Bell v. Murphy

The judgment of the court was pronounced by Fost,' J. The plaintiff gave tho defendant’s testator an accommodation endorsement ou a note which was discounted in bank, and took from him a mortgage on two slaves as security against any loss, damage, or injury he might sustain, in consequence of the endorsement of said note. At its maturity it was paid in part; another note, endorsed by'tho plaintiff, was furnished for the balance, and the original note was returned to the maker. The second note was protested at maturity for non-payment, and -subsequently taken up by the plaintiff, who now sues for the amount and claims to be paid by preference out of the proceeds of the property mortgaged to him. There was judgment in his favor for the amount claimed without mortgage, and he has appealed. There is no error in the judgment. Tho mortgage was not a general one, to secure the plaintiff for endorsements ; it was given to secure the payment of [766] a specific debt, which the evidence shows to have been subsequently novated and extinguished.* Tho mortgage was extinguished with it. Judgment affirmed. Footnotes [*] The mortgage recited that: “Whereas the appearer bad executed his promissory note for $500, payable at the offico of tho Gas Light and Banking Compay at Franklin, twelve months after date, dated--April, 1841, which note was duly endorsed by said David Bell, and was discounted at said office on the 28th day of the present month for the accommodation of said appearer, the drawer thereof, the proceeds of which note he the said appearer has realized to himself exclusively ; now therefore, for the purpose of securing the said David Bell against any pecuniary loss, damage, or injury, ill consequence of his, said Bell’s, endorsement as aforesaid, the said appearer declares that he doth by these presents mortgage, &c.”