Bartlett v. Wade

MUNSON, J. It is the settled law of this state that when a part of the notes secured by a mortgage are assigned, without any contract provision in regard to the security, a proportionate interest in the mortgage passes with the notes by operation of law. Keyes v. Wood, 21 Vt. 331; Blair v. White, 61 Vt. 110. This doctrine, as enunciated in the cases cited, is clearly inconsistent with any claim of advantage based upon the order in which the notes mature. The holding is not merely that the notes transferred remain secured upon the property, but that they continue to sustain the same relation to the property that they did before the transfer. A jyro rata interest in the mortgage is the right [632] to share j?ro rata in whatever security the mortgage affords. In this respect one note stands upon the same footing as another. The oratrix cannot enforce against Wade, the mortgagee, the note obtained from him through the agency of Tiernan, the mortgagor. It appears that she requested Tiernan to procure the note for her, and furnished him the money with which it was obtained. A short time before the note became due, Tiernan told Wade he wanted to take it up, and Wade thereupon accepted the amount of the note, and delivered it to Tiernan. The connection of the oratrix with the transaction was not disclosed, and Wade supposed that Tiernan was paying his note. Under these circumstances Wade is entitled to have the note treated as paid. Tiernan’s proposal was accounted for by the relation he sustained to the debt, and Wade had no reason to suppose that he was acting as the agent of another, and consequently was not charged with any duty of inquiry. If the note were to be kept on foot as against Wade, it would effect a sale of it when no sale was intended. Wade was under no obligation to give up the note except on payment, and a purchase of it could not be effected under the guise of payment. The holder of a note cannot be made a seller without his consent. Collins v. Adams, 53 Vt. 433; Wells v. Tucker, 57 Vt. 223. Decree reversed and catise remanded with mandate.