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the replevin bond as he alleged in his declaration. I think this point is without force. The judgment record in the suit brought upon the replevin bond shows a copy of the bond set out at length in the complaint, as the only cause of action relied on. It will be presumed in support of such judgment that it was rendered after due proof of the execution of the bond declared on. For the purpose of identifying the judg. ment as rendered upon the bond signed by plaintiff at defendant's request, parol testimony was admissible. I think, also, a foundation was laid for the admission of secondary evidence of the execution of the bond. It was never in the possession of the plaintiff. It was delivered in the first instance to the sheriff at Elkhart, Indiana, and by him assigned to Mrs. Warner, wbo brought suit on it in that state. Presumably, therefore, it was out of the jurisdiction of the courts of this state, and Becondary evidence of its contents was admissible: Woods v. Burke, 67 Mich. 674.
The third reason urged by defendant in support of the judgment is, that the judgments rendered in Indiana, for the payment of which plaintiff seeks to recover, were collusive and fraudulent as to him, and that he was not bound by them. If he is right in this position, still the questions involved in such a clainu are not such as should have been passed upon by the court, as was done in this case. The question of fraud and collusion was for the jury, and should have been submitted to them, if properly in the case, under proper instructions.
As the case must go back for a new trial, I think it proper to say that the Indiana judgments, while prima facie evidence of the amount which the defendant is liable to pay to indemnify the plaintiff, are not conclusive upon him. He had no notice of the pendency of the first suit, and the judgment in that suit was finally entered by consent. It is open to him to impeach the good faith of this transaction if he can do so. If Mr. Knickerbocker employed counsel in good faith to defend that action, it was proper for him to do so, and any expense incurred by him in such defense was incurred for the benefit of Wilcox, as well as himself, and Wilcox would be liable to indemnify him against such payment. Of the suit brought by Mr. Van Fleet against Mr. Knickerbocker for counsel fees, Mr. Wilcox had due notice, and was asked to defend. Having declined to do so, we think he is bound by the judgment, unless it appear that it was rendered under such circumstances
of collusion between the parties as would amount to a fraud upon Wilcox.
The circuit judge was wrong in directing a verdict for the defendant, and the judgment must be reversed, and a new trial grinted.
AGENCY – LIABILITY OF AN AGENT UPON AN UNAUTHORIZED CONTRACT. - The general rule is, that an agent is not liable upon a contract signed by him without authority, unless such contract contains apt words to charge hiin personally: Wallace v. Bentley, 77 Cal. 19; 11 Am. St. Rep. 231, and note. But the words "agent,” “trustee," and such like words, do not show an intention to act in a representative character, being words merely descrip tio personæ : Peterson v. Homan, 44 Minn. 166 ; 20 Am. St. Rep. 564, and note. The agent must show his principal liable upon the contract made by him, or he will be himself liable : Stone v. Wood, 7 Cow. 453; 17 Am. Dec. 629, and note; note to Means v. Swormstedt, 2 Am. Rep. 332, 333; Tarver v. Garlington, 27 S. C. 107; 13 Am. St. Rep. 628, and note.
EVIDENCE, SECONDARY, WHEN PROPER. - The contents of a paper which is beyond the jurisdiction of the court may be proved by secondary evidenco without accounting for the non-production of the paper: Manning v. Maroney, S7 Ala, 563 ; 13 Am. St. Rep. 67.
FRAUD, QUESTION OF, IS FOR WHOM. – Fraud is ordinarily a question of fact for the jury. Note to Brown v. Mitchell, 11 Am. St. Rep. 767, 758
JENNINGS V. MOORE.
(83 MICHIGAN, 231.) MORTGAGES — PRIORITY AS BETWEEN MORTGAGE NOTES. - Whero soverad
distinct potes are secured by one mortgage, no one of them has any pref.
erence over the rest in consequence of falling (lue at an earlier date. MORTGAGES - ASSIGNMENT OF PART INTEREST IN MORTGAGE CANNOT BE
VARIED BY PAROL. — A sale and assignment of two of three mortgage notes and of a corresponding interest in the mortgage, containing no men. tion of priority of lien, cannot be varied by parol evidence to show an oral agreeinent that the assignee was to have a prior lien under the mort.
gage as security for the payment of his notes. MORTGAGE Assigsee's FORECLOSURE OF PART INTEREST PRIORITY OF
LIEN – REDEMPTION. - An assignee under an assignment of a part interest in a mortgage and the notes secured thereby, containing no provision for any priority of lien, who has foreclosed, and upon the expiration of the time in which to redeem has purchased the equity of redemption, and has gone into possession under his sheriff's deed, does not thereby gain any priority of right over the assignor; but as the purchaser of the equity of redemption, he has a right to redeem from the lien of the assignor, and failing to do this, the premises will be sold and the proceeds divided according to the respective interests of the assignor and assignee. G. M. Valentine, for the appellant. George S. Clapp and A. Plummer, for the respondent.
LONG, J. The bill was filed in this cause to foreclose a mortgage upon real estate given by Mary L. Moore to tbe complainant.
The history of the transaction out of which this proceeding grows is, as set forth in the bill, that on May 9, 1874, complainant sold and conveyed ten acres of land to defendant Mary L. Moore for the sum of three thousand dollars, and she and her husband, Orrin E. Moore, gave complainant their notes for that amount. One note was for the sum of $500, due in one year, and there were two other notes, for the sum of $1,250 each, due in two and three years from date, respectively, all drawing interest at the rate of ten per cent per annum. To secure the payment of these notes, Mrs. Moore made and executed a mortgage for three thousand dollars upon this ten acres of land, and also upon forty acres of other land. This forty acres was also encumbered by a prior mortgiuge of four thousand dollars.
