Butler & Vosburgh v. Miller

When this case was before the court on the former occasion, it .was held that the question of merge-depended mainly upon the intent of the parties. On the sec ond trial there was direct evidence respecting the intention of the parties in the execution of the bond and warrant of attorney and of their views and determination as to the effect of these instruments upon the prior security. This evidence was proper for the consideration of the jury, and raised a question of fact for their determination. The judge was, however, asked to charge as a matter of law that the judgment operated as a merger of the notes and that it avoided the mortgage. He properly withheld that instruction, and his charge that a merger took place unless it was satisfactorily shown that the judgment was taken only as a collateral security to the mortgage, and that if so taken it was not a merger, was in conformity with the former opinion of this court upon the case. The question of fraud was properly left to the jury ; and upon the whole I see no ground for interfering with the verdict.

*161Beardsley, C. J., said that the levy and sale which the plaintiffs caused to be made upon the property in question under the judgment and execution against Vanderpoel, was inconsistent with the present claim to the same property under the chattel mortgage. After such levy and sale the plaintiffs could not be permitted to set up title under that mortgage. Hence he was of opinion that a new trial ought to be granted.

McKissock, J. was of the same opinion.

New trial granted.