Constant v. Matteson et al.

said Wickersham under his first mortgage, and that his second mortgage was a subsisting lien upon the property. The condition of the second mortgage referred to, was as follows:

"Whereas, the said Constant has this day paid the Banking House of N. H. Ridgely, the sum of seven hundred dollars to discharge a note made by said Wickersham, with one Freeman as security, and to repay the said Constant for the money so advanced, the said Wickersham has executed to the said Constant his seven promissory notes of even date herewith, each for the sum of one hundred dollars, payable to said Constant, and due in one, two, three, four, five, six and seven months, with interest at ten per cent. per annum. Also, one other note, executed by said Wickersham to said Constant, for the sum of one thousand and sixty-one dollars and ninety-five cents, payable on demand with interest from date until paid, at ten per cent. per annum." Provision for retaining possession until default, as in former mortgages.

Dodge, McCabe and Vanness, and Russel and Parsons answer, setting up their respective claims under their mortgages. Dunn answers, setting forth his judgment and execution against Wickersham, and states that his execution had been levied upon the interest of Wickersham in a lease of the St. Nicholas Hotel.

On the 27th of May, 1858, Matteson amended his cross-bill, setting forth that he bid off the property in pursuance of an understanding between himself and Dodge and Constant, that he bid off the property in his own name for their mutual benefit, and that he afterwards sold the same property to one Fenner Aldrich, and had received therefor, the notes of said Aldrich for $7,489.70, payable with ten per cent. interest, as follows: $2,000 payable in fifteen months, and three notes for $1,829.90, each payable 1st days of July, 1858, '59 and '60, of date, 1st September, 1857. Notes secured by mortgage. Further sets up, that he expended a large sum in taking care of the mortgaged property, and other sums in discharging prior liens upon it, and prays that an account be taken of the same.

On the 17th of November, 1858, said Matteson further amended his bill, charging that he had been at great expense in selling said property and great risks had been incurred, and asks compensation therefor, also prays that the notes received by him for the property should be received by the defendants.

Constant filed his answer to the amended cross-bill of Matteson, denying the allegations of the amended bill. Sets forth that Matteson sold the property after it was bid off by him to Aldrich without consulting the other parties interested, and without their consent, and charges that Matteson should account for the proceeds in cash.

Constant v. Matteson et al.

Replications having been filed to the answers, the cause was referred to the master for a report of the evidence, and for stating the accounts and demands of the parties.

At the August term of the court, 1858, the master filed his report, and therein finds due to Matteson, after allowing to him all expenses incurred by him on account of taking charge of the property and selling the same at auction, and also for all money expended in relieving the property from prior liens, the sum of $2,283.70.

Finds due to Constant under his first mortgage, the sum of $2,460.56, and the further sum of $1,915.50 under his second mortgage. Finds due to Russel and Parsons, under their mortgage, $631.98. Finds the amount of Miller and Scott's claim at $1,637.14. Finds due to McCabe and Vanness, $1,107.91.. Finds due on the mortgage of R. V. Dodge, assigned to Joel A. Matteson, the sum of four hundred and fifty-six dollars and forty-four cents.

The master further reports the testimony of witnesses examined by him. Lotus Niles swears he was present when Constant and Matteson were talking about taking possession of the property mortgaged, under their mortgages. Wickersham, (the mortgagee) then agreed to give possession to C. R. Post, as the agent of Matteson, Constant and R. V. Dodge, they claiming under their mortgages. Wickersham did give possession, in pursuance of the agreement. The conversation took place and the possession was given on the 7th day of July, 1857. C. R. Post took possession of the property, at the time stated, as the agent of Constant and Matteson. The understanding between Constant, Matteson and himself was, that witness should take charge of the property, including the house and furniture, until the sale of the property.

