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firm in extinguishment of the debt. Story Part., § 159, note L. Where a joint debtor insists that a separate note is substituted and is in satisfaction of the joint debt, the onus is thrown upon him, and, to discharge himself from liability, it will be necessary to show a special contract to that effect; or that, in addition to a separate note being taken for the amount of the debt, the original bills were given up. And even when that is the case it may be rebutted by countervailing proof that it was otherwise intended. Estate of Davis and Desanque, 5 W. H., 1839, 538.
"The real question turns upon the intention to substitute the new for the old. Mason v. Wickersham, 4 W. & S. 100; 40 Penn. St. 65-83.
"It is clear in this case that the banks made no agreement, and had no intention to release the collateral held by them from their claim to hold them as security for the payment of the notes of Reis Bros. & Co., and their subsequent renewals. Whatever the legal effect of their acts was, they never intended to lose, nor suspected that they were losing, their hold upon the bonds upon the strength and assurance of which all these loans and discounts were made.
"Can it be, then, that without intending to do so, and where the facts show clearly a contrary intent and understanding, they will be held to have lost their claim to those bonds? I cannot so think.
"It seems to me such a conclusion would be inequitable as against parties who had credited the firm of Reis Bros., in entire ignorance of the transactions with the banks, and most clearly so in a case like the present, where the adverse claimant was a party originally a debtor, claiming preference out of the very property pledged for the payment of his own debt.
"It may be that by treating the notes of Reis Bros. & Co. as paid, and delivering them up to Reis Bros. and renewing the notes of Reis Bros. from time to time, the auditor was justified in holding the sonal liability of the Kimberlys as extinguished - though I am not clear that such is a necessary conclusion-but I cannot see that it by any means follows that the banks have also lost their right to claim payment of their debts under the collateral. It may very well be that one may release or destroy his right to pursue a debtor personally on a bond, and yet have a perfect right to enforce his claim under a mortgage given to secure it.
Looking at the case then in this light, I think the facts found by the auditor show that even if the Kimberlys are released from personal liability on the notes held by the bank, he erred in finding that the debt was paid so as to work an extinguishment of it, and thus destroy the bank's right to claim payment under the bond and mortgage.
"The right to compel payment of a debt secured by a pledge or mortgage does not depend upon the 'personnel' of the debtor, but the identity of the debts.
"The renewal of a negotiable bill or note representing the principal indebtedness, for the payment of which collateral securities have been deposited, does not affect the right of the creditor to retain or compel collections. In Cover v. Black, 1 Penn. St. 493, GIBSON, Ch. J., says: 'A mere change of the evidence of the debt will not discharge the
mortgage pro tanto in favor of the mortgagor, or any one claiming as the foundation of his title, and standing in no peculiar equity.'
"So in Jones' case, 101 U. S. 630, if a note secured by a mortgage be renewed or otherwise changed, the lien continues until the debt is paid; change in the form of the instrument is material. See, also, Shrewsbury's Savings Institution's Appeal, 94 Penn. St. 312. And Brinkerhoff v. Lansing, where Chancellor KENT says, in a case where the notes were changed in amount: The identity of the debt remained so as to preserve the relation between that and the pledge.' The debts to be secured to the banks were owing and evidenced by the notes of Reis Bros. & Co., and with the exception of the $5,000 note in the Tradesmen's National Bank-are unpaid to-day. They are clearly identified as the same for which Reis Bros. & Co. were liable, and for which the bonds could unquestionably be held, and for the sums on such notes I think the banks are entitled to distribution in preference to the Kimberly mortgage; but I do not think they are entitled to distribution for any notes or bills discounted for Reis Bros., or for their benefit, not given by way of renewals for debts due by Reis Bros. & Co. "Without laying any stress upon the insufficiency of the evidence to show any specific arrangement that the bonds were held as security for new debts of Reis Bros., it seems to me that the recording of the deed of the Kimberlys to the Reis Bros. for the partnership property, inter alia the land covered by the New Castle Iron Company mortgage, and the recording of the mortgage given by the Reis Bros. to secure payment of the purchase-money, must be taken as legal notice to the banks so far as advancements to Reis Bros. are concerned.'
