Harbeson, Et Vir v. Mering

Per Curiam. — In this appeal two cases were consolidated. In the first case Suzanne P. Harbeson and her husband filed suit against James H. Mering and Dale Johnston seeking to cancel a certain promissory note and mortgage securing the same which was the third note of a series, the payment of which had been assumed by Suzanne P. Harbeson as evidenced by a deed conveying certain property to her subsequent to the execution of the notes and mortgage by a third party, the grantor in the deed, and subsequent to the record of the mortgage. The second suit was filed by Johnston to foreclose the mortgage and afterwards Johnston assigned the note and mortgage to Mering and he was substituted as complainant in that suit. The complainant in the first suit sought to cancel the note and mortgage upon the ground that Mering, the original mortgagee and who was the assignee of the note and mortgage pendente lite, had made an agreement to cancel the third and last note upon the condition that complainants would pay the second note, they having already paid the first note, and the Harbeson’s defense to the mortgage foreclosure was upon the same theory. The chancellor found in effect that if any agreement was made by Mering to cancel the note and mortgage it was made without consideration and was not bind *176 ing. The language of the findings of the chancellor is: “After reading the files in the case and duly considering the same, I am of the opinion that there was no sufficient agreement based upon a valid consideration warranting the cancellation of the third note involved and secured by the mortgage described in this note (1 Amer. Juris. 217, et seq.) and that the plaintiff is entitled to a foreclosure decree to collect said note less the $700.00 payment made thereon, together with all other charges provided for by the mortgage and note.” This finding of fact is amply supported by the testimony and when the chancellor found this fact to exist it was not necessary to consider other questions which could not effect the conclusion of the decree in favor of Mering. It follows that the decree should be, and is, affirmed. So ordered. Terrell, C. J., Buford, Thomas and Adams, J. J.-, concur. Whitfield, Brown and Chapman not participating.