The property was sold under the mortgages, the 20th of July, 1857. Matteson, being about to leave town, said to witness, he wished he would stay at the hotel and keep charge of the property, as he had done, until said Matteson returned. Matteson returned about the first of August, and after his return he requested witness to remain until a sale was made of the property, which he did. Witness met Constant on the street one day, during the absence of Matteson, and after the sale, and told him the expenses of the hotel were greater than the receipts, and asked what should be done in regard to it. Constant replied to do the best he could with it. He asked witness to keep the goods together, and take care of them and keep the affairs straight.

Fenner Aldrich testified, that about the 1st of September, 1857, he purchased of Joel A. Matteson, the property bid off

Constant v. Matteson et al.

by him at the auction sale under the mortgages. Witness gave $7,489.71, the amount of the former sale bill, in four notes, payable in installments, (the same heretofore described in the answer of Matteson.) Witness has paid $2,200 on the notes. Constant had nothing to do with the sale to witness.

The deposition of Thomas D. Wickersham, in answer to an interrogatory to state what he knew in relation to the notes given by Constant and Matteson to Miller and Scott, states:

The notes were given by Archibald E. Constant and Joel A. Matteson, two separate notes for the sum of $752 each, at ten per cent., to Miller and Scott. I think my brother, B. P. Wickersham, took the notes to Miller and Scott, and they or their agents erased the names of Matteson and Constant, saying they were not bankable, and returned them to me by my brother. Says in answer to a cross-interrogatory, that the notes were not re-signed or returned.

B. P. Wickersham testifies, that he took the notes above referred to, to Miller and Scott, in St. Louis, and delivered them to them in person, and they handed them, or one of them, back to me, and remarked they were not drawn up in form, and I think one of the notes was cancelled in my presence, and perhaps both of them. I took them back to T. D. Wickersham, at their request, and delivered them to him. States further, that Miller and Scott, about the time of the return of said notes, sent up two blank checks for Matteson and Constant to fill up. Thinks the checks were for the amount of $752 each, and also for the amount of a bill of goods, purchased about the time of the delivery of the notes. Says it was Miller and Scott who talked to him about the cancellation of the notes. Thinks it was the object of Miller and Scott to get security for the additional bill of goods.

H. H. Hukil testifies, that he was a clerk for Miller and Scott, and knew T. D. Wickersham. Wickersham purchased goods of Miller and Scott, at two or three different times, amounting altogether to $1,700 or $1,800. Wickersham had a letter from Matteson. A note was sent by Wickersham to Miller and Scott for one-half of the first bill, which note was about $752. Another note was subsequently sent for same amount. One of the notes was signed by Wickersham and Matteson, and the other by Wickersham and Constant. The first note that was sent was not half of the whole bill. Wickersham sent a letter to Miller and Scott to know whether a note for one-half the amount executed by Constant would do. At that time, and in that letter, they received one of the notes. Miller and Scott objected to the note because of the manner in which it was drawn, and the amount. Scott told witness to draw up two notes, dividing the

Constant v. Matteson et al.

amount equally, which witness did in the form of drafts, and told witness to write and return the note, and request WickerIsham to have the drafts signed and returned.

When the second note was received, witness was directed to make out another draft, which witness did, and returned the note to Wickersham, with the names erased, together with the draft. The amount of the drafts were larger than the notes by about $150.

Virgil Hickox, who was examined upon this hearing, testified that the labor and care of Joel A. Matteson, in buying and selling the property embraced in the mortgages, would be five per cent., and that it would be worth five per cent. per annum to advance cash in place of notes at ten per cent. per annum.

