Pool v. Marshall ( 1868 )

Mr. Justice Lawrence

delivered the opinion of the Court:

It is insisted by the plaintiff in error in this case, who was also plaintiff below, that he and the defendant had purchased land incumbered by the same mortgage; that he had been obliged to pay the entire mortgage debt, and that, having done so, he should be permitted to recover from the defendant the proportion which equitably attached to the latter’s land. The difficulty with this argument is, that it does not fit the facts. It was not the plaintiff who paid the mortgage, but Baker, the common grantor of both plaintiff and defendant. The plaintiff was merely the agent through whom payment was made. It was not his money that was paid, but the money of Baker, retained by the plaintiff'in his hands from the purchase money of his share of the land, and retained for the express purpose of paying the mortgage. Neither was there any objection to proving this fact by parol. It did not vary a written instrument. It was simply proof of a fact in pais, entirely in harmony with the conveyances from Baker to both plaintiff and defendant.

The verdict and judgment were clearly right.

Judgment affirmed.