David Rich versus Thomas Lord, 18 Pick. 322

Shaw C. J. afterward drew up the opinion of the Court. The principal question in the present case is, whether the instrument executed by the plaintiff, as a creditor of Madison D. and John Erskine, is so to operate as to release the notes secured by the mortgage, under which he claims.

It is now a general rule in construing releases, especially where the same instrument is to be executed by various persons, standing in various relations, and having various kinds of claims and demands against the releasee, that general words, though the most broad and comprehensive, are to be limited to particular demands, where it manifestly appears, by the consideration, by the recital, by the nature and circumstances of the several demands, to one or more of which it is proposed to apply the release, that it was so intended to be limited by the parties.

And for the purpose of ascertaining that intent, every part of the instrument is to be considered. As where general words of release are immediately connected with a proviso, restraining their operation. Solly v. Forbes, 2 Brod. & Bing. 38. So a release of all demands, then existng, or which should thereafter arise, was held not to extend to a particular bond, which was considered not to be within the recital and consideration of the assignment, and not within the intent of the parties. Payler v. Homersham, 4 Maule & Selw. 423.

So where it is recited, that various controversies are subsisting between the parties, and actions pending, and that it had been agreed, that one should pay the other a certain sum of money, and that they should mutually release all act ons and causes of action, and thereupon such releases were executed, it was held, that though general in terms, the releases were qualified by the recital and limited to actions pending. Simons v. Johnson, 3 Barn. & Adolph. 175; Jackson v. Stackhouse, 1 Cowen, 126.

So it has been held in Massachusetts, that where upon the receipt of a proportionate share of a legacy given to another, the person executed a release of all demands under the will, it was held not to apply to another and distinct legacy to the person himself. Lyman v. Clark, 9 Mass. R. 235. In construing this release, according to the principles thus established, we think it manifest, that it was not intended to release the notes secured by the mortgage. The whole instrument is to be taken together. In this case the

schedule is embodied into the instrument itself. The form of the instrument is in this respect peculiar. The first pait, containing the assignment of the assignors, is executed by them ; then come schedules, the acceptance of the assignment and the covenants of the assignees, which are separately executed by them ; then the affirmation and acceptance by the creditors, and their release, which are separately executed by them. But they are all executed at the same time and constitute but one transaction. In the

schedule of property assigned, which assignm *nt, it will be borne in mind, was made by Madison D. Erskine and John Erskine junior, they include and describe the premises now in controversy, with this exception, viz. “ One undivided half of said land, &c. are subject to a mortgage,” &c., which is agreed to be the mortgage held by the plaintiff. By referring to this mortgage, it appears to be a mortgage of one undivided half of the premises by Madison D. Erskine, to secure to the plaintiff, three notes signed by Madison D. and also by John Erskine junior.

By making this conveyance subject to that mortgage, it is very clear that it was not the intent of the parties, that by the same act the mortgage should be discharged. But if the mortgage was to be kept up undischarged, the only obvious purpose of so keeping it, was, that it should stand as a security for the payment of the notes, and this by a clear implication negatives the intent, that the notes were to be released.

Taking the whole instrument together, therefore, we think it very clear, that it was intended to except this mortgage and the notes secured by it, from the operation of the release, and that the general words of release must be limited and controlled by this manifest intent. If it be said, that the plaintiff had no other subsisting demand, to which the release would apply, it may be answered, that in a long and complicated instrument, containing many provisions and stipulations, it is not necessary to suppose, that every one executing it has interests upon which every clause can operate.

It is a sufficient reason for executing it, that he has any right, interest or power, upon which any

part can aper ate, and his execution shall be referred and applied to such right, interest or power. Here it appears, that the plaintiff and one of the assignees stood as suretiés for the assignors, on a note of $ 500, at a bank, and that the assignment was made, among other things, in trust to indemnify the plaintiff against that suretiship. The plaintiff, therefore, standing as a cestui que trust, it was necessary, in order to give effect to the assign- ° ment for his benefit, that he should give bis assent to it, by becoming a party.

The motive and object of his becoming a party, therefore, may be presumed to have been, to give effect to the assignment for his benefit, pro tanto, and his execution, to express that assent. The other points, we think, present no great difficulty. By the execution of the mortgage by one seised of the moiety, the plaintiff acquired a legal seisin and right of possession. The possession of the mortgager, or of the co-tenant, cannot be deemed adverse, but must be considered as the possession of the mortgagee.

On the other point, we can perceive no difficulty in making partition by metes and bounds, if necessary, it being always competent to the commissioners, to make a division as nearly equal as practicable, without injury to the estate, and to make up for any necessary inequality by the payment of money. But should it become necessary to make a special partition, m some mode other than that by metes and bounds, there would be no difficulty in making such partition. Revised Stat. t 103, § 25, 26. The petitioner entitled to partition as prayed for.