Melvin v. Fellows , 33 N.H. 401 ( 1856 )

Fowler, J.

Two questions have been chiefly discussed in the argument of this case ; first, the effect of the description of the note for $67.25, as being a note for $46.30, when that was in truth the amount of principal due upon it at the date of the mortgage; an endorsement several months after its date having reduced it to that sum; and secondly, the validity of the note for $80.00, under all the circumstances set forth as attending it.

The verdict must be considered as having established the identity of the $67.25 note with that described in the mortgage as for $46.30 ; and the only question, therefore, is, whether it was properly left to the jury to find that fact, notwithstanding the discrepancy between the note and the description of it, contained in the condition of the mortgage — in other words, whether the identity of a note, secured or claimed to be secured by a mortgage, must be determined solely by tbe description of it inserted in tbe condition of the mortgage, or other evidence may be adduced, and the question of identity submitted to the decision of a jury.

So far from there being anything in our statute, in relation to personal mortgages, making the description of a debt given in the condition thereof conclusive, the legislature seem to have contemplated the possibility of errors and mistakes, as well as of changes therein, by requiring the mortgagee, upon request made, to furnish a specific and detailed statement under oath of the amount due upon the debt or demand thereby secured. It cannot be possible that a mortgagee, who, when thereto required, shall make a true statement of the debt or demand secured by his mortgage and the amount due thereon, is to be subjected to the loss of his security, because some trifling discrepancy may exist between the description of his debt or demand in the condition of the mortgage, and the actual debt or demand, as stated by him under oath. If a jury shall find that he has truly stated the amount of the debt, actually secured and intended to be se cured by his mortgage, every principle of equity and justice require that he should not be deprived of the security which he has honestly and fairly acquired.

And the jury may properly find a note or demand to have been secured by mortgage, although it be not accurately described in the condition thereof. This has been repeatedly settled in our own and other States.

Where a note or obligation is offered in evidence, in connection with a mortgage, it is not necessary that all the particulars of it should be specified in the condition, in order to identify it as the note intended to be and actually secured by the mortgage. A general agreement with the description is sufficient, and parol evidence may be introduced to further identify it. Webb v. Stone, 4 Foster 287; Robertson v. Stark, 15 N. H. 109; North v. Crowell, 11 N. H. 251; Colby v. Everett, 10 N. H. 429; Johns v. Church, 12 Pick. 557; Hall v. Tafts, 18 Pick. 460; Trowbridge v. Cushman, 24 Pick. 814.

Á debt may be secured by mortgage, where the original note has been taken up and a new one substituted therefor — the debt remaining the same, but the evidence of it being altogether changed. Elliot v. Sleeper, 2 N. H. 525; Bank v. Willard, 10 N. H. 210; Pomeroy v. Rice, 16 Pick. 22.

In the present case, then, the question was properly submitted to the jury to find whether the debt intended to be, and actually secured by the mortgage from Brown to the plaintiff, was the same debt evidenced by the note for $67.25, on which was endorsed the sum of $20.95, thus reducing the principal amount thereof to the sum of $46.30, as specified in the condition of the mortgage. It would have been entirely competent for them to have found this fact, from the general coincidence of the note produced with that described in the condition of the mortgage, if no other evidence had been offered. Having found it, their verdict is conclusive.

In the absence of fraud, which was expressly negatived by the finding of the jury, we see no reason to doubt the validity of the note for thirty dollars. It was given upon the consideration that the plaintiff, at the request of the maker, had placed cash to the same amount of the note in the hands of a third person, subject to the control and disposal of the maker, with an understanding that such control might not be exercised in a certain contingency, to be determined by the maker himself. This was a valuable consideration. It was an act done — an advancement of cash — a risk and responsibility assumed by the plaintiff, at the request and for the benefit of the maker of the note, and constituted a good consideration therefor. Story on Promissory Notes, sec. 186, and authorities; Comyn’s Digest, Assumpsit, B, 1-15.

Nor was this a mortgage to secure future advances, within the legal meaning of that phrase. It was made to secure the note for thirty dollars, already in existence, given for a valuable consideration, and binding upon the maker. As there was no fraud, and Brown actually appropriated to his own use every dollar of the money, the advancement of which by the plaintiff, to be subject to his control, had formed the consideration of the note, long before tbe defendants intermeddled with tbe mortgaged property, any legal or equitable grounds they have to complain of tbe transaction are not perceived.

As tbe case finds tbe property sold by tbe defendants and included in tbe mortgage to have been tbe same for which this suit was brought, there would seem to be no foundation for tbe suggestion of a variance between tbe declaration and proof, and therefore no occasion for any amendment. If tbe mortgage were of tbe mortgagor’s undivided half of certain crops, and tbe defendants attached and sold that half of those crops, tbe plaintiff was entitled to claim and recover under tbe mortgage tbe value of all that was sold. But, as this objection was not alluded to by either of tbe counsel for tbe defendants in their arguments, it is presumed to have been abandoned.

As we are of opinion that the rulings and decisions of tbe court below were correct, there must be

Judgment on the verdict.