Cowles v. Wilcox

4 Day 108

• Court: Supreme Court of Connecticut
• Decided: June 15, 1809
• Status: Published

Opinion

Bt the Court.

The question in this case is, whether Tuttle, offered as a witness, was interested in the event of the suit ?

Notwithstanding the expression contained in the condition of the mortgage deed from Tuttle to Wilcox, which is, that the same shall be defeasible on Tuttle’s paying to Wilcox the contents of the note according to the tenor thereof; yet the intention of the parties is manifest. The object of the mortgage was indemnity to Wilcox, Not only payment of the note by Tuttle would defeat the mortgage, but should that note be, avoided by any other means, so that Wilcox would be saved harmless from it, the result would be, that if the estate had vested in Wilcox by virtue of the mortgage, ft court of chancery would decree a redemption of it.

On the other hand, should Wilcox be subjected on his Warranty, he would either be entitled to the benefit of the mortgage for his indemnity, or he would have his action of indebitatus assumfisit against Tuttle for money paid to his use and benefit.

The witness offered was, therefore, interested in the event of the suit.

New trial not to be granted,