Green v. Kelley

The opinion of the court was delivered by ROWELL, J. The testimony tended to show that plaintiff; was surety for his brother on a note to Holden Kelley, defendant’s father, for about $600, and that, being such surety, it was agreed between him and his brother that he should assume and pay that note and that in consideration thereof his brother should pay him $600, and secure its payment by the mortgage in question, which was subsequently given. By that agreement, as between them, the plaintiff: became the principal on that note and his brother became his surety. Wells v. Tucker, 57 Vt. 223; Field v. Hamilton, 45 Vt. 35; Comstock v. Drohan, 71 N. Y. 9. It constituted, therefore, an adequate consideration for his brother’s promise to pay him $600, and that indebtedness- was properly specified as absolute in the condition of the mortgage, and hence the mortgage was good. Holden Kelley, having attached the mortgaged property on another debt against the plaintiff’s brother, the defendant, who was the attaching officer, demanded of the plaintiff an account forthwith of the amount of the debt secured by his mortgage, which the plaintiff did not render forthwith nor within fifteen days after the demand ; and it is claimed that by reason of such failure the property was discharged from the mortgage. The statute provides that if the mortgagee resides in this State, as the plaintiff did, he shall render such account within fifteen days after [312] demand, and that in default thereof the property 'may be held and sold by the attaching creditor discharged from the mortgage. R. L. 1181. .An attachment being a proceeding in inmtxum, and the consequences of non-compliance with the officer’s demand may be so serious to the mortgagee (if the statute is to have effect), the demand, in order to be good, ought to be in substance and effect such as the statute authorizes. A demand for an account forthwith is not the same in substance and effect as a demand for an account within fifteen days, nor as a demand without naming a time for compliance, but leaving the mortgagee to 'comply within the statutory period, of which he must take notice at his peril. Therefore the plaintiff was not bound to comply with the demand made, and his non-compliance worked him no-legal harm. But if this were otherwise, what transpired at the office of Mr. Potter, the attaching creditor’s attorney, on April 9, 1890, two days after the demand was made, wlien the plaintiff, at the suggestion of Potter, put his mortgage into the defendant’s hands to be foreclosed, in connection with the way the business of such foreclosure went on afterwards to the knowledge of Potter, tended to show that Potter either waived the officer’s demand altogether, or at least consented to an extension of the time for complying therewith, and to show that the account that was rendered on May 3d was within the extended time. That Potter, as such attorney, had authority to do this, is shown by Willard v. Goodrich, 31 Vt. 591. Defendant’s condition is not bettered by the fact that all the property covered by the mortgage was sold when only one year’s interest was due. That, if unauthorized, did not release the property from the lien of the mortgage so as to enable the attaching creditor to hold it discharged from the mortgage. Stackpole v. Robbins, 48 N. Y. 665. But the testimony tended to show that it was not unauthorized, for it appeared that the mortgagor was present at the sale and participated in it, which tended to show that he consented to it; and if he did, he is bound by it, and the lien of the mortgage would attach to the money in the defendant’s hands. Judgment affirmed.