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The opinion of the court was delivered by

Barrett, J.

I. The defendant asserts that he paid the claim of the plaintiff, whether resting in a note or otherwise, in the *108manner that was agreed between them, when the plaintiff was about to leave Sonora in April, 1854, viz.: by buying a draft and forwarding it by express to tbe plaintiff, on the occasion when John B. Moore surrendered the note to the defendant, as testified by said John B. The plaintiff testified that he left the note with his brother for the purpose of having it paid to him, and that “ he left it until it was paid.” He claimed on the trial, and testified, that defendant was to pay it, by sendiny the money to him. The controversy in this respect was, as to what was the agreement or understanding between the pai’ties, as to the manner in which the payment was to be made. It appears from the testimony in behalf of the plaintiff, that John B. was cognizant of what had passed between the plaintiff and defendant, about the leaving of the claim, the purpose, and how to be paid, and was the agent of the plaintiff in that behalf.

It seems to us that the court, in the charge to the jury, failed in an important respect to give operation to the fact of the surrender of the note by John B. to the defendant. It was treated as if it could legitimately bear only on the rights of the plaintiff, as affected by the legal effect of the fact of surrender by the agent of the plaintiff, upon the assumed hypothesis that the note had not been paid. But having reference to the other evidence in the case, tending to show what was the agreement and understanding between the parties, in respect to the manner in which the defendant was to make the payment to the plaintiff, the fact that John B. was holding the note for the purpose of having the defendant pay it. to him, as the agent of the plaintiff,' and while thus holding it he surrendered it to the defendant, on the occasion of the buying and forwarding of the draft, was very proper and significant, as matter of evidence, on that question, and tending to show that what the- defendant did on that occasion, was done according to the agreement and understanding of the parties, as to the manner in which the payment was to be made. In this view, the charge deprived the defendant of that fact as evidence upon the decisive question in dispute, by assigning it a nugatory office, when permitted to operate only under the assumption, that the plaintiff’s side of that question was true. And the detriment *109to the defendant, likely to result from that mode of treating the surrender, would seem not to have been diminished, when the judge, after having told the jury that but little importance was to bo given to the fact that the note was surrendered, proceeded, under an obvious misrecollection of the defendant’s deposition, and of the plaintiff’s testimony above quoted, to say that, “ the defendant says there was no note ; denies that there was any note at all; says that he never gave any note. The plaintiff, on the other hand, says the note was simply deposited with his brother.”

The judge was quite right in the closing clause of that paragraph, in saying, “ the question is, if there was a note, whether the note has been paid, not whether it has been surrendered.” The error consisted in Ms treating said surrender as not having the character of evidence on that question.

II. If it be true that the defendant was to pay the note, by sending the money to the plaintiff, instead of sending a draft, and that the defendant, of Ms own motion, sent the draft, as a mode chosen by himself of sending the money, we think the relation of the plaintiff to the draft would not subject him to the rules of the law-merchant, as to notice and return on its non-acceptance. In such case, the plaintiff would be the agent of the defendant in sending the draft forward, as he did, for acceptance and payment, and would only be bound to exercise good faith and proper diligence, and would not incur liability, unless the defendant suffered damage, by reason of his improper acts or omissions.

III. The jury were instructed that, “ where real estate is under mortgage, that is not, in the sense of the law, known property, subject to attachment; because the party, in order to avail himself of it, has to become embarrassed.” We think that this proposition does not give the true view of the subject, as involved in this case. The equity of redemption of property under mortgage, is subject to attachment and levy in security and satisfaction of debts. If the value of such equity should be trifling, as compared with the amount of the mortgage, it might not, under circumstances, be reasonably available by means of levy. If the mortgage should boar but a small proportion to the value of the property, such mortgage could not be regarded as embarrassing a *110creditor, who would bo entitled to levy on it, for getting satisfaction of his debt. Whether in a given case, mortgage incumbrances would exclude property from the expression, “ known property, which could, by the common and ordinary process of law, bo attached,” would depend on whether, by attachment and levy, the creditor might derive substantial benefit in the matter of getting pay on his debt. This is the sense of all that has been hold in the oases in this State. The idea in the word, “ unembarrassed” as used by the judges, is not that the property may not be at all incumbered by mortgage. It imports rather property of which the debtor’s title is not invalid, or seriously questionable, or is not so subject to equitable claims, or is not so incumbered by mortgage, as to render the attachment and levy on it fruitless of substantial benefit to the creditor.

