entitled, un
As the whole amount of the complainant’s mortgage is not yet due, and he and the defendant Knapp do not agree as to the amount which has been paid thereon, the one stating it at $60 and the other at $80, no decree can 1$ made until the amount is computed by a master, and a report has been made as to whether the premises can be sold in parcels. A reference is to be directed accordingly ; with liberty to either party to proceed upon it before the master, with liberty to either to apply for a decree of sale upon the coming in of the report on any regular motion day or in term.