64 A.2d 313
No. 3773.Supreme Court of New Hampshire Hillsborough.
Decided March 1, 1949.
The burden of establishing that certain original chattel mortgages held by the defendant by assignment were discharged by a later and defectively executed mortgage to the defendant of the same and other chattels to secure the payment of a single note consolidating the indebtedness evidenced by the prior notes is upon the attaching creditor seeking to have the original mortgages adjudged paid and discharged. In such case, the finding was justified that the original mortgages were not discharged by the note and mortgage later given and hence had priority over a subsequent attachment, there being no evidence of satisfaction or discharge of the original mortgages.
BILL IN EQUITY by which the plaintiff seeks to enjoin foreclosure of five mortgages of personal property given by the defendants Talbot, and held by the defendant corporation by virtue of assignments from
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the original mortgagee. The plaintiff also seeks to have the mortgages adjudged paid and discharged.
The several mortgages were given between June 11 and September 8, 1947. They were properly executed, and duly recorded. On January 5, 1948, the defendants Talbot joined with the defendant Brodeur in executing a mortgage to the defendant corporation conveying the same property described in the prior mortgages, together with additional chattels, to secure the payment of a single note consolidating the indebtedness evidenced by the five prior notes. This mortgage was recorded on January 7, 1948, but the statutory affidavit was not made and subscribed on behalf of the mortgagee. No discharges of the prior mortgages were given, nor does it appear that the mortgages were surrendered.
On January 10, 1948, the mortgaged chattels were attached by the plaintiff in an action against the defendants Talbot. The question of the priority of the attachment was submitted to the Court (Leahy, J.) upon an agreed statement of facts. The Court found that the defendant company “at no time agreed to discharge [the prior] mortgages and accept the mortgage of January 5, 1948 in their stead” and that “there is no evidence . . . [of] an agreement to relinquish the security for the notes contained in the . . . prior mortgages.” The Court ruled that the original mortgages were not extinguished, but had priority over the plaintiff’s attachment. To this ruling the plaintiff duly excepted. All questions of law presented by the exception are reserved and transferred.
Samuel A. Margolis (by brief and orally), for the plaintiff.
Robert J. Doyle (by brief and orally), for the defendants.
DUNCAN, J.
The burden of establishing discharge of the original mortgages was upon the plaintiff. Cutting v. Whittemore, 72 N.H. 107; Hill v. Marcy, 49 N.H. 265. Whether they were discharged by the giving of the note and mortgage of January 5, 1948 depends upon the intention of the parties to that transaction. See Laconia Savings Bank v. Vittum, 71 N.H. 465. The agreed statement throws no light upon this question, except as it may be inferred from the fact that no discharges were given, that none were intended. 2 Jones on Mortgages (8th ed.) s. 1187; and see 36 Am. Jur. 921, s. 469.
There being no evidence that the later note and mortgage were given or accepted in satisfaction of the prior notes and mortgages
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(Hill v. Marcy, supra, 268), or that anything more was intended than additional or collateral security for a continuing indebtedness (Cutting v. Whittemore, supra; Ladd v. Wiggin, 35 N.H. 421), the findings and rulings of the Trial Court were warranted, and the mortgages were properly held to have priority over the plaintiff’s attachment.
Exception overruled.
All concurred.