Hicks v. Bingham

Where a mortgagee of two parcels of land released one of them to an assignee of the mortgagor, she was held to apply the money paid in consideration of such a release in discharge of so much of the sum due on the mortgage, although tire mortgagor was still indebted to her on other accounts.

In this case it appeared that one Silas Pepoon, on the 1st day of May, 1807, mortgaged the premises demanded in the plaintiff’s bill, together with another tract of land, to * the [ # 301 ]' respondent, upon condition to be void upon payment of five several promissory notes, made by the said Pepoon to the respondent; that the plaintiff in equity, by certain deeds of assignment, which were exhibited in the case, had acquired the right in equity which the said Pepoon had to redeem the demanded premises; that the mortgagor, on the 1st day of February, 1809, assigned the said other tract of land to one Stephen Willard; that the respondent afterwards, on the 15th day of November, 1811, released the same to the said Willard for two hundred dollars; and that the respondent entered into the demanded premises, for condition broken, on the 16th day of November, 1811. And the plaintiff avers that she has continued in possession, receiving the rents from that time to the day of the purchase of his bill. The plaintiff further avers that, on the 1st day of December, 1813, and before that time, he paid to the respondent certain large sums of money, which, with the said two hundred dollars received by her of the said Willard, and another sum received by her for rents, amounted to the sum of three thousand one hundred and forty-nm*1 dollars and fifty-two cents, a sum exceeding all the money due tr the respondent upon the said mortgage; and that he then requested the respondent to deliver possession, and to discharge the mortgage, which she refused. The respondent pleaded, first, that neither the plaintiff, nor any person on his behalf or for his benefit, at any time before exhibiting his bill, nor at any time since, paid or tendered to her the full amount of the money due on the said mortgage, as the plaintiff in his said bill has suggested and alleged; and, secondly, that, if the plaintiff, or any other person on his behalf, had so paid to her the full amount of the money due on said mortgage, yet that the plaintiff ought not to have judgment and execution for the premises last described in his said bill; because she says that, at the time of exhibiting his said bill, and long before, he was, and ever since has been, and still is, in the peaceable and quiet ¡possession [ * 302 ] * thereof, taking the rents and profits thereof to his own use, &c. Upon both these pleas issue .was taken by the plaintiff, and joined by the respondent.