59 Mass. 519 - Barker v. Buel — 59 Mass. 519

John Barker & others vs. James Buel & another. Where the principal promisor of a note, signed by three others as his sureties, made a mortgage of personal property to one of the sureties, conditioned to indemnify him against his liability as such, and the mortgaged property was afterwards taken and sold by the assignee in insolvency of the mortgagor; it was held, that the mortgagee' was entitled, in an action of trover, against the assignee, to recover the proceeds of the property sold to the amount of his legal liability on the note; although no part of the same had been paid by him, and his co-sureties were equally liable for the payment thereof, and though the consideration expressed in the mortgage was only equal to one third of the amount for which the note was given. In an action of trover, by one of three sureties on a promissory note, against the assignee in insolvency of the mortgagor, to recover the proceeds of goods previously mortgaged to the plaintiff by the insolvent, to secure him against his liability as surety, it was held, that paroi evidence was inadmissible to prove, that in making the mortgage, it was the mortgagor’s intention to secure the plaintiff only to the amount of one third of the sum due on the note, under the belief that the same would be a full indemnity for his liability. This was an action of trover, brought by the plaintiffs, as the mortgagees of certain personal property, against the defendants, as the assignees of Newell Bliss, the mortgagor, an insolvent debtor, to recover the value of the property mortgaged, which, on the insolvency, came into the possession of the assignees and had been sold by them. The facts, upon which the case waf submitted to the court, were as follows-: — On the 13th of March, 1848, the plaintiffs, under the name of J. Barker and brothers, together with D. &. H. Stearns and Lewis Stoddard, all as the sureties of Newell Bliss, signed a promissory note jointly and severally with him to Thomas Colt and company, for $2000, payable, with interest annually, one half in four, and one half in five years. No part of this note had ever been paid by Bliss, and the plaintiffs were liable therefor in common with the other sureties on the same. On the 20th of November following, Bliss made a mortgage, duly executed and recorded, to the plaintiffs, of all the goods, wares, and merchandise, which he then had in the store occupied by him, and all that he might have therein for five years from date. The condition of the mortgage was, that the mortgagor should save the plaintiffs “ perfectly harmless and free from all expense and damage, on account of their having signed, as sureties for the said Bliss, a certain promissory note given by him to Thomas Colt and company, for the payment of $2000, dated March 15th, 1848.” The consideration of the mortgage, as stated therein, was $666.66. On the 1st of September, 1849, Bliss became an insolvent on his own petition; the defendants were appointed his assignees ; and as such they took possession of and sold all the “goods, wares, and merchandise,” then in the store of the in solvent; Bliss’s estate failed to pay the dividend necessary to entitle him to a discharge, and no certificate has ever been granted to him. The plaintiffs, before the commencement of this action, demanded of the defendants either to deliver up the goods embraced in the mortgage, or else to furnish the plaintiffs with sufficient legal indemnity against loss or damage on account of their liability on the note ; both which requests, the defendants refused to comply with. It was agreed, that Bliss would testify, if the evidence was admissible, and if so, it was to be taken as proved, that, in making the mortgage aforesaid, it was his intention to secure the plaintiffs only to the amount of one-third of the note and interest, under the belief, that the same would be a full and perfect indemnity to them for their liability on the note. If the plaintiffs were entitled to recover the value of the goods, it was agreed, that judgment should be rendered for the plaintiffs for such sums as they would be entitled to retain out of the avails of the mortgaged property, and apply in satisfaction of their liability on the note, together with such further damages, as they should be entitled to for their expenses in this suit. E. Merwin, for the plaintiffs. J. D. Colt, for the defendants. — Fletcher, J. (majority) Fletcher, J. The conveyance by Bliss to the plaintiffs was a good and valid conveyance to pass the title of the goods in question to the plaintiffs. The defendants having taken the goods thus belonging to the plaintiffs, and having refused to deliver them to the plaintiffs, when demanded by them, the plaintiffs are well entitled to maintain this action, Irrespective of the rights of the other sureties on the note to the property of the principal debtor, held by the plaintiffs as security, the plaintiffs, being themselves liable for the whole amount of the note, have a right to recover to that amount, that is, an amount equal to the whole amount of their legal liability on the note. The testimony of Bliss, being offered to control and change the legal import and effect of the written instrument, is very clearly not admissible. The property being expressly conveyed to save the plaintiffs harmless from their whole liability, which was for the whole note, the consideration expressed can have no influence in limiting the effect of the instrument, nor can the testimony of the mortgagor be admitted to show an intention different from that expressed in the written instrument. The plaintiffs are entitled to recover in damages a sum equal to the amount of the whole note for which they are liable, and will of course have their taxable costs in this suit against the defendants. There is no ground for recovering any thing more as costs. »