The Chancellor.
From the statements contained in the answer I think there is a good reason to doubt the allegation that the complainant is the Iona fide holder of the notes and mortgage in question.
I should rather be inclined to the belief that he was acting in the capacity in which he led the defendant to believe he was acting until a short time before the commencement of the suit, merely as the agent and attorney of Horace R. Jerome. But admitting him to be the actual holder of these papers, how would the case stand I as between the complainant and defendant the present complainant can have no greater equity as agent of this defendant than could his assignor H. R. Jerome.
That the property upon which the mortgage was based was discharged by the quit claim, I entertain no doubt, that it was the mutual understanding and intention of the parties that such should be the operation and effect of the deed, must be conceded. The effort then to subject the land to the payment of the mortgage is out of the question.
But it is said that as a part of the purchase money to an amount equal to the notes remaining is in the hands of the defendant, the court should treat this as a trust fund and enforce payment out of this to the present complainant. Shepard the grantor of the defendant is not a party in this suit.
It is true the defendant admits that he promised it the time of the purchase to Shepard, to pay these notes then in the hands of Horace R. Jerome, the assignor of the complainant.
In the course of their mutual dealings as copartners it was expressly agreed in writing that these notes should be credited to Horace R. Jerome and charged to the defendant in consideration of advances made by the defendant to the said co-partnership.
The agreement is in thise words: “lam to deliver to Charles “Seymour the two notes [ hold against Cyrus Shepard for$240 each, “ and charge them against the balance he may have furnished for “the mill over his share without interest. H. R.. JEROME.”
It is averred that the advances were made to an amount greater than the notes.
How then can this complainant, standing in the place of Horace R. Jerome, be entitled to a decree 1 If the notes which the mortgage was given to secure, were the notes of the present defendant negotiable, and negotiated before due, the defendant would of course [jaye jjeen i¡aq,]e Up0n them in the hands of the holder. But they are not the notes of this defendant but of Shepard. The promise to take them up was made to Shepard while they were in the hands of H. R. Jerome, his partner.
According to the answer, which fcr this purpose must be taken as true, they were actually paid. Shepard is not a party to this suit, and it is not proper or necessary in this stage of the proceedings to decide what may be the equity between him and Seymour, but it is quite certain as the case now stands the present complainant is not entitled to a decree against the defendant upon these notes.
I have had some hesitation as to what order to make. Whether to direct the notes and mortgage to be cancelled, or to permit the cause to stand over with leave to make Horace R. Jerome a party with the view to a settlement of the account for advances made by Seymour as stated in his answer, which it was stipulated should apply in payment of these notes. The latter perhaps may be the safer course and cannot prejudice the rights of either party. Let the order be entered accordingly.