Newell v. Hurlburt

After argument, the opinion of the Court was delivered by Prentiss, Chancellor. The answer of Hurlburt, as to every material fact stated in it, is very fully supported by the proofs itl the case. The written'memorandum, and the note and mortgage, were all executed at the same time ; and from the memorandum, as well as from the testimony, it clearly appears, that the note and mortgage were executed and delivered to secure the payment of, and to indemnify the plaintiff against, the entire debt due to the estate of Pierson, and one half only of the debt due to Ross and Dickinson ; and that on the payment, by Hurlburt, of the whole amount of the first mentioned debt, and one moiety of each of the other two debts, the note and mortgage were to be cancelled. It also appears, beyond any possible question, that the amount, thus stipulated to be paid on the several debts, has been fully paid by Hurlburt. But it is insisted, that the agent who took the note and mortgage, and executed the written agreement, in behalf of the plaintiff, had no authority to make the agreement and take the securities on the terms and conditionsytated, and, consequently, that the agreement is not binding upon the plaintiff. But it is very clear, we think, that the plaintiff cannot avail himself of the note and mortgage, and at the same time reject the terms and conditions on which they were executed and delivered. If the [353] «gent exceeded his authority, bis acts would not be binding ° ,*L t it 04 the plaintiff, and the plaintiff might have repudiated the transaction entirely; but he cannot adopt one part of it, and reject another part. Hurlburt had a right to say that he would execute the note and mortgage only upon the terms and conditions stated in the agreement; and as they together formed one entire transaction, the plaintiff, if he accepts the note and mortgage, must adopt the agreement which was connected with them. It is further insisted, that as the whole amount of the debts due to Ross and Dickinson has not been paid, the plaintiff, notwithstanding the agreement, is entitled, in equity, to hold the mortgage as securityjfor the remaining sum due upon these debts. Although these debts were the joint debts of Hurlburt and Wors-ter, and each was holden to the creditors for the whole amount, yet, as between themselves, they ought each to pay an equal moiety. The plaintiff, as the testimony fully shews, took a bill of sale from Worster as security for the payment of his part of the debts, and then took the note and mortgage in question to secure the payment of Hurlburfs proportion, and agreed to hold them as security for his proportion only. The note was taken for a sum much greater than the amount of all the debts referred to in the agreement, probably, because the exact amount of the debts was not known, and it was meant to make the note large enough, at all events, to cover what was intended to be secured by it. But the sum expressed ift the note cannot be material, so long as the agreement states the extent of Hurlburfs liability upon it, and expressly confines that liability to the amount of the separate debt due from him to the estate of Pierson, and his rateable proportion of the other two debts. In the case of Briggs vs. Law, 4 John. Ch. jRep. 22, an agreement, on the part of the creditor, to collect the money rateably of the several parties to a note, on their giving a bond and judgment for the amount, was enforced, by enjoining all further proceedings on the judgment against the plaintiff, on his paying his rateable proportion. If a creditor or a surety take a mortgage from one of two joint debtors, as security for the payment of a rateable proportion of the debt, he ought not to be allowed to extend the security beyond the purpose intended by it. Even on a bill to redeem, it is now settled, though the rule was iormerly otherwise, that a mortgage cannot be treated as security for any other debt than that expressed to be secured by it, either as against creditors, the mortgagor himself, or his as-signee for a valuable consideration. As the note, to secure the payment of which the mortgage in question was given, was taken as security fdt Hurlburfs rateable proportion only of the debts [354] t0 ^oss andpDic&mson, when that’proportion was paid, togeth1829. er with the debt due to the estate of Pierson, the mortgage was satisfied. Whether the plaintiff, if he has paid the other moiety debts, may not have his rem'edy against Hurlburt and Worster jointly, is a question not at all material in this case. The inquiry here is, what is due from Hurlburt, separately, upon the mortgage ; and it clearly appearing that he has paid the whole amount of the debts due to the estate of Pierson, and one half of each of the debts due to Ross and Dickinson, there is nothing due upon the mortgage, and, consequently, the plaintiff’s bill must be dismissed with costs. Allen and Thompson, for plaintiff. Han Ness and Adams, for defendant. Bill dismissed with costs.