Adm'rs of Pond v. Warner

Royce, J. delivered the opinion of the court. — When the mortgage deed was executed, the intestate had been liable on the note to Austin a long time, as it had fallen due in January, A. D. 1826. And the parties could scarcely have contemplated,that the mortgage must of necessity be forfeited as soon as it was made. Had it been executed before the note became payable, the language used in the condition would probably have borne the construction for which the plaintiffs now contend j but being executed after, those expressions are not to be understood as providing against a mere liability to Austin, but only against the consequences of such liability. This then was a common contract of indemnity, where the liability of the surety to be sued is not alone a breach of the contract. As it does not appear that the intestate was at all damnified in his life time, the right of the plaintiffs to recover must therefore depend on the question, whether any actual damage has accrued to the estate. The facts relied on to . show a payment of the debt by the administrators are insufficient [534] for that purpose, at least in this action. The single objection that 5 r , , , , , the receipt upon the note has no date, and that no extraneous ev-was given, to ascertain whether the supposed payment was-before, or after, the commencement of this suit, is fatal; and' whether the evidence was proper, or sufficient, to create a presumption of payment at some time, we have no occasion at present to determine. The only remaining ground, on which to-claim a forfeiture, is the allowance of the claim before commissioners, with its necessary and probable consequences to the estate. These we deem sufficient to entitle the plaintiffs to recover. That the hearing, allowance, and report of a demand of such importance did occasion expense to the estate, to some extent, is certain; and that it may have affected the whole plan of administration, is not improbable. The allowance of commissioners is tantamount, in many respects, to a judgement at law; and a judgement recovered against a surety, especially if he has borne the expenses of the suit, will doubtless entitle him to an action against the principal. On this ground the judgement of the county court must be JV. Hawley, for plaintiffs. E. D. Woodbridge, for defendant. Affirmed.-