IV. Again, in respect to its being “ known property,” it seems to us that the charge was not such as' the state of the evidence called for. The defendant testified, that he visited his home iu Ryogate, in the fall of 1853, and returned to California in February, 1854 ; that before that visit, he told the plaintiff, that ho proposed to purchase the old homestead, and after his return told him he had purchased it. The plaintiff testified that the note was dated April, 1854, and that he left Sonora for his home in Vermont the 15th of April, 1854, and that the note fell due, September 1st, 1854 — six or seven months after the defendant, according to his testimony, informed the plaintiff of his purchase of the property in Ryegate. In reference to this, the jury wore told that, “ the mere fact that the plaintiff may have been told at sorn'e time that the defendant owned the property, when he had no debt that he was attempting to secure against it, if it was mere casual information, that knowledge would not necessarily make it known property years afterwards, when he came to desire to collect a debt.”

That instruction was not only not adapted to the state of the evidence, but was directly calculated to give the jury a wrong impression, as to what the evidence really was, that boro on the subject. The time when “ he 'might desire to collect a debt,” should not have been confounded with the time when the debt became due. It was not “ years afterwards ” that the plaintiff’s *111debt became due and collectable, but only some six or seven months ; at which time the statute began to run, if the defendant then had known property within the State. So the court, instead of saying “ years afterwards,” should have said six or seven months afterwards; and should have called the attention of the jury to the time when the note fell due, and instructed them to consider the evidence bearing on the question of the ownership of the property being known to the plaintiff, with reference to that time.

If it should be said that, when the defendant bought the property in 1854, it was incumbered to such an extent as not to have been available by attachment, it is to be kept in mind that such incumbrance was in the process of being removed immediately after the purchase, and was entirely removed in March, 1857. So that, if the plaintiff was informed of the purchase, as the defendant testified, he could hardly avoid the legal effect of the defendant’s ownership of it as known property, in the relation lie sustained to the subject, by saying or proving that he had forgotten it before lie could make it available on his debt by attachment. Then again, it would seem that the court, in this connection, had not fully in mind the testimony given by the defendant, in characterizing as “ casual information ” that “ while in California we frequently talked over matters at home, and family affairs, and I told plaintiff that I was going to purchase this property as soon as I went home, as it was the old homestead of my father and grandfather, and I intended to keep it. • And afterwards, on my return to California, we wore talking over matters and things at homo, and I told him I had made a purchase of this property.” The plaintiff testified that he never heard this, “ or if he did, he had no recollection of it at all.” Such an answer to what the defendant had thus testified would hardly warrant the court in characterizing that testimony of the defendant as “ casual information.” The defendant was entitled to have it put to the jury in the sense and effect of what he testified, it being for the jury to find whether it was true or not. There was no alternative between that and some other version of what the defendant told the plaintiff, for the plaintiff ignores that the defendant said anything *112to him on the subject. If in fact the defendant told the plaintiff as he testifies he did, besides its legal effect of making it known property, it would, as matter of evidence, bear strongly on the question of reasonable diligence which was made to the jury.

V. But again, it seems to us that the uncontradicted evidence on the part of the defendant showed a case of known property, within the meaning of the statute. It appears that the defendant became the owner of that property in February, 1854, soon after the death of his father ; that his title was duly matter of record, and that his ownership was as open and notorious as it could be without his actual personal' occupation. There is nothing in the evidence tending to show any facts calculated to obscure his title, or to mislead any one in respect to it, or to impede the plaintiff in knowing the true ownership of the property, — as there was in the case of Wheeler v. Brewer, 20 Vt., 113, — the law of which case wo fully indorse and adopt.

Upon such a state of facts, it would seem to bo trifling with the sense and purpose of the statute to permit a jury to say, by a verdict, that it was not known property. To do so would be virtually resolving the matter into the question, whether the plaintiff in fact knew of such ownership, with the burden on the defendant of proving such knowledge : — for, upon the evidence as it is before us in the defendant’s deposition, and in the statements and intimations in the charge, if a jury would say that the plaintiff, on reasonable search and inquiry, would not have found out that the defendant owned the property, it is difficult to conceive a case in which they might not with equal propriety do the same.

In this connection we think it not without interest to allude to some features of fact, about which no controversy is indicated by the bill of exceptions, viz : that previous to the purchase by the defendant, in 1854, the property had been owned by his father and grandfather as the family homestead, and that the father was so owning it at the time of his death ; that he loft it incumbered to near its value, and was without means of relieving it; that lie left on it an invalid son and a daughter as his surviving family, without property, who thenceforward continued to live on it; that on said premises were a grist-mill and an oat-mill; that in 185G *113the defendant sold and conveyed a portion of said farm ; that the plaintiff and defendant had been school-boys together in said Ryegate, and were intimate in California, where the plaintiff employed and trusted the defendant as a man of business capacity and activity, of means' and responsibility; that under these circumstances the plaintiff,'in April, 1854, returned and resumed his residence in Ryegate, where said property is situated, and continued to reside there thenceforward.

VI. Without announcing a decision of the question as to the authentication of tho statute of California, it will be sufficient to intimate that it will be discreet in the plaintiff not to hazard any right he may claim, by relying on such proof of the statute laws of that State.

The judgment is reversed, and cause remanded.

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