Briggs v. Fish

Aikens J. delivered the opinion of the Court. The mortgage upon which the plaintiffs seek to recover, is nothing else than a pledge of the real estate, as security for the payment of the note. It is an accident of the debt, and liable at all times, before the equity of redemption is foreclosed, to be defeated by the payment of it. The note secured by that mortgage was, on the 17th of April, 1813, transferred to Jonas Fish, one of the defendants, for the consideration of $650, by Elijah Lovell, Jr. — the maker of the note being at that time insolvent, and the mortgaged premises not worth more than 5 or $600. If this transfer had been made by Timothy Lovell himself, under those circumstances, there could be no doubt, but that his lien upon the land by virtue of the mortgage [102] woui(j have followed the debt; for whatever will pass the one will carry the other along with it. The only question, therefore, is, whether Elijah Lovell, Jr. had power and authority from Timothy Lovell to transfer the note in the manner, and for the consideration, which he did. If such authority was given, it must be the legal inference from the facts in testimony. It is true that the language of Timothy Lovell at the time of the second delivery of this note, was very indefinite, and was such, as if addressed to an attorney, on the ordinary delivery of a note for collection, it would not confer the authority in question. But was this such a delivery? We are of opinion that it was not. But that the language was made use of in view of a sale, and not of a collection. Elijah, the attorney had had this note in his hands several months, for the purpose of collecting the interest then due. He, on this very occasion, had returned it to Timothy, uncollected, with the declaration, “ that he could not collect anything upon it,” and had taken up his receipt. But, as the witness says, in consequence of some representations made by Elijah, Timothy again delivered him the note with the instructions before mentioned. It is to be supposed that after returning the note with the representation that he could collect nothing, he immediately made a second representation falsifying his first ? It is not to be believed. But the note was not delivered a second time without an object. That object could not have been the collection of interest; for that was declared on the spot to be impracticable. It could not have been to collect the principal; for it was not due. It could not have been to commence a suit upon the mortgage; for the mortgage was not delivered. It must have been then for the purpose of effecting a sale, in the doing which, his instructions were to do the best he could with it. And nothing appears but what he was faithful to those instructions; but on the contrary it does appear, that he sold the note to one of the defendants now in possession for more than it was worth, including the mortgage security. This conclusion is strengthened by the facts, that soon after the second delivery, Elijah Lovell, Jr. openly and publicly offered the demand for sale, not to the purchaser alone, but to the witness, Henry. That the purchaser took time to advise on the subject. [103] That Timothy Lovell lived in the vicinity, and must be presumed to have been cognizant of the facts. We think, therefore, that the conclusion is fair and irresistible, that the note was delivered for the purpose of a sale on the best terms that could be procured ; and that it would be monstrous injustice, now to :• ay, that the agent had exceeded the broadest instructions possible, in doing the only act, in view of which, those instructions could have been rationally given. Judgment that the plaintiffs take nothing by their motion.