author: Swift, Ch. J.

text:
    Scott against Lewis.

      New-Haven,

    November, 1816.

      ,i. having given a usurious security, paid the amount, thereof to B., who was surety for him, and B. in consequence of such payment, gave bis own note to the creditor for the same amount; held that the latter note Was not usurious.
    THIS was an action on a promissory note for 350 dollars,
    The canse ivas tried at Mew-Haven, August term 1816, before Swift, Ch. J. ant! Goddard and Hosmer, Js.
    The defence was usury ; in support of which, the defendant introduced evidence to prove, that one James Sherman

    applied to the plaintiff for the loan of 350 dollars ; that the plaintiff, on such application, agreed that he would make, the loan, by discounting a note to be signed by the defendant and indorsed by Sherman and two others, payable twelve months after date, with interest, and allowing eighteen shillings on the pound of the amount of such note, which discount would exceed the rate of six per cent, per annum ; that Sherman procured a note thus drawn, signed and indorsed, which the plaintiff took, and thereupon made the proposed loan, on the terms of such corrupt agreement; and that the note in suit was afterwards substituted by the defendant, and accepted by the plaintiff, for the note so discounted, which was given up. The defendant, therefore, contended, that the note in suit, being a substituted security, for one clearly usurious, was also usurious and void. The plaintiff then introduced evidence to shew, that the defendant, at the time when he signed the first mentioned note, took a note, from Sherman for 350 dollars, secured by mortgage; and that he had since received the amount of the last mentioned note, by means of a quit-claim deed of the mortgaged premises. The plaintiff thereupon contended, that although the first note was usurious and void, as claimed by the defendant, yet the note in suit was valid. The court decided, and so instructed the jury, that although the first note was given upon the usurious contract claimed by the defendant, yet if the jury believed, that the defendant had received the amount of the note given by Sherman to him and secured by mortgage. and, in consequence thereof, had given the note in suit to the plaintiff, this note would be valid ; and the .jury ought to find a verdict for the plaintiff. The jury having found a verdict for the plaintiff, the defendant moved for a new trial on the ground of a misdirection ; and the questions arising on such motion were reserved for’ the consideration and advice of the nine Judges.

      Bristol, in support of the motion,
    contended, (hat the note discounted by the plaintiff being clearly usurious, and the note in question being a substituted security between the same parties, given to continue the original loan, the defence was established, and the plaintiff could not recover. Townsend v. Bush, 1 Conn. Ilep. 2G0. Cnthbert v. Haley, 8 Term Hep. 390. Tale v. Wettings, 3 Term Hep. 537V Ord on Usury 103. a. This case does not come within the exceptions to the general rule in Ellis v. Warnes, Cro. Jac. 32. and Kilbournv. Bradley, 3 Day's Ca. 35(5.
    2. That the defendant’s receiving payment of Sherman's note to him could not, in point of law, be a consideration for the note in suit, so as to remove the contamination of usury.
    3. That a new consideration, if admitted, would not validate the present note : as it still would he a security whereby more than lawful interest was reserved, and therefore within the express words of the statute.
    4. That if ibis case were not within the express words o! ihe statute, stiii it was within the principle of that class of ases where it has been held, that no recovery can be had for money paid by (he plaintiff for the defendant, or received by :hc defendant for the plaintiff, on an illegal transaction. Steers v. Lashicy, 6 'Term Hep. 61. Mitchell v. Cockbumu, ’ IT. Black. 379. Jlubert v. Maze, 2 Bos. & Full. 37 S. Booth v. Hodgson, 6 Term Hep. 405.

    «IV. Smith, contra

    distinctly admitted, that the note of a third person made to raise money in market, and put off at a greater discount than six per cent, per annum, is usurious ; also, that, a substituted security is no better than the original one ; but contended, that the note in question stood upon a different footing, being given upon a new and distinct con. sideration. Sherman, the maker of the original note, chose to pay it; and placed funds in the defendant’s hands for that purpose. The defendant, then, in consideration of having such funds in his hands, gave the note in question. The rase is precisely within the principle of Church v. Tomlin-son

       decided in this Court, November term 1811. Suppose T owe J, a sum of money on a usurious contract, which, of course, be could not recover of me; but I request B. to pay (hat money to A., which B. accordingly does, and I give him my note for the amount so paid ; cannot B. recover on this note ? If so, the note in suit is unimpeachable.

       Church against Tomlinson :
      IN ERROR.
      THIS was an action brought by Tomlinson against Church on a promissory note. In the county court, the defendant entered a plea in bar, stating the following facts. On the 3d of April 1802, the defendant purchased of one French, a farm, for which he agreed to gire the sum of 10051. The defendant paid and secured, at the time of purchase, the sum of 3051.; but being in want of the remaining sum of 700?. to make up the purchase money, he applied, with the knowledge, and by the direction, of the plaintiff, to Jabez Bacon, for the loan of that sum. Bacon, after advising with the plaintiff relative to the value of the farm, and relative to the proposed loan, offered to loan the defendant the sum of 7001., and pay the same over to French, provided he would consent that French should convey the farm directly to Bacon, and the defendant would also give his own note including that sum, with the lawful interest, and the further usurious and oppressive sum of 100/., making in the whole 800?., payable by several instalments, with annual interest; and in that case, Bacon would give the defendant a bond to convey the farm to him upon payment of the note. The defendant acceded to these terms ; and a corrupt and usurious agreement conformable thereto, was, with the knowledge of the plaintiff, and by his procurement, entered into between Bacon and the defendant. Bacon accordingly loaned the defendant 7001, and paid the same over to French; and the defendant gave his note for 800?., payable as aforesaid. In March 1804, the defendant paid Bacon about 700 dollars, took from him a deed of the farm, and gave him a new note for the sum remaining due, with interest, including therein, by a usurious and corrupt agreement, said 100?.; and, as a security for the payment thereof, gave him a mortgage of the farm. This note remained in Bacon's hands until his death; when it came into the hands of the plaintiff, as his property. Immediately aftérvvards, the plaintiff, knowing what had taken place, proposed to the defendant to take it up, and give three notes to the plaintiff for the same amount, including interest, and to mortgage other lands as security, threatening him, at the same time, with a suit, in case of non-compliance. The defendant accordingly took up his note payable to Bacon, and gave the defendant, for no other cause or consideration, three promissory notes, one of which was the note in suit.
      The plainliff replied, that the note in suit was given for good cause and consideration, and was not usurious and corrupt, as the defendant in his plea had alleged ; on which issue was joined.
      The jury found a verdict for the defendant; and the plaintiff moved' for judgment in his favour, veredicto non obstante. The court, after taking time to consider, granted the motion, and gave judgment for the plaintiff.

        A writ of error being brought by the defendant, the superior court affirmed the judgment. A writ of error was then brought before the supreme court of errors.

        R. M. Sherman and Staples, for the plaintiff in error, contended, 1. That the note in suit was intrinsically usurious, as it was a security whereby there was reserved more than six per cent, per annum ; and that -with the knowledge of the plaintiff. In Cuthbert v. Haley, 8 Term Rep. 390. the original securities, which were usurious, came into the hands of the plaintiffs, without knowledge of the usury ; and on that ground alone the substituted security was held to be valid.
      2. That if the note in suit was not intrinsically usurious, yet it was void, on the ground that it grew out of an illegal transaction. Steers v. Lashley, 6 Term Rep. 61. Ex parte Mather, 3 Ves. jun. 373. Ketchum v. Scribner, 1 Root 95. Melding v. Pitkin, 1 Caines' Rep. 147- In 1 Campb. Rep. 165. n., it is laid down as the result of all the authorities, that if the original contract be illegal, it does not admit of being regenerated, and no subsequent agreement or confirmation by the party can give it validity. “ The statute against usury has a wider scope than merely to protect individual borrowers. It is founded on principles of public policy. The whole community have an interest in its provisions.’5 1 Scho. & Lef. Rep. 195. 312.

        Daggett and TV. Smith, for foe defendant in error, adverted to most of foe cases regarding substituted securities, and contracts, express or implied, .arising out of illegal transactions; but the ground on which they principally relied. was, that the plaintiff, being a bona fide purchaser of the note to Macon, for a valuable consideration, which, though infected with usury, was property in his hands, and would entitle him to recover of Macon the sum paid for it; the giving up of that note was a new, and a lawful consideration for the note in suit ; and that neither the previous history of the former note, nor the plaintiff’s knowledge of that history, were of any importance in the case.
      Bv the Court, unanimously, the judgment was affirmed,

   Swift, Ch. J.

A new security for a usurious debt is void : So is a substituted security, unless made payable to an innocent party, ignorant of the usury j or unless the usury be purged by a new consideration.

The original note in this case was usurious and void ; but Sherman, the real debtor, instead of taking advantage of it., paid the whole sum to the defendant, who stood in the capa city of surety for him, and the defendant then gave his note to the plaintiff. When the defendant received the amount of the original note from Sherman, it became his duty to pay is to the plaintiff. When he gave the note on which this action is brought, it was not giving one security for another, or s. substitution of a security on the same consideration ¡ but if was giving a note on a new consideration, uninfected by usury. It was giving a note to the plaintiff for 1 lie money which the defendant had received from Sherman, lo pay over to him, and not on the same consideration on which the original note was given. Suppose one man should send money by another, to pay a usurious note, and instead of paying the note, lie should retain the money, and gi\o his own note for the same sum in discharge of the usurious note. This clearly would not he usury $ and the two cases are precisely parallel in point of principle.

Í am of opinion, that the charge to the jury was proper : and that a new trial ought not to be granted.

In this opinion the other judges severally concurred.

New trial not to he. grao led.


source: Caselaw Access Project

author: Swift, Ch. J. Go led, J.

license: Public Domain

text:
    Hotchkiss and another against Downs.

