¶1The demandants derived their title from a mortgage which Charles C. Tebbitts, on the 19th day of December, 1837, made to George L. Sibley. The tenant claims by virtue of an extent, following an attachment of the premises, in a suit against the same Charles C. Tebbitts, a little later than the day on which the mortgage was executed. This entitles the tenant to a scrutiny of the course by which the premises are supposed to have passed to the demandants.
¶2He first avers that the mortgage is insufiieient. So far as the consideration of the note secured by it is concerned, it must, upon the authority of Haselton v. Guild, 11 N. H. Rep. 390, and Touissant v. Martinnant, 2 D. & E. 101, and the other cases cited there, be pronounced- to be good.
¶3The principle of these cases is, that a note or bond for a gross sum may be taken by a surety from his principal, not exceeding his liabilities, by way of indemnity against them; that an action may be commenced upon such security, or it may be proved under a commission of bankruptcy, although the surety has not in fact been required, at the time of such a proceeding, to pay any thing.
¶4This note was given in part to secure the indemnity of the payee as surety for the maker, and in part to secure the payment of a sum of money which was absolutely due from the maker to the payee, and that sum was materially larger than the amount apparently due upon the note when it was assigned by Sibley, and became the foundation of the proceedings that have brought on this controversy.
¶5The next question relates to the validity of the sale and assignment of the mortgage from Charles Lane to Charles *214C. Lane. The note was indorsed in blank, and was assignable, as a negotiable paper, by mere delivery. It was the property of two, who owned it in common, and not, so far as it appears, as partners, and was in the possession of one of them, who had an undoubted right, as against his associates, to retain possession of it for any purpose not improper with reference to the object for which it was delivered to the two. A delivery, therefore, by Charles Lane to Charles P. Lane would have been impossible, without the consent of Moulton, who held the note. But the law considers it a sufficient delivery, by a vendor of a chattel, tó a purchaser, if he request the holder of it to be the bailee of such purchaser, and the parties all, as in the present case, assent. It is impossible to understand the case otherwise, although the word “bargain” is, as has been suggested, an equivocal one, when considered without reference to these circumstances. The payment of the price and the presence of the parties have significance enough to determine the nature of the bargain to have been that of a sale, and not a mere agreement to make a sale at a day then to arrive. Whatever the effect of the deed from Lane and Moulton to Gove & Currier might have been, it was a mere mortgage at most; and the tenant, not claiming under it, could not have set it up against the demandants, who had all the estate of the mortgagees. Daniels v. Ellison, 11 N. H. Rep. 274.
¶6It is unnecessary, therefore, to inquire whether any thing at all passed by that deed.
¶7The result is, there must be
¶8Judgment on the verdict.