Smith v. Day

The opinion of the court was delivered by Kellogg, J. The county court having rendered judgment for the defendant upon the facts stated in the bill of exceptions, the question presented for consideration is, whether the facts reported are sufficient to sustain the judgment. And in considering the question the same rule is to be observed, which is uniformly applied by this court to judgments upon the reports of auditors. If the facts found, together with such inferences as may properly be made and legitimately drawn from them, are sufficient in law to uphold the judgment, it will not be reversed, although the case may not expressly find such inferences and deductions to have been made by the court below.. This, however, is always to be presumed, in support of the judg* ment. From the facts set forth in the bill of exceptions it seems to us very obvious, that whatever agency the plaintiff had in the business was by the procurement of Wing, and for his sole benefit; and that upon these facts the county court might well come to the conclusion, that the present suit was prosecuted for the sole benefit of Wing. Indeed, it does not appear, that the plaintiff has any interest in the suit. The suit being for the benefit of Wing, the note purchased [662] and suit instituted and prosecuted by his procurement, it may well be treated as his suit. The question, then, arises, do the facts, justify a recovery by Wing 1 Wing was a subsequent mortgagee to Day of the premises mortgaged by Bancroft, and, from the facts appearing in the case, it can hardly be doubted, we think, that Wing subsequently acquired the equity of redemption, though Bancroft did not convey it directly to Wing, but to the person to whom Wing conveyed the premises. Upon the sale of the premises and the receipt of the purchase money, Wing discharged both mortgages, thereby extinguishing the security originally taken by Day to secure the payment of the note in suit. Wing had not only constructive but actual notice of the lien upon the mortgage for the payment of this note. His jpurchase of the note, under such circumstances, must be regarded as a payment and satisfaction of the note. He cannot be allowed to keep it on foot, as an outstanding claim. Converse v. Cook, 8 Vt. 16. Again, Day being a surety, upon a recovery against him he would be entitled to be subrogated to all the securities pledged by the principal (Bancroft) for the payment of the note; and Wing having cancelled these securities, that fact alone would be sufficient to defeat his recovery against the defendant. It is an act of the creditor impairing the securities of the surety, and being done without his consent, it operates to his prejudice, and, upon general, well settled principles, is held to discharge him. Upon the sale of the notes to Elisha Cummings, Day gave him a lien upon the mortgage security by express agreement. But if he had not so done, and there had been no agreement to the contrary, he would have acquired such lien by the mere transfer of the notes. It is so held in Keyes et ux. v. Wood et al, 21 Vt. 331. It seems to us, there is no view, we can take of the facts in the case, that will warrant a judgment in favor of the plaintiff. The judgment of the county court is therefore affirmed.