      New-Haven,

    November, 1816.
    ought a olcon-up to de-gright of :ion ; yet a mere liability to pay money for another, without actual payment, being no ground of action, a parol coni’'act regarding, such liability will bind the parties. Therefore, where there were several outstanding debts, against the plaintiff and defendant, on securities which they had signed and indorsed for each other, for the payment of which they were reciprocally liable to die creditors, it was agreed between them, by parol, that the plaintiff should assume and pay a certain proportion of the amount, and that the defendant should pay the residue, and give the plaintiff a promissory note for a certain sum, which, with the payment to be made by him, should be considered as his proportion ; the plaintiff paid to certain creditors a part of the outstanding debts, but less in amount than his proportion according to the agreement; andthen.no payment being'made or note given by the defendant, brought his action for money paid to the d/om.-feii>: me : b was held, that the plaintiff was not enti’kd
    THIS was an action of indebitatus assumpsit for money , Aim u,vj,Limim mi the defendant's use. The n contained a special count, stating several sums laid out, paid, and expended fo ueciarati paid by the plaintiffs, at different times, to several persons, at the request of the defendant, and for his use and benefit.
    The cause was tried at New-Haven, August term 1816, before Swift, Ch. J. and Goddard and Hosmer, Js.
    On the trial, the defendant offered evidence to prove, that be'ore the payment by the plaintiffs of the sums of money fur which tills suit was brought, there were various debts out standing against the plaintiffs and the defendant, on which. i hey were jointly liable ; that on a part of these debts the plaintiffs were liable either as promisors, or sureties far the defendant, and on the residue, the defendant was either promisor, or indorser for the plaintiffs ; that before the bringing of this suit, and before the payment by the plaintiffs of the sums in question, there was a parol agreement between the parties, that the plaintiff should assume and pay a certain proportion of the amoijnt of said debts, and that the defendant should pay a certain other proportion thereof, and also give the plaintiffs his promissory note for a certain sum, which payment and note should be considered as the defendant’s proportion of said debts ; and that the several payments made by the plaintiffs were made in pursuance of this agreement. The plaintiffs claimed, and offered evidence to prove, that the several payments for which this suit was brought, were made by the plaintiffs in consequence of their being promisors and sureties for the defendant, for and on account of his proper debts. It was not claimed by the plaintiffs, that they had ever fulfilled their part of said agreement; and it was proved, that the defendant had never paid what was agreed to be considered as his proportion of the debts, nor given the plaintiffs his note for the stipulated balance. On this state of facts, the defendant contended, that the plaintiffs could not recover in this form of action. The court instructed the jury, that if they should find the agreement proved, as claimed by the defendant, they must give a verdict in his favour; unless they should also find, shat the plaintiffs had paid their proportion, or had paid a greater sum on account, and in part, of said outstanding debts, than they were, by the agreement, bound to pay ; in which case, they must bring in a verdict in favour of the plaintiffs. The jury returned a verdict for the defendant; and the plaintiffs moved for a new trial on the ground of a misdirection. This motion was reserved for the considera ’ion and advice of the nipc Judges,
    JV. Smith and Wales, in support of the motion,
    contended, that the plaintiffs’ right of action, for money laid out, paid, and expended, for the defendant’s use, could not be defeated, by a mere parol agreement, unfulfilled, on either side, and abandoned, lor aught that appears to the contrary, the mo mcnt it was made. Suppose those facts had been stated in a p]ca j51 ijar . would it be good on demurrer ?

      S. V. Staples and S. Staples, contra,
    adverting to the statement of the ease, observed that the parties were mutually liable to third persms for each other, but neither had any right of action against the other, until he had paid a greater proportion of the outstanding debts than Ms proper share 5 and the agreement was of use to shew what that proportion was, but. was not relied .on as a release of an existing right. The ease is, in substance, nothing more than this. The parties had made an arrangement respecting their mutual liabilities ; and while they were going on to carry that arrangement into effect, one of them stops, before he had performed his own part, and sues the other.
   Swift, Ch. J.

In this case, the plaintiff contends, that the defendant sets np a parol contract not executed in bar of an existing right of action, when by law such contract can be no bar,

It is admitted, that a parol contract not executed cannot be pleaded in bar of an existing legal right. It is also true, that a parol contract, when broken, cannot be released by parol; but it is equally true, that it can be, before broken.

The argument of the plaintiff, in this case, is grounded on a mistaken assumption of a fact. It is supposed, that this agreement is set up to avoid a legal right, existing at the time the contract was made : but on examining the motion for a new trial, it will appear otherwise. The plaintiffs and de fendant had been indorsers and signers of notes for each other as sureties $ for which they were mutually liable, and apart, of which had been received by each. At the time the agreement set up by the defendant was made, neither party had made any payments of these debts. Of course, the plaintiffs, at that time, had no right of action against the defendant. They were only liable to pay money for the defendant, in case ho did not pay it : but no right of action accrued until an actual payment ; for the mere liability to pay money for another as surety is no ground of action. In this state of things, the parties came together, and having ascertained the proportion of each to pay, mutually agreed to pay it. Here was no parol contract to release or defeat an existing right of action ; for none existed. Before any right of action accrued, the parties agreed in what manner and proportion the debts should be paid. If a parol contract, before it is broken, can be released by parol, it follows, that the parties may agree in what manner it shall he paid, or satisfied. This was, then, a valid agreement, on good consideration $ and the parties were bound to pay the proportions they had ascertained. The plaintiffs, then, when they paid these debts for which this action is brought, were paying their own proper debts, pursuant to their agreement. They paid no debt of the defendant, or any money on his account, unless they paid more than was their proportion to pay, according to the agreement; and the court directed the jury, if they found the plaintiffs had paid more than they were obliged to pay by that agreement, to find a verdict in their favour.

1 am of opinion that the charge was correct, and that a new trial ought not to be granted.

In this opinion Trtjmbtoi, Edmond, Smith, Braisard, B am win, Goddard, and Hosmer, Js. concurred.

Go led, J.

From the view which I have taken of the case, l am unable to concur in the opinion of the Court. The claim of the plaintiffs is, in effect, that they, as sureties for the defendant, have paid the money demanded, in satisfaction of his proper debt. Thus far, the case is the common one, of an indebitatus assumpsit, for the recovery of money, which one person was bound to pay, and has paid, for the use of another. But it is objected, that the plaintiffs are precluded from recovering in this form of aclion, by the special agreement; which, it is said, supersedes, or extinguishes the implied promise, that might, otherw ise, have arisen out of the transaction, and imposes upon the plaintiffs a condition precedent, which they have not performed. There is no doubt, that the general assumpsit, which the law would otherwise imply, from the acts of parties, in certain cases, may be excluded, by a special undertaking, accompanying those acts. Thus, if upon a sale of goods, an express promise is made, to pay a fixed price for them the vendor cannot' recover in an implied assumpsit, upon a quantum valebant: and many similar cases might be stairu. jn w(,jc]t the maxim applies, expressmn facit cessare taciturn, In all such cases, however, the special agreement is made at the time, and is, itself, a part of the original transaction, which constitutes the consideration j and is always repugnant, in some respect, to the general promise, which the law would otherwise raise from the facts : so that the evident i which establishes the express promise, necessarily disproves the implied one. And this, I take to be the precise ground, on which a special undertaking ever excludes an implied assumpsit.

But the case before us is open to no such objection. Here, there was, originally, a mutual implied promise, arisi nt from the act of each party, in becoming surety for 1 lit other, that each would repay to the other, what the latter, as his surety, should pay for his use. Whereas, the express promise, made after the former was raised, is, that, each party shall pay to third persons, what the other is bound, as surety, to pay for him. It is manifest, then, tha' the express and implied undertakings, though entirely distinct, are perfectly consistent, — stipulating payments to «lit■ ferent persons, in different events ; but not varying the respective duties to which the parties were subject, before the special agreement was made. And as that agreement remains unexecuted on both sides, and is thus practically abandoned j their rights appear to me, to be the same, as <l it had never been made.

In this view of the case, the special agreement is, in effect, nothing more, than an adjustment of the proportions, whir! the parties were before, as between themselves, respectiv ■ h bound to discharge. It might, therefore, as evidence of those proportions, be decisive between them ; but cannot, as I conceive, have any other effect. In the direction to the jury, however, the special undertaking, by the plaintiffs, to repay their proportion of the money borrowed, is treated as a condition precedent, upon the performance of which their right of action is made to depend. But I am wholly unabh to perceive how their claim to recover in this action, can, in any view of the case, be affected by that undertaking, h the suit had been brought on the special agreement, the question, whether their engagement amounted to a condi sion precedent, might have arisen. But, a3 the action is founded upon the implied promise, I cannot discover, how that point could possibly be made, The only question, arising, in this action, out of the special agreement, is, whether it extinguishes the implied promise: and for the reasons already given, I think it does not. I am, therefore, of opinion, that the plaintiffs are entitled to a new trial.

New trial not to be granted.


author: Swift, Ch. J. Gouid, J.

text:
    Fitch against Ayer.
    THIS was a bill in chancery. The case was as follows. In April, 1798, John Clark made his will, containing, among other things, the following bequest : “ I gi ve to my loving daughter, Thisbe Fitch, two hundred pounds lawful money, to be paid her, by my son Elijah Clark, in manner following, vi». the interest thereof to be paid her annually from and after my decease, yearly, and every year, during the time of iter coverture or marriage ; and the principal sum of two hundred pounds to be paid her, whenever she shall become single, orto her heirs after her decease.” He appointed his son, Elijah Clark, his executor; ami died on the 7th of May 1798. On the 80th of March 1799, Elijah Clark paid 200/. to the plaintiff, then the husband of Thisbe Fitch ; and, at the same time, took from him a mortgage deed of a farm as security for the payment of the legacy to her according to ¡he terms of the will, asan indemnity against any further claim upon the executor. Soon afterwards» Elijah Cla; *. died» having made his will, and appointed Andrew Perkin* and Solomon Giddings, Esqrs. his executors.

