Austin v. Bailey
| Decision Date | 21 April 1892 |
| Citation | 24 A. 245,64 Vt. 367 |
| Parties | BYRON A. AUSTIN v. BAILEY & PUTNAM, ET AL |
| Court | Vermont Supreme Court |
JANUARY TERM, 1892
Trover for the conversion of a horse. Plea, the general issue with notice of special matter. Trial by court at the September term, 1891, Ross, Ch. J., presiding. Judgment for the plaintiff. The defendants except. The facts appear in the opinion.
Judgment reversed and judgment for the defendants.
L.F Wilbur, for the defendants.
On November 16, 1889, Malaney, owning the colt in question, mortgaged it to the defendants Bailey and Putnam, to secure his promissory note of that date for $ 75, payable the next day, and the mortgage was recorded on the day of its date. After the note matured, said defendants put the mortgage, but not the note, into the hands of the defendant Wheeler, a deputy sheriff, to foreclose. But they soon told him to proceed no farther, as there was a virtual agreement to settle the matter; and he did not proceed, but the mortgage remained in his hands.
On February 23, 1890, Malaney gave Bailey and Putman another mortgage of the colt, to secure his certain other promissory note for $ 115, executed that day, but antedated November 17th aforesaid, payable on or before September 16, 1890, in equal monthly instalments, commencing February 15, 1890. This note was given for the 75-dollar note secured by the first mortgage and $ 40 that Bailey and Putnam had paid to a third person for keeping the colt, and who had a lien on it therefor superior to their first mortgage.
When the second note and mortgage were given, the first note was given up, but the first mortgage was not discharged, and has not since been, and there is no express finding that the parties thereto intended it should be discharged by the giving of the new note and mortgage.
On January 23, 1890, which was between the giving of said mortgages, Malaney hired the plaintiff to keep and break the colt at five dollars per week; and the plaintiff kept it eight weeks under that agreement, and until March 19, 1890 when the defendant Wheeler, who was proceeding by the direction of the other defendants to foreclose the second mortgage, took it from the plaintiff's possession against his protest and claim of lien, and sold it on that mortgage to the other defendants for $ 55, leaving a balance due and unpaid of $ 53.80. It does not appear that Bailey and Putnam knew when they took the second mortgage and gave up the old note that Malaney had hired the plaintiff to keep and break the colt. But the plaintiff is charged with notice of the first mortgage, for it was on record.
The plaintiff claims that from the facts found and certified up there arises a legal presumption that the parties intended that the second note and mortgage should operate as payment of the first note and a discharge of the first mortgage; but if not, that this court should presume, if necessary to uphold the judgment, that the County Court inferred such intention from the facts found; that in the circumstances, the taking of the second note and mortgage was an abandonment of the first mortgage; but if not, that by taking and selling the colt on the second mortgage, the defendants are estopped to set up the first mortgage, as the plaintiff's position in the premises was taken with reference to the defendant's position therein.
But the taking of a new note in substitution for one secured by mortgage, does not extinguish the debt evidenced by the latter so as to discharge the mortgage, unless such was the intention of the parties, shown by something besides what arises from the mere act of substitution; and the reason is that the mortgage secures the...
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