Bolles v. Chauncey

Bissell, J. The question reserved for the advice of this Court whether the plaintiff is entitled to have a conveyance from the defendants, without payment of the money secured by the mortgage. As between the mortgagor and mortgagee there can no pretence for saying, that the substitution of one note for another is a satisfaction of the condition of the mortgage. It is not an extinguishment of the original debt; and to hold it to be so, would oppose the plainest principles of equity, as well as the whole course of decisions on the subject. Brinckerhoof v. Lansing, 4 Johns, Chan. Rep. 73. Dunham v. Dey, 15 Johns. Rep. 555. Tobey v. Barker, 5 Johns. Rep. 68. It is, however, insisted, that the plaintiff, finding the note mentioned in the condition of the mortgage in the hands of the mortgagor, he had a right to presume, that it was satisfied. To this it may be answered, that he had a right to presume nothing but what the law would infer from that single fact; and as from that fact alone the law will not presume payment, he had no right to draw the inference. He found the record title to these lands outstanding in the mortgagee. This should have put him upon enquiry. And whatever puts a party upon enquiry, is, in equity, notice to him of all the facts, which such enquiry would have disclosed. Sigourney v. Munn & al. 7 Conn. Rep. 324. It is urged, that this case is governed, by Peters v. Goodrich & al. 3 Conn. Rep. 146. There is, in my judgment, a very obvious distinction between the cases. There, the condition of the mortgage was, to indemnify the mortgagee against the indorsement of a specified note of hand. There was no stipulation for any indemnity, but through the medium of a particular indorsement; and the decision of the court went upon the ground, that the parties were bound, by the precise terms of the contract. Here, the condition of the mortgage is the payment of the debt. The note described was the mere evidence of the debt. It matters not how the debt might be evidenced. The note might be merged in a judgment; or it might be given up, and a new note substituted; and still the debt remain unpaid; still the condition of the deed be unperformed. The case of Peters v. Goodrich, therefore; is not a controuling authority here. The mortgage debt is, confessedly, unpaid; and there is no principle of equity, upon which the plaintiff is enti [393] tled to the land in question, unincumbered by the mortgage. I would so advise the superior court. Hosmer, Ch. J. and Daggett, J. were of the same opinion. Peters, J. was inclined to think, that the plaintiff was entitled to the mortgaged premises, without payment of Swift's debt to Chauncey. It seemed to him, that this case was governed by Peters v. Goodrich; and although he had entertained some doubts as to the correctness of that decision, yet he did not feel himself at liberty to disregard it. Williams, J. gave no opinion, having been of counsel in the cause. Bill to be dismissed.