Hill v. Banks

• Decision Date: 19 June 1891
• Citation: 61 Conn. 25,23 A. 712
• Court: Connecticut Supreme Court
• Parties: HILL v. BANKS et al.

23 A. 712

61 Conn. 25

HILL

v. BANKS et al.

Supreme Court of Errors of Connecticut.

June 19, 1891.

Appeal from superior court, Fairfield county; Robinson, Judge.

Action by Ebenezer J. Hill against Frederick S. Banks and others for foreclosure of mortgage. Judgment for plaintiff, and defendants, other than Banks, appeal. Affirmed.

J. A. Gray and J. H. Light, for appellants.

R. Frost, for appellee.

SEYMOUR, J. Before August 18, 1888, the defendant Banks had executed and delivered to the plaintiff his promissory notes of different amounts and dates, and due at different times, amounting to $1,426.44. The plaintiff had procured them to be discounted at the bank. Eight days prior to August 18, 1888, one of the notes, being for the sum of $905.38, fell due. It was in the bank where it had been discounted. Banks was unable to pay it, but promised that, if the plaintiff would take it up, and renew it for eight days, he would raise the money by mortgage, and pay the renewal note at its maturity. This the plaintiff did, but Banks did not pay the note at its maturity, but asked the plaintiff for further time and aid, and agreed that, if he would take up and renew the note again, he would execute and deliver to him, as collateral security for his indebtedness, his note for $900, secured by mortgage upon his real estate. This the plaintiff assented to, and thereupon Banks delivered to him his note as follows: "$900.00. Norwalk, Conn., Aug. 18th, 1888. On demand, after date, I promise to pay to the order of E.J. Hill nine hundred dollars, at the National Bank of Norwalk, value received, as collateral, with mortgage, for indebtedness by note or otherwise to E. J. Hill, at six per cent. interest and taxes. F. S. Banks." He also delivered his mortgage deed of the same date with the note, the condition of which is as follows: "The condition of this deed is such that, whereas, the said grantor is justly indebted to the said grantee in the sum of nine hundred dollars, as evidenced by his promissory note for said sum of even date herewith, payable to said grantee, on demand, with interest at the rate of six per cent. per annum, and till paid: Now, therefore, if said note shall be well and truly paid according to the true intent, tenor, and meaning thereof, then this deed to be null and void," etc. The note and mortgage were, in pursuance of the agreement, accepted by the plaintiff, who on the same day renewed the note for $905.38. In the premise of the 'mortgage the grantor is described as "Frederick S. Banks." It is signed, "F. S. Banks," and acknowledged by "Frederick S. Banks." There are mortgages on the property subsequent to the above. When the $900 note fell due it was not paid, nor any part of it, and the amount of it, together with the amounts of the other notes then due, was put into one note of $1,332.87, which note, or its renewal, the plaintiff still holds and owns, and it is now past due, and wholly unpaid. The plaintiff brought his complaint claiming judgment for the foreclosure of the mortgage, and possession of the premises therein described. To his complaint he made the subsequent incumbrancers parties defendant, who appeared and made answer thereto, and Banks made no defense. Upon the trial of the cause the plaintiff offered the mortgage deed in evidence. The subsequent incumbrancers, Robert W. Keeler, Thomas J. Raymond, and William S. Raymond, objected to its admission on the ground that it appeared to have been executed by "F. S. Banks" and acknowledged by "Frederick S. Banks." The plaintiff also offered the testimony of the magistrate who took the acknowledgment of the mortgage deed, and who was also one of the attesting witnesses to it, in proof of the fact that the person who signed the mortgage deed was the same person who acknowledged it. The subsequent incumbrancers objected to the admission of this testimony, giving no specific reason for such objection. The plaintiff also offered in evidence the note of which a copy appears above. The subsequent incumbrancers objected to its admission, because, they claimed, it was not the note described in the complaint, nor the one described in the mortgage. These are the only objections stated in the finding to have been made at the trial. The court overruled them respectively, and admitted the mortgage and note in evidence. Thereupon the subsequent incumbrancers took their appeal.

As to the first point. It was objected at the trial, as already appears, to the admission of the mortgage deed as the deed of Frederick S. Banks, that it appeared to have been executed by F. S. Banks and acknowledged by Frederick S. Banks. Of course it was open to the defendants to show, if they could, that Frederick S. Banks...