Judevine v. Pennock

15 Vt. 683

• Court: Supreme Court of Vermont
• Decided: March 15, 1843
• Status: Published

Opinion

The opinion of the court was delivered by

Williams, Ch. J.

The question in this case is, whether the evidence proved the issue on the part of the defence, and whether the decision of the court, thereon, was right.

The plaintiff, on reading the deed of the defendant and the copy of the mortgage deed from Pennock & Dodge to Hutchins, would have been entitled toa judgment with nominal damages. It was competent for the defendant, however, to prove that the mortgage was paid off, at the time he deeded to the plaintiff.

The evidence introduced by him proved that the mortgage was paid off, and, consequently, was not an incumbrance on the land at the time he deeded to plaintiff, and this was the very question at issue. Payment extinguishes a mortgage, both at law and in equity. The charge of the court; therefore, on the pleadings and evidence, was undoubtedly correct, as the inquiry was not whether there was an apparent incumbrance on record at the time the defendant made the covenant declared on, but whether there was any incumbrance in fact.

The case of Hoyt v. Swift, 13 Vt. 129, did not present the question which arises in this case. In that case, Swift executed a note to be paid when an incumbrance was removed, and the court held, that when a party undertakes to remove an incumbrance, it should be done in the manner pointed out by the statute. Had the issue in that case been, whether there was, in point of fact, an incumbrance, undoubted proof of the payment of the mortgage money would have been satisfactory that there was no such incumbrance. The judgment of the county court is affirmed.