      ⅞¾' Where a testator gave Ms daughter, a feme covert, a legacy of 200/., directing the interest to be paid to her, during her coverture, and the principal, that the husband alone was entitled to receive such interest, and that his receipt was sufficient evidence of payment. Where an execution was levied upon mortgaged estate, and the appraisers, by adopting an erroneous principle of law, made too high an estimate of the amount of the incumbrance, in consequence of which, more land was taken than would otherwise have been sufficient to satisfy the debt; it was held, that the debtor was entitled to relief in chancery, and that the proper relief was a reconveyance of the excess of land so taken.

      New-Haven,

    June, 1817.
    The coverture of Thisbe Fitch continued from the date nt her father’s will until the third Tuesday of January 1814, when her husband obtained a divorce from her for the cause of adultery, and she became a feme sole.
    On the first Tuesday of December, 1812, Ayer, the present defendant, obtained a judgment against the present plaintiff for the sun! of 887 dollars, 57 cents; and on the 5th of April 1813, he took out execution for that sum, and caused it to be levied and extended upon G8 acres of the plaintiff’s farm, mortgaged as before stated. In appraising, and setting off this land, the appraisers proceeded on the supposition, that it was subject to the incumbrance of GG6 dollars, 67 cents, for the principal, and 440 dollars, for the arrears of interest;, of the legacy to Thisbe Fitch.

    The facts with regard to the payment of interest, are these. For three years next after the execution of the mortgage deed, the interest was discharged by a receipt, executed each year, by the plaintiff and Thisbe Fitch, and delivered to Andrew Perkins and Solomon Giddings, Esqrs. the executors of Elijah Clark. From the expiration of three years until the levy of the execution, the interest was no otherwise paid than by a receipt signed by the plaintiff alone, and by him delivered to said executors. At the time of the levy, these receipts were shewn to the appraisers, and were also made known to the defendant, who claimed before the appraisers, that as Thisbe Fitch had not actually received the interest at that time accrued, amounting to 440 dollars, nor joined with her husband in any receipt for the same, the land still remained charged with such interest.
    After the plaintiff’s divorce from his wife, said executors assigned said mortgage to the defendant, upon his paying the principal sum of 2001. and giving them a bond of indemnity ; and the defendant paid over to Thisbe Fitch said sum of 440 dollars, upon her giving him a bond of indemnity.
    By consent of parties, the case was referred to the nine .1 udges for their advice, on the question, whether the plaintiff' was entitled to any relief, and if so, what decree ought to hr passed.

      Daggett, for the plaintiff,
    after remarking that the case must turn upon the construction of the devise, contended, that the interest of the legacy, during the coverture of Thisbe Fitch, was not given to her for her separate, use ; and that, of course, it belonged to the husband exclusively, Beeve’s JJom. llelat. 60. The subsequent agreement of the plaintiff to pay such interest, according to the terms of the will, and the mortgage executed by him as security for the payment, did not vary his rights or obligations. The amount of this transaction was nothing more than a promise, by the plaintiff, to pay to himself j and such a promise he was surely competent to discharge, without his wife’s signature. The incumbrance on the estate by virtue of the mortgage, was, therefore, estimated too high, by 440 dollars ; and of course, 440 dollars worth of land was taken beyond what was sufficient to satisfy the defendant’s execution, which ought in equity to be restored.

      Halsey and Cleaveland, for the defendant,
    contended, 1. That from a view of the whole will, and from the nature of the bequest, it was apparent, that the testator intended to make the interest as well as the principal of the legacy, the separate property of Thisbe Fitch. They also insisted, that the plaintiff had recognized it as such, by the agreement which he entered into with Elijah Clark.

    2. That admitting this construction to be erroneous, the plaintiff still has no remedy in chancery. An application to a court of chancery to refund money cannot be sustained | the facts disclosed do not warrant a redemption ; and there was no fraud or misrepresentation in the appraisement, by reason of which it can be set aside.
   Swift, Ch. J.

In this case there is no necessity of considering the question whether a married woman can have a separate estate ; or whether we will adopt the English law7 on that subject; for upon the principles of that law, the legacy in question docs not create a separate estate in the v/ife. By the will, the interest of 2001. is to be paid to the wsfe annually, during coverture. There is no decision in England⅜ which will shew that this legacy constitutes a separate estate in the wife. It is, in effect, and by law7, a gift to the husband himself ; and a legacy in this form has always been so considered. He was entitled to receive it5 andbis receipt to the trustees was sufficient evidence of payment.

There can be no doubt, then, that the appraisers committed a mistake, as stated by the plaintiff, with regard to the amount of the debt chargeable by the mortgage on the land on which the execution was levied ; to correct which it is proper for a court of equity to interpose.

The proper relief is, for the defendant to rcconvcy so much of the land as he has taken more than sufficient to pay his demand. 1 would advise that the prayer of the bill should be granted, and a decree passed, that the defendant release so much of the land as he has taken more than sufficient to pay his debt, and the sum secured by the mortgage! and that he account for the rents and profits.

Gouid, J.

It is ascertained, by the finding, that in the appraisal of the land upon the defendant*» execution, there was a mistake, to the amount of 440 dollars, against the plaintiff, if he had a right to discharge, by his sole act, the annual interest, bequeathed to his wife. And it is agreed, that he had this right, unless the interest belonged to the wife, as her sole and separate property. In holding, as I do, that it was not so vested in her, I w ould not be understood to assent to the proposition, that in the state of Connecticut, a married woman cannot, in equity, hold property in this manner. For though, in Hutton v. Dibble, some strong grounds were taken in argument: no such doctrine, I trust, has ever received a judicial sanction in this state. '

The question here arises upon the intention of the testator, John Clark, as discoverable from the will.. Did he intend, thal, the plaintiff’s w ife should receive the annual interest in question, during coverture, to her sole and separate use ? Such an intent may be evinced, without doubt, otherwise than by the precise w ords, ** to her sole and separate use f but it certainly cannot he inferred, without some other evidence, than that which is furnished by the mere.fact of the legatee’s being a feme covert. In the present case, however, I am unable to discover any other ; and that fact, by itself, clearly affords no proof, or presumption, of such an intention. The circumstance adverted to, on the part of the defendant, that the accruing interest only is made payable, during the legatee’s coverture, and the principal, upon her becoming discovert, appears to me, so far as it can have- any effect upon tlie question, to countenance the contrary presumption, For, the object of the testator, in making this discrimination, would seem to have been, to place the principal only, beyond the plaintiff’s control. But however this may be, it is sufficient to say, that, upon this point the onus probandi is upon the defendant; and that no evidence of such an intention, as he relics upon, appears in the will. The conclusion is, that the mistake complained of, in the bill, has intervened.

Upon the question of relief, there is no doubt, that mistake is one of the appropriate grounds of equitable interposition. And where a mistake happens in the levy of an execution upon land, it may as properly be corrected, as if it had occurred in a deed of conveyance' : The former, being in effect, like the latter, only a species of common assurance.

Tile other Judges were of the same opinion.

Bill to be sustained, and decree passed.


author: Swií'Tj Cli. J. Edmo\d, J. GonoAno, ,T.

text:
    Hinman against Bacon.
    THIS was an action of indebitatus assumpsit for money had and received.
    The case was as follows. On the 25th of December 1799, the plaintiff being indebted to the administrators of Nicholas S. Masters, Esq. deceased, in the sum of 641 dollars, 64 cents, gave them his promissory note for that sum, payable on the 25th of December 1802, with interest annually j anil to secure the payment thereof, he mortgaged to them sundry pieces of land, and, among others, that on which the Episcopal church in Jloxbnry has since been erected. This note and the mortgage were afterwards assigned to Charles S. Masters, In February 1813, a decree in chancery was obtained against the plaintiff, to foreclose his equitable right to redeem the last mentioned piece of land, unless he should pay the amount due on the note, including principal and interest, with the costs of suit, by the first Monday of September following.. This the plaintiff failed to do : and thereby lost his equity of redemption. On the 2'th of November 1813, Charles S. Masters transferred 1 lie note to the defendant under the following written agreement : “ I, the subscriber, for a valuable consideration by me received of Asahel Bacon, do assign and transfer unto him the said Bacon, a certain note of hand, given by Ephraim Hinman to the administrators of Nicholas S. Masters, Esq. deceased, for the sum of 64 3 dollars, 64 cents, dated the 25th of December 17"99, payable on the 25th of December 1802, with interest annually, on which note there have been sundry payments, and the payment of which was secured by sundry mortgages, made at different times, on several pieces of land lying in Box-bury, to said administrators, the equity of redemption in one of which pieces of land, being that on which stands the Episcopal church in said town, has been foreclosed on the petition of said administrators, and the time of redemption expired, and the interest in said note having, by assignment; become wholly mine; Í do agree, that I will procure from said administrators a release of all their claim to said piece of land, the equity of redemption in which has been foreclosed as aforesaid, and will release the same to said Bacon, within six months from this date ; provided always, that the said Bacon shall receive, and he does hereby receive, the same, at his risk. And I do further agree, that 1 will procure a release of said mortgages which now remain unreleased, in the names of the said administrators, and will release the same to the said Ba.cun, w ithin six months after the equity ol redemption shall have expired, which shall be limited by any decree of court hereafter to he made upon any such mortgages aforesaid, upon which no decree of foreclosure has been made. November 27⅞, 1813. Charles S, Masters,,f

      ji, gave !™naPr°Tn- and secured J^ortgages^ of several pieces of land. B. obtained a decree of foreclosure as to one of those pieces, and, after the time of redemption was expired, assigned the note, with the mortgages, to C., under an agreement, that on A.’s paying, within six months, the money advanced by C. for the note, with interest, C. would deliver up the note to A., and pay him what the piece of land so foreclosed should be appraised at, by disinterested men, to be agreed upon by A. and C., or, in the event of their disagreement, each to choose one, and the men so chosen to choose a third. On the last day of the time limited, A- tendered C. the money, which was accepted by C. about sun-set. Immediately afterwards, .¿.¿without making any attempt to agree with C. upon appraisers, nominated one on his part. C. wishing to consult his counsel, waited until the next day, and then nominated one ; but .¿-.'declared that that man should not go upon the land; and nothing further was done, or offered to be done, relative to an appraisement. Shortly afterwards, A.’s son applied to C. for the note,who delivered .At up to him; which he held with his father’s knowledge and approbation. In an action o(indebi-tatus assumpsit, brought by A. against C., to recover back the money so paidby A., it was held, that he was not entitled to recover, 1, because the plaintiff had failed to perform his part of the agreement, and the non-performance, on the part of the defendant, was owing to the plaintiff’s conduct; 2. because the money was paid in satisfaction of the plaintiff’s note, which was taken up, so that the parties would not be left in statu quo ; and 3. because the payment of the money discharged the plaintiff’s mortgage debt, and disencumbered his land.

