Griswold v. Onondaga County Saving Bank

If the Butler mortgage, which was assigned to plaintiff on the 28th of Hay, 1855, was properly applied upon his two mortgages, their payment in full was an inevitable conclusion, and the complaint was justly dismissed. At the date of that assignment the plaintiff held against Hrs. Sprague two distinct and independent demands. One of these was the balance due on the two mortgages, while the other consisted of loans and advances entirely unsecured. These latter amounted to about $1,050; the accounts of the adverse parties differing but slightly in this respect. There is no direct evidence in the case of any application by Hrs. Sprague or her trustee of the proceeds of the Butler mortgage to one or the other of the two existing debts. The assignment itself is not printed in the case, and no direction for its application is expressly proved. The receipts given by plaintiff for its proceeds as paid speak only of their application upon the Butler mortgage, and give no aid to the inquiry to which of the two debts they were, or were intended to be applied. Hor did the plaintiff exercise his option, and make an application in his own interest-Ho indorsement was made upon the mortgages down to the time of the trial. Ho credit upon the unsecured account separately and specifically was produced or shown; and the statements rendered by the plaintiff consolidated the two debts into

Authorities are not wanting for the doctrine asserted by the respondent, that as between a mortgage and an open account, the court will apply a general payment upon the mortgage. (Pattison v. Hull, 9 Cow. 755 ; Dows v. Morewood, 10 Barb. 183 .) The first of these cases contains an elaborate and learned examination of the question, reviewing the doctrine both of the civil and the common law, and the English and American cases, and concluding that a general payment should be applied upon the mortgage debt rather than upon a simple contract, for the reason that the payments ought to be applied to the debts which lie heaviest on the debtor, and which it concerns him most to discharge. We have found no contrary doctrine asserted in this court, after an examination intended to be careful and accurate; but yet we need not adopt the doctrine and approve the authorities without reserve, since in this case other facts exist which make our duty much more clear and certain.

But further facts appear. In 1865, or about ten years after the assignment, and six years after all payments to Griswold had ceased, Mrs. Sprague conveyed the premises in dispute to her daughter, Mrs. Soper. In October of the next year the latter .executed-a mortgage upon the same property to the Onondaga Savings Bank. The plaintiff’s mortgage for $1,900 was dated September 1, 1843, and was due September 1, 1847, and his mortgage of $1,800 was dated December 13, 1843, and matured December 13, 1846. When the bank took its security plaintiff’s mortgages were nearly twenty years old, and were very probably represented to have been paid. In 1869 a formal satisfaction was sent to Griswold for his execution, upon the claim of payment in full, and while he declined to execute it, he admits that from 1859 down to 1876, a period of about seventeen years, he had claimed nothing on either the mortgages or accounts, and not even dunned the mortgagor. When, in addition to all these facts, it is further observed that

We have examined other questions suggested, but without discovering ground for reversal.

The judgment should be affirmed, with costs.

All concur, except Andrews, J., absent.

Judgment affirmed.