all, and the case stands upon clear proof of actual notice of the real amount secured by the mortgage.

The only remaining question is, whether the mortgage was paid and satisfied, or is still a subsisting incumbrance. The mortgage was originally given on the first of May, 1841, to Hugh B. Ely, administrator of John Wilson. It was the first mortgage on the premises, and was given to secure a part of the purchase money. The amount due on the mortgage was subsequently paid in three several payments, not by the mortgagor, but by Samuel W. Hall, the appellant. Receipts for these payments are indorsed on the bond; the first two payments purporting to be on account of the bond, and the last purporting to be the balance in full on the bond. The bond and mortgage were not assigned either by parol or in writing. But they were delivered uncanceled to Hall, who had made the payments, and have been retained by him uncanceled, as he insists for his security; the mortgage remaining uncanceled of record. There is no proof either of a request to assign, or of an agreement to assign the bond and mortgage. The parol proof amounts to this: that the amount due on the bond and mortgage was advanced by the appellant, at the request of the mortgagor who had made application to him for a loan of money for that purpose, and that the mortgagee who received the money, understood that it was the intention of the party paying the money not to extinguish the mortgage, but to stand in the place of the mortgagee.

In the present case there is no pretense of fraud attempted or meditated. The circumstances excluded all pretense of fraud. When Lambert's mortgage was recorded, the prior mortgage of Hall was standing in full force; no payment had been made upon it. The payments were all made, not only after Lambert's mortgage had been recorded, but at a time when the mortgagor's property was heavily incumbered by judgments at law. It seems the obvious dictate of justice and equity, that where a third party advances his money in good faith, at the request and for the benefit of the mortgagor, in satisfaction of the mortgage debt, and holds the bond and mortgage in his possession uncanceled, he should be permitted to stand in the shoes of the mortgagee, and to have the protection of the mortgage security, although there be no assignment of the security, or even though the mortgagee should absolutely refuse to assign.

It has been the constant policy of a court of equity to treat the mortgage either as canceled or outstanding, as shall best

AM. DEC. VOL. LI-18

promote the ends of justice, and the actual and just intention of the parties: Starr v. Ellis, 6 Johns. Ch. 395; Neville v. Demeritt, 1 Green Ch. 336.

I am of opinion that the mortgage executed by William Hall and wife to Hugh B. Ely, administrator of Wilson, and by him assigned to the appellant, is a valid and subsisting lien and incumbrance upon the premises therein described, and is entitled to priority over the mortgage of the respondent.

The decree of the chancellor should be reversed, and the record remitted to be proceeded in agreeably to law, and the opinion of this court.

In this opinion the court concurred, except RISLEY, J., who dissented.

Decree reversed.

MISTAKE IN MORTGAGE, EFFECT OF: See Bumpas v. Dotson, 46 Am. Dec. 81, note 85; Stover v. Herrington, 41 Id. 86, note 91; White v. Wilson, 39 Id. 437; note to North v. Belden, 35 Id. 87; note to Gordon v. Preston, 26 Id. 79, where other cases are collected. In Graham v. McCampbell, 33 Id. 126, it was decided that the assignee of a note, given in part consideration for the purchase price of land, to secure the payment of which the vendor reserved the legal title in himself, is entitled to have his debt satisfied out of the land.

CASES

IN THE

COURT OF APPEALS

OF

NEW YORK.

VAN RENSSELAER V. JEWETT.

[2 NEW YORK (2 COMSTOCK), 135.]

NONSUIT SHOULD NOT BE DIRECTED IF PLAINTIFF IS ENTITLED TO RECOVER ANYTHING upon the evidence.

INTEREST IS RECOVERABLE UPON RENT from the time when the rent became due by the lease; notwithstanding it was payable in produce or services instead of in money.

INTEREST SHOULD BE ALLOWED THOUGH DEMAND IS UNLIQUIDATED wherever a debtor is in default in paying money, delivering property, or rendering services pursuant to his contract, if the amount can be ascertained by an inquiry concerning the value.

APPEAL from an order of the supreme court denying a motion for a new trial. The action was covenant for rent reserved by one of the old manor leases, such as were given by the " "patroons" of the great New York estates many years ago. The plaintiff established a clear right to recover rent, but claimed interest. Defendant disputed the claim to interest, especially because the rent was expressed in the lease to be payable in grain, poultry, and services, instead of in money. The judge who tried the cause directed the jury to allow interest, and the defendant moved for a new trial, alleging that ruling, among others, as error. The supreme court denied this motion: 5 Den. 135; and the defendant appealed.

J. S. Colt, attorney, and Rufus W. Peckham, of counsel, for the appellant, the tenant.

Jenkins and Mc Martin, attorneys, and Nicholas Hill, jun., of counsel, for the respondent, the landlord.

By Court, BRONSON, J. It is unnecessary to inquire what should have been the rule in apportioning the rent; for as the proof stood when the motion for a nonsuit was made, the plaintiff was clearly entitled to recover something, and the motion was therefore properly overruled. The question was not raised in any other form than by the motion for a nonsuit.