      New-Haven,

    June, 1817.

      At the same time» the defendant executed and delivered to Masters, the following writing : fi Whereas Charles A. Masters has t’ is day assigned to me a certain note of hand, given by Ephraim Hinman to the administrators of Nicholas S, Masters, Esq. deceased, for the sum of 641 dollars, 64 cents, dated the 35th of December 1T99, payable on the 25th of December 1812, with interest annually, which said note has been in part paid, and which had, by assignment from said administrators, become the sole property of said Charles 8. Masters, and the payment of w hich note was secured by sun - dry mortgages on various pieces, of land, situated in Roxbury, at different times by the said Hinman made, one of which mortgages, as far as it respects a piece of land on which the Episcopal church is situated in said Roxbury, has been foreclosed, and the time allowed for redemption expired ; and whereas I have given said Charles for said note, so secured as aforesaid, the sum of 862 dollars, 61 cents ; Now, therefore, I do, by these presents, stipulate and agree, that I w ill not put said note in suit against said Hinman, nor cause any process by petition of foreclosure upon any of the mortgages aforesaid, or otherwise, to be instituted against the said Hin-man, to enforce the collection of the money due on said note, or by me paid therefor, within six months from this date : and on payment by the said Hinman of said sum of 862 dollars, 61 cents, within said period of six months, with Ihe interest thereon from this time, I will deliver up said note to said Hinman, and will pay to him what said piece of land so foreclosed as aforesaid shall be appraised at, independent of the church thereon standing, and the fixtures and other things thereto pertaining, by judicious, disinterested men, to be agreed upon by me and the said Hinman, or in the event of our disagreeing, each one to choose one of said appraisers, and the men so chosen to choose the third; he the said Hi li-man, on receiving the amount of such appraisement, executing to me acquittances of said land so appraised as aforesaid. And I do hereby agree, that this instrument shall he liolden by said Masters for the said Hinman? s benefit; provided he performs the conditions herein specified. November 2fth, 1815.

      ¿Isabel Bacon”

    The plaintiff was not present when these agreements were made, and was ignorant of them.

      The defendant did not, within six months afterwards, take any measures to enforce a collection of the note, or to foreclose the mortgage.
    On the 26th of May 1814, the plaintiff, in pursuance of the agreement last recited, tendered to t lie defendant the sum of 880 dollars, 50 rents, being the amount paid by the defendant to Masters, with interest; which was accepted by the defendant, after much conversation, about sun-set. The plaintiff, immediately, and without first making any attempt to agree with the defendant upon the men to appraise said land, offered, as an appraiser by him chosen, Aaron Hitchcock of JY%w« Milford, who was then present, and whose place of residence, was about seven miles from the land. At the same time, the plaintiff tendered to the defendant a quit-claim deed in fee of said land, duly executed and acknowledged; which the defendant refused to accept. The defendant also declined, at that time, to appoint an appraiser, or to take any measure for appraising said land, observing that Hitchcock lived out of lioxbury, — that he had no other objection to him, — and that he would go to. Woodbury, an adjoining town, and advise with his counsel whether the plaintiff had right to offer an appraiser who lived out of lioxbury, before he would do any thing further in the business. On the next day, tin* defendant, on his return from Woodbury, met the plaintiff in the highway, and observed to him, that he had appointed Philo lie Forest of Woodbury, as an appraiser ; to which the plaintiff replied, that that man should not go on the land. Nothing more was done, or offered, by either party.
    Shortly afterwards, R. R. Hinman, Esq. the plaintiff’s son, knowing that the money had been paid by his father, and received by the defendant, and being informed by bis lather, that the note had not been given up, applied, without any particular instructions from his lather, to the defendant for the note, who, on request, delivered it up to him. lie carried it home, and shewed it to his father, informing him what he had done. His father did not disapprove of his conduct in getting the note ; which is still in his possession.
    Under these circumstances, the plaintiff sought to recover back the money which he had paid.
    The case was referred to the nine Judges for their advice.

      Sherman for the plaintiff.

      Benedict for the defendant.
   Swií'Tj Cli. J.

1 am of opinion, that the plaintiff is not entitled to recover. It appears from the facts stated, that he has not performed his part of the contract, and that the non-performance by the defendant is owing to his conduct. Without attempting to agree on appraisers, he instantly, on tendering the money, nominated one on his part; the defendant, in reasonable time, appointed his appraiser ; to whom the plaintiff disagreed, and did nothing more to procure the appraisal of the land. The performance of the contract was defeated by the plaintiff, and he cannot be ent itled to reco ver.

It appears, that the money for which this action is brought, was paid in satisfaction of a note given by the plaintiff; to secure which land had been mortgaged. This note has been given up by the defendant ; and from the evidence, there can be no doubt it was received by the son with the consent and approbation of the father. The money, then, has been paid in satisfaction of a note, which has been given up. The plaintiff can have no right to recover it back. If he should, it would set up the note, and he would be liable to re-pay it.

It further appears, that the plaintiff has paid a debt for which land was mortgaged. By the payment of this debt, he is now entitled in equity to the land mortgaged to secure it. He has, then, only done what by law he was obliged to do, and can now claim all he has aright to in equity. There is, of course, no reason for the maintenance of this action. The plaintiff ought to become nonsuit, *

Edmo\d, J.

By the terms of the contract, the plaintiff acquired a right to pay the sum stipulated, and deliver the deed, within the time limited, or not, as he might judge most expedient. There was no obligation, on his part, to comply with the terms. On the last day of the time, and near the close of it, on which he had a right to make his election, he tendered the money and deed, and named his appraiser. If, by the terms of the contract, the acts to be done by the parties respectively, were to be concurrent, the plaintiff ought to have made his election in season to have had the appraisal, and the business completed, on .the last day, within which he had a right to avail himself of the privilege secured to him by the contract. But if, by the terms, tlic money was j¡¶-0 |)c advanced, the defendant ought to have had a reasonable time, after the payment, to comply on his part. From the. evidence, as stated, it appears, that there was not time, after the tender and receipt of the money, to name and obtain an appraiser on the. part of ihc defendant, and finish the business on that day. On the next, the defendant gave, notice of his choice, and readiness to proceed on the business, but if not prevenied, was at least, excused, by a peremptory refusal, on lite part of the plaintiff, to suffer the appraiser chosen by the defendant to go on the land. The defendant’s readiness to comply further appears from his delivering the note, on request, to the plaintiff’s son.

On the ground, therefore, that from the evidence it appears, that the failure of an entire execution of the contract, was owing, not to the refusal of the defendant, after receipt of the money, to have the contract, on his part, carried iuto full effect, as soon as it could reasonably be done, but to the neglect or refusal, on the part of the plaintiff, to proceed further ; he ought not to be permitted to avail himself of a non-execution caused by bis own act, rescind the coni ract, and subject the defendant to a suit for the repayment of money, voluntarily paid, and received in pursuance of the terms stipulated in the contract. And for this reason, I should advise, that judgment be rendered for the defendant.

Another objection to the plaintiff's right of recovery has been urged, which, however, 1 do not consider as conclusive, it is said, that the contract being iu part executed, should it be rescinded, and the money recovered back, it would not place the. parties in statu quo ; because the money due by the. note, had been secured by a mortgage of the land referred to in the contract, and other lands, and by a decree of foreclosure, the plaintiff had lost his equity to redeem the land in question, whereby the title vested in Masters, and by him bad been transferred, together with the nole, to the defendant ; consequently, the receipt of the money due by the note had opened the decree of foreclosure, ami if t fio money should be recovered back in this action, the plaintiff would gain an advantage by having the decree opened, and the defendant exposed to have his title derived from Masters, defeated, which, if the contract in favour of the plaintiff had not be1'» made, would have been secure» and equally so, if the money had not been paid and received, and will be so still» if the f'ontract is finally carried into complete effect,

In considering this objection, it is not necessary to decide, whether, in this st ate, an action on a nóte secured by mortgage can be maintained, after a decree of foreclosure, and the time allowed for redemption in the decree is elapsedi For whether recovered in an action at law, or voluntarily paid and received after a decree of foreclosure has taken effect, the receipt of the money does not vacate the decree. That remains in force, as to its legal effect $ it only opens the door for an application to a court of chancery, founded on a new equity, arising from the payment and receipt of the money, after the foreclosure, to have the decree opened, or set aside, and the mortgagor permitted to redeem. If this beso, all that the plaintiff could gain by payment of the money, would he a right to apply in chancery. If he rescinds the contract, and recovers the money back, he rescinds it in toto. as well in respect: to its equitable, as its legal, effects j and destroys the only equitable ground of application to chancery j and, as to any relief against the foreclosure, will stand on the same footing he would have done, had the contract never been made, and no step taken towards its fulfilment. On the other hand, if the contract is rescinded, and the money returned, the defendant will have the same security as to title, that he had previous to the contract for the plaintiff’s benefit; or that he would have had, provided the plaintiff had not tendered the money by the day.

The objection, therefore, that the contract, after what has taken place, cannot be rescinded, so as to leave the parties in statu quo as to their respective rights, docs not appear to me to be well founded, or furnish a sufficient reason, of itself, against the plaintiff’s recovery in this action.

The ci rcumstance of the note being put into the hands of the plaintiff’s son, and by him received and held, without any authority, in fact, from the plaintiff, was not, though it might have been so intended by the defendant, a delivery to. and receipt of it by, the plaintiff, in pursuance of the contract. Should the defendant, therefore, be put to any inconvenience on that account, it is not to be attributed to the plaintiff. It was the duty of the defendant to have delivered it, after a receipt of the money, and tender of the deed, in a reasonable time, to the plaintiff.

