Bowman v. Manter , 33 N.H. 530 ( 1856 )

Perley, 0. J.

Manter gave his bond to Huse for Stowell without any security, or bargain, or contract for security from Stowell. When the land was conveyed to Huse by Stowell nine hundred dollars of the purchase money was paid by Stowell’s request to Manter, the holder of the note and mortgage, who took the money and gave up the note to Stowell. The note was then paid and discharged by Stowell, who owed it. The money was his, being the price of his land sold to Huse, and in law was paid by him, being paid by his request. This discharged the mortgage without any release or other writing.

This is entirely different from the case where one having an interest in land advances money due on a mortgage to protect his own estate, and is allowed in equity, though the form of the transaction Avas a payment of the debt, to keep the mortgage on foot for security of the money advanced. The note was in this case paid by the maker and debtor to the payee and mortgagee, Avho had no remaining interest in the land. Until the neAV arrangement, upon which the note was re-delivered to Manter, there Avas nothing from Avhich any agreement, understanding or intention could be inferred to uphold the mortgage after the note was paid. The defendant must rely on the new agreement and the re-delivery of the note. But this could not have the effect to restore the note and mortgage, once paid and discharged, so that they should operate against third persons from the original date and delivery, in the same way as if they had never been paid.

If the old note once paid had been re-delivered on a new consideration, with the intention of making it the evidence of a new debt, it might perhaps have been valid between the parties for that purpose, as in the case of re-issued bank notes. But this would not'revive the extinguished mortgage. And so, if the old mortgage had been re-delivered with the old note, and the intention of the parties was that they should be a new security for a new debt then contracted, there are authorities which go to show that the re-delivery of the old mortgage might, between the parties, give it the effect of a new deed. Groodright v. Strahan, Douglass 54, note; Hudson v. Revett, 5 Bing. 368. Butin such case the new deed, if there was nothing more than a simple redelivery, would be without witnesses, without acknowledgment, and without registration, and could not affect third persons who had no notice. It would be in law a new deed and a new security, and must be treated as such.

In this case there was no re-delivery of the old mortgage, nor any notice to the demandant.

On the case agreed there must be

Judgment for the demandant.