Newell v. Hurlburt

• Decision Date: 01 January 1829
• Parties: NATHANIEL NEWELL v. JOSEPH HURLBURT and NICHOLAS HOLMES, (in Chancery.)
• Court: Vermont Supreme Court

2 Vt. 351

NATHANIEL NEWELL v. JOSEPH HURLBURT and NICHOLAS HOLMES, (in Chancery.)

Supreme Court of Vermont, Chittenden

January, 1829

This bill was brought to foreclose the equity of redemption upon a mortgage, executed by Hurlburt on the 15th day of October 1821, to the plaintiff, conditioned for the payment of a note, bearing date the same day, for the sum of $ 600. After the execution of the mortgage and before the filing of the bill, Hurlburt, for a valuable consideration, conveyed the mortgaged premises to Holmes. Both defendants, in their answers, admitted the execution of the note and mortgage, but denied that there was anything due in equity upon them. The answer of Hurlburt stated that on the 31st day of August 1821, he was indebted to the estate of Ziba Pierson deceased, in the sum of $ 108 70, and that he and one Lyman Worster were jointly indebted, in equal proportions, to Henry H. Ross in the sum of $ 260, and to John D. Dickinson in the sum of $ 115; that the plaintiff, on the day last aforesaid became surety for Hurlburt for the debt due from him to the estate of Pierson, and also for Hurlburt and Worster for the two debts jointly due from them to Ross and Dickinson; that the note and mortgage were executed and delivered to the plaintiff to secure and indemnify him against his liability for the whole of the separate debt due from Hurlburt to the estate of Pierson, and for Hurlburt's rateable proportion of the two debts jointly due from him and Worster to Ross and Dickinson, and upon the express agreement and condition, that if Hurlburt paid the whole of the debt due to the estate of Pierson, and one half of each of the debts due to Ross and Dickinson, the plaintiff would discharge and cancel the note and mortgage; and that Hurlburt had paid the whole amount of the first mentioned debt, and one half of each of the other two debts, long before the filing of the plaintiff's bill, in full satisfaction of the note and mortgage.

Bill dismissed with costs.

Allen and Thompson, for plaintiff.

Van Ness and Adams, for defendant.

OPINION

After argument, the opinion of the Court was delivered by PRENTISS, Chancellor.

The answer of Hurlburt, as to every material fact stated in it is very fully supported by the proofs in the case. The written memorandum, and the note and mortgage, were all executed at the same time; and from the memorandum, as well as from the testimony, it clearly appears, that the note and mortgage were executed and delivered to secure the payment of, and to indemnify the plaintiff against, the entire debt due to the estate of Pierson, and one half only of the debt due to Ross and Dickinson; and that on the payment...