Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1899-05-04

together Win interest ana costs. khe |
appellant i~nterposed a motion for a new
trial, which Was Overruled, and from the !
judgment and decree Aforesaid and the A.,
order denying the motion for a new trial,
this appeal has been taken.
A number Of errors have been assigned
for the reversal of the Judgment and
order. Tie statement on motion for a
new trial diocloses, among other things, !
that upon the trial of the issues the res
pOndent admitted that Lucia V. Hop
pin, one of the mortgagers in the respOn-
dents mortgage, and one Of the joint and
several max ers of the note secured there
by, and a member of the co-partnership
of r. l.. Hoppin IL Company, had made a
deed to the respondent OF her entire in
tersst in the mortgaged premises i'll sat
isfaction Of the mortgage. 1t ie claimed
and assigned as one Of the many errors
relied upon by appellant. that in view Of
this admission it was prejudlcial error of
tho court in rendering its decree against
the interest Of the defendant Thsddsus
L. Hoppin for the Whole sum due upon
the note and mortgage.
We are unable to under stand under
what theory Of the law the trial court
~disregardsd this admission 30 broad and
far-reashing in its effect. Luella V. Hop
pin was not made . party to the action,
no judgment was sought against her on
the note or against her interest in the
property under the proceedings to fere-
close the mortgage. If the admission in
terms were true, then the mortgage Wal
discharged and satisfied not in part and
al to the interest of said LuellA ", but in
toto, and loft the property primarily sub
ject to appellants mortgage. But if.
under a liberal construction Of the lam
guage used in the statement, it was in
tended that the conveyance 80 made
should operate only as a discharge and
satisfaction Of the amount due from
Luella V. upon the note and mortgage.
then also it was error to decree the entire
mortgage debt to be a primary lien upon
, the interest OF Thaddeus L. Hoppin as
against the appellants mortgage, as no
= such sum was due upon the note or the
=, mortgage.
While under Section 3037 OF the General
a Statutes. it might be optional with the
, respondent to make Luella V. Hoppin a
. party, Vet the release of Luella V. Hop
pin, shown by the al omission in the state
q ment, operated TO release her proportion
of the deot. For authority in support of
this proposition we need not lCok be
, vOnd the provisions OF our statute. 1t is
/ expressly provided that any one of two
- or more joint debtors or parties Jointly,
or Jointly aud severally, bound by any
. ,.Ontarpt NJ INDIGNANT NAV no ralaaSoI
9 trem his, her, or its liability upon such
n contract or Judgment by the creditor OF
, creditors. and such release shall not oper-
V ate nor be held to operate in law as a re-
it lease to the other debtor or debtors upon
+ such contract or judgment, except as to
the released debtors portion Of such LA
hility or debt estimated pom the basis OF
the number Of such debtors, but such re-
lease shall operate only rs a release of all
II liability Ofsuch debtor to the creditor in
IF such contract or augment und as Il
lie credt upon the same Of such proportions
9r ote sam as herein prorjdcd. There are
further provisions Of the same Act relat-
e III. ~ ,ne method Of procedure against
Il .. PARTIES not released for their proper
. %tionate part of the unsatistisd debt.
2 Gen Stats Secs. 4Q3I-4433 incl.
Is 1t will thus be seen that under this
re statute the conveyance by Luells V.
It HoPpin to the respondent OF her interest
in the mOrtgaged premises in satisfaction
Nc thereof operated as a release OF her pro
~ p~Ortionate part Ofthe mortgage debt, and
10 q decree of the court by which the in
terest Of Thaddeus L. Hoppin was or
dered sold for the payment OF the entire
mortgage debt is erroneous.
VI Other questions are argued ia support O
this appeal involving the rights ofthe ap
pelant as a creditor OF the firm of r. l.
Hoppin Il Company, one of which pre-
Is SCENTS the question OF the primary liabil
ity OF the mertgaged property for the
Il payment Of the appellants claim as 8
W creditor OF said firm as against the rights
= Of the respondent, but We do not deem i
necessary TO pass pom this question be
cause OF doubt as to the correctness o
ne any conclusion growing out Of the I'm
'' satisfactory condition of the record. A
re- such questions viii likely be settled sat
ISL isfastorally upon retrial of the action
al. the judgment and order appealed from
IN will be reversed for the error above At
as signed.
Up concur: MASSEY, j..
ne Bonnifeld, CD did not participate.
OF Filed May 2. 1899.
&c EUGENE HOWELL,
as Secretary of State and Ex-othcio Cleri
III of the Supreme Court.
On Filed with printer for publicatio
ne May >. 1899.