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.
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 (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.