Elisha F. Fales & al. vs. Charles Reynolds, 14 Me. 89

The action was continued, nisi, and the opinion of tire Court afterwards drawn up by Weston C. J. The agent and attorney of the plaintiffs, on his first visit to the residence of the defendant, made an arrangement about this debt, satisfactory to himself at tire time, and finally approved by them. He received one hundred dollars in cash, demands supposed to be good to the amount of four hundred and sixty-one dollars, and for the balance, an absolute deed of the defendant’s land. A time was allowed to him, within which to redeem it; but he entered into no engagement' to do so.

It was a privilege conceded to ..him, of which he might or might not avail himself, according to circumstances. It is true the attorney testifies, that the whole was received as collateral security; but he further testifies, that he refused to take the land by way of mortgage, but insisted upon an absolute deed. The right to redeem within a stipulated period, secured to the defendant in a subsequent instrument, was introduced for his benefit, not theirs.

If we had no statute,'^defining and regulating mortgages, according to the principles which have prevailed in Courts of chancery, the transaction between these parties might be regarded as a mortgage ; but not under our law, as appears by the cases cited for the defendant. There is no controversy as to the purpose for which the land was conveyed. It sufficiently appears, under the hands of the plaintiffs. The land is absolutely theirs, and the effect of it is, that it has extinguished the balance for which it was received. They would not take a mortgage, and wait until there could be a foreclosure of the equity.

They insisted upon having the command of the property at once. It paid their debt then, at least to the amount for which it was received ; as land mortgaged after foreclosure, if of sufficient value, extinguishes the debt of the mortgagee. But it is insisted, that although the land may pay the amount due to the plaintiffs, after deducting the payment in money and the amount of the personal securities, yet that the part of the debt, to which the personal securities were to be applied is not paid, because the greater part of them proved bad. The plaintiffs’ agent, however, Mr.

Garnsey, acquits the defendant in his testimony, of any fraud or intentional deception, in relation to the available value of these demands. If the fair expectations of the plaintiffs, arising from the assurance of the defendant, that they were all good, have been disappointed, as the case finds, and they would for that reason have repudiated the arrangement, and sought other security, they should have returned to the defendant what they had received of him, with which they had become dissatisfied.

But they retained all, and claim to hold the defendant indebted to them, on their original demand, for the deficiency in the value of the securities. They cannot now place the defendant in statu quo. If they would go behind the former arrangement, we are of opinion, that the whole transaction must be considered ojien to be adjusted upon equitable principles. The plaintiffs should not be held to account for the property, beyond wdiat it may be made available to them. Let it be ascertained wdiat the land would sell for to a fair purchaser.

If this sum, together with the money received, and the amount collected on the demands, equals or exceeds the plaintiffs’ original debt with interest, the default is to be set aside, and the plaintiffs are to become nonsuit. If there proves to be a balance still due" to the plaintiffs, upon such an adjustment, the default is to stand, and the plaintiffs to have judgment for that balance.