Swan v. Patterson

Tuck, J., delivered the opinion of this court upon this motion. This case was decided at December term 1853, under the impression on the part of the court that the record had been submitted by the appellant’s counsel. We are satisfied’ that this resulted from a misunderstanding, and that the appellant is entitled to have the case reconsidered on the written arguments since filed. After another examination of the questions, with the authorities now referred to, we see no reason to change the decree' heretofore passed. It may be that the appellant, when he [176] endorsed Dorsey’s notes, supposed that he would have the benefit of the security held by the creditor; but if this was his view, he should have entitled himself to such indemnity by an agreement to that effect, or by an assignment, pro tanto, when the notes were paid. We think it very improbable that the creditor held that view of their respective relations to the mortgage. In the absence of an assignment, in fact, we could not sanction the appellant’s claim to substitution,pro tanto, without disturbing the well recognised doctrine in this State upon the subject of equitable assignments, which the chancellor has correctly set forth in his opinion. We have examined the original opinion in the case of the Union Bank vs. Edwards, and find that the report, 1 G. J., 365, is a misprint, as stated in the notes of the appellant’s counsel. The error is in the punctuation. It should read: “If, after satisfying all debts due to the Union Bank on Stansbury’s notes, by them discounted, there should remain a surplus of the mortgage fund: to that amount might the drawers and endorsers of his accommodation notes, who had made payments to the Union Bank, seek to be substituted.” That was announced, as we understand the opinion, to be the rule as b'etween parties in the predicament of Mrs. Edwards and her debtor, and not as applicable where, as here, there is a junior incumbrancer claiming the surplus after payment of the first mortgage. In such a case, however, we suppose that the principles of substitution would require payment in full of the debt on which the equitable assignment might be claimed: in which view of the decision it does not aid the appellant’s case. The motion to open the decree is overruled. Motion overruled.