Jones v. Brogan

29 N.J. Eq. 139

• Court: New Jersey Court of Chancery
• Decided: February 15, 1878
• Status: Published

Opinion

The Chancellor.

The defendants, John Brogan and wife, on the 23d of June, 1875, gave a mortgage, which was dated on that day, and recorded - on the 25th of the same month, on land in Newark, to the complainant, to secure the payment, at their maturity, of two promissory notes of the same date as the mortgage, for $400 each, made by Brogan in favor of the complainant. When the first of those notes matured it was protested for non-payment. Afterwards, and before the maturity of the second note, Brogan paid $200 on account of the first note, and when the second note matured he paid $100 more upon it, and gave a new note of $500 in renewal of the balance due on that note, and the amount of the second note. The note of $500 was not paid at its maturity, but was renewed from time to time until the 26th of August, 1876, when another note of $500 was given by Brogan to the complainant in further renewal. That note was also dishonored, and is held by the complainant. No part of it has ever been paid. The complainant also holds a note for $225, given to him by Brogan on the 22d of June, 1876, which has not been paid. He claims that he is entitled to recover, under the mortgage, the amount of both of the last-mentioned notes, the note for $500, dated in August, 1876, and the note for $225.- The defendants, Robert Seaman & Co., are the holders of a mortgage given by Brogan and his wife to them on the 2d of February, 1876, on the same premises, for $2,000 and interest. They also recovered a judgment against Brogan in the Essex circuit court on the 31st of August, 1876, for $367.97. They insist that the complainant’s mortgage has been satisfied by the payments and renewals. The ground on which the complainant claims to hold the mortgage as. security for the note of $225 is, that he, as he alleges, furnished to Brogan a barrel of whiskey, which the latter needed in his business, on credit, to enable Brogan to apply the money which he would otherwise have been compelled to spend for the whiskey to the payment of the notes secured by the mortgage. There were, however, according to Jones’s own testimony, but about forty gallons of the whiskey, and it was purchased at the price of $2 a gallon, while the note is for $225. Besides, if the cost of the whiskey were equal to the whole amount of the note, he would not be entitled to recover it under the mortgage. He is entitled to recover the amount of the $500 note and interest. That note was given in renewal of one of the notes mentioned in the mortgage, and of part of the amount of the other. Those notes have not been paid, and whatever remains due upon the debt which they were given to secure is recoverable under the mortgage.