"The banks knew the bonds were originally the property of the New Castle Iron Company, held as collateral for its debt, and common prudence required them, when they afterward accepted them as collateral for loans to Reis Bros. & Co., to inform themselves by what authority they were so used. This would have informed them of the whole transaction from the beginning. All this it was their duty to discover, and undoubtedly they did know it. And in a like way, when Reis Bros. undertook to use them, if they ever did, as collateral for new loans of their own, it was the duty of the bank to inquire by what authority that firm undertook to use the bonds of Reis Bros. & Co. for their individual benefit, which would necessarily have developed the sale to Reis Bros. and their mortgage for the purchase-money to the Kimberlys.
"In accordance with these views it is now ordered that distribution of the fund in court be made as follows:
Amount in court for distribution..... Deduct auditor's fees, etc., as per auditor's report...
Balance for distribution
To National Bank of Lawrence county:
$48, 263 65
Samuel Griffith & Sons, S. W. Dana and J. N. McClure,for appellants. What was the legal effect of the payment of the notes by Reis Bros. in the manner found by the auditor? the banks marking them paid with their stamp, canceling the names thereon and delivering them to Reis Bros. Now we submit and insist that the legal effect of these acts was an actual payment of the notes and an extinguishment of the debt-a novation as far as the Kimberlys were concerned. Haymaker v. Gundacker, 10 Penn. St. 75; Ayers v. Watson et al., 57 id. 360; Mitchell v. Combs et al., 96 id. 430. That nothing short of a bona fide payment in money, or other thing; so as to distinguish the original debt, and a subsequent loan on independent securities, will make the new security valid, or protect it against the charge of usury. Campbell v. Sloan, 62 Penn. St. 481; McCungie Savings Bank v. Hottenstein, 89 id. 328; Shafer's Appeal, 99 id. 246. As to the six notes held by these two banks against the firm of Reis Bros. & Co., on May 1, 1882, we affirm that the Reis Bros. were the principal debtors, and the Kimberlys sureties thereon as between themselves, and that these banks were at their peril legally bound to observe these rights and protect the sureties; and in support of this position we beg to refer the court to the following authorities: Bayles Sureties and Guarantors, 491; Savage et al. v. Putnam, 32 N. Y. 501; Millerd v. Thorn, 56 id. 402; Morse v. Gleason, 64 id. 204. On the effect of recording the Kimberly deed and mortgage, we beg to refer the court to Jaques v. Weeks, 7 Watts, 267; Levinz v. Wills, i Dallas, 453; Stevens' Appeal, 1 Norr.
D. B. & E. T. Kurtz, for appellees. And it is well stated that, where an auditor reports a fact as a deduction from other facts, his conclusion is the result of reasoning, and, therefore, subject to revision and
correction, if erroneous. Hindman's Appeal, 85 Penn. St. 466; Milligan's Appeal, 97 id. 525. And an auditor's report, not sustained by the court below, has necessarily less weight on appeal. Bachman's Appeal, 38 Leg. Int. 393. Was the legal effect of this transaction a novation or merely a renewal? The general rule is, that if one indebted on a note gives a new note for the same sum, without new consideration, it shall not be deemed a satisfaction of the first, unless so intended. and accepted by the creditor. Hart v. Boller, 15 S. & R. 162; Kemmerer's Appeal, 102 Penn. St. 558. Same rule applies where mortgagor gave new negotiable notes. Brown v. Scott, 51 Penn. St. 357. Accepting of a security of equal degree, either from the debtor himself with or without a surety, or from a stranger alone at the instance of the debtor, is no extinguishment of the first debt. Weakly v. Bell & Sterling, 9 Watts, 273. Even a higher security, given by different parties, or for a different sum, will, in the absence. of proof of the intention of the parties, be presumed to be accepted as collateral and not in satisfaction. Jones v. Johnson, 3 W. & S. 276. It is not necessary, in order to one note being a renewal of a former, that it should be of the same amount, or time to run, or made or indorsed by the same parties, or be given or bear date at the maturity of the former note, or that the identical proceeds of the new note were actually applied to take up the note for which it was a renewal. Bank of Commerce Appeal, 44 Penn. St. 423; Gault v. McGrath et al., 32 id. 392. See, also, Colebrook Col. Sec., §§ 14, 29; Jones v. Guaranty and Indemnity Co., 101 U. S. 622; Shrewsbury Savings Institution's Appeal, 94 Penn. St. 309; Lytle's Appeal, 36 id. 13.
