The herald., 1897-04-03
JUDGMENT SUSTAINED
The Supreme Court Decides an I'M
portant Appeal Case

An opinion was handed down by the
supreme court yesterday denying the ap-
peal from the judgment of the lower
court in the suit of E. A. Inghan ct al.
against ]. Irving Weed ct al, where de-
cision had been rendered for the plain
tiffs in a suit to foreclose a mortgage,
given to secure payment of two promis-
sorry notes, of which they were the assig-
nees.
It appears that prior to March l, 1885,
Edward Mccarthy purchased certain
mortgaged premises from Charles e.
Pittman and Others On March lst this
mortgage had been reduced by payments
thereon to SIS, 900. On this date an agree
ment was entered into between Edward
Mccarthy, ]. Irving Weed and others
providing for the conveyance of all the
property to the said j. Irving Weed in
trust, to make sales and conveyances
and to distribute the proceeds according
to the agreement. Contemporaneous
with the execution of this agreement Ed
ward Mccarthy conveyed the land to
Weed by a deed, absolute on its face, the
trust being expressed only in the other
agreement.
Subsequently the original mortgages,
the Pittmans, demanded payment of a
part of the debt and the execution of a
new mortgage TO SEIZURE the Ddlduct.
Charles Mccarthy thereupon paid $4,000
on the mortgage, reducing the indebted
ness to $4,000, and for the balance on
March 27, 1889, James and Edward Nc
Carthy executed to the Pittmans the two
notes in suit each for $4,000, one payable
in one and the other in two years after
date, and the McCarthys and Weed exc
cuted the mortgage in suit to secure pay
ment on the notes
Weed never sold aOV mart of the ira rt
of land as contemplated by the agree
ment, but on Nov. l, 1892, it being then
deemed eXpedient to terminate the trust,
conveyed to each of the beneficiaries an
undivided interest in the property equal
to his share or interest therein Suisse
Quently the interests of Mccarthy, Free
man and Glassell were conveyed by
them to the Mccarthy company, thus
resting in it the title to over four-fifths
of the whole property.
While the notes were held by the
payees thereof. the Pittmans, payments
OF principal and interest, aggregating
$7495.S6 were made and endorsed upon
them from time to time. Afterward the
balance due on the notes was paid mostly
by the respondents, Thompson and Wit
ter, but in part by the plaintiffs, and
thereupon at the request of the respond
entS the notes were assigned by the
payees to the plaintiffs.
In support of their appeal the ap-
pellants set forth several reasons on
which they relied for a reversal of the
Judgment. among which was the claim
that Thompson and Witter were bound
by contract to pay off the mortgage. and
did so, and that it was then extinguish-
ed. In passing upon the matter Judge
Van Fleet says: There is no evidence in
the record showing that Thompson and
Witter ever personally undertook to pay
the mortgage debt but the evidence
shows that Thompson, Witter and Ly-
man each paid his proportion of the
debt and then caused the balance there
of to be paid This did not extinguish
the mortgage as to such balance. but left
It a subsisting lien to secure its pay
ment. After going over the various