Smith v. Lamb

delivered the opinion of the court. This ac-. t-ion comes up from the County Court upon a case agreed, and. has been argued upon a motion for a new trial,which will be found necessary if the decision below was wrong; for, that decision being for the defendant, the damages remain unliquidated.

The plaintiff has declared upon two notes given him by the .defendant, and the defence set up, and allowed by the county court, was, that the notes were secured by a mortgage, and the plaintiff *398bad assigned the notes and mortgage to one Bertram. R. Nichols, and the-defendant bad assigned his equity of redemption to one Hol-gate : and Nichols had ohtained a decree of foreclosure against Holgate; but Holgate, by his answer, had set up usury in his de-fence in part, and supported his answer, upon this point, by the testimony of this defendant, Lamb, and thereby rendered the sunr decreed to be paid upon aredemption,less, by about two hundred and forty dollars, than tbe amount of the notes and interest. To-recover that sum this action -is brought. The defendant offered the above facts in his defence, adding thereto, that Holgate had paid the amount of the decree within the time limited therein, and thereby discharged -the land from the incumbrance.

It seems the county court admitted this testimony,on the ground that the decree was binding upon all parties and privies, both with regard to the sum and the satisfaction. Had the court of chancery supposed this doctrine tenable, when th.e bill of foreclosure-was ’before them, Lamb would not have been admitted to testify in that suit. Hé would have had an interest to throw off of himself, by his testimony, all that he threw off of Holgate. But, if his testimony in favor of Holgate tended, as the court then supposed, to leave due from the witness the sum for which he relieved Holgate, his testimony was against his interest. And, upon the-question of policy in cases where the witness offered has placed his name to a notegiving it credit, the court considered the case of Walton vs. Shelby over-ruled by tbe case of Jordaine vs. Lash-brook et al. But that decision, procured by the testimony of Lamb, can never be used in his favor. Reason -and justice forbid it. -Authorities will not warrant -it. Lamb was not a party to that suit. He might-have-declined testifying -because called'to swear against his interest. But he claimed no excuse from that consideration. Had he been made a party to that bill of foreclosure, -he could not have been a witness -for -the respondent. Had he been a party, and-set up usury in his answer, he must have proved it by. testimony aliunde, or -it would have availed him nothing. The matter substantially drawn in issue in the chancery suit.was, what sum-formed an equitable lien upon .the mortgaged premises ? This was ascertained: - and upon that point, Lamb had *399mo interest, in reference to tbe. title of tbe premises, as it then stood, or would stand after the decree. His apparent interest was to have the full amount of tbe notes included in the decree, and remain a lien upon the mortgaged premises, the title of which had wholly gone from him. If, under these circumstances, he would volunteer to testify for Holgaie, and that when objected to by the orator, Nichols, as appears by the report of the case, he ought to pay the sum remaining due upon the notes.

A decree of foreclosure with or without satisfaction, or whether there be an actual redemption or not, is no bar to a suit upon the mortgage securities, otherwise than pro tanto. If there is no redemption, tbe orator obtains the land; but that does not bar an action upon the notes secured by the mortgage. If the decree is1 satisfied, that is payment pro tanto, and no further. A pursuit to collect, after a decree of foreclosure, lays a foundation for opening the decree, if the mortgagor so elect; but such pursuit is not prevented by the decree.

A new trial is granted; and the action passes to the County Court for such trial.