Goddard v. Selden

Daggett, J. Parol testimony having been admitted, by the court, to shew, that the note on which &c. was not taken into the account in making up the sum upon which the decree of foreclosure was passed, and the judge having charged the jury, that the plaintiff was entitled to a verdict, the defendant moved for a new trial for the supposed errors in the admission of the testimony and in the charge. The motion in error is founded upon the supposition, that the motion made by the defendant, that judgment should be entered up for him veredicto non ob-stante, ought to have prevailed. The principal ground here suggested, is, that the decree of foreclosure must have included the note on which &c., and therefore, according to the doctrine in The Derby Bank v. Landon, 3 Conn. Rep. 62. that as the taking possession of mortgaged premises by the mortgagee under a decree of foreclosure, is, by operation of law, an extinguishment of the mortgage debt, it ought to bar the plaintiff of a recovery. It is quite obvious, that this defence applies with equal force on thé'prayer for a new trial and the motion in error. Ifit be sound, the judge should have charged the jury, that the plaintiff could not recover, or he should have allowed the motion for judgment in favour of the defendant veredicto non obstante. Let us, then,... look into the case. The suit is by the plaintiff, as indorser of a note made by one John C. Ely, in common form of negotiable notes, and in [520] dorsed by the defendant to the plaintiff. There are other countg jn declaration ; but this note only is the foundation 0f the plaintiff’s action. The note is dated 13th of May 1823. The defendant, besides the general issue of non assumpsit, pleads specially, in substance as follows: — That previous to the making of this note, viz. on the 29th of September 1820, John C. Ely executed his bond to the plaintiff, in the penal sum of 1200 dollars, conditioned that he should pay to the plaintiff all such sums of money as he should thereafter advance to Ely, and at the same time mortgaged certain lands for the fulfilment of the condition. After this, in May 1823, the plaintiff advanced the amount of the note, on which this action is brought; and thereafter, in September, 1823, brought a bill of foreclosure upon the mortgage, to the superior court, who passed a decree, finding there was due on the bond 1161 dollars, 30 cents, and directing^ that the defendant in that suit should be barred of all equity of redemption, unless that sum and interest and costs should be paid, on or before the first Monday of July, 1824. The money was not paid ; and immediately after the time limited had expired, the plaintiff entered into possession of the mortgaged premises. The plea concludes with the general allegation, that the money advanced on the note was covered by and embraced in the condition of the bond, and was secured by said deed. This last allegation is traversed, by the plaintiff; and thus the issue between the parties is formed and tried. The defendant offers no testimony in support of the position that this note was covered by the bond and mortgage, and has thus been paid, by an appropriation of the pledge, but insists, that this is the legal effect of the foreclosure. He must say, and he does say, that a recovery in an action of debt on this bond, would be,per se, a bar to an action on the note. Can this be so ? The note is not, and could not have been, mentioned or referred to, in the bond ; — it is not for the same sum ; — it was made three years after the bond. Other advancements and debts must have been included in the bond ; for the court found, in February 1824, less than a year after the making of the note, the sum of 1161 dollars, 30 cents due, whereas the note and interest would not have amounted to more than 320 dollars. Besides, it appears, that the bond and mortgage were given to secure the plaintiff for advancements to be made to John C. Ely; and, I think, upon his individual responsibility. The transaction seems to speak such a [521] language. He would not advance, in May 1823, money on the bond and mortgage of 1820, but insisted on further rity; and accordingly, the defendant became his indorser. This is the natural import of the transaction. But the defendant not only does not produce any testimony to prove, that the note was embraced in the bond and mortgage, but objects to parol testimony to shew, that it was not included. This proof, if admissible, shews, that the note was no part of the sum of 1161 dollars, 30 cents, which was received by the appropriation of the pledge ; and by what rule of law is it to be excluded ? Must not, in many cases, such proof be received? It is, however, insisted, that as it might have been embraced, then, when a recovery has been had, the court are bound to consider it as embraced. This proposition cannot be sustained. The doctrine of Seddon & al. v. Tutop, 6 Term Rep. 607. is in direct opposition to that idea. There, the plaintiffs declared on a promissory note, and for goods sold. There was a plea of a former recovery of 71l. 10s. for damages the plaintiffs had sustained for not performing the identical promises. Replication, that the promises were not the same. Issue was closed on that fact. It appeared, that in a former action, judgment was by default; and on executing the writ of enquiry, there being a count on a promissory note and for goods sold, the plaintiffs not being prepared with proof as to the goods, took a verdict only on the note. It was objected, that as the plaintiffs might have recovered in a former suit for the goods sold, they ought not to recover in this suit. But the court directed a verdict for the plaintiffs, with liberty to the defendant to move to enter a non-suit, if the court should be of opinion, that the plaintiffs were not entitled to recover. On a full discussion, the court of king’s bench held, that the action was sustainable. The ground taken by the court, was, that the claim for the goods there made was not now made, though it is apparent it feight have been. The court cite the case of Hitchin & al. v. Campbell, 3 Wils. 304., where to an action of assumpsit by the assignees of a bankrupt, the defendant pleaded a former judgment in an action of trover, brought by the plaintiffs against the defendant for the goods, for the money produced by the sale of which this action was brought: and on an examination of the facts, the courts held it a bar, because the same question, viz. the right of the plaintiffs to the goods, had been tried and decided against them. They cite also two other cases, Ravee v. Far [522] mer, 4 Term Rep. 146. and Golightly v. Jellicoe, 4 Term Rep. 147. n. in which awards were pleaded in bar of the plaintiff’s demands. In both cases all matters in difference were submitted, but the claims now made were not then in controversy, and of course, were not submitted to the arbitrator. In neither case, was the award holden a bar. Now, in all these cases, parol proof was received; the facts examined ; and the decisions made on such proof. Indeed, we have a case in 2 Conn. Rep. 431. which was well considered, and in which the true doctrine is laid down. Runnel brought an action of debt by book against Pinto. The defendant pleaded in bar an award in pursuance of a submission Of the book accounts of the parties. The plaintiff replied his action was brought for the recovery of certain articles of book account, which were not considered, awarded upon, or finally decided, by the arbitrator. To this replication the defendant demurred. It was adjudged sufficient, by the superior court; and that judgment was affirmed in this court. The court say, that “a book account is an indivisible claim, as much so as a promissory note.” Again, commenting on the case of Seddon v. Tutop, above cited : “ A person is not bound in an action at law, to unite different causes of action ; and if he has done it, he may support one count, and omit to give evidence in relation to another.” I think it also quite clear, that had there been a judgment on this bond, as the bond did not mention or refer to the note, it could not operate to bar an action on the note. Nay, had the condition of the bond been, that this note and other notes, should be paid, it would be only another security, and might not operate a payment. Moreover, as the bill of foreclosure is silent as to the debts for which the pledge is to be appropriated, it would be very unjust to say, that this note was included in it, and thus paid ; especially, as it appears, that the debts of the plaintiff against John C. Ely, the mortgagor, exclusive of this, were equal in amount to the value of the land. I am, therefore well satisfied, that no new trial ought to be had ; and that there is nothing erroneous in the judgment. The other Judges were of the same opinion. New trial not to be granted; And judgment affirmed.