GonoAno, ,T.

The plaintiff claims, that he has right to recover in this action, on the ground that he has done all in hi.s power to fulfil the contract, and that it failed through the mere default of (lie defendant, llut the facts stated for out* opinion, do not justify this claim.

Ry the terms of the contraed, the plaintiff was to pay the money within six months from its date. On the last day oí the time limited, he paid the money at sunset, and tendered his deed, and offered, and named an appraiser of the land. The objection, which the defendant then made to the man offered as an appraiser, might not have been well founded; but he had right to take reasonable time, either to agree on appraisers, (which, by the way, the plaintiff never offered to do,) or to consult his counsel as to proper men for appraisers, or to do whatever else he pleased. The plaintiff himself having waited until the last moment of the time limited for paying the money before lie did any thing on the subject, it surely was not unreasonable for the defendant to claim, that the selection of appraisers should be delayed until the next day, especially its it was so late, that the business could not, in its nature, he done that night. Next day, the defendant did offer an appraiser, to whom the plaintiff objected, and declared, that he should not go upon the land. By the terms of the contract, if the parties could not agree on appraisers, (and the plaintiff never offered to do so) each party had right, to choose one appraiser, without consulting the wishes of the other party, and they were to agree on a third. The defendant then, next day, within reasonable time, waived his objection to the plaintiff's appraiser, and named one himself. The plaintiff refused to proceed. He, therefore, cannot recover on this ground.

But the money which the plaintiff paid, was paid to cancel his own note, to release and disencumber his own land, other lands than those foreclosed, and whichpould not be «lone without payment of this very money. What effect that payment may have upon the land foreclosed, it is not necessary at all to decide. If the plaintiff has lost that land, he has done it by hia own fault and neglect.

From the evidence. als->, it appears, that the plaintiff, by his son, lias taken up, and now holds his note. If this action •should be sustained, the parties would not he left in statu quo. The plaintiff has paid and taken up his own note, and can have no remedy to recover back the money.

Thcmbuíx, Smith, Ubaikard, Riinwcr and IIosmer. •Is. concurred in the opinion given by Ch. J. Swift.

Gorin, J. gave no opinion, having been of counsel in the cause.

J udgment to he given for defendant.

        u) 1 202.


author: Swift, Ch. J. IIosmeb, J, Gotfib, J.

text:
    Comstock against Weed :
    in error.
    THIS was a prosecution upon the statute of bastardy, (tit. 22.) by the mother of a bastard child, against its lather, for the expenses at its birth, and its maintenance while it lived. To the original complaint returned to, and the supplemental complaint filed in, the county court, which were in the usual form, the defendant pleaded not guilty $ on which issue was joined to the court. The cause was tried on its merits ; and the court rendered judgment as follows : “ This court, having fully heard the parties, with their testimony, and by their counsel, do find, that the facts in said original and supplemental complaints alleged, are all true, and that the said John Comstock is guilty, in manner and form as is in said original and supplemental bills alleged ; and on due examination, do moreover find, that the expenses necessarily incurred and paid by the said Dorcas B. Weed, for said child, at its birth, (on the 20th of .May 1815) and nursing the same until the 20th of June 1815, when said child died, have amounted to the sum of 65 dollars ; and that of right said John ought to pay, therefore, the sum of 40 dollars $ and it is thereupon considered by this court, that the said Dorcas B. do recover of the said John the sum of 40 dollars, and her costs.'*'' On a writ of error in the superior court, this judg ment was affirmed. To reverse tbe judgment of the superior court, the present writ of error was brought.

      It is sufficient, to support an order for the maintenance of a bastard child, that the court find the defendant guilty of begetting the child, as set forth in the complaint, without expressly-adjudging him to be the putative father.
    In such order, the court may include an allowance of expenses for the child at its birth.

      New-Haven,

    June, 1817.

      Mills and Sherman, for the plaintiff in error,
    contended, ilia! the judgment complained of was erroneous, 1. Because the original defendant was not thereby adjudged to he the reputed father of the child. Such an adjudication is necessary, to support an order for maintenance, by the words of our statute; (til. 22. s. 1.) and the law is so laid down by one of our most eminent jurists. Swift’s Evid. 90. It is contained in the English forms. 1 Burn’s Just. 204. llth ed. Í 89. ISlh ed. And it has been decided to be necessary, by the English courts. The King v. Pitts, Doug. 662. 1 Bolts’ Poor Laws 503. The same decision has been had in Massachusetts, founded on a statute from which ours was taken,. Commonwealth v. Clark, 2 Mass. Rep. 156.
    2. Because the defendant was thereby subjected to expenses at the birth of the child. The statute makes him chargeable only “ with the maintenance thereof.” Now, “ maintenance” must refer to a period subsequent to the birth, It has been decided in Massachusetts, that the putative father is not chargeable with lying-in expenses. Commonwealth v. Cole, 5 Mass. Rep. 517. In England, such expenses have, indeed, been allowed ; but ¡here the object is to relieve the parish. It has been decided in this state, that the putative father is not liable for the funeral expenses of the child, because they are no part of its maintenance,

      Bissell, for the defendant in error,
    contended, 1. That the record shews, substantially, an adjudication that the defendant below was the putative father of the child. The complaint alleges, that the child was begotten by him ; and the court find, that this allegation is true, and that he is guilty. The fact is found by the court, in the very terms of the issue. It is not necessary that the judgment should be strictly forma! 5 .nor that it should follow the words of the statute. Todd v. Potter, 1 Day’s Ca. 238. Bradley v. Clark, 3 Day’s Ca. 502. Clark v. Moses, Kirby 144. The King v. 'Thompson, 2 Term Rep. 18. Lockwood & al. v. Gregory ¿f al. 4 Day’s Ca. 407. This judgment is conformable to the precedent established in Bennett v. Hall, 1 Conn. Rep. 417. Every reasonable in-tendment is to be made in support of an order of justices. The King v. Clayton, 3 East 58.
    2. That lying-in expenses, as such, may be allowed under our statute. Reeve’s Domes. Relat. 278. 280. Bennett v. Hall, 1 Conn. Rep. 417. But if they cannot be, still the question is not raised by this record ; for the expenses allowed are/or the child, and a part of its maintenance.

      Sherman, in reply,
    observed, that the exception principally relied on, was, not that the finding was insufficient, but that the court rendered no proper judgment on that finding. The defendant must not only be found guilty, but the court must adjudge him to be the putative father.
   Swift, Ch. J.

I am of opinion that there is no error in the judgment complained of.

The statute prescribes no form of judgment: a substantial compliance with it is sufficient. It says, that upon the production of certain evidence, the court, notwithstanding the denial of the defendant, shall adjudge him the reputed father of the child. This can only mean, that they shall, from such evidence, find him to be the reputed father. It appears, that the defendant, now plaintiff in error, pleaded not guilty ; and the court find him to be guilty. This is finding him, and substantially adjudging him, to be the reputed father of the child : and is, in substance, a compliance with the statute.

The allowance of expenses at the birth of the child cannor be considered as extending beyond lying-in expenses. These have always been allowed. Such has been the practical construction of the statute : and it appears to me to be a reasonable one.

IIosmeb, J,

The objection to the judgment of the conn below, that Comstock was not adjudged to be the putative father of the child, is quite unfounded. The record shews, that the facts alleged in the complaint are true. This is adjudging him to he the father of the child, in the sense which the term “ adjudge” imports in the .statute.

The law provides, “ that he who is accused, by any woman, to be the father of a bastard child, begotten of her body, she continuing constant in such accusation, (being,examined upon oath, and put to the discovery of the truth in the time of lid- travail) shall be adjudged the reputed father of such child, notwithstanding his denial thereof, and shall stand charged with the maintenance thereof, with the assistance of the mother, as the county court iri that county in which the child is born, shall order,” he.

The statute prescribes, 1, that there shall be a complaint, or accusation, declaring that the person accused is the father of the child; 2. that the oat!» of the complainant, arid certain other testimony, shall be exhibited ; 3. that on this foundation, the person complained of shall bo adjudged, — that is, shall be found to be, — the father of the child ; 4. that the court shall make order, or render judgment, on the preceding farts. There can exist no reasonable doubt that the word adjudged meant nothing more than has been ascribed to it. The words succeeding in the law, “ notwithstanding his denial thereof,” derisively shew, that the object of the clause was, the facts, — not the adjudication upon fact. Although he denies the facts, yet if they are adjudged, or found against him, the court shall make order, that is, shall render sentence against him for the maintenance of the child.

The supposition that the law enjoins on the court, explicitly, to adjudicate that the person complained of is the putative father, as the indispensable foundation of a subsequent sentence, is attended with a double absurdity. The statute, in that case, would read in this manner : On the facts having been found, the court shall render judgment against the accused, notwithstanding his denial thereof — that is, of the adjudication. Besides, that the law should prescribe, as an adjudication on preceding facts, which have proved the child to have been begotten by the defendant, that he shall be declared in the judgment to be the putative lather, is a ludicrous supposition. Whether the father or not, is, in its nature, a matter of mere fact, which no adjudication can diminish or alter.

I am aware, that the English courts require an explicit adjudication, that the person presented is the putative father. The King v. Perkasse, 1 Sid. 363, The King v. Pitts, Doug, 662, This did not result from any expression used in the statute IS El-iz. c. 3. The later cases are all bottomed on The King v. Perkasse, expressed in the language of doubt, and in which the point seems to have been little considered. To these decisions of the English courts, resting on the ground of precedent only, I oppose the immemorial form of decision in our courts. It has never been the practice, here to mention in the adjudicative part of the sentence, that the person complained of is the putative father; but this having been found, in terms, or in substance, as a fact, the order has been couched in expressions similar to those used in the present ease. The decision cited by counsel in argument from Massachusetts, (The Commonwealth v. Clark, 2 Mass, Rep. 156.) is founded on the peculiar phraseology of their statute of bastardy, (March 15, 1786,) and is wholly inap-posite to this case. A marked distinction is made by their law, between 1 he, finding and the adjudication.

