Wirtz v. Wolter

155 N.W. 1092, 32 N.D. 364, 1915 N.D. LEXIS 82

Opinion

Fisk, C. J.

The facts in this case were all stipulated by counsel, and the findings of fact by the trial court are in accord with such stipulation, appellants’ sole contention being that the conclusions of law are not warranted by such facts.

The appeal raises but one question for our consideration, and that is whether a renewal note and mortgage given for the amount of the indebtedness covered by the old note and mortgage operates in law to supersede such prior note and mortgage. In the light of the conceded fact as found, that nothing has been paid on ■ either of such notes or mortgages except an amount realized from a foreclosure sale, and, further, that the creditor never released, nor agreed to release, any of the-securities taken by it, we have no- hesitancy in answering such question in the negative. As we glean from the brief of counsel for appellant,, he seems to labor under the impression that because the creditor took a renewal note and mortgage covering the same debt and security, that, such act operated in law to satisfy and extinguish the first note and mortgage. This is not the law, nor do the authorities cited by. appellant support his contention. These authorities are: Stow v. Russell, 36-Ill. 18; Hargrave v. Conroy, 19 N. J. Eq. 281; Bradway v. Groenendyke, 153 Ind. 508, 55 N. E. 434; Smith v. Bettger, 68 Ind. 254, 34 Am. Rep. 256; Thacher v. Dinsmore, 5 Mass. 299, 4 Am. Dec. 61;. Apthorp v. Shepard, Quincy (Mass.) 298, 1 Am. Dec. 6; Mason v. Douglas, 6 Ind. App. 558, 33 N. E. 1009; Nixon v. Beard, 111 Ind. 137, 12 N. E. 131.

If any authority is needed in support of our views, see 7 Cyc. 1011,. and numerous cases cited; also many late cases cited in supplement to-above work. See also the more recent case of State Bank v. Mutual Teleph. Co. 123 Minn. 314, 143 N. W. 912, and exhaustive note to this, case as reported in Ann. Cas. 1915A, 1082.

Judgment affirmed.