Sumner v. Bachelder , 30 Me. 35 ( 1849 )

Shepley, C. J.

— The plaintiffs are creditors of Hall & Turner. The defendant is the sheriff of this county. The action is trover brought to recover the value of certain goods attached and sold by a deputy of the defendant as the property of William G. Hall. It is admitted that he was formerly the owner of the goods. The plaintiffs claim to have derived their title to them from him. ft was stated in argument, that the defendant had exhibited no title. Tt was not necessary that he should make an exhibit of the writs, upon which the attachment had been made, until the plaintiffs had established their title. “ It was admitted, that the defendant was sheriff of this county, and that Norris, who attached the goods, was his deputy.” The plaintiffs had also introduced a witness, who testified, that on February 12, 1848, he notified Norris, the deputy sheriff, who attached the goods, of the assignment of the mortgage and demanded the goods, and that Norris declined to deliver them, because he held them on the attachments. The defendant will be entitled to hold them, unless the plaintiffs can show a superior title.

They exhibit a conveyance of the goods in mortgage made on December 29, 1847, and recorded in the town records on the following day, by William G. Hall to Hall & Turner, upon condition to be void upon payment by William G. Hall of the sum of $1343,00, being the amount of two notes described, given by William G. Hall to Hall & Turner; and an assignment of that mortgage to themselves, made on February 7, 1848, and recorded in the town records the same day. The notes described in the condition were not produced. To prove, that the mortgage was made for a valuable consideration, the plaintiffs introduced Charles O. Turner, of the firm of Turner & Hall, who testified in substance, that the mortgage was made to secure Hall & Turner for signing two promissory notes produced, as sureties for William G. Hall; that Hall & Turner had no other notes against William G. Hall, that he recollected; that the schedule annexed to the mortgage was made the day before the goods were attached ; that Hall & Turner had no other security than the mortgage for signing those two notes for William G. Hall.

The notes produced were signed by William G. Hall and by Hall & Turner. One of them bearing date on November 12, 1847, was made payable to Sumner, Brewer & Co., in' four months, with interest after, for the sum of $916,41. The other, bearing date on December 28, 1847, was made payable to Little, Spear & Co. in two months from date, for $426,11.

The report states, that parol testimony was offered and excluded, to prove “ that the notes produced were intended to be secured by the mortgage.”

On a motion for a new trial, a note is now produced as newly discovered evidence, bearing date on December 28, 1847, for the sum of $1343, made by William G. Hall and payable to Hall & Turner on demand. It is not however contended, that there was any other consideration for this note than their liability as sureties on the other two notes before named.

Admitting that the parol testimony excluded should have been received, the whole proof as now presented under the motion shows, that the mortgage was made, or that it was intended to have been made, to indemnify Hall & Turner for becoming sureties for William G. Hall on the two notes first named. The quesion is therefore still presented, whether at the time of the trial, the plaintiffs had such a title to the goods, that they could maintain their action.

They had before that time, on October 7, 1848, by an instrument under their hands and seals, released Hall &. Turner “from any and all liability,” “by reason of their having assumed as surety or otherwise, any responsibility to our said firm for or on account of William G. Hall.”

It is therefore obvious, that they could maintain no action against Hall & Turner founded upon those two notes. The liability of Hall &. Turner to pay those notes had been by their release extinguished. Nothing had been paid upon them. Hall & Turner acquired by the mortgage from William G. Hall a conditional title to the goods, liable to be defeated by the termination or extinguishment of their liability to pay those notes. That title and no other could they convey to the plaintiffs. They did not attempt to convey any other. They only assigned the mortgage and the title to the goods, which they had acquired by it.

No absolute title to the goods was at any time conveyed or attempted to be conveyed by William G. Hall to Hall & Turner ; or by them to the plaintiffs.

There may be a difference of opinion, whether the title to real estate conveyed in mortgage, upon payment or discharge of the debt or liability secured by the mortgage after condition broken, would revest in the mortgager without a reconveyance or release or cancelation of the mortgage. But although the title to personal property conveyed in mortgage, becomes absolute in the mortgagee upon failure to perform the condition within the time limited and extended, by the statute of this State, c. 125, § 30 ; yet if the mortgagee or his assignee, afterward accept payment of the debt, or discharge the liability secured by the mortgage, the title revests in the mortgager, without a rcdelivery or resale and without a cancelation of the mortgage. Butler v. Tufts, 13 Maine, 302; Flanders v. Barstow, 18 Maine, 357; Paul v. Hayford, 22 Maine, 234; Greene v. Dingley, 24 Maine, 131; Leighton v. Shapley, 8 New Hampshire, 359; Parks v. Hall, 2 Pick. 206; Barry v. Bennett, 7 Metc. 354; Patchin v. Pierce, 12 Wend. 61; Harrison v. Hicks, 1 Port. 423.

It is true, that the introduction of a mortgage made to indemnify a surety, after proof of its execution, has been held to be prima facie evidence of title. The same case also decides, that such title will be avoided by proof introduced in defence, that the debt has been paid, or the liability of the surety discharged. Davis v. Mills, 18 Pick. 394.

In this case, the proof, that the sureties had been discharged from their liability, was introduced by the plaintiffs, and their title to the goods was thereby avoided. A new trial could not avail them. Nonsuit confirmed.