Brien v. Smith

9 Watts & Serg. 78

• Court: Supreme Court of Pennsylvania
• Decided: May 15, 1845
• Status: Published

Opinion

Per Curiam.

The plaintiff, Smith, stands in the place of Neill, the mortgagee; and why shall he not have the same remedy 1 Because, says the defendant’s counsel, the condition of the mortgage was to save harmless Neill, and not Smith, his as-signee, who paid the original debt; and it consequently has not been broken. But the payment of the debt for which Neill was surety was in effect his payment, and not the payment of Smith, who furnished the money at his request, and on the security of the mortgage. Had Neill received this money in the first instance, raised as it was on the security of the mortgage, and paid it iri extinction of the original debt with his own hand, there would not be a doubt that the contingency had happened to his disadvantage, against which the mortgage was a security; and it happened in effect, when Smith paid it with the consideration of the assignment. The money which constituted that consideration was Neill’s money; and the payment was his. That is not all; for Neill is ultimately bound to Smith for so much paid to his use at his request: and in every aspect the plaintiff is entitled to recover.

Judgment affirmed.