Herr v. Herr

Opinion,

Mu. Justice Williams :

This case depends upon the construction of the receipt or certificate of date of February 21, 1885. It was given by Henry F. Herr to show the terms upon which he held the mortgage for $4,000 given by Benjamin G. Herr to him on the same day. It is as follows: “ Whereas, Benjamin G. Herr has this day delivered to me a mortgage . . . for four thousand dollars ; now this is to certify that I hold said mortgage as collateral security for my indorsement of a note of said Benjamin G. Herr for $1,050, dated this day . . . and for my indorsement of any renewal or renewals of said note, and also for my indorsement or indorsements of any other notes, or renewal of such note or notes hereafter to be made by me. And 1 promise and agree to satisfy said mortgage whenever the said Benjamin G. Herr pays any and all notes upon which I may he liable as indorser fox him, at his request.”

The question now raised is whether a note indorsed after the date of said mortgage and certificate is deprived of the protection of the mortgage, because it was used to pay or renew a note outstanding when the arrangement was made. No such condition is to be found in the certificate. That asserts that the mortgage is held as security “for my indorsement or indorsements of any other notes.....hereafter to he made by me,” and also for the renewal of such notes. The only requisite is that the indorsement should be made after the date of the certificate. The note now in controversy was given after the mortgage and certificate were made, and was indorsed by Henry F. Herr. It was used to pay or renew a note previously given, because the maker, Benjamin G. Herr, did not take it up at maturity. The learned auditor, instead of looking at the date of the indorsement upon the note in controversy, fixed his attention upon the date of a note which is said to be the first of the series of which the note now under consideration is the last. Because the debt was contracted prior to the date of the mortgage, he excluded this indorsement made after its date. The court below followed the auditor and confirmed the report.

We cannot agree to the interpolation into the certificate of terms not written down at the time. The only requirement to participation in the security afforded by the mortgage is that the indorsement shall be made after the date of the arrangement for the security of the indorser. When the debt vras contracted, or upon what consideration, are not subjects of inquiry. The one question is, when wras the indorsement, under which a claim is presented, actually made ?

The intention of the parties appears not only in the words of the certificate to which attention has been drawn, but also in the concluding clause : “And I promise and agree to satisfy said mortgage whenever the said Benjamin G. Herr pays any and all notes upon which I may be liable as indorser for him.” The security was intended to cover all future indorsements and to be satisfied only when the liabilities of Henry F. Herr, as indorser for Benjamin, were extinguished by the actual payment of the notes bearing his indorsement. The note presented to the auditor in this case was unpaid. Henry F. Herr was liable upon it as indorser, and was actually looked to for its payment. The indorsement was made long after the date of the mortgage. It was within both the letter and the spirit of the arrangement shown by the certificate, and should have been allowed as a claim upon the fund.

The decree confirming the report of the auditor is reversed, and it is ordered that the same be modified by allowing the claim of the appellant upon the note excluded by the auditor.