Real Estate & Building Co. v. Tufts

Ames, J. This suit is brought against the defendant, not as a surety or indorser or guarantor for any one else, but to enforce the payment of a note in which he is the principal and original debtor. The condition contained in the deed to him, although it was intended as security for the payment of the note, was one which the plaintiff could enforce or not, at its option. It did not preclude the plaintiff from relying upon the personal credit of the defendant, and collecting the amount due from any and all property belonging to him which could be come at to be attached. To do so would be no violation of any of his rights. Ely v. Ely, 6 Gray, 439. Draper v. Mann, 117 Mass. 439. It cannot be contended that there has been any failure of consideration, and there is nothing in the facts disclosed in the case stated by the parties that can furnish any excuse to the defendant for not paying the amount remaining due. The condition, from its nature," could only be enforced by the plaintiff, and there is no mode in which the defendant could be subrogated to the rights of the plaintiff. We cannot concur with the argument of the defendant, that the release of a portion of the land by the plaintiff to Miles after breach of the condition, and on the payment of part of the debt, was illegal or wrongful. Shep Touchst. 118. Gray v. Blanchard, 8 Pick. 284. Rice v. Boston & Worcester Railroad, 12 Allen, 141. Judgment affirmed.