Pursley v. Forth

Mr. Chief Justice Sheldon delivered the opinion of the Court: The collateral mortgage on lot 4, in block 20, in Xenia, was given as well to secure the payment of the Kennv & Patton $900 note as of the Lyon notes. The bill alleges the Kenny & Patton note was paid. There is no distinct proof of it; but the evidence, and the conduct and admissions of the parties, all proceed on the ground that the Lyon notes were the only ones that remained to be satisfied under the mortgage, and we have no doubt, under the evidence, that this Kenny & Patton note should be taken as satisfied. On the payment, then, by William A. Forth and Pursley, to Keen, of the amount of the two only remaining $800 Lyon notes, the collateral mortgage, which had been given to secure the payment of the Lyon notes, was, in truth, paid and satisfied. So the parties might have treated it, and canceled the notes, and had satisfaction of the mortgage entered; but they did otherwise. They took an assignment of the notes and mortgage, thereby electing to give the transaction the form of a purchase and assignment, rather than a payment, and to keep the mortgage on foot. They were at liberty so to do. The same purpose was manifested when Pursley assigned the collateral mortgage to Mrs. Burkitt, although he informed her that it was satisfied, and she does not appear to have paid any distinct consideration for the assignment. But when Mrs. Burkitt comes to advertise the property for sale, under that mortgage, in December, 1872, Pursley has the contemplated sale enjoined, setting up, in his injunction bill, that the mortgage had been paid and satisfied. A settlement was made of the injunction suit, but, in accordance with the strange determination manifested by Pursley throughout, to have this collateral mortgage kept on foot, it is made one of the terms of the settlement of this suit between Pursley and Forth,who was made a party to the suit, that Pursley should let the latter have Pursley’s “interest in two $800 notes, secured by mortgage, which W. A. Forth and Pursley bought of J. Keen, Sr.,” thus recognizing these two notes as still subsisting. At the sale of this property, under the $1200 mortgage, on the 20th of June, 1873, Pursley was present, and bid off the property at $1105. The crier at that sale testifies that, before commencing it, he explained fully its terms and conditions; that he was making the sale subject to a prior mortgage, and that the sale on that mortgage would take place on the next day. The prior mortgage was this collateral mortgage. Pursley uttered not a word of dissent. Had he intended thereafter to treat this collateral mortgage as a paid mortgage, and not as a subsisting one, it would have been well to have made it known on this occasion. It would have been an act of justice to the owner of the equity of redemption. Had Pursley announced that the prior mortgage had been paid—that he paid it himself—the property would, probably, have sold for a better price; but, then, as a bidder at the sale, he might have had, himself, to pay more for the property. On the next day, June 21, the sale of the same property came off, under the collateral mortgage, in pursuance of advertisement previously given. The person making the sale announced that the mortgage was executed by Hails to W. A. Forth to secure the payment of the two $800 notes which were given as a part of the purchase money for the property. Pursley was present at the time, and made not a word of objection. He was even a bidder himself at the sale. The property was struck off to Eobert Forth, as the highest bidder, at $950. He paid the money and took a deed. After all this, Pursley now seeks, in contradiction of all his previous action, to have the transaction of taking up the two $800 Lyon notes in the hands of Keen adjudged to be a payment of the notes and a satisfaction of this collateral mortgage, and the sale under it, consequently, to be held invalid. Although Pursley denies the fact, it is testified to by both William A. Forth and Aaron Burkitt, the husband of Hrs. Burkitt, that the foreclosure of, and sale under, the collateral mortgage, was by the direction of Pursley; that the reason he gave was, “to cut Hails out,” as this was the oldest mortgage. The ease appears to be one of hardship, in the result. Appellant, by his action, has involved himself in a serious embarrassment. He appears to have utterly destroyed his rights under two mortgages, one for $1200 and the other for $300, on this property, by allowing it to be sold under a prior mortgage, which, in reality, had been paid and satisfied; but it is the consequence of his own voluntary, deliberate action. There is nothing of fraud, accident, mistake of fact, or incapacity to act—cases where a court of equity interposes and grants relief. Courts do not assume the guardianship of men’s interests, and undertake to relieve against their acts merely because they are ill-advised and prejudicial in effect. Although the mortgage had been satisfied, appellant chose to hold it out and deal with it as a subsisting mortgage. He took an assignment of it, made an assignment of it in order "that a sale might be made under it, and acquiesced in the making of the sale. If the result bears hardly upon him, it is one to which he was consenting and aiding. Volenti non fit inijuria. It does not suffice that Hubert Forth, the purchaser, had notice and was informed by appellant that the mortgage was satisfied. This was neutralized by the fact that appellant, for whatever purpose, elected that the transaction should take the form of an assignment of the mortgage, instead of a payment of it; that he assented to the making of the sale under the mortgage, not only by being present and making no objection, but actually participating in the sale as a bidder. Forth was encouraged, by the conduct of appellant, to lay out his money in the purchase of the property under the mortgage. There is no ground for equitable relief. The principles of equity are all opposed thereto. Perry on Trusts, section 870. Appellant kept silence when it was his duty to speak. Equity will not now hearken to his complaint. As respects the other branch of the case, the taking of the note of Mrs. Burkitt for appellant’s bid at the sale under the $1200 mortgage, the terms of that sale, as prescribed by the mortgage, were cash. There was no power to sell for anything else than cash. The sale was made on the terms prescribed. Mrs. Burkitt’s note was not cash, and the tender of the note was not a compliance with the condition of the sale, although the proceeds of the sale were coming to her. There is an allegation in the bill of her insolvency, but we see no proof of it in the record. The decree must be affirmed. Decree affirmed.