Reeder v. Martin

Ritciiie, J., delivered the opinion of the Court. The appellee claims that she is entitled to have credited upon her mortgage debt to the appellant, not only all sums in excess of legal interest that she herself has paid on account of her indebtedness, but also all similar amounts paid by Samuel B. Martin on his mortgage debt, prior to the execution of her mortgage. We do not think there was such privity of interest or estate between her and the said Martin as to warrant this claim. The contract between her and the appellant was a new and original one.

The property covered by the mortgage of Samuel Martin was conveyed to her by him, and if she had taken the property subject to his mortgage, and without change of her relations to the mortgagor and mortgagee, except as mere purchaser of the equity of redemption, whatever rights to re-imbursement for usurious payments subsisted in Martin, would have enured to her. But, there was in fact, an extinction of the mortgage debt due by Samuel B. Martin. His note which expressed the indebtedness secured by his mortgage was surrendered to him, and the mortgage formally released. It is true, that instead of paying off this lien upon the property, she agreed to give a mortgage for a similar amount; but that was her own election; and the arrangement by which she assented to the validity of Reeder’s claim to the amount of $4000, was of her own proposing; and this very concession may be fairly considered as one of the considerations moving Reeder to abandon his old claim against Martin, and accept a newr obligation from her.

Another element entering into the transaction between her and Reeder, and impressing it w'ith the character of a new one, was a demise made by her of part of the premises as leasehold property, subject to which her mortgage was executed. The security taken by Reeder was less under her mortgage than under the former one, or, at least, ²²⁰ different in specific character. Having thus dealt with the mortgagee, she is precluded from asserting an3r rights which Martin may have had to recover hack from Reeder.