Gilman v. Moody

Nesmith, J. This case presents the fact that the mortgage deed, under which the plaintiff claims to establish his title to the demanded premises, as well as the two other deeds of mortgage, under which the defendant, as assignee, claims to protect himself, were severally made and delivered on the same day, by one Lamprey, and intended as indemnity to the mortgagees for signing, as sureties, three different promissory notes for said Lamprey, as principal ; also, that the three deeds were afterward presented at the register’s office, in this county, at the same time, and all recorded on the same day and hour. There was nothing upon the face of the deeds, nor upon 'any part of them, in writing, to indicate with certainty the purpose or intent of the mortgagor as to priority of right in the mortgagees. The question here is, whether the plaintiff is entitled to the priority of right found by the jury in his favor. Mortgages are often given by way of indemnity to sureties, and, in such cases, it is held that, if the principal fails to pay the debt at maturity, and thereby subjects the surety to the liability of a suit, it will be such a breach that the mortgagee may proceed to take possession, for condition broken; Shaw v. Loud, 12 Mass. 449; though it would seem he can not have a judgment or decree for a foreclosure until he has paid the debt of the principal. Shepard v. Shepard, 6 Conn. 37; 1 Wash. Real Prop. 599; 1 Hill. Mort. 295. Where a mortgage is given to indemnify a surety on a note, proof of the execution and registry is prima facie evidence of title, without producing the note, which is not presumed to be in the possession of the mortgagee. The burthen of proof is upon the party that denies the existence of such note. Davis v. Mills, 18 Pick. 394. The general principle is, that mortgages duly recorded have preference according to the order in which they were made and executed. A second mortgagee stands in the place of the mortgagor, as to his right of redeeming the first mortgage. So in reference to further mortgages of the same property. So incumbrances are paid off’ in the order of priority of right. 1 Hill. Mort. 222; 1 Wash. Real Prop. 537. uQui est potior in tempore, potior est in jure.” This general rule has its modifications. The priority of registration gives no precedence of right against a prior mortgage, of which the junior mortgagee had notice when he took his mortgage. Rogers v. Jones, 8 N. H. 264; Copeland v. Copeland, 25 Me. 152. Therefore, so far as the parties are concerned, or those who have knowledge of the existence of a prior deed, registration is not essential to its validity. Brown v. Manter, 22 N. H. 468; Sullivan v. McKean, 1 N. H. 373. Parol evidence, therefore, must, in this instance, be resorted to to supply the defects of the ordinary sources of proof, which appear, generally, either on [244] the face of the deeds, or in written instructions of the parties interested, and given when the deeds are offered for record. For proof, we must go to the witnesses of these deeds of mortgage, and inquire what was said and done at the time of their delivery. To whom, in fact, was the first delivery made ? The subscribing witnesses to the deeds may fairly be presumed to know what the parties did, or intended to do. Lamprey, the mortgagor, is a competent witness, and may have been called to testify. He could have been properly inquired of whether it was his intention to place the several grantees in equali jure, or whether a preference was intended or given to either mortgagee. In establishing the fact of notice of a prior incumbrance, the mortgagee is himself a competent witness. Van Wagoner v. Hoppin, 4 Hals. 684. Another and material point in the case is, was the plaintiff’s mortgage given to him as an indemnity for signing a note as surety for Lamprey, as principal, for $71 and interest, payable to Nathaniel Davis, on demand, instead of a note for $60. Said note is admitted to be now consumed by fire. And whether there is, consequently, such a substantial variance between the note described in the condition of the deed and the note proved, as to defeat the deed, becomes an important question. The second section of chapter 137 of the Eevised Statutes prescribes, “ That no conveyance in writing of any lands shall be defeated, nor any estate incumbered by any agreement, unless it is inserted in the condition of the conveyance, and made part thereof, stating the sum of money to be secured, or other thing to be performed.” The thing to be performed here, or the object of the deed of mortgage, was to indemnify the plaintiff against loss in consequence of .signing the note to Davis, as surety for Lamprey, the mortgagor. We must inquire whether the intent of the parties to the instrument can not be so far ascertained and enforced, as that the thing designed to be done may be fully perfected without violating the acknowledged principles of law governing the construction of deeds of this nature. Where a part of the description of the note mentioned in the condition of the deed is actually incorrect and untrue, the court simply reject the incorrect parts and are governed by the residue. This principle of construction is familiar in its application to the names of persons in the instrument and to the description of property intended to be conveyed. The description may not agree in some particulars, and one part may be inconsistent with another; but if the description be sufficient to ascertain the property or person intended, the inconsistent part may be rejected. The same principles apply with equal force to the description of the debt in the condition of the deed, as to the property or person named in the deed. It is not necessary that all the particulars of it should be specified, in order to identify it as the note intended to be secured. It is sufficient that it be so far described that it appear with reasonable certainty to be the note intended to be secured in the mortgage. Webb v. Stone, 24 N. H. 487. A general accordance in the description of the note is sufficient. In Johns [245] v. Church, 12 Pick. 560, the note described in the condition of the mortgage was stated to be $236. The note produced on tidal was for $256, in other respects corresponding- with the note described in the condition of the deed. This was held sufficient by the court, upon the evidence that the note was the same which the plaintiff had signed as surety. The amouut of the note is but one of the particulars by means of which the note may be identified. Looking at the note that the mortgagor was intending by his deed to provide an indemnity for, we find here the following coincident facts, concurring to render it probable that the note'for $71 was the thing intended by the parties to be provided against: 1. The note was made payable to Davis, as the holder of the security. 2. It was signed by the plaintiff and Lamprey, both the parties to the deed, the one as principal, the other as surety. 8. It is not pretended that there originally was, at the time of the making of the deed, but one note made. 4. Perhaps another point of identity could have been arrived at, if the plaintiff could have remembered or stated the fact that the original $60 note was given to Davis, May 3, 1855, and renewed in November, 1856, and that the $71 note was then made up by charging twelve per cent interest on the original note in the meantime. However this fact might be, we think it was properly submitted to the jury, whether the $71 note was the one intended by the instrument to be indemnified against, by Lamprey, the mortgagor, in the manner suggested by the court. "Where the facts sufficiently appear upon the face of the deed, and there is no latent ambiguity as to the note intended, it then is a question of law. But whether there was more than one note originally signed by the parties, and made payable to Davis, was a question of fact, and properly settled by the jury. The case of Boody v. Davis, 20 N. H. 146, appears to be decisive upon the merits of this case. The sayings or declarations of Lamprey, offered by the defendant, were properly rejected by the court, as hearsay testimony. It was competent for either party to have called Lamprey to prove the same facts. So the court — we think properly — rejected the testimony offered by the defendant, arising from the fact that the notes mentioned in the several mortgages were made payable at different times, and therefore, competent evidence upon the point of priority. This could not be considered the best evidence on this point, and nothing else than vague and indefinite testimony, furnishing no sáfe inference as to the true intent of the parties. Therefore, such evidence was properly rejected. Therefore, upon the case, there must be Judgment on the verdict.