Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1859-02-05

Opinions OF the Supreme CourtoT Tenp..-
see, delivered at Nashville, Decetn her
Term, 1855.
Cleveland vs. Ma tim ard Others.


The decree Of N, Ca.lceiler ia his ease Is a.
iFmeL There wss no appeal from the decree utoo
he original ii : aud that bsaDch o. the case i no,
before Us IN asy fra. unless il Be ,hrodgh tue bul
VI rsvies
his alone as 10 the bill rf review that We ar. 70
consider the case and think that the Game, IIor
acted very propefls ia dismissing It
II y = not e for any Of ~ apparent in
tbe decree. tus solely upon the gro7Dd Of new mat.
ter which it said had arisen since the decree
was made
fhe new matter, a. set forth in The bill of review
was this: That in the plsaiiDgs in the original
eaase Il vas conceded by all the parties that tie
writing executed by E-till aud Garaer to Curry
Metres, for the ne half the two lots in Winchester
wss Oniv tile bond and a1t deef Of coaUsgane,
aud that they reiaieed the legal ttIs as g sec1rty
( for the IA ymeat Of the purchase mOueg due from
| him to ii m and that this writing he'd been left
with NJ Francis and lost mislaid, 50 that the
same was fled or used on the trial Of the origi-
nal ciuse. Add thal the chaucelIor's decree has
/ been psonOuuced pon the supposifn that these
sta eoents in the pl adEgs that the vriiirg
W4s only bond for ME, were trIe.
Whereas, the biilof reyteH alleged, since the
trial and deeee, Mr. Francis. in the examination Of
some old papers, bad found ,he wiring and il
tura, 4 cut net TO be title bond but deed Of 51r
gqia and SALE wherein lien in behalf Of EstiN
and Career had been retained
fne writing is pied into the hill Of review sn1 !
fled in The aud it still plainly appears that II
is not aesd Of coaUeyqRcs but My the Eem0Tan
dun Of a contract between Estif aod Garner and I
McGrew, BY whish they oeca ne bOuHi 10 make him 4
title their mcieiy of the lots, the legs lille be-
ing still retained in them That this Is the legal /
efec. Of this instrument is ds0ieI in the srgu-
here and cannot be. Csrnes vs.. Appleton &
Co.. Sneed 562.
This being 90. he bill Of review Of necessity
failed, because in point Of fact il contained
matter. the pleadings and decree in the or g nal
cause embracing every aet contained wi hiu the bill
Of review.
But if this bin has been framed with view to
reach errors of law supposed exist in the Decree
or II The original cause were here by appeal, We
think the equity Of the is against complainant
Cleveland.
1t is conceded in argumeat here By his counsel.
that Esin and Garner retained the yal tie the
bali Of The lots sold McGreW az security for the
parehaSe money, the les al effect OF which was the
3 mortgage for that purpose, Graham vs..
MeCampbeu Meigs R Q. 50. In fact, in the very
note executed E5ill for his moiefy Of the pur>
chase money By MeGreW, and Edwin Martha aud
John Fitzpatrick as his securities, it is expressly
stipulated that the prsl erty is 10 remain security
for the debt Il is also conceded that the assign
ment Of the uofs By Estill to Johnson carried with
it the benefit Of the security, but il is denied ths
Daniel Champion, though he chained the note Of
ass gnment from Logan, has the benefit OF the sseu
rity, because johnson did no. IN writing assign the
note 10 Logan but only BY sale anl delivery with
ont assignment.
There is no;hingin theis objection debt or
ch ose in action may be assigned for a valUa5s
sileration By parole, aud whatever passes the debt,
will carry with it, the security for its Psymeo No
deed writing is necessary A sale and delivery
Of the note is enough. Craft rs Webster, Rowe 9
242 Prescottus Hale II. Joins. Rep 2S5 H
Rep 420 HopsoH Ts Hoge & Lester. Yer. 158 ,
Graham rs MeCampbell, Megs Rep 81.
Nor do We think the position can b. maintained,
that the security mortgage 80 10 speak upon the
lots, lost, because Daaiel ChsmpiOn took a
for he debt from the same par les. ami extend
ed the time Of payment, because it is palpable from
the proof and The note, the the seeuriiy upon the
lots Was continued and retained for the D yment of
the subsliiu ed note At that tine Cleveland had
no interest IN the property. Aud Estl and Garner
were but trustee, holding the lots security for
the debt due Champion, and they were not necsssa-
riy parties to the extension OF the debt, Aegs,
81. !
If Champion, the creditor, and NcGrew the owns q
er Of the lols in equity, wi Martin and Fitzpat
rick his sures in the debt chose extend il upon
note, as mode or means Of Iayment, with Il
IN express stipulation, that the security, or morgage
should continue as BEFORE Why shall this not be y
done? We confess, upa5le to see why it 5
may not. If 20, the security for the debt remained ?
ss effective, as before, and ClesVesud could not sf
e wards purchase the property of MeGrew, 50 as 10
left at Impar this security, any than if the
.xteLsion had never been made. p
If we establish the existence aud continuance of 8
surites this settles the against Cleayelsod
He is net Innocent purchaser, because if it
we're shORu, as it is not, that he bss paid MetireE
Or the property, sll he has leguI ttLs, thst
nsiaiDg in E.til and Garner. Aud his snsWer
alls, in other respects, to entiie him 10 the benefit
# this defense 10 Yer. S35 l Meigs Dig 244 2i5. I
II is argued that the substitution OF tie BeT q
10 e. extiBgusbed the debt and the security If it [
xs ed at all, by contract and rot By lag and o
o be of any avail nganst Cleveland, should have 4
been declared in writing aud registered. But We b
rave seen thai the original Ssezrg was never chang
ID, given up, but expressly retained and eoniin-
led upon the lots as before 81
The case Of NOrvell Is Gordon sf ais, 5. Hump 1 Il
S9. which have been referred differs irom his
in this, that The proof shows he note had been
aid By The bill and there IN hat case, no express
Of the debt and The security fer its pay
Esat
Il follows that Martin, ihe suriiy, having paid the
iebt, was entitled to the benefit Of the security
lptn the lots for his Indemnity, Uzzen Us Mach, 2
Hump. 3l9. Affirm the decree.
WRIGHT. Il
A correct copy, ]. P. CLARK, Clerk. ei