Thom v. Wilson's

Ray, C. J. This was a proceeding to have satisfaction ■entered of a judgment, and further action restrained under an execution issued thereon. The appellants alleged that the judgment had been recovered against them for the unpaid purchase money due the decedent for certain land sold to them; that they had sold the real estate to one Mulford, and that the decedent had agreed to, and had, received from said Mulford, in payment, the sum of four hundred dollars in cash, and notes for the balance of the sum due on the judgment, ,amd had agreed to accept a mortgage from [371] said Mulford to secure said notes, and to release the judgment against the appellants. The appellees filed a denial. They also answered that the notes were received as collateral security, and the judgment was to he entered satisfied only upon their payment. Reply in denial. On the trial, the appellants introduced evidence tending to show that upon the sale of the land to Mulford, upon which the judgment in question was a lien, the agreement between the appellants, the decedent and Mulford was, that the notes given by Midford to the decedent were to be secured by mortgage, and that certain other notes given by Mulford to the appellants, for the balance of the purchase money, were to be also secured to the appellants by a mortgage of a later date, and that thereupon the appellants were to be released from the judgment; that subsequently the decedent agreed with Mulford that the judgment should stand as a security for the debt, and that no mortgage should be executed to the decedent. It appeared in proof that the notes given by Mulford to the decedent had not been paid, and that appellants had foreclosed the mortgage they held from Mulford to secure the notes for the balance of the purchase money, and had bought in the property. Upon the trial, the appellants moved to strike out a copy of a contract between Mulford and the decedent, which was made part of Mulford’s deposition. The contract showed that the agreement under which the notes were receivéd by the decedent was, that the judgment should remain in force until the notes were paid. This was certainly admissible evidence, both under the denial and the special answer, as it contradicted the allegation that the notes were received in satisfaction of the debt. It is not important that this item of evidence did not disprove the allegation that the decedent agreed with the appellants that he would so receive them. Evidence is not to be excluded on the ground that it does not in itself answer the entire complaint; it is sufficient if it tends to disprove a material averment. [372] It was also objected that the contract itself was not produced, but only a copy. The appellees requested the witness to file the original, but as the paper was the property of the witness, and he was beyond the jurisdiction of the court, the copy furnished and made a part of the deposition was sufficient. The appellees offered in evidence a full transcript of the record in the Supreme Court of the proceedings on an appeal, by the present appellants, from the judgment which it is claimed was satisfied. The appeal was taken and prosecuted after the date when the appellants claim the judgment had been fully paid. We think it wras proper for the consideration of the jury. A transcript of a record, and the proceedings of this court thereon, is not a copy of a transcript, but is a copy of matter which has' become a record of this court. While the taking and continued prosecution of an appeal in this court, from a judgment below, does not, as a matter of law, estop the appellant from asserting that the judgment was paid, it is still, as a matter of fact, proper for a jury to consider under such an issue. The appellees also offered in evidence the record of a judgment of foreclosure of the mortgage from Mulford to the appellants to secure the balance of the money due upon the .sale of the real estate to him. This was proper evidence. With the other evidence introduced, it showed that, according to the contract claimed by the appellants, the notes of Mulford, given to the decedent, were to be secured by a mortgage prior to the one which secured the notes received by appellants. The appellants purchased the property under a foreclosure of their mortgage, knowing that the notes given to the decedent were unpaid. Those notes were given for the purchase money of the real estate, and wore received upon a debt for purchase money of that property, due from appellants to the decedent. This purchase of the property was therefore, in equity, subject to the vendor’s lien. The evidence made a case where the aid of the equity power of the court would be asked in [373] vain to permit appellants to keep the property and have the debt for the purchase money declared discharged, without its payment. IT. W. Harrington and G. A. Korbly, for appellants. G. E. Walker, for appellees. There is another reason why the finding of the jury eannot be disturbed. There was evidence from which the jury could find that the contract between the appellants, the decedent and Mulford was, simply, that the appellants were to be relieved from the judgment, and that the property should remain liable to pay the debt. Under that state of facts, it will be time enough to ask the aid of a court of equity when the remedy against the land shall have been exhausted and proceedings are attempted against the appellants. The charges given by the court to the jury were as favorable to the appellants as the law would permit. The judgment is affirmed, with costs.