Sherwood v. Elslow

Indiana Supreme Court

Sherwood v. Elslow

5 Ind. 218

DecidedJune 5, 1854

StatusPublished

This text of 5 Ind. 218 (Sherwood v. Elslow) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Sherwood v. Elslow, 5 Ind. 218 (Ind. 1854).

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Opinion

Perkins, J.

Bill by an assignee to foreclose a mortgage. Answer averring payment. Proofs. Decree for the plaintiff below. The facts are as follows:

Elslow, the plaintiff in the bill, held a mortgage covering real estate, on one Nelson Earll. After it became due, payment was demanded, and Ea/rll being without money, proposed to turn out certain articles of live stock in payment, which Elslow agreed to take and did take, giving up the mortgage. Elslow resided in Michigan, whither he started to return, driving his stock. Before he had reached the borders, the stock in question was levied on and taken by officers upon executions which had been in their hands against Earll for sometime, and were liens upon the stock. Elslow instituted a claim of property which was tried, and resulted in a decision that the property was subject to execution. Some two weeks afterwards, Earll, or some one [219]*219for him, paid off the executions, and has since held the property, as he says, ready to be re-delivered to Elsloio, but it has never been re-tendered. The question is, whether the foregoing facts show a payment of the mortgage, and that Elslow is bound still to return and receive the stock in question, or get nothing.

R. Brackenridge, Jr., for the appellants. J. B. Howe, for the appellee.

We think no payment is shown. Elslow had a money demand against Emil. He agreed to accept certain specific articles of stock, which Emil held out as his own, in payment. It turned out that that stock was not Ear IPs, and, hence, he in fact gave Elslow nothing but a 'certain amount of trouble and expense, and there was no consideration for the surrender of the mortgage. When the stock in question was taken from Elslow and decided to be subject to Emil’s debts, Elslow’s claim to the payment of his mortgage in cash revived, so far that he had a right to assert it, if he chose, rather than attempt to secure the stock; and it has never since been superseded by any new agreement to accept any thing else.

The other parties to this suit are those who had purchased the land mortgaged from Earll before his pretended payment of the mortgage.

Per Curiam. — The decree is affirmed with costs.

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Perkins, J.

Bill by an assignee to foreclose a mortgage. Answer averring payment. Proofs. Decree for the plaintiff below. The facts are as follows:

Elslow, the plaintiff in the bill, held a mortgage covering real estate, on one Nelson Earll. After it became due, payment was demanded, and Ea/rll being without money, proposed to turn out certain articles of live stock in payment, which Elslow agreed to take and did take, giving up the mortgage. Elslow resided in Michigan, whither he started to return, driving his stock. Before he had reached the borders, the stock in question was levied on and taken by officers upon executions which had been in their hands against Earll for sometime, and were liens upon the stock. Elslow instituted a claim of property which was tried, and resulted in a decision that the property was subject to execution. Some two weeks afterwards, Earll, or some one [219]*219for him, paid off the executions, and has since held the property, as he says, ready to be re-delivered to Elsloio, but it has never been re-tendered. The question is, whether the foregoing facts show a payment of the mortgage, and that Elslow is bound still to return and receive the stock in question, or get nothing.

R. Brackenridge, Jr., for the appellants. J. B. Howe, for the appellee.

We think no payment is shown. Elslow had a money demand against Emil. He agreed to accept certain specific articles of stock, which Emil held out as his own, in payment. It turned out that that stock was not Ear IPs, and, hence, he in fact gave Elslow nothing but a 'certain amount of trouble and expense, and there was no consideration for the surrender of the mortgage. When the stock in question was taken from Elslow and decided to be subject to Emil’s debts, Elslow’s claim to the payment of his mortgage in cash revived, so far that he had a right to assert it, if he chose, rather than attempt to secure the stock; and it has never since been superseded by any new agreement to accept any thing else.

The other parties to this suit are those who had purchased the land mortgaged from Earll before his pretended payment of the mortgage.

Per Curiam. — The decree is affirmed with costs.

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Bluebook (online)

5 Ind. 218, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sherwood-v-elslow-ind-1854.