Metz v. Todd

Cooley, Ch. J: This is a foreclosure suit. The mortgage was given by •defendants Helen G-. Todd and Alice M. Terry, to secure the payment of four promissory notes made by third persons, and which the mortgagors had delivered to complain [474] ants on a purchase of the land mortgaged. The .bill avers that the four notes were delivered to the complainants “as security for the payment of the purchase price,” and that the mortgage was taken at the same time to secure the payment of the notes. It is claimed by the defense that the notes were received in payment for the land, and that the purchasers were not to be looked to for payment except upon the mortgage and according to its conditions. The evidence satisfies us that this defense is well founded. It is also claimed on the part of the defense that on the only note now remaining unpaid, and which was made by one Frink, the mortgagees, for a consideration paid to them, and without the knowledge of the mortgagors, extended the time of payment. The mortgagors then insist that, though not personally at-any time liable as sureties, yet as owners of the mortgaged land they occupied that position, and consequently the extension granted to the principal debtor, without their consent, discharged the land from the mortgage lien. That the claim is well founded if the proof establishes the extension, we think is undoubted.—Neimcewicz v. Gahn, 3 Paige, 614, and Gahn v. Niemcewicz, 11 Wend., 312; Christner v. Brown, 16 Iowa, 130. We also find the facts to be in accordance with the theory of the' defense. The .decree must be affirmed, with costs. The other Justices concurred.