, 1863-09-15

tske oi tact 70 Instruments which The parties hay
tss;a tS;ateo 4ihsy have failed to express their In
bu. until il itG t mast Is Snd afde e.
fiaud Of 1aistaEe. All the parties to this instru
melt kreW just what they were signing. Ever,
fact in relation to the whole uansaeiion Wi
knew That the note had been paid amer its matu
tErfty, that after having been SO paid in the ab
tence Of the maker, the evidence Of payment wat
sueh as is set forth IN the bill.
The conplainants contend that these facts being
acmhsd- there Was lien creatcd upon tho prop
e1ty. This The deiendants deny.
The complainants ssy that The note not having
besn paid until after Its maturity the legal estate
| IN The property had become vested in the mort
Vested b ! conveyance that be held such . ieeal
cetate as the nertgagor; that although
the note had been paid, and the personal liability
eonssnt Of speer Gadduek. have ~ been regarded = M
80 an existing rote, and Hadduck as the trustee
for the holder that With reference to the note IN
Soas6a EsbesRs g Se Refi
the note, and Hcko1 ss the surety, and Tic note nots
o1s sss s iGta e s hanss
he nots, held It is = snbafeting Obligation, and
Hadduck held the Legal title 10 the moltgaged
property as Thompson q trustee to the extcnt hi
hie Interest in the note.
The defendants CHIN that when the note was
pafa II Vas dead: that the mortgage pro taato was
s1tinguished, the mortgage being only an incl
cent 10 the debt, ard iSiDg only while It lived,
ard that neither note nor mortgage could be re.
o. b. made to vitality
the principles applicable to mortgages. What
therefore, is the nature Of thecetate Of the mort.
gagee. after the condition Is broken! For what
purpose does be mold the legal title? In what re-
tptct 1s he to be considered as trustee for the
mortEagor.
cost stte,y q ssys g f. e. L. ,1og IT Vas formerly
tue condition, Ind bnt 3 mere right to reduce the
estate back into his own possession By the pay.
msat q 81 the debt Or other discharge Of the condi
tton: But ills now firmly established that the
1ooIteasor has an estate ID the land in equity In
a9a c aainse re- o. nst estafe which msy bc granted
This ttuet cetate is altogether peculiar in It's
ehaIacfcl differing n many respects from ordi-
nary tnst estate- Its nature is particularly de-
Jseob WaEes Rep. 4Sp e. ST. TTboson
PluEer. It ts said in t6at case thst The mortca-
gee has no slght to either the legal or equitable
estate 1lthsE 1T than to secure the repayment Of the
Chancellor Kent says that the equity doctrine is
that the mortgage is a mcro security for the debt
and only q ehattel Interest, and that until de-
real owner Of the fee, and the estate Of the mort.
gagee Is not subject to execution. =
,, n EDWARDS re- Farmets' Fire and Lite ms. Co.,
gage is considered the absolute owner amer de-
fault before foreclosure only to afford an addilton
y :. LeMeoy lof tne 1onpsymcnt OF the money. thar
law oFeHides the exact law day, and gives Tie
mo11tesgor the right to pay nntil foreclosure. @@
lhefe IS 10 question that II tho bond or note
vas paid upon the law day. the payment would
discharge tie mortgage, and no recourse beyond
would be necessary.
Why should II be any diff rent in case the pay
provided tie payment ts fnen accepted. It seems
10 that the better reason is ia favor Of the rule
inst pa{meht Of the bond Or note after the law
to M smeunts
same equally with payment on that day.
=, Very many Of the American authorlties, II not
son. 9th Maine, Ill Hiliard on mort Is H. pis7 is,
Ert regarding the mortgage as trustee, he
nocs aet n II 5ezs aea the o1gasqs and upon ply
to BIN. Admitting the mortgage money to be
paid can be hold as trustee for any Other person
tban .he noftgasor. aud can he be obliged 10 con-
yey TO any other person! 1t ia trust faigcd only
by implication, aEd as mas been statcd in come Of
the eaees already cited sui gentrIt. think the
sensible REV which can b taken OF his I anoma. %
Ions relation and that the Eotsagea can b. re.
Ea,eed as holding the. title ouly by legal fiction,
and TO AFFORD au additional remedy fpF n0n-pav.
ment oi the mortgage money.
