Shepardson v. Whipple

The defendant’s mortgage was made on two distinct conditions. The first was, to secure the payment of the note of Fellows to the defendant for $1000. The second was, to save the defendant harmless as surety of Fellows in an alleged bond to Halliwell to dissolve the attachment in the suit of Halli well against Fellows. The mortgage was dated August 11,1868. When the note should be paid, and the suretyship released, the defendant could have no further claim to the mortgaged property.

On the 18th of the same month, a part of the mortgaged property, but not including the property in controversy in this action, was taken by Whipple and sold, and he received the proceeds and paid the debts which constituted the consideration of the note. This satisfied that portion of the consideration of the mortgage. The defendant contends that this would not be so unless such was Whipple’s intention. But we think such was the legal effect of the payment. Whipple acted as the trustee of Fellows in selling the goods and making the payment, and when the debts were paid, the consideration of the note was thereby extinguished.

The bond to dissolve the attachment was never in fact given. An arrangement was made, by which Whipple gave to the officer a receipt for the goods attached, in the usual form. It included a part of the demanded property. The defendant contends that, the receipt having been given instead of the bond to dissolve the attachment, the condition of the mortgage applies to it and includes it. The plaintiff in that action recovered judgment against Fellows for $1175.84, and the defendant thereby became liable on his receipt. But he might have retained the property, or have taken a mortgage of it with condition to indemnify him against his liability on the receipt. He neglected to do either; but suffered Fellows to take the attached property without giving him any security for his liability on the receipt. For the terms of the *282mortgage do not apply to the receipt, but merely to the bond, which was not given; and we have no power to enlarge its terms. It is not like a mortgage given to secure the payment of a note which is afterwards paid by giving another note in renewal, as the defendant suggests. In such a case, the mortgage still remains valid, and secures renewal notes. But in this case the bond would be for the dissolution of the attachment, and the receipt is for a different purpose.

Judgment on the verdict