Hoyle v. Cazabat ( 1873 )

Morgan, J.

On the twenty-fourth August, 1869, the plaintiff sold to the defendant, Cazabat, a certain piece of real estate. The price of the property was $4500, of which $1500 was cash, and for the balance .of $3000 the defendant gave his three promissory notes, each for $1000, payable one, two and three years from date, at the Mechanics’ and Traders’ Bank, in this city. The notes bore interest at the fate of eight per cent, from the day of sale, and the vendor reserved a mortgage and the vendor’s privilege upon the property sold, to secure their ■payment. The notes were deposited for collection in the Mechanics’ ■and Traders’ Bank. The first note was paid about a month before it was due, although by whom it was paid does not appear, and the proceeds placed to the credit of the plaintiff, Hoyle.

The second note not having been paid at maturity, the plaintiff caused the property mortgaged to be seized and sold. Hoyle purchased it for $3400. Being the vendor, he paid the costs and taxes upon the property in cash, and retained the balance in payment of the note upon which the order of seizure and sale issued, and to pay the -note to become due; all of which, with the interest, costs, etc., more than consumed the amount of his bid.

After the sale, Jacob intervened, and, alleging himself to be the owner of the first note given by Cazabat, claimed to be paid his pro rata thereon from the price of the sale.

There was judgment against him and he has appealed.

The judgment is correct. The note he holds was paid — by anticipation, it is true — but it was paid, and payment of the note extinguished the mortgage which was given to secure it. It was an accessory to the -contract, and fell when the debt was paid.

There is an act in the record by which it appears that Cazabat borrowed a certain sum of money from Jacob, with the avowed intention ■<of discharging the notes given to Hoyle, and with subrogation to Hoyle’s rights of mortgage, but Hoyle was not a party to this act, and •we do not understand that Cazabat had any authority in law to subroígate Jacob to Hoyle’s rights without Hoyle’s knowledge or consent, -y

Judgment affirmed.