The objection which denounces the allowance of supplies at the birth of the child, is in the face of uniform usage, and a fair construction of the law. Bennett v. Hall, 1 Conn. Rep. 417. "Without wresting the statute, in the least degree, they may be considered as embraced in the expression “ shall stand charged with the maintenance5’ of the child, I shall long hesitate before I can believe, that the necessary assistance at the birth, so indispensable to the life of the infant, is not maintaining the child. As little am I willing to admit, that the law intended to relieve the putative father from a contri bution to this necessary expense.

Gotfib, J.

Of the errors assigned, two only appear to m'c to require consideration.

As to the allowance of “ expenses at the birth,” — by which, it is said, must be understood the lying-in expenses, — it cannot be intended, upon this record, that those expenses were not, incurred for the preservation or maintenance of the child itself, at the time of its birth. And if such an intendment could be made, it might still require much consideration, whether a practical construction of the statute, built upon long and general usage, ought now to be overturned. But there is no necessity of deciding this point. For the conn cannot know, from the language of the record, that any lying-in expenses were allowed.

Upon the other point (that the defendant below is no: expressly adjudged to be the putative father,) it may he remarked, that every reasonable intendment which is ncces sary to support au order of bastardy, ought to bo made : though, in the present case, no intendment appears to me necessary. In the proceedings of the English quarter-scs-sions, an express adjudication, that the defendant is the putative father, is, for a substantial reason, indispensable. For, there being in those proceedings, no formal issue joined, the i( adjudging” of the defendant to be the putative father, is the established and only mode of finding the fact $ it is found in no other way. The clause, preceding the adjudication, (“ whereas, it hath appeared to us, See. that the said Jl. B. did beget the said bastard child,” Sec.) is, in form and effect, a mere recital of the examination had, and not in nature of a verdict, or finding. It corresponds, substantially, with that part of a common postea, which precedes the insertion of the verdict. Then follows the adjudication in question, (“ We do, therefore, adjudge the said Jl. B. to be the putative father,” Sec.,) which is the finding, and the only finding, of the fact j and the subsequent order of filiation is the judgment, or decree.

It is manifest, then, that the reason, why such an adjudication is indispensable in the English practice, does not exist in ours. Here, it would be mere, useless, tautology : for, in prosecutions upon our statute of bastardy, there is a regular issue joined, as in actions at common law, — and as, in this case there was, upon the plea of not guilty. And as the defendant has, upon this issue, been found guilty; every rnaí erial allegation in the complaint is, of course, found to he true. Now, one of those allegations is, that the child, was begotten” by the defendant, which is, surely, to every intent, equivalent to an allegation, that he is the putative father; and it being found true, the defendant is necessarily found to be the putative father.

I think there is nothing in either of the errors assigned,.

The other Judges were of the same opinion.

Judgment affirmed


author: Swift, Ch. J. Edmos», J. Baldwin> J. Goddard, J. Gorin, J.

text:
    Baldwin against Norton and others.

      New-Haven,

    June, 1817.

    THIS was a bill in chancery for a foreclosure of mortgaged premises.
    The bill stated the following case. On the 10th of May, 1808, one Horace Baldwin being indebted to dshbel Baldwin, the plaintiff, in the sum of 500 dollars, gave him a promissory note for that sum, payable on demand with interest, and secured the same by the mortgage of a piece of land in Litchjield, worth about 2000 dollars. This laud was, at that time, under the incumbrance of a prior mortgage from liar-me Baldwin to Timothy Leonard, to secure the. payment of a note of .1739 dollars. On the 18th of May 1811, Horace Baldwin, by a quit-claim deed, conveyed to Leonard all his right in the premises ; and Leonard gave up to Horace Baldwin. the last mentioned note. On the 22d of November following, Leonard convey ed all his interest in the premises to Birdseye Norton, one of the defendants ; and afterwards, on the same day, took back from him a mortgage deed of the same property, to secure the payment of about 2,400 dollars. Subsequent to these transactions, Bernard, .died at Lansiug-hnrgh, in the state of New-York, having made a will, and appointed six persons executors, and leaving a widow, and six children, most: of whom were minors.
    The hill prayed, that unless Horace Baldwin, Norton, and the widow, children and cxccnlors of Leonard, or some, or either of them, should pay the plaintiff, within such time as the court should deem meet, the amount due on said note of 500 dollars, with interest and costs, they, and each of them, should be foreclosed from all right to redeem the premises.

      Horace Baldtvin and Norton were made parties to the bill, by personal citation ; and notice w as given of the pendency of the suit, pursuant to an order of the court, to the widow', children and executors of Leonard, by a publication, in the usual form, in a news-paper printed at Lansingburgh. A guardian ad litem was appointed, by the court, to the minor children.

      A. being indebted to /Í., by note, mortgaged land to him as security, and after-wards mortgaged the same land to C. as security for a debt to him ; A. then released his equity of redemption to B., and in consideration thereof, gave up his note against A. Held, that C. was not entitled to foreclose without paying off the first in-cumbrance.
    Where a second mortgagee, on an application in chancery, for a lore-closure, wishing to avoid a prior mortgage, offered evidence of usury in that mortgage, without having made any allegation of usury in his bill, and without having given notice that he should offer such evidence ; it was held, that the evidence was inadmissible on the former
    It is no ground for a new trial in a suit in chancery, that other persons, who might be affected by the decree, were not made parties : — by one Judge, the others being silent on the point.

      On the hearing of this cause before the superior court, oh fl,e gCnera] answers of the defendants, denying the allegations in the bill, it was proved, that on the 19th of March 1807, Horace Baldwin beine: indebted to Leonard in the sum of tJ 1739 dollars, gave him a note for that sum, and mortgaged the premises to him as security, being the prior incumbrance referred to in the'plaintiff’s bill; that Horace Baldwin failed to perform the condition of his mortgage deed to Leonards whereby the legal title, if that deed was valid, became absolute in Leonard ; that Horace Baldwin, on the 13th of May 1811, executed a quit-claim deed of the premises to Leonards as stated in the plaintiff’s bill j and that, in consideration thereof» and for no other cause or consideration, Leonard gave up to Horace Baldwin his note of 1739 dollars, which has been no otherwise paid.
    The plaintiff claimed, and offered evidence to prove, that Horace Baldwin’s note to Leonard was given on an usurious consideration. To the admission of this evidence, the defendants objected, because no previous notice had been given by the plaintiff, that any attempt would be made by him to prove such usury. The court overruled the objection, and admitted the evidence, and thereupon found the note in question to be usurious.
    Upon these facts the court granted the prayer of the bill, and passed a decree of foreclosure, in the usual form. The defendants moved for a new trial ; and the questions arising on such motion were referred to the nine J udges for their advice.

      Bacon, in support of the motion,
    contended,!. That the executors of Leonard ought to have been made parties to the bill, and to have been cited in.
    2. That evidence of usury ought not to have been received, in contradiction to the plaintiff’s own statement, to impeach the mortgage to Leonard; especially, as no previous notice was given that such evidence would be offered.
    S. That if such usury existed, and was properly proved, the plaintiff, who seeks equity, can claim only to have the excess of interest stricken out.
    4. That the plaintiff is not entitled to a decree of foreclosure against Leonard, the first mortgagee, having the legal title, and being assignee of the equity of redemption, without paying the amount of his incumbrance.
    JV*. Smith and Sherman, contra.
   Swift, Ch. J.

The principal question in this case, is, whether the plaintiff is entitled to the land in question, without paying the money for which it was mortgaged to Leonard. ?

, in The It is contended, on the part of the plaintiff, that the debt has been paid and satisfied; and that he is not bound to pay it, to entitle him to a decree of foreclosure. There is no doubt, if Horace Baldwin had paid the money to Leor the note, that the mortgage would have been disch^ the plaintiff would have been entitled to the land, without paying it. But it appears from the facts stated, ⅛¾⅜^'erQj’j was no payment of the note, otherwise than bd tlic land mortgaged to secure it. It appears, that BTorace, released to Leonard his ultimate right to redecin^in consideration of this, Leonard gave up the note, ration of this transaction, is merely the taking of the pledge for the debt. This could not discharge the land from the lien : for it would be equally inconsistent and inequitable to say, that the taking of the pledge for the debt, should exonerate the pledge from the debt.

It is said, that the giving up the note for which the land was mortgaged as collateral security, discharges the lien upon the land. But this is no more than adjusting the claims between the first mortgagee and the man who has the ultimate equity of redemption : it is only relinquishing a legal remedy on the note; it is no payment of it: and the discharge of a right of action at law on the note, will not discharge the land pledged to secure it, without actual payment. Suppose tiic first mortgagee should suffer the debt to lie, till barred by the statute of limitations ; this would not exonerate the land from the lien. There must be a payment of the debt, by something besides the thing pledged to secure it i otherwise, there is no satisfaction of the mortgage.

In this case, the defendant, Norton, has the legal title to the land sought to be foreclosed : he has acquired the ultimate equity of redemption : he has no security for a debt secured by a prior mortgage on the land, but the land itself. The plaintiff is a second mortgagee, having no legal title : lie lias only an equitable right to redeem. lie now comes to a court of equity, praying to hate the land, without paying the prior debt, because the defendant has given up the legal remedy to recover it. But equity looks at the substance, and not at the form. There is precisely the same reason why the defendant should hold this land till his debt is paid, as if he held the note ; and to grant the prayer of this bill would be to take land from a man who has the legal title, and a prior equitable claim, and give it to one who has only a subsequent claim. A court of equity, then, will consider the taking of the mortgaged premises for the debt, and relinquishing the legal remedy, as no discharge of the lien : bin the.debt remains an incumbrance on the land against all subsequent mortgagees ; otherwise, the most manifest injustice may be done : for if the land be only of the value of the first debt, then the first mortgagee would lose his whole debt. But on the other ground, no injustice can be done. If the mortgaged premises are of greater value than the debt, the second mortgagee can redeem.

