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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 560 The plaintiff claims the property in question under a mortgage from Marvin, dated May 10, 1852, which by its terms was subject to a prior one given to Seneca Beebe, dated August 12, 1851. Beebe, afterwards, on the 19th of August, 1852, took another mortgage from Marvin to secure the same debt included in his first one, and a few dollars of book account in addition. The defendant, at the commencement of the suit was in possession of the property under a title derived from Seneca Beebe. If he can stand on the first mortgage his title is prior to the plaintiff's and must prevail. If he cannot, he *Page 561 has no defence under the last one, for that is junior to the mortgage given to the plaintiff.
The question principally litigated on the trial was whether the first mortgage given to Beebe was extinguished by taking the last one; and the jury were directed to find from the evidence whether such was the agreement between the parties at the time the last mortgage was taken. But it appeared, or the fact was assumed, that Beebe had not renewed his first mortgage by filing a copy and statement of the amount due before the expiration of a year, as required by the statute concerning personal mortgages (Statute of 1833, p. 402, § 3); and the judge was requested to instruct the jury that the omission to do so only rendered the mortgage inoperative as against subsequent purchasers or mortgagees in good faith, but did not affect the rights of the plaintiff. The judge refused so to charge on the ground that the facts of the case did not present such a question. This was erroneous.
The plaintiff was not a bona fide mortgagee, and therefore not within the protection of the statute referred to. He had notice of the prior mortgage to Beebe, and took his own in terms subject to it. Beebe's mortgage was therefore a charge on the property, and so remained until it should be paid or extinguished by some act of the parties. The omission to renew it did not impair its force as against a person standing in the situation of the plaintiff. (Sanger v. Eastwood, 19 Wend., 515.) This is extremely plain, and the contrary was not held at the trial; but the judge said the question did not arise, and therefore refused to inform the jury that such was the law. If Beebe's first mortgage was extinguished by taking the second, then it is true the question did not arise. But that was the point which the jury were told to determine from the conflicting evidence. They might well have found it not extinguished, in which case the question would arise directly whether the lien was lost by the omission to renew as the statute *Page 562 required. The refusal to charge as requested implied at least a doubt as to the law upon this point, and for aught that appears the general verdict of the jury may have been given against Beebe's title, on the ground that he had lost the benefit of his mortgage by failing to renew it, and not on the ground that it was extinguished.
It is unnecessary to say more in order to reverse the judgment; but as the question of extinguishment must arise on another trial, it is proper now to dispose of it upon the facts, as they appear. According to the testimony of Seneca Beebe, it was expressly agreed when he took the second mortgage that the first one should be kept alive; according to the testimony of Marvin, the mortgagor, nothing was said on the subject; both agree that the note secured by the first mortgage, was given up and the amount, included in a new note, secured in the second; both also agree that the first mortgage, although present at the time, was not given up or canceled in fact. The judge refused to hold that upon these facts there was no extinguishment, and declining also to charge that an express agreement must be found to relinquish the mortgage, told the jury to find whether there was anagreement, leaving them at liberty, as I understand it, to infer one from the circumstances stated.
I think there was no question for the jury taking the version of the facts most favorable to the plaintiff. It is perhaps material to state that the debt due from Marvin to Beebe was for medical services and rent. The note, therefore, was the evidence merely of that debt, and not the debt itself. It is extremely well settled in this state, that the taking of a debtor's note does not merge or extinguish the demand for which it is taken. (Gregory v. Thomas, 20 Wend., 17; Waydell v. Luer, 5Hill, 448; Cole v. Sackett, 1 Hill, 516.) In Cole v.Sackett it was held that the original demand is not extinguished, although it is expressly agreed to take the note in satisfaction, and the doctrine was reiterated *Page 563 and approved in Waydell v. Luer, supra; see also Hawley v.Foote (19 Wend., 516); Frisbic v. Larned (21 Wend., 450, 452). Now, if the first note which Marvin gave to Beebe did not extinguish the demand which he owed him, it is still more clear that giving up that note and taking another in its place could not work such a result. The debt itself, therefore, remained totally unaffected by either of the notes. Thus far there can be no doubt.
We are next to contemplate the mortgage. That, it is truly said, was but an incident to the debt, so that when the debt is gone that is gone also. This was a view of the matter taken at the circuit, and expressed in the charge to the jury. But the error was in considering the mortgage as incidental to the note instead of the demand. Accurately speaking, a note is not a debt at all, any more than any other mere promise. Unless founded on a consideration, it is good for nothing between the original parties. Here the note was the evidence merely of a debt, and the mortgage was simply the security for it; and I think the conclusion inevitable that the security stands until in some way separately canceled or the debt itself is discharged. Taking the substituted note, as we have seen, did not affect the debt, and consequently it could not affect the security. It is even more clear that the mortgage remained unaffected. Instead of taking a new note, a judgment might have been recovered on the first one or on the original demand. In that case the debt would have been gone in the sense of being merged in a higher security. Yet it is quite clear that a suit and judgment against the debtor do no disturb any collateral security which the creditor may hold. So the doctrine was laid down in this court, by Johnson, J., inButler v. Miller (1 Comst., 500), and I think upon grounds altogether unanswerable.
As renewing the note, therefore, had no tendency towards extinguishing the collateral security, it only remains to inquire whether the giving and acceptance of the second *Page 564 mortgage could produce such a result. This inquiry seems to be already solved. In Gregory v. Thomas (20 Wend., 17), it was adjudged that a second mortgage for the same debt does not extinguish the first. That case contains so thorough an exposition of the doctrine, both upon principle and authority, that it would be useless now to enlarge upon it. The proposition is indeed quite elementary that the mere act of taking a new security from the same party, and upon the same property, does not merge or extinguish a prior one, where both are of the same quality and degree.
It is unnecessary, perhaps, to add that the principle remains the same, although a small additional account was included in the renewal note and the second mortgage. This may tend to show a motive for the transaction, but it has no tendency to show that the prior security was extinguished.
It was erroneous, therefore, to leave the question to the jury. It may be conceded that if the acts of the parties had been attended by an express agreement to receive the second mortgage in satisfaction of the first one, the law would give that effect to the transaction. But as the law does not give such a construction to the simple acts themselves, it was improper to leave it to the jury to infer an agreement and so find an extinguishment. The inference would be against the rule, and the rule itself would have to be surrendered.
The judgment should be reversed and a new trial granted.