Man v. Elkins

The production of the bond and mortgage made out a prima facie case of indebtedness thereon to the amount of $7,500 and interest, which, by the concession of plaintiffs, was reduced to $1,541. The subsequent evidence showed that the mortgage was not given for a fixed sum, but to indemnify the mortgagees against an uncertain amount of losses. The losses for which the bond and mortgage are an available security are not shown by any testimony that is competent against the second mortgagee. The language of Elkins at the time the $1,500 was advanced might be sufficient to show it a valid security as against him for that amount. But the second mortgage was in existence, and no admission of Elkins could affect it. It might be that no losses had occurred, or that they had been paid. If so, a loan to Elkins and an assignment by Hatch could not revive the mortgage against the second mortgagee. The judgment must be reversed, and a new trial granted, with costs to the appellant to abide the event. All concur.