Ihis view seems 10 neto be tho most consonant
win ne relation Of rorteagor and mortgagee, as
nose @ 1easlons aEe now defined By courts OF cqui
GsE!e has been constantly engrafting itself upon
urltgal tribunals. during thc last two hundred
{eals, nth ios almost every purpose the mortgage
mtnt 81 the debt, and the moEteagee rs holding
z chsttel Interest aid pe:soEal estate descending
to p TIC personal r prezcntatiyes as aasets.
cannot bitpg myself to the conclusion that whero
mortgage money Is paid, ard accepted by the
no. "a aftss the day 9t payment lint after
that he can hold the legal title eccn1ty for any
new Or different Contract If, therefore, the note
a's M6ieh :hs ~ 1moztgoEe was slytn to securc was
not hold rs legal tttls as security ioT my rev
l9le he IN 1
ger TO be regarded as possessing any vitality. It
vas 70! all ppIposss dcad, aud Rto taato eztn-
~ chszs 'se as Sd NsM y g Asa
ya Hart sustain this view. It is true the facts
are not entirely similar to the case 1t bar, hut in
ne view Nhlch have previously expressed as
slder applicable to this case. 80
lad the complainant Thompson parted with his |
dutk stat be should have epeelnc lien upon @ lie lie
Eostgaged property, and that they would execute |
me papers IN acco1dsnce sith that agreement, the
tns 1t,t qds not
bnt the contract set up In the bill was IN cxe.
e9tSa. TO poi N execatoy contract Il was a note
q 1otc Of which Hickox was lie maker. vet Mic.
ko1 was not pteseut when the note was transfer
sed TO Thompson: I do not think there was any |
real int ntion to ecfaud uickox, but that the IN
tentlon va. only to enforce the note against the
property. Yet the facts were al understood, and i
eaeh :, q he PARTIES to the transaction acted tn
Thompson knew that he WAS obtaining only the
. inttdeht' eecuSity Of the mortgage; for the en-
dorst meIt Of the note expressly stated that. II,
no va]nc, End to which. because ii had no value
there was io fact no Incident security. be cannot
:omc Into Court to ask the specific performances Of
MT hat he La1gained for reither more nor less.
think this case comes fully wtthia the rent on Of
he case Of Hunt rs. RoaEmanteres executors.
asfc hs tGese re papers are Just what the parties
But it 10 said that The defendants are estopped
rom setting, up the fact TINT THE note was paId,
ID upon tho admission and uaderstsnd!n: that the
cote v as snbeittipg and valid Instrument. I do
tot 60 g1dsrsta1d @ ~ ne doctrine 9; estoppels IN
scldtu, 4G6. 81 Penn, 334.
! Am fite TO admit that I hare reluctantly come
% tic coIclusion That the compla'nart's blu pre-
1t sctne hard that effect should Eot be given TO
he mutual ihu ntions Of the parties. Sitting here
- chant cl'o.. willingly ca1g ont such
ne 70 By The rules Of law. Ths w,ittsn contract
II The p1ftt uEt be In l4W regarded IS the only
Of NE intentions G Tie parties snd
luck EaFe, and Thompson reeefved, security Whfch
Nas Of Io legal raluc+ 1t Is not the first lime in
which men bare advanced their money on worth
cfs security, and 1t will not be this Last.
The cause has been argued With great ingenuity
"a the part Of the counsel for complainant md IN
lew OF tie hardshfps Of the comp1ainant"s case,
Will not be TO me canse Of regret, II the coun-
el should convince the Supreme Court that this
3ou,t has mistaken the law ar plicabe to this case
The demurrer will lie sustlfned.
surE1uoR CouRT.-In the Superior Court, the
aseof Hornce White ys. Hugh Meyers ct al ,tnyol-
Ii 6 the title TO the A1ams House furniture. re-
'levied several years since BY the plaintiff, was
onc1uded yesterday, having occupied nearly I
eeek- The question to be settled arose out OF the
'urchafc, by Lewis r Beers from Hugh Movers, |
# the furniture Of The Adams House. Beers paid
five thousand dollars in cash, and fifteen
housand in liquors, and mo1tsaged the furniture
. patty In tho state OF New York, from whom
e professed to have received the meaus of pay-
ns-zt This mortgage wss transferred to Horace.
White, Of Syracuse, the plaintiff. Subseque,itiy.
EeeIs became indebted to Meyers for tho rent o.
ne home, and to sc:are hin, ,moltgagcd the furni
u1e second time Meyers took possession OF
he property under his mortgage. Afterwards an
gent Of Whites came to Chicago, demanded the
ropcfty Of Meyers, AID, on his refusa1 to sur.en-
er, replevied 1t.
The jury went ont ut q late hour yesterday after
oon, and in short time agreed upon verdict,
hich was sealed up, and the nature OF which
anspire this morning.
RECORDERS CouRT.-The following is the
cord Of the transactions In the Recorders Court
'sterday:
People "a. Henry Dowcrth. n1ea oF onf1tv ]