Clark v. Oman , 81 Mass. 521 ( 1860 )

Dewey, J.

The note of six hundred dollars given by Couch & Clark, payable to the order of the plaintiff, is not embraced in this mortgage. The only ground for sustaining such a claim is found in these words in the condition of the mortgage: “ And shall indemnify and save harmless the said Samuel Clark for his signing or indorsing any notes that he may hereafter sign or indorse, for the said Bradford & Benjamin as partners, by the name of Couch & Clark, and for all loss, cost, trouble or expense from any liability he may incur or be under as surety, as acceptor or indorser for said Couch & Clark.” The facts do not show any Eability of the kind above described. This note was originally made for the purpose of being discounted by the Lee Bank; and if it had thus been discounted, and the plaintiff made chargeable therefor by reason of his indorsement, such EabiEty would have been secured by the mortgage. But this purpose of a discount at the Lee Bank was not effected. The plaintiff never assumed any Eability as an indorser of his note to any holder thereof. In fact it never was passed to any third person. The note was received by him as his own for money lent, by himself. It can have no higher claim than a note given by Couch & Clark to the plaintiff. The effect of the transaction was to place the plaintiff in the situation of a payee or holder of the note, and not to render him Eable as surety or indorser on the note. It was competent to take a mortgage securing the mortgagee against future liabEities that, might be assumed by him. But such mortgage cannot avaE beyond its stipulation and terms. A mortgage made to secure one from all EabiEty which he may incur by reason of his becoming surety or indorser on the notes of the mortgagor does not secure notes given to the mortgagee for money lent by him and received as evidence of such loan. Exceptions overruled.