Goddard v. Sawyer

Metcalf, J. The question as to the validity of the mortgage in this case is to be decided by the law of this state, within which the mortgaged premises are situate, and not by the law of New Hampshire, where it was executed and where the parties thereto resided. 1 Pick. 86. 10 Wheat. 202. 1 Paige, 226. A,nd by the law of this state a mortgage of real estate, as well as of personal property, is valid, which is made to secure the mortgagee from loss by reason of a liability that he may subsequently incur. Commercial Bank v. Cunningham, 24 Pick. 270. Adams v. Wheeler, 10 Pick. 199. Though the bill of exceptions is not perfectly explicit, yet we must understand from it, and from the statement of the plaintiff’s counsel at the argument, which was not denied by the defendant’s counsel, that the plaintiff, at the trial, testified that [80] the note which he offered in evidence, and which was admitted, was the note described in the condition of the mortgage, and that the note was not admitted in evidence on its being merely produced and shown in court. That paroi evidence is admissi- ■ ble, in such a case, to show what note was intended, has been repeatedly decided. Johns v. Church, 12 Pick. 557. Jackson v. Bowen, 7 Cow. 13. Bell v. Fleming, 1 Beasley, (N. J.) 13. We perceive nothing like a variance between the note described in the condition of the mortgage and that which wa's admitted in evidence, except that in that condition the time when the note was made payable was omitted. But this would have been immaterial, even if there had been no testimony that the note produced in evidence was that against which the mortgage was intended to indemnify the plaintiff. Cases supra. Shirras v. Caig, 7 Cranch, 50, 51. Gilman v. Moody, 43 N. H. 239. There is no such want of definiteness in the condition of the mortgage as should impair the plaintiff’s claim. Ketchum v. Jauncey, 23 Conn. 123. Exceptions overruled.