In the case under consideration, the plaintiff has now the same rights as if the defendant had never settled with Horace-Baldwin. lie may redeem, upon paying the prior incum-brance ; and if the laud be worth more than the debt, he can bold it till that and his own debt are paid. But, if the land is worth no more than the first debt, then to admit him to take the land, without paying it, would be to enable him to cheat the first mortgagee out of his debt.

As to the usury, there is no allegation of the fact in the bill 5 of course, it was improper to admit evidence to that point j and it may be laid out of the question.

I am of opinion, that a new trial ought to be granted.

Tbcmbuj.!, J. was of the same opinion,

Edmos», J.

Horace Baldwin, being owner of the land in question, to secure the payment of 1739 dollars, on the 19th day of March 1807, mortgaged the same to Timothy Leonard. Horace Baldwin, being indebted to Jjshhel Baldwin, the plaintiff, on the 10th day of May, 1808, mortgaged the premises to him. On the 13th day of May 1814, Horace Baldwin quit-claimed to Leonard all his right and title to the land, and took up bis note. Leonard, on the 22d of November 1811, conveyed the premises to Norton, by deed; and, to secure the purchase money, took a mortgage from him. The plaintiff, Sshbel Baldwin, the second mortgagee, asks a. foreclosure against the defendants, on their failure to pay the sum now remaining due to him, within such time as the court shall limit ; or such relief generally as the court are authorised to grant.

On examination into the merits of this bill, the court found, that the contract between Horace Baldwin and Leonard, to secure the fulfilment of which, the note and mortgage were given to him, was usurious and void. The court also found, that the claim of Leonard, on Horace Baldwin, was In fact paid.

To this finding it is objected, that evidence of usury was inadmissible : that the plaintiff having in his bill stated and admitted, that there was a debt due to Leonard, and that to secure that debt, a mortgage was given prior to the one given to himself; he is not at liberty to contest its validity.

In answer to this objection, it may be observed, that all the notice which a subsequent mortgagee can be presumed to have of a previous mortgage, or lien on the land, is that which is derived from the record. He can only state prior incumbrances as they there appear; and if becomes to redeem or foreclose, will it be said, that before he can be entitled to a decree, the plaintiff is, at all events, bound to pay the whole amount for which the land was originally pledged, taking the record as the only evidence, or conclusive evidence, on that point, in exclusion of other evidence, that; the debt or debts for the security of which the prior mortgage was given, have been satisfied,in whole, or in part ? Certainly not. The enquiry is necessary to the attainment of justice. No subsequent mortgagee is bound to know, or to state in his bill the precise amount of outstanding claims, (his own excepted.) It can be known with certainty only from testimony to be introduced on the trial; testimony as to w hat was the actual amount, or purpose, for which the land was pledged ; what has been since paid; and what, if any thing, remains due. In short, the actual state of things, between the mortgagor and first mortgagee, in relation to the lien of the latter on the land, must be brought into view, and ascertained from testimony in court, If. then, on such enquiry into the nature and amount, of the original debt or claim, counted upon in the first mortgage, it should appear to the court, that tiie first mortgage was fraudulent; that no debt existed : or that the contract, on which the mortgage was ■■■■■■■■ ° predicated, was corrupt, usurious and void ; I can discover no good reason for excluding such testimony, any more than there would be for excluding testimony to prove that the claim counted upon in the first mortgage was in fact satisfied, either in the whole, or in part.

Another objection to the admission of testimony to prove usury, is, w ant of previous notice, that such testimony would he offered.

I know' of no rule that requires notice in such a case. A plaintiff cannot foresee the claim or defence, that may be set up by the defendant, before trial; or what reply the defence or claim of the defendant may require.

It is also objected to the finding of the court, that there was no evidence before the court of any payment by Horace Baldwin to Leonard, other than the giving the quit-claim on one side, and giving up the note on the other ,• that this transaction was nothing more than an attempt, on the part of Leonard, to strengthen his security by purchasing in the ultimate equity from Horace Baldwin, and does not warrant the inference, that it wuis a payment of the debt to Leonard, as found by the court.

In considering this question, I cannot but view the transaction respecting the quit-claim and giving up the note, as standing on the same ground, and producing the same effect, both in law and equity, that it would have done, had Horace Baldwin paid to Leonard the full amount of his demand in money, or any other equivalent, and taken up his note, and Leonard had then paid the same money to Horace Baldwin ; and, in consideration of the money so paid, the latter had quit-claimed the farm to Leonard. And there can, as far as I have been able to discover, be no possible difference in the two cases, unless the idle ceremony of handing over the money, that the money might be handed back, should be considered as essential to the contract. The result of this mode of doing the business could be nothing more nor less than what was effected by the mode adopted by the parties. Before this transaction, Leonard had a right to collect his money (admitting the claim to be just) at Horace Baldwin upon the note ; or, if be chose, to foreclose both Horace and Jlshbel Baldwin of their equity to redeem, on their failure to satisfy his debt. Blither might destroy his mortgage title, , . , , , . . ,, , , by paying the money due to him. Horace Baldwin liada right to redeem from Leonard and Jlshbel Baldwin, and was liable to be sued by cither: to be foreclosed by Leonard of his equity to redeem against Leonard, on failure to pay his debt; and to be foreclosed by Jlshbel Baldwin of his equity to redeem, on his failure to pay him. Jlshbel Baldwin had a right to sue his note against Horace Baldwin, or to foreclose him for non-payment. He might also redeem from Leonard, on paying his demand, and then foreclose Horace Baldwin, on his failure to pay both debts. After the transaction, relative to the quit-claim and note, on the ISth May, the relative rights of the parties were materially varied. It can scarcely be worth while to remark, that, as this was a transaction in which Jlshbel Baldwin had no part, though his rights are not to be impaired by it, yet he may derive a fair advantage from it in point of security for his debt, in the same manner that every subsequent mortgagee is benefited when the mortgagor cancels the whole or part of a debt secured by a prior mortgage. By giving the quit-claim by Horace Baldwin, and the acceptance of it by Leonard, and delivering up the note, the relation of debtor and creditor, which before existed between them, ceased, and with the debt, in equity the lien created by the mortgage to secure the payment of that debt, terminated. Leonard parted with all demands on Horace Baldwin, and with all power to foreclose Jlshbel Baldwin ; and in exchange, he received from Horace Baldwin a quit-claim, by virtue of which he acquired a right to redeem from Jlshbel Baldwin on payment of the money due him, and to secure to himself a valid and indefeasible title : and subjected himself to be foreclosed, by Jlshbel Baldwin, of his right of redemption acquired from Horace Baldwin, in the same manner that the latter might have been foreclosed before the transfer. Had the object of Leonard been to strengthen his security only, he would have retained his note. Was it to obtain a title to the farm at all events, he could not have devised a more effectual method. By obtaining the ultimate equity, he could never be ousted of the title, without suffering a foreclosure. Whether this was a provident bargain on the part of Leonard, or of Horace Baldwin, it is not necessary to decide. Where there E neither complaint nor evidence, it is not to be presumed that that the parties were incompetent to take care of their res- . * , ~ ⅝ pectivc interests. The land may have been oí greater val we at t[,e time of sale, than the debts due on both mortgages. I1‘ more, or even as much, the ultimate equity must have been equivalent to the note cancelled 5 and the debt due Jlshbel Baldwin, the plaintiff, over and above 5 but whether more or less will not vary the effect of the contract.

It has been suggested, that the plaintiff ought to have brought his bill to redeem, and not to foreclose.

In every case where the ultimate equity and a prior mortgage title are united in the same person, in my opinion, it is proper for a subsequent mortgagee to proceed by a bill for foreclosure 3 otherwise, lie may be under the necessity, after having redeemed, to have recourse to a second bill against the same defendant to foreclose, before be can avail himself of his mortgage, and quiet his title3 a process, too dilatory and expensive, for a court of chancery unnecessarily to sanction 3 and especially, in a case where every right, of the parties may as well be ascertained and settled by a single application and decree.

The objection, that Leonard being first mortgagee, is entitled to an election whether he will receive his money,before he can be subjected to the payment of a further sum, or a foreclosure, is easily answered. If the finding of the court was correct, he made his election when lie took the quit-claim from Horace Baldwin, and parted with his note.

From these considerations, I am satisfied, that a bill to foreclose, was the proper remedy 3 that the evidence of usury was admissible 3 that there is no rule which requires previous notice, in such a case, that such evidence will bo offered on the trial 3 and that the facts admitted and proved in the, case, warrant the finding of the court, both in respect to the. usury, and the satisfaction of Leonard’s debt,

I have taken no notice of Norton and others, because as grantees under Leonard, they have only such rights as he liad. :<> convey.

I see no sufficient ground for a new trial-

ÉMrrir,,). was of the same opinion.

Bkaittakd, J. Swift. concurred in the opinion given by Ch. J.

Baldwin> J.

The plaintiff states the prior incumbrance to Leonard, and that his debt has been paid. The motion states, that it was paid by a quit-claim of II. Baldwin’s equity of redempt ion, in consideration of which the note wa9 given up, and in no other manner. And the question thereupon arises, whether this mode of payment supports the allegation in the bill, and the finding of the court.

It seems to be admitted, that if II. Buldwin had paid to Leonard in money the amount of his debt, and taken up the note, such payment would have discharged the. mortgage, and let in Jlshbel Baldwin to a direct lien upon the property, unencumbered by the former mortgage; and that a court of chancery would, in such case, decree a foreclosure in his favour, notwithstanding the legal title of Leonard, and that „3. Baldwin had only a mortgage on the equity of U. Baldwin. It is material, then, to enquire, whether Leonard’s debt has, in fact, been paid j or whether the transaction, as agreed, amounts to a discharge of his lien.

