Russell v. Mixer

Wallace, J., delivered the opinion of the Court:

Miller and wife held a $1,500 note and first mortgage upon certain real estate, made to them by Mixer and wife. Bus-sell being the holder of another note and mortgage made by Mixer and wife, which was a junior lien upon the mortgaged premises, became, in 1867, the assignee of the $1,500 note, and by consequence the equitable owner of the mortgage by which it was secured, no separate assignment of the latter, however, having been made to him. In 1869, the $1,500 mortgage then still standing upon the record in the names of Miller and wife, -the latter, at the instance of Bussell himself, as found by the Court below (but through the inadvertence and mistake of Miller and wife, as alleged in the complaint), entered satisfaction of that mortgage upon the record by the usual marginal entry of satisfaction, witnessed by the Becorder, as provided by statute. Under these circumstances Bussell commenced this action to foreclose the . mortgage against Mixer and wife, the mortgagors, and one Jane P. Morrill, an alleged subsequent incumbrancer of the mortgaged premises.

The complaint sets forth the making of the $1,500 note and mortgage to Miller and wife, and their assignment of the note to plaintiff, Bussell; that the Millers subsequently -thereto, “through inadverténce and mistake, acknowledged the payment and satisfaction of said’mortgage, and indorsed the same in writing on the record,” and proceeds to aver, “that at the time of the entry of said indorsement on said record, the said Millers had no interest in or claim upon said mortgage, or the property therein mentioned, and did not receive any consideration for said indorsement, but [508]merely executed the same for the purpose of giving to this plaintiff, who then held a junior mortgage on the same property, the right to enforce both mortgages for his own benefit and advantage against the property described in the said mortgage.” After the usual allegations as to the sums due upon the $1,500 note and mortgage, the complaint prays for a decree of foreclosure in the customary form, and, also, “that the said indorsement of the satisfaction of said mortgage, improvidently and by mist»' r-de,” etc., “be set aside, annulled and held for naugh,, etc.

The Court below rendered a decree of foreclosure against the mortgagors and the subsequent incumbrancer, but did not set aside or annul the satisfaction of the mortgage which had been entered by Miller. It found as a fact that this satisfaction had been entered by Miller at the instance of the plaintiff, Russell, himself, and that the latter paid the Recorder’s fees for entering the satisfaction, and that there was no fraud, misrepresentations or inducements committed, made or offered by the mortgagors to bring about the entry of the satisfaction of the mortgage, and that the latter did not, at the time, even know of the fact of the entry of satisfaction upon the record; but it announced, as a conclusion of law, “that the entry of satisfaction on the record of said mortgage was not a satisfaction or release ■ of the same, except as to subsequent purchasers and mortgagees for a valuable consideration, ivithout notice.”