Quimby v. Williams

• Decision Date: 28 July 1893
• Citation: 67 N.H. 489,41 A. 862
• Parties: QUIMBY v. WILLIAMS et al. GOULD v. SAME. TIBBETTS v. SAME.
• Court: New Hampshire Supreme Court

41 A. 862

67 N.H. 489

QUIMBY

v. WILLIAMS et al.

GOULD

v. SAME.

TIBBETTS

v. SAME.

Supreme Court of New Hampshire. Coos.

July 28, 1893.

Separate bills in equity by Sarah H. Quimby, Reuben H. Gould, and Sarah Tibbetts, respectively, against Efmon H. Williams and another, praying, in substance, for a determination of the rights of the parties as mortgagees of certain real estate. Facts found by a referee. Case discharged.

In the first case the following facts appear: Abigail Brown executed three mortgages of her farm in Colebrook to the defendant Williams, as follows: One dated December 1, 1883, for $800; one dated March 18, 1884, for $500; and one dated December 18, 1884, "Tor $1,700. The last mortgage was intended by Mrs. Brown and Williams to be in satisfaction and extinguishment of the prior mortgages, but they were left in Williams' possession, without being formally cancel ed or discharged. January 29, 1886, Mrs. Brown conveyed all her interest in the farm to Williams, and it was then understood by them that all her notes were thereby paid. March 28, 1880, Williams executed a deed of the farm to John A. Hammond, and took a mortgage back from him for $2,500. The purpose of this transaction was to enable Williams to raise money on the mortgage, as collateral security. About the middle of December, 1883, Williams transferred the $800 mortgage to the defeudant Parkhurst. Soon after Mrs. Brown conveyed the farm to Williams, Parkhurst knew that she had conveyed it to him, and that she supposed all the mortgage debts were thereby extinguished. Parkhurst relied upon Williams' promise to pay the note, but supposed the farm would be holden for the payment, if Williams failed to satisfy the debt September 1, 1885, Williams pledged Mrs. Brown's aote and mortgage of December 18, 1884, for $1,700, to the National Bank of Newbury, one of the defendants, as security for loans made to him. Some time in 1886 he assigned to the plaintiff Quimby the Hammond note and mortgage of March 28, 1886; and March 4, 1887, he assigned Mrs. Brown's note and mortgage for $500 to the defendant Lamb. July 28," 1888, he mortgaged the Brown farm to the Bradford Savings Bank, one of the defendants, as part security for the sum of $12,000. All the mortgages are now held by the several defendants, for valuable considerations received by Williams, and without the knowledge in fact at the times they took the mortgages of the state of the title. The deeds were all duly recorded, and all the notes were indorsed by Williams.

The facts in the second case are as follows: The defendant Norris gave Williams a mortgage on his block in Colebrook, dated November 24, 1884, to secure the payment of three notes of $500 each. Williams pledged these notes to the plaintiff Gould, who now holds them as collateral security; giving him a certified copy of the mortgage, and retaining the original. Subsequently he pledged three apparently genuine notes of $500 each, in all respects like those delivered to Gould, and the original mortgage, with the Bradford Savings Bank, one of the defendants.

In the third case the following facts are found: May 2, 1885, Williams conveyed to the defendant Hammond a farm, called the "Stock Farm," and took a mortgage back of the same date for $1,000. Soon after this, Williams pledged the mortgage and note to the defendant Blodgett, to indemnify him for signing a note as surety for Williams, which note Blodgett has paid. March 25, 1886, Hammond reconveyed the farm to Williams, but the deed was not recorded. The purpose of the conveyances between Williams and Hammond was to enable the former to raise money on the latter's note and mortgage, but not to devest Williams of his title. Hammond never entered into possession of the land, and left the deeds with Williams, who caused the first deed and the mortgage to be recorded, without the knowledge of Hammond. Hammond knew of and consented to the conveyance to him, and voluntarily executed the mortgage and note; but his conveyance of the farm to Williams was made with the understanding that Williams should cancel the note and mortgage, which he failed to do. February 4, 1888, Williams executed a deed of the farm to the defendant Sarah A. Tibbetts. At that time she let him have $1,000, but she never took possession of the land, and Williams has paid her the interest on the money advanced, and has paid the taxes on the land. July 28, 1888, Williams also executed a mortgage of the farm to the Bradford Savings Bank, one of the defendants, as part security for a loan to him of $12,000. There are mechanics' liens on the property, in favor of the defendants Woodrow, Rolfe, and H. Hammond, for lumber and materials furnished and labor performed on a building erected by Williams while he was in possession, and soon after his deed to Mrs. Tibbetts.

Bingham & Bingham, for plaintiffs.

Thomas P. Johnson, Chapman & Lang, Drew & Jordan, James I. Parsons, and Jason H. Dudley, for defendants.

PER CURIAM.¹ 1. Mrs. Brown's mortgage to Williams for $800, which was duly recorded, was the first of the several incumbrances placed upon the Brown farm. Its validity at the time of its execution is admitted, and it is not claimed that its assignment a few days later by Williams to Parkhurst was defective or void. The title to the note and mortgage passed to Parkhurst before the $1,700 mortgage was given, and his rights were not affected by the fact that Mrs. Brown and Williams understood that the last mortgage operated as a payment of her former notes to Williams. She might have protected herself by insisting upon a surrender of the old notes and mortgages....