Lead Opinion
FROM GRAFTON CIRCUIT COURT. As a part of the consideration for the conveyance from the plaintiff to the defendant, the latter agreed to pay the debt of the former to Leach, amounting to $901. The defendant neglected to perform his promise when requested, and Leach's administrator thereupon *Page 487 commenced proceedings against him, by which his right to redeem the premises from the mortgage to Leach became foreclosed. The plaintiff does not bring this suit upon the promise of Hoskins to pay the Leach debt, nor does he claim to recover damages for the nonfulfillment by Hoskins of his agreement. If the suit were brought to recover for the breach of that agreement, he would be entitled to recover at least nominal damages. Braman v. Dowse, 12 Cush. 227; Pike v. Brown, 7 Cush. 133. But the plaintiff has brought this action to recover the amount of the two notes falling due April 1, 1872, and April 1, 1873, respectively. His claim rests upon the alleged ground, that, as the defendant failed to pay the Leach debt when requested, the plaintiff had the right to rescind the contract by which he surrendered to the defendant said two notes. It is an answer to this position, that the two notes never were the property of the plaintiff. They had been lodged, with other papers, with a third party, to remain in his hands till April 1, 1872, when they were to be delivered to the plaintiff, provided he should by that time have paid off the Leach mortgage. This conditional agreement, made in December, 1871, was never carried out; but on March 26, 1872, another agreement was substituted for it, in consequence of which the two notes which had never been delivered to the plaintiff were returned to the defendant. It seems to me very plain that the plaintiff cannot recover for these notes, because they had never become his property.
But suppose it be conceded that the plaintiff owned the notes, and was induced to surrender them to the defendant in consequence of the latter's promise to pay the Leach mortgage. That debt has been paid. But by whom? Out of whose property was it satisfied? The plaintiff says his property paid it, and argues, that since, as between him and the defendant, the fee to the premises was in the plaintiff by virtue of the mortgage from the defendant to him, and as the Leach debt was satisfied by a foreclosure of the Leach mortgage upon the same premises, therefore it was paid out of his property. But this is not so. When the plaintiff conveyed to the defendant, the premises were subject to a mortgage from the plaintiff to Leach. The plaintiff therefore could convey only his equity of redemption to Hoskins. Hoskins mortgaged the same premises back to the plaintiff to secure his three notes of $500 each. As between these two parties the mortgage passed to the plaintiff all the estate in the land, and, in the absence of any agreement to the contrary, the plaintiff could have entered upon the land and held it until redeemed, and could have maintained any action against any one, including the defendant, for the disturbance of his possession. But the law gives a mortgagee these rights to enable him to prevent waste, and keep the land from being lessened in value in any way, and also to enable him to receive the rents and profits. But his interest in other respects is different. For other purposes the law treats his estate as a personal chattel, a mere security for the debt, an incident to it, which cannot be detached from it. Southerin v. Mendum,
Even if Fogg can rescind the second contract, it is clear that he cannot maintain this action till he pays the Leach mortgage, which he agreed to do. The defendant's equity has paid that debt, and, if this action is sustained for the two notes, he will thus be compelled to pay it twice.
The defendant is entitled to judgment on the report.
Concurrence Opinion
On the 26th day of March, 1872, none of the papers had been delivered. The notes had not become the property of the plaintiff, and the farm had not become the property of the defendant. On that day a new agreement was made, by virtue of which the defendant undertook to pay off the Leach mortgage; and, instead of delivering the two $500 notes, the difference between $1,000 and the amount of the Leach mortgage was paid by the defendant. The clause was inserted in the plaintiff's deed subjecting it to the Leach mortgage, and the two $500 notes never were delivered, and never became the property of the plaintiff; and this new arrangement took the place entirely of the first arrangement.
In order to rescind this contract, it was necessary that the parties should be restored to their original position, which the plaintiff could not do, because he could not relieve the defendant from that clause in the deed by which he took the property subject to the Leach mortgage. So far from rescinding the contract, he took active measures to compel the defendant to perform it by causing the Leach mortgage to be foreclosed and the agreement performed.
This being so, the plaintiff never had any cause of action against the defendant. He could not recover what is called the consideration of those notes, because he could not and did not restore to the defendant what the defendant had given for it. He could not recover for the breach of the agreement, because he had not been damaged by it.
If the plaintiff sees fit to buy back the land, I do not see that that affects the matter at all. The defendant still owes the remaining $1,500 to the plaintiff, notwithstanding that the plaintiff, by his own action in causing the Leach mortgage to be foreclosed, has deprived himself of the security of the land on the remaining part of the purchase money.
What the effect of these facts would be by way of defence, should the plaintiff endeavor to enforce the other notes or to maintain an action on the covenants in his mortgage, need not be inquired into here.
LADD, J., concurred.
Judgment on the report. *Page 489