Wanzer v. Cary

Rapallo, J.

It is found by the judge before whom this action was tried, that the mortgage executed by Mrs. Cary was passed over by Cary & Longshore to Shurter & Seaman as collateral security for $1,500 of the installment of $2,000, Avhich Cary & Longshore were to pay to Shurter & Seaman, on account of the purchase money of the land contracted to bo sold by them to Cary <fc Longshore. If there is any evidence to support this finding it must stand, and the consequence is that Shurter & Seaman could convey mo title to the mortgage Avhich Avas not defeasible by the payment or extinguishment of their claim against Cary & Long-shore, for which they held the mortgage as security. They had no right to assign the mortgage, but only to enforce it for the collection of their claim, and an assignment of the security, without a transfer of the principal debt, Avas inoperative. The rescission of the contract for the sale of the lands by Shurter & Seaman to Cary & Longshore extinguished the indebtedness for which Shurter & Seaman held the mortgage as security, and deprived the mortgage of any force or effect, as it had been given by Mrs. Cary without any consideration, except to secure to Shurter & Seaman the payment of her husband’s indebtedness jointly with Long-shore, on the contract for the purchase of the land. This indebtedness being canceled, the mortgage Avas not supported by any consideration. It is contended, however, on the part of the appellant, that the mortgage was not given as security for, but in payment of, the sum due on the land contract, *529 and became the absolute property of Shurter & Seaman, and that the finding that it was given as collateral security is unsupported by any evidence, or contrary to the evidence. The substance of the testimony is, that Mrs. Cary was the owner of the land mortgaged. That she- received no consideration for the mortgage, but executed it on her husband’s statement to her that he wanted it for collateral security to secure Shurter & Seaman, and that they would not assign it. Cary, the husband, testified that he paid Shurter & Seaman $500, and gave - them the mortgage for $1,500 to make up the $2,000, and that ho thought ho told them what he told his wife. That Shurter agreed to hold the bond and mortgage. He further testified that Shurter & Seaman were to hold the mortgage until the $1,500 were paid. Shurter testified that the mortgage was given in payment on the property, but ho admitted that ho never told Cary of the mortgage being assigned, and that when the contract of sale was rescinded he promised to give back the mortgage. On this testimony wc cannot say that the finding that the mortgage was given as collateral security for Cary & Longshore’s indebtedness was wholly unsupported by evidence.

The judgment should be affirmed.

All concur.

Judgment affirmed.