Benjamin Robbins Curtis

“ This language is intelligible, if the agreement was that he should work out his debt through this contract with Lippitt. In such case, the bill of sale might be said to extinguish the notes so far as it went; that is, so far as it should prove to be effectual for that purpose. And this construction is much strengthened by the fact that he does not profess to have surrendered any of the notes at or about the time when the transfer was made to him, and there is no reason to believe he did so before his debt was paid. ”

“ The mortgage was made to secure several distinct, independent debts of a number of creditors residing in different places, having no connection with each other; and there is no claim in the bill, or proof, tending to show that any, except Peleg Wilbur and C. H. Lippitt, had any knowledge of the existence of any contract between Hazard & Co., and Lippitt, concerning the machinery, or are in any manner chargeable with notice.
2. The defendant, Wilbur, had not any notice of there being any lien on the property when it was mortgaged to himself and other creditors. ”

“ If Almy had a lien on the property, a court of equity was the proper forum to give him relief.
II. What is the true construction of the contract between Lippitt and Hazard & Co.?
1. Is it a mortgage in the true meaning of that term?
The essential characteristics of a mortgage are a debt or duty, and an obligation to repay the debt or perform the duty secured by a conveyance or assignment of some valuable thing. The form is immaterial, but the obligation must clearly appear. Here there is no obligation. ”

“ Independent of the evidence, Wilbur, in his answer, admits, first, he knew of the contract; second, that Hazard purchased the machinery; third, they were to be paid for it out of one half the profits.
He knew it had not been paid for at the time of their failure. Almy claims under them; Wilbur claims under Lippitt; he is bound by the knowledge of the facts, and purchased with notice.
V. The statute of limitation is not a bar. ”

“ After the execution of the contract, he declares that he is using the machinery to secure a debt, and when he ceases to supply cotton to the mill, states that his debt is paid, and claims no interest in, or lien on, the machinery; and from that time, September 11, 1832, to 1836, he never sees the machinery, or goes near the mill, nor communicates with Lippitt or any one else, nor ever claims to be the owner of it, or to have any interest in it. ”

“ This understanding must have been included by him in that part of his testimony, where he speaks of promising his 'personal services in the subsequent management of the business, and obligating himself by other conditions;' and, if one of those conditions was that Almy took the transfer, by way of security, and his debt had been paid, it is quite consistent with Almy's real relation to this property that he should lie by ten years, and when he moved that R. G. Hazard should be active also. ”

“ Where a party has knowledge of the facts, he has notice of the legal consequences resulting from those facts. The Ploughboy, 1 Gall., 41.
It affects the conscience of the party. Smith v. Shane & Morgan, 1 McLean, 27. Notice of such facts as with ordinary diligence will lead to a knowledge of an outstanding equity, is sufficient. ”

“ Lippitt declined; same day he left. He returned in the spring, told Wilbur of the cause of his abrupt departure, and that 'he knew he had no more right to take that machinery from C. Lippitt in payment of his debt than he would have had to take Samson Almy's pocket-book, if he had left it in the keeping of Lippitt.' He did not deny the charge.
Notice may be expressed or implied. 'Whatever is sufficient to put a party upon inquiry, (that is whatever has a reasonable certainty as to time, place, circumstances, and person,) is in equity held to be good notice to bind him.' 1 Story Eq., § 400 ”

“ The fact that Low & Fenner owned one half of the contract and machinery, is also shown by the testimony of a number of witnesses.
The plaintiff, therefore, receiving from the assignee of Hazard & Co. only one half of the machinery, and not being authorized, or purporting to act for Low & Fenner, could not, in any event, recover more than one half of the value of it.
'A part owner, who sues alone, is entitled to recover, unless the defendant plead in abatement; but he cannot recover more than the value of his own share.' 3 Stark. Ev., 1165; 2 Phil. Ev., ch. 15; 4 Cow. ”

“ A right or privilege is given, but there is no corresponding duty to take the property and pay.
The Hazards were the purchasers, took the bills in their own names, and were necessarily the general owners. ”

“ He who pays the money is the general owner, no matter in whose name the conveyance is made. 2 Story Eq., § 1201, and notes.
Even if the bills had been in the name of Lippitt, it would have made no difference. 1 Hill. Ab., 307, § 12-28, 382, § 42. It was not a joint purchase.
2. How did the parties themselves understand it? This is admissible evidence. 1 Hill. Ab., 273, 274. Neither of the parties treated Lippitt individually as debtor.
See R. G. Hazard, dep. 56. 'His understanding at the time of the contract was that R. G. Hazard & Co. ”