PER CURIAM. The decree in this case is affirmed on the opinion of the learned judge of the court of common pleas, and the several appeals are dismissed at the costs of the appellants.
HOLTON v. WALTER.
November 1, 1886.
SALE-AGREEMENT - - DESCRIPTION
- WARRANTY - INTEREST GRANTOR - IDENTIFICATION-DEED REFERENCE. A. agreed in writing "to sell and convey unto" B. "all his right, title, interest and claim, real and personal, in the property known as the Union glass works, situate in Union township, Lawrence county, and State aforesaid, and the same property, conveyed to' A. by C. "assignee of the Union Glass Company, by deed, dated August 17, 1869." The agreement contained no warranty of the quantity of land A. was to convey. Held, a conveyance of the interest of A. fulfilled the agreement, and that the reference to the deed of 17th August, 1869, was not a covenant that the quantity should be as therein set forth, but was merely a matter of identification.
Error to the court of common pleas of Lawrence county.
The action below was an equitable ejectment, brought by Walter, to enforce the payment of purchase-money owing by Holton upon articles of agreement for the sale by Walter to Holton of "all his right, title, interest and claim, real and personal, in the property known as the Union glass works, situated in Union township, Lawrence county, and State aforesaid, and the same property conveyed to said Walter by
S. W. Dana, Esq., assignee of the Union Glass Company, by deed dated Aug. 17, 1869, and recorded in deed-book 17, pp. 574-5." The description in the deed was "the undivided one-half of that certain. piece or parcel of land situate," etc., "bounded on the north by Shenango river, on the east by Shenango river, on the south by Washington street, and west by E. & P. R. R." The ejectment was brought for the undivided one-half of the piece of land described as in above deed, the description being afterward amended by leave of court, so that the north and east boundary should be "the water line of Shenango on its west side, as it was on 17th Aug. 1869." The price was $3,500, and the balance of purchase-money and interest due at time of trial was $3,552.50.
Between the date of the deed to Walter and his agreement with Holton, the Erie canal was abandoned, the dam just below removed, and consequently the water line along this property had receded eastward, leaving considerable land between the water line of 1869 and 1879, which was claimed by successors to canal company's title.
Holton's defense related to an alleged failure of Walter's title to the strip of land uncovered by the receding of the water. The court would not permit him to set up this defense for two reasons, viz.: First. Because by the terms of the agreement he had contracted for only the right, title and interest of Walter to the land; and, second, because the land described in the deed of 1869 and in the agreement was bounded by the river at that date. The verdict was for the land to the line of water in 1869, to be released on payment, etc.
D. B. Kurtz, M. McConnell and R. B. McComb, for plaintiff in error. In every contract for the sale of land a condition is implied for a good title and the delivering up of the deeds. Fry Spec. Perf. 99. A decree for specific performance is of grace, not of right. Mitchell v. Steinmetz, 1 Out. 251. The purchaser cannot be compelled to take a doubtful title. Pratt v. Eby, 17 P. F. S. 397; Kostenbaden v. Spotts, 30 id. 430.
Dana & Long, for defendant in error. Where vendor contracts to convey his "right, title and interest" in an action for purchase-money want of title is no defense. Herrod v. Blackburn, 56 Penn. St. 103; Smith v. Lillyman, 3 Whart. 589. He cannot defend an ejectment to compel payment of purchase-money by showing misdescription without fraud, nor is he entitled to improvements. Miles v. Williamson, 24 Penn. St. 135.
PER CURIAM. In the agreement of January 20, 1879, between Walter and Holton there is found no warranty, express or implied, as to the quantity of land which the vendor was to convey. He therein agreed to sell his interest in the glass-works property to Holton, whether that was much or little, and a conveyance of that interest, according to the agreement, fulfilled to the letter his covenant. The reference to the deed of the 17th of August, 1869, Dana to Walter, was not a covenant that the quantity and boundaries should be as therein set forth, but