Ide v. Spencer

The opinion of the court was delivered by Royce, J. The bill alleges that on the 29th of May, 1871, the defendant and C. J. Spencer and Maria Hill executed and delivered to Solon S. Gould three promissory notes, amounting in all to one thousand dollars ; that on the same day the defendant executed and delivered to Maria Hill a mortgage deed of the premises described in the bill, to indemnify her for signing said notes ; that it was thereby intended to pledge said mortgaged estate for the payment of said notes ; that the orator is the owner of said notes, and that said mortgage has been legally assigned to him. It appears from the answer and proofs that Maria Hill was a surety upon the notes, and that the condition in the mortgage deed given to her was, that if she should pay said notes, or any part thereof, then the deed was to be good to indemnify and secure her for all sums she might pay or suffer in consequence of signing said notes, and if she did not pay any part of said notes or suffer in consequence of signing them, the deed to be null and void. It further appears that Maria Hill has never paid any part of said notes or suffered anything in consequence of having signed them, so that so far as she is concerned, there has been no breach of the condition contained in the deed. The orator, by virtue of the assignment of the mortgage, acquired the same right that she had to enforce it. The allegation that the orator is the owner of the notes, and that they are unpaid, is not sufficient to entitle him to a decree against the premises described in the mortgage. [297] The decree of the Court of Chancery is reversed, and cause remanded, with mandate that a decree be entered for the orator for the amount that may be ascertained to be due on the note for six- hundred dollars described in the mortgage from the defendant to Maria Hill, dated September 2, 1871.