Mechanics' Bank v. Bank of Niagara

By the Court, Sutherland, J. The legal construction of the assignment from the plaintiffs below to Jenkins, (in whose place the defendants stand,) independently of the parol evidence given upon the trial, it appears to me, entitles the defendants to priority of satisfaction out of the proceeds of the mortgage, to the extent of the interest assigned to them. The plaintiffs were indebted to the Bank of Hudson, whom Jenkins represented, and when called upon for payment or security assigned to Jenkins an interest in the bond and mortgage in question, to the extent of $1933,-61, and expressly authorized him or his assigns to take all legal measures to collect the said sum, and when collected, to apply it, that is, the said sum, to his or their own exclusive use; and then there is an express provision that thp assignment shall not be so constructed as to prevent the plaintiffs from receiving or disposing of the residue of the sum due or to become due, &c. The assignee was entitled in the first instance to collect $1933,61, and apply it to his own exclusive use, and the residue the plaintiffs were to dispose of as they pleased. The sale under the foreclosure of the mortgage, conducted by the agent and for the joint benefit of both parties, produced less than the amounfiof the defendant’s interest in the mortgage. It appears to me it would be doing great violence to the intention of the parties, to be derived from the very nature of the transaction, to hold that the plaintiffs were entitled to participate in whatever might be realized from the bond and mortgage, although it might amount to less than the interest assigned to Jenkins. But all doubt as to the actual intention and un [414] derstanding of the parties at the time of the assignment is removed by the testimony of Jenkins; to the admissibility of which, I see no legal objection. Judgment reversed.