Deal v. . Palmer

We see no error in the instructions.

1. If the "carding machine" was not a fixture then clearly the dealing in regard to it was valid, and the defendant was entitled to have the price agreed on credited upon the mortgage debt.

2. If the "carding machine" was a fixture and constituted a part of the mortgaged premises, we can see no reason why the mortgagee was not at liberty to buy, and the mortgagor to sell his interest, that is, his right to redeem. So as to give the mortgagee an absolute title, discharged of the right to redeem.

Why should not an agreement by which the mortgagee takes, say, one-halfabsolutely and the mortgagor takes the other half discharged from the incumbrance, be valid? This was the view taken of the case by his Honor and the jury, and we find no fault in it.

3. In respect to the payment of the judgment for the price of the mule, it was officious. The plaintiff could not in that way add to the encumbrance on the land, unless he was obliged to do so, in order to resist the claim of Mrs. Mull, without the assent of the defendant.

In Gaither v. Teague, 7 Ired. 460, an instrument somewhat similar in wording to the one in this case, was held, after much deliberation not to be evidence of a sale and a mortgage to secure the price; but only of an executory agreement to sell; here the words of the instrument admit of no question, it was the intention of the parties, and the legal effect of the instrument is to make a sale of the mule, with a mortgage to secure the price, so the instrument required registration in order to effect the title which the plaintiff had acquired, and he was not obliged to pay the judgment to protect himself. That the defendant did not consent to the payment by the plaintiff, so as to add to the amount of the encumbrance upon his land, is manifest from the fact, that he had declined to pay the judgment, and had sold the mule to plaintiff in order to reduce his property within the limit allowed as a "personal property exemption;" of this the plaintiff had notice. So it is clear, the plaintiff had no right to add the sum paid to Mrs. Mull as an additional charge on the land, and can hold it only as her assignee, and take his chances to collect if, as she would have been able to do. We concur in the view taken of this matter by the Court and jury.

No error.

PER CURIAM. Judgment affirmed.