Kinley against Hill, 4 Watts & Serg. 426

The opinion of the Court was delivered by Rogers, J. — By an indenture, dated the 21st of December 1829, Nathan Sellers and wife conveyed certain real estate therein described to Coleman Sellers, in trust for the separate use of Hannah Hill, the wife of Peter Hill. Afterwards, viz: on or about the 30th of June 1832, the trustee, on behalf of the cestui que trust, purchased other real estate from Thomas Griffith, and to secure the purchase money, gave the mortgage in suit, and at the same time executed a bond, to be a lien only on the mortgaged premises, signed by himself as trustee.

Thomas Griffith afterwards died, and George W. Hill was substituted in pursuance of a power in the deed as a trustee instead of Coleman Sellers also deceased. The executor of Griffith being desirous of receiving payment of the amount due on the mortgage, the following arrangement was made: George W. Hill, the trustee, gave his own note, payable to order, for $2370, and another note, by Daniel La Mott & Son, for $1800, given for rent of the trust property. These notes were discounted by the Western Bank, and the proceeds paid to the executors.

Itwas agreed that, upon the receipt of the money, the executors should assign the mortgage as a collateral security to the bank, which was accordingly done on the 18th of March 1835. The whole amount due the bank on this account was paid on the 30th of January 1838, and on the 5th of February following the bank assigned the mortgage to the plaintiff. It was transferred at the instance of Hill, as a collateral sécurity for the payment of certain notes given by Peter Hill, as the attorney in fact of George W. Hill, on a purchase of goods from the plaintiff, or as a security for the individual debt of George W.

Hill. . The clear legal result of the evidence given on the trial is, that George W. Hill was a surety, and Hannah W. Hill the principal debtor. The property for which the mortgage was given was purchased for her use, and must be ■ paid ultimately by the trust fund. And this is the most favourable view of the transaction for the plaintiff. From this it follows, that if the surety pays the debt to the bank, he has a right to a transfer of the mortgage to him, or he may direct a transfer in respect to his equity to the plaintiff.

But if the payment is made by Hannah Hill, or, what is the samé thing, out of the trust fund, the mortgage is satisfied, and no right to transfer it to the plaintiff can exist after its extinguishment. There is, in truth, nothing to assign. This is so plain, that it does not require the aid of argument. It was therefore a question of fact which the jury alone can determine, and consequently the court committed no error in referring it to their decision; and whether the jury decided it right or wrong, is not inquirable here. The mortgage was paid before the assignment to the plaintiff.

Of this the evidence leaves no room to doubt. And out of what fund, or, in other words, whether, by the surety herself, or by trust money arising from the trust fund, was the only debateable matter. That it was paid out of the trust fund, has not only been found by the jury, but is most clearly deducible from all the evidence. If paid by the surety, it was for him to show it. It is sufficient, however, that it was a matter of which the jury alone had cognizance, and consequently it would have been error to have withheld the decision from them.

There is nothing in the case which would justify the court in ruling, as a question of law, that George W. Hill had such an equitable interest in the mortgage as would authorize the assignment to the plaintiff. For, giving all the force to the manner in which the accounts were kept as between the trustee and the estate to which it may be justly entitled, it would be but a circumstance. The jury, after all, must determine the case from all the facts, and decide the question on which the whole case turns, viz: whether the payment was made by the trustee out of his own money or out of the trust fund.

The jury, having decided the principal point, that is, that the payment was made out of the trust fund, the question occurs, what right has the trustee to assign the mortgage as a collateral security for his own debt? The answer is, that he has no right at all. The mortgage has performed its office. It is satisfied. And to attempt to revive it is equivalent to the creation of a new mortgage; for there is no perceivable difference between the revival of a satisfied mortgage and the creation of a new mortgage.

The deed of trust provides that this may be done by the consent and approbation of the cestui que trust, under her hand and seal for that purpose. But, it is unfortunate for the plaintiff’s claim that her consent in the manner alone in which it can be effectual, is not pretended. Nor can the plaintiff justly allege that he was deceived as to the real state of the transaction between the original parties. He also knew, if the testimony which is uncontradicted is believed, that the mortgage was paid before he accepted the assignment as a security for an existing debt.

I throw out of view the plaintiff’s points, which were not presented, according to the rule of court, in proper time. The court did not, nor were they bound to answer them. The bill of exceptions to the evidence has not been pressed, nor could it have been with any reasonable hope of success. Judgment affirmed.