The only question is on the allowance of interest. The payment was not to be made in money, nor was a specified sum to be paid in any other way. The damages were unliquidated; and there was no agreement for interest. As the authorities bearing on the question have been very fully considered by the supreme court in this, and another case which will be mentioned, it can not be necessary to review them on the present occasion. It was decided in 1806, without assigning any reason for the judgment, that interest was not recoverable in a case of this kind: Van Rensselaer v. Platner, 1 Johns. 276. But since that time the supreme court has deliberately held, on three several occasions, including the present one, that interest is recoverable in such a case: Lush v. Druse, 4 Wend. 313; Van Rensselaer v. Jones, 2 Barb. 643. The principle to be extracted from these decisions may be stated as follows: Whenever a debtor is in default for not paying money, delivering property, or rendering services in pursuance of his contract, justice requires that he should indemnify the creditor for the wrong which has been done him; and a just indemnity, though it may sometimes be more, can never be less, than the specified amount of money, or the value of the property or services at the time they should have been paid or rendered, with interest from the time of the default until the obligation is discharged. And if the creditor is obliged to resort to the courts for redress, he ought, in all such cases, to recover interest, in addition to the debt, by way of damages. It is true that on an agreement like the one under consideration, the amount of the debt can only be ascertained by an inquiry concerning the value of the property and services. But the value can be ascertained; and when that has been done, the creditor, as a question of principle, is just as plainly entitled to interest after the default, as he would be if the like sum had been payable in money. The English courts do not allow interest in such cases; and I feel some difficulty in saying that it can be allowed here, without the aid of an act of the legislature to authorize it. But the courts in this and other states have for many years been tending to the conclusion which we have finally reached, that a man who breaks his contract to pay a debt,

whether the payment was to be made in money, or in anything else, shall indemnify the creditor, so far as that can be done by adding interest to the amount of damage which was sustained on the day of the breach. The rule is just in itself; and as it is now nearly nineteen years since the point was decided in favor of the creditor, and eight out of nine judges of the supreme court have, at different times, concurred in that opinion, we think the question should be regarded as settled.

New trial denied.

INTEREST UPON RENT.-In Obermyer v. Nichols, 6 Am. Dec. 439, it is held that rent carries interest from the time it is due, unless from the conduct of the landlord it may be inferred that he does not mean to insist upon it, or unless he acts oppressively in demanding more than is due, where the tenant is willing to do justice, or unless there are other equitable circumstances making the allowing of interest improper. But in Breckenridge v. Brooks, 12 Id. 401, a Kentucky case, it is decided that interest upon rent in arrears is not allowable, because it is in the nature of compound interest. A statute was subsequently passed in that state, however, allowing interest upon rent after due: See the note to the case last cited. That interest is recoverable upon rent after default in payment is held, following the principal case, in Livingston v. Miller, 11 N. Y. 86; Cowing v. Howard, 46 Barb. 584. So where rents are collected by one tenant in common, it is held that his co-tenant may, in an action for money received to his use, recover his proportion, with interest thereon, without a demand: Scott v. Guernsey, 60 Barb. 180, citing Van Rensselaer v. Jewett.

INTEREST, ALLOWANCE OF, IN GENERAL: See the leading case of Selleck v. French, 6 Am. Dec. 185, and the note thereto, discussing this subject in its various phases. See also Hunt v. Jucks, 1 Id. 555; De Peau v. Russell, 2 Id. 676; Dilworth v. Sinderling, Id. 469; Freeland v. Edwards, Id. 620; Scudder v. Morris, 4 Id. 382; People v. Gasherie, 6 Id. 263; Wood v. Robbins, Id. 182; Shaller v. Brand, Id. 482; Houghton v. Page, 9 Id. 30; Goddard v. Bulow, Id. 663; Hart v. Brand, 10 Id. 715; Glen v. Fisher, Id. 310; Smith v. Vanderhost, Id. 674; Barelli v. Brown, Id. 683; Cannon v. Beggs, Id. 677; Cartmill v. Brown, Id. 763; Lofland v. Maull, 12 Id. 106; Bouthemy v. Ducournau, Id. 486; Rector v. Mark, 13 Id. 500; Stewart v. Stocker, 15 Id. 589; Sickman v. Lapsley, Id. 596; Newsom v. Douglass, 16 Id. 317; Simpson v. Feltz, Id. 602; Miles v. Oden, 19 Id. 177; Haven v. Foster, Id. 353; Fridge v. State, 20 Id. 463; Hunt v. Nevers, 26 Id. 616; Washington v. Planters' Bank, 28 Id. 333; Mower v. Kip, 29 Id. 748; Patterson v. Nichol, 31 Id. 473; Lurton v. Gilliam, 33 Id. 430; Shaw v. Wilkins, 49 Id. 692; Northrop's Ex'rs v. Graves, 50 Id. 264, and the notes thereto. Interest upon interest: See Talliaferro's Ex'rs v. King's Adm'r, 35 Id. 140; Doig v. Barkley, 45 Id. 762, and notes thereto, collecting the prior cases in this series. Interest on unliquidated demands: See McConnico v. Curzen, 1 Id. 540; Murray v. Ware, 4 Id. 637; Foster v. Dupré, 12 Id. 466; Shaw v. Wilkins, 49 Id. 692. Interest on contract to pay property: See Guthrie v. Wickliffe, 7 Id. 746. The principal case is very extensively cited as an authority upon this subject. Thus it is cited and approved on the point that interest is always allowable on default in payment of a fixed sum payable on a specified day, in Blakely v. Jacobson, 9 Bosw. 146; Scott v. Guernsey, 60 Barb. 180; De Lavalette v. Wendt,