It is not necessary to the discharge of a debt, that payment should be made in money: other property may, by the agreement of the parties, be received in satisfaction, IL Baldwin held the equity of redemption, encumbered with the mortgage to J. Baldwin. It appears to have been agreed between the parties, that II. Baldwin should quit-claim his interest in the property to Leonard; and that Leonard, in consideration thereof, should give up to H. Baldwin, to be cancelled, the note which is the basis of Leonard’s mortgage. This was done. What, then, is the situation of the parties ? The evidence of the debt, for the security of which the mortgage was made, is given up. The debt, can never be enforced ; the mortgage is at an end j and, in lieu of it, Leonard received the land itself, encumbered with the lien of Jl. Baldwin.

That Leonard preferred the title under if. Baldwin’s quitclaim to his mortgage, is evident from the fact, that he gave up the note which alone supported his mortgage. He no longer treated his interest as a mortgage. He sold the estate as his unconditional property, for a sum sufficient to cover both debts.

I am aw arc, that the legal estate had v ested ⅛ Leonard before the quit-claim from H. Baldwin ; but this cannot affect the claim of the plaintiff1 in a court of equity, which regards the substance unfettered by forms,

it appears to me, that the tacts stated in the motion, support the finding of the court; and that there ought not to be a new trial.

Goddard, J.

The defendants claim a new trial on three grounds.

First, because the proper parties were not before the court, to enable it to do justice upon the facts found in the decree.

Secondly, because the court admitted evidence of usury in the mortgage deed from Horace Baldwin to Timothy Leonard, without any notice having been previously given of an intention to offer such evidence,

Thirdly, because the court considered the execution of a release deed of the equity of redemption by Horace Baldwin to Timothy Leonard, and his giving up the note secured thereby, as payment of that note, and as disencumbering the estate of Leonard’s mortgage.

The first claim is sufficiently answered, by saying, that whatever might have been the merits of that objection, the defendants cannot take advantage of it here. They oughf to have pleaded in abatement, the want of proper parties : or, according to our practice, suggested this defect before the trial, and the court would have caused the proper parties to be added and notified.

Upon the second ground, the case states, that the court admitted evidence of usury in the consideration of the mortgage deed from Horace Baldwin to Timothy Leonard. The judges were, probably, misled, by the manner in which the objection was presented to them. It was, to the admission of evidence of usury, without previous notice. This not being a case, in which, by the rule on that subject, notice is required, the court admitted the evidence. But on examination of the bill, it contains no allegation that the deed from Horace Baldwin to Timothy Leonard was executed upon a usurious consideration. It proceeds wholly on the ground, that the deed w as originally valid, but had been satisfied, and the note which it was made to secure, given up. No evidence, therefore, of usury, could have been given, with, or w ithout, notice. The case made by the plaintiff did not warrant it. The evidence, was, therefore, illegally admitted ; and although I presume it had no influence in the ultimate decision of the cause : yet I know not that I can legally so presume. The court found the mortgage to be satisfied, and decreed, that the title of the defendants should pass to the plaintiff. Considering it as of importance, that questions of evidence should be correctly settled, and not knowing, that evidence which the counsel for the plaintiff thought fitto offer, and the court to admit and hear, had no influence upon the decision of the cause, l should incline to the opinion, that a new trial ought to be granted on this ground. But this has become of less importance, in my opinion, because I think the decree wrong upon the third objection to it.

The decree proceeds on the ground, that the mortgage deed from Horace Baldwin to Timothy Leonard, was satisfied, the note given up, and the estate disencumbered of that debt. But how was this accomplished ? Solely by the execution of a release deed from the mortgagor to the first mortgagee of his,remaining equity of redemption. No contract is stated, found, or claimed, that Timothy Leonard agreed to take the estate, and pay oft' the second mortgage to the present plaintiff. This is expressly negated. The case states, that this debt was no otherwise paid, than by this release deed. I consider the transaction as standing on the same ground, and the parties remaining in the same situation, as they would have done, if the first mortgagee had preferred his bill to a court of chancery to foreclose the equity of redemption, without making the second mortgagee a party to it. If such bill had been granted, the second mortgagee could redeem, paying the debt due the first mortgagee. So he can now. His rights are not impaired, nor his condition, in relation to the estate, altered, by this transaction between the mortgagor arid the first mortgagee. They have only voluntarily extinguished the equity of redemption, by their act, without the interference of a court of chancery. The mortgagor releases to the mortgagee, by deed, his right in equity to redeem the estate after paying both mortgages. The mortgagee accepts it, and gives up his note, as he ought to do; and this is held to be a payment of his note, — a satisfaction of his mortgage. To my mind, Ibis is a singular result in a court of chancery, where the substance, and not the form, of a transaction is always regarded.

Adopt the oilier principle, and perfect justice will be done to all parties. Jslihd Baldwin can take the estate, paving off this debt with which the estate was onerated at the tnne when his deed was executed. lie is in precisely the same situation that he expected to be in, and has precisely the same security that lie expected to have, for the payment of his debt, when he took his deed. Let him pay that debt, and he can redeem, and hold the estate until he is repaid its amount, together with his own mortgage f and it must he wholly unimportant to him, whether the ultimate equity resides in the original mortgagor, or the present defendants.

I advise a new trial on this ground.

IIosmeb, J. was of opinion, that a new' trial ought to be granted on the last ground.

Gorin, J.

The evidence of usury appears to have been clearly inadmissible; as usury was not complained of in the bill. And even if the evidence had been proper, and the fact proved, I do not perceive how the decree, as it stand-, could be vindicated. For, according to the maxim, that he, who seeks equity, must do it, the relief should not have extended beyond the excess of legal interest. But, as it appears, that the evidence on this point did not ultimately influence the decree ; it. may, perhaps, be properly laid out of the case, on both sides.

'Upon the main point, — that of priority, — the case appears to me, I confess, a very plain one against: the plaintiff. 'The. question is, simply, whether a party, having the legal title to mortgaged property, together with the ultimate right of redemption, can he postponed to a subsequent incumbran-cer, having only an intermediate equity ? One would hardly have thought it possible, to furnish an argument upon one side of this question, or to raise a doubt upon the other.

T. Leonard, the first mortgagee, on receiving the release' of the mortgagor’s equity of redemption, became, as between himself and the mortgagor, vested with the absolute title, though still liable to be redeemed by the plaintiff — from whom, however, he might himself afterwards redeem, as assignee of tlie ultimate equitable interest of the mortgagor. The defendants, then, who claim under T. Leonard, and hold, in several rights, all the interest, which he held, before his conveyance to Norton, have not only the legal title, but an equity both prior and subsequent to that of the plaintiff, opposed by his intervening equity alone.

f But we are pressed with the argument, that, as the first mortgage debt is satisfied, the first incumbrance is, in equity, removed ; and that the plaintiff has, therefore, acquired the equitable priority. It would be extraordinary, indeed, if a mortgagee, by the very act of extinguishing the mortgagor’s title, should destroy his own. But to say, that the first incumbrance, was removed, by Leonard’s taking an assignment of the equity of redemption, and delivering up the mortgagor’s notes to be cancelled, is to make a very incorrect use of language. It would be more proper to say, that the equitable interest, acquired by the assignment, was, as to Leonard, the first mortgagee, and those claiming under him (supposing no other incumbrance to exist,) merged in the legal title. For the only effect of the transaction, as to the question of title, was to add to the legal estate, which Leonard already held, the. equitable interest, which, till that time, had remained in the mortgagor — or, as has been observed before, to render Leonard’s title, as between himself and the mortgagor, absolute — leaving the rights of any mesne ^ incumbrancer, precisely as they w ere before.

That the first mortgage debt has been satisfied, is not disputed : but that the first mortgagee’s title in equity is. therefore, destroyed, would be a very strange conclusion : for the debt was satisfied only by the land itself— not by the equity of redemption merely, (for such a supposition would be replete with absurdity ;) but by the fee, or whole interest, subject only to the plaintiff’s right to redeem. But, if the debt is paid, what difference, wc are asked, docs it make, whether it was satisfied by the land in mortgage, or by any other property ? Upon the question depending between these parties, the difference is total. If the payment had been made in other property, Leonard, or those claiming under him, could, in conscience, have no further claim upon the land, under his original mortgage; and the legal title might, therefore, be taken from them, without any injustice. But, as the case is, to decree the title out of their hands, would be to rescind the very payment, which, it is said, has, in equity, extinguished it: so that the precise effect of the decree in question, is, to take the title from the first incum-brancer, because his debt has been paid j and, at the same time, to deprive him of what he has received in payment, because his title is gone.

To simplify the case, let it be supposed that there had been no secoud mortgage. Upon this supposition, the release given to Leonard would, unquestionably, have made the estate absolute in him. 'What, then, was the effect of the intervening mortgage to the plaintiff ? It could surely be no other, as against Leonard, than Its qualify his absolute title, so far as to entitle tiie plaintiff to redeem of him. For the plaintiff, as second mortgagee, could acquire no other rights against the first, than the mortgagor originally had. The question, then, is, in principle, the same, as it would have been, ii II. Baldwin, the mortgagor, after releasing his equity q1 redemption to Leonard, and taking up his notes, (there being no other incumbrance,) had brought a bill to foreclose Leonard, his own mortgagee. — upon the ground, that the delivering up of the notes, on one side, and the release, on the other, had, in equity, reversed their original relation, and left in Leonard a bare right to redeem, on paying up the debt, originally due to himself. Rut such a claim could not endure a moment's discussion.

The suggestion, that this decree may lead, eventually, to the same result, as would be attained circuitously, by the plaintiff’s first redeeming of Leonard's assignee, and the latter’s afterw ards redeeming of him, is nothing to the purpose. The result may not be the same: the property may not be equal, in value, to the aggregate of both the debts. But if it were of ten fold greater value, how can the party, holding the legal estate, be compelled to purchase the absolute interest, by satisfying subsequent claims ? Or rather, how can he be reduced to the compulsory alternative of making his title absolute, or of being postponed to a subsequent incumbrancer ? It seems to me plainly impossible, except by an absolute reversal of all the principles which regulate priority of title.

New trial to be granted.