Court below decreed that the defendants, Joel A. Matteson and Archibald E. Constant, after the payment of costs, have a prior lien on the proceeds of the property in the pleadings mentioned, for reimbursement to them for advances made by them, and that said Joel A. Matteson, as assignee of R. V. Dodge, has next valid lien on the proceeds of the sale of the cutlery and silverware, secured by mortgage to R. V. Dodge, dated February 23rd, 1857, but to the extent only of the proceeds of said cutlery and silver-ware, and that Archibald E. Constant has the next valid lien by virtue of his second mortgage, dated the 6th day of June, 1857, to the extent of his whole claim under said mortgage, on the entire proceeds of said sale, in the hands of said Matteson. And that David A. Russel and Jacob Parsons, have the next valid lien, by virtue of their mortgage, dated the 27th day of June, 1857, to the extent of their whole claim under said mortgage, on the entire proceeds of sale as aforesaid, and that to the extent of $752, and interest thereon at the rate of six per cent. per annum. Said Miller and Scott have the next valid lien, together with Joel A. Matteson and Archibald E. Constant, to the extent of their entire claim under the first mortgage executed to said Archibald E. Constant, dated December 31, 1856, and the mortgage to Joel A. Matteson, dated December 27th, 1856, the said Miller and Scott together to the extent of seven hundred and fifty-two dollars, and interest thereon, and the said Joel A. Matteson and Archibald E. Constant, to the extent of their entire claim under said last mentioned mortgages, sharing pro rata in the proceeds thereof in the hands of said Matteson-and that out of said Archibald E. Constant's said pro rata as last aforesaid from the proceeds of the said first mortgage to him, dated 31st December, 1856, said Miller and Scott are entitled to be paid the residue of their claim, to wit: the sum of $752 and interest.

And that said Archibald E. Constant has the next valid claim

Constant v. Matteson et al.

on the said proceeds, for the payment of his claim under and by virtue of his first mortgage as aforesaid, dated December 31st, 1856. And that William McCabe and John Q. Vanness have the next valid lien on said proceeds under and by virtue of their mortgage, dated the 9th of March, 1857. And it further appearing to the court that there is due Joel A. Matteson, in the order of priority, as aforesaid, the sum of $1,075.30, for advances made by him, and that there is due from Matteson for board, which is a proper set-off against the same, the sum of $1,250.77, and to A. E. Constant, $121.30, for advances made by him. And to said Joel A. Matteson, as assignee of R. V. Dodge, the sum of $274.25, in the order next of priority, and to Archibald E. Constant the sum of $1,915.50, in the order next of priority. And to Russel and Parsons the sum of six hundred and thirty-one dollars and ninety-eight cents, in the order next of priority. And to Miller and Scott, the sum of $818.57. To Joel A. Matteson $2,283.70, and Archibald E. Constant $2,460.56, to be paid pro rata out of A. E. Constant's first mortgage, and Joel A. Matteson's first mortgage. And to Miller and Scott the sum of $818.57, in the order next of priority, to be paid out of Constant's pro rata in his first mortgage. And to Archibald E. Constant the sum of $2,460, in the order next of priority. And to McCabe and Vanness the sum of $1,210.35, in the order next of priority. It is therefore ordered, adjudged and decreed by the court that said Joel A. Matteson, Archibald E. Constant and Charles Dunn, nothing take by their judgments and executions, and that out of the proceeds aforesaid, there be paid first the costs of this suit, including a fee to master of $50, and $100 to Joel A. Matteson, both to be taxed as part of the costs. Next to that, $121.30, the advances made by Constant, be paid to him, and that the residue of said claims be paid in priority as herein set forth.

It further appearing to the court that the entire proceeds of the property amounted, on the first of September, 1857, to the sum of $7,489.71, that the sale was made by Joel A. Matteson, and that he is properly chargeable with the proceeds thereof, it is therefore ordered, adjudged and decreed, that said Joel A. Matteson pay out of said proceeds, first, the costs as aforesaid, and the residue of said claims to the extent of the residue of said sum and interest-that he now pay the sum of $3,408.63, and on the 1st day of July, 1859, the sum of $2,165.27, and on the 1st of July, 1860, the sum of $2,348.26, and that executions issue therefor when said sums are respectively due.

That said Joel A. Matteson be allowed to retain out of said funds such portion thereof as is due him by virtue of the provisions of this decree, in installments as provided for by the same.