Morse v. Brockett

Headnote

Contract—construction of.

S. was liable upon the paper of a firm, and judgments were obtained against him thereon. To secure him, A., a member of the firm, confessed judgment for $37,750, which became a lien on A.’s farm. Subsequently it was agreed between S. and E. who was also liable upon the firm paper, that if S. would satisfy his judgment, and the sons of A. (to whom A. had conveyed his farm) would give E. a mortgage for $10,000, E. would take up and discharge the indebtedness of the firm on which S. was liable to the amount of §30,000. S. satisfied the judgment and the $10,000 mortage was made to E. As a part of the agreement the sons gave a subsequent mortgage to S. for $33,000 to secure the balance then due upon his liabilities for the firm. B. took up of the firm indebtedness $16,705.80, including three judgments against S. which were assigned to E. Held, that E. could not enforce the judgments against S„ and this even if they were assigned to him before the agreement was made, and the mortgage to E.was a lien upon the farm prior to that of S., to the extent only of $10,000 less $3,394.30, the difference between the amount of firm indebtedness taken up by him and $30,000.

Appeals by George E. Morse from judgments entered in the county of Madison, upon the reports of a referee.

There were three actions, two brought by George E. Morse, as administrator, etc., of Ellis Morse, deceased, against Samuel White and others, to recover the amount claimed to be due on three judgments against said defendants. Samuel White died during the pendency of the action, and his administrator, David Z. Brockett, was substituted. The third action was brought by said Samuel White against George E. Morse, as administrator, and others, to restrain the statute foreclosure of a mortgage. The material facts in each case were the same and they were tried as one action.