Soon after the execution of this mortgage and the notes, Abram Smith, the other defendant herein, sold to complainant; his farm, and took towards the purchase price thereof the two notes first to fall due given by Mrs. Moore, that is, the $500 and one of the $1,250 notes, Jennings retaining the other note. At the time of this purchase, Jennings made an assignment in writing to Smith of that part of the Moore mortgage represented by the two notes so transferred to him. This assignment specifically sets forth the interest in the mortgage which Jennings transferred to Smith, as that part of said mortgage represented by said first two notes. None of the notes were ever paid.
In December, 1875, Smith began foreclosure proceedings by advertisement, and on March 22, 1876, the premises, consisting of said ten acres, were sold to Smith at sheriff's sale, for the amount of the five-hundred-dollar note, interest, and costs. When the year for redemption expired, Smith took possession under the sheriff's deed, and has ever since been in possession of the premises, claiming title through the sheriff's deed. Jennings has never made any claim to the premises, or attempted to assert any rights under his note and remaining interest in. said mortgage, until the commencement of this suit.
Defendant Smith in his answer substantially admits tho facts set up in the bill, but avers that at the time he took the notes from Jennings, and received the assignment of such part of the mortgage, it was expressly agreed and understood
that he was to have a lien under bis two notes prior to any claims Jennings might have under the last note retained by him.
Testimony was taken in the cause, and Smith testified substantially to the facts set up in his answer. Complainant testified and claimed on the hearing that the purpose of the assignment was to sell to Smith only so much of the mortgage as secured the payment of the two notes sold to him, and that he (Jennings) still holds and owns an interest in the mortgage in the same proportion that his note bears to the whole debt; that is, that he holds and owns five twelfths, and Smith seven twelfths, of the mortgage, and that his rights were in no manner affected by the foreclosure made by Smith. Mrs. Moore did not appear, and the bill was taken as confessed as to her.
On the hearing, the court below decreed that the foreclosure proceedings had by Smith by advertisement be set aside, and the premises be sold, the moneys arising from the sale to be divided between Jennings and Smith in proportion to their respective interests; that is, to Jennings five twelfths, and to Smith seven twelfthe. From this decree defendant Smith appeals.
The assignment does not state that Smith's two notes were to be held as prior liens over the note retained by Jennings. It does not purport to assign the whole interest which Jen. nings had in the mortgage, but only that part represented by the two notes given over to Smith. Whatever the understanding was as to which should have priority of lien cannot be shown except by the assignment itself. That was the agreement between the parties, and it cannot be changed or varied by parol evidence. Taking the assignment, then, as the agreement, it appears that Jennir.gs was to and did retain five twelfths of the mortgage, and only transferred to Smith seven twelfths. This was an installment mortgage, and under the statute each installment must be taken and deemed a separate and independent mortgage: Howell's Statutes, subd. 4, sec. 8498. While this is so, where these Beveral distinct payments are thus secured by one mortgage, no one of them has any preference over the rest in consequence of falling due sooner, but all have equal claims to be paid ratably out of the land: Cooper v. Ulmann, Walk. Ch. 251; English v. Carney, 25 Mich. 178; McCurdy v. Clark, 27 Mich. 447.
The foreclosure made by Smith in no manner, however, affected the rights of Jennings in the security. Neither had any preference over the other before such foreclosure, and no such preference was acquired by the proceedings to foreclose. It undoubtedly took away the rights of Mrs. Moore to the possession if the foreclosure proceedings were valid, but it in no manner adjusted the rights between Jennings and Smith. By the proceedings, Smith did not become the owner of the whole land, or any definite undivided interest therein, freed from the lien of Jennings's part of the mortgage. Though it operated as a foreclosure of the rights of Mrs. Moore, or any person claiming through or under her, yet Jennings's rights and interests were not changed under his mortgage lien, as his rights were in no way subordinate to those of Smith. But Smith having purchased Mrs. Moore's equity of redemption, he has the right to redeem from the lien under the Jennings portion of the mortgage. Failing in this within six months from this date, the premises will be advertised and sold as in ordinary foreclosure proceedings, and the moneys arising from the sale be brought into court and be distributed, under order of the court, between Smith and Jennings, in proportion as the notes held by each bear to the whole amount secured by the mortgage.
The decree of the court below setting aside the mortgage foreclosure made by Smith will be reversed, and decree entered in the court below in accordance with this opinion, the case to be remanded to the court below for the purpose of carrying out the decree. Complainant will recover his costs.
PAYMENT SEVERAL Notes. Where four notes were secured by one mortgage, and the first two which maturel were also signed by a surets, the property having been sold under the mortgage for an amount more than sufficient to pay off t'e first two notes, but not enough to discharge all the notes, the surety could not insist in applying such ainount upon the first two notes, but the holders of the other notes were entitled to apply the money upon their notes: Hanson v. Manley, 72 Iowa, 48. Unsecured delits have the preference over secured debts: Frazier v. Lanahan, 71 Md. 131; 17 Am. St. Rep. 516. But in Duncan v. Thomas, 81 Cal. 56, it is decided that in the case of sereral obligations, neither party making the application, & payınent by the debtor will be applied by the law upon the one which first inatures; and this rule is applied in Georgia to unsecured and secured claiıng alike: Larton v. Blitch, 83 Ga. 663.
ASSIGNMENTS - PAROL EVIDENCE. Ordinarily, parol evidence cannot rary a written assignment: Richardson v. Johnson, 41 Wis. 100; 22 am Rep. 712; Osgood v. Davis, 18 Me. 146; 36 Am. Dec. 708.