W. and H. having agreed that W. should buy timber land, that H. should cut off, manufacture, and dispose of the timber, W. furnishing the money needed and receiving the avails, and that W., on being reimbursed for the purchase-money, advancements, and interest, should convey the land to H., payments of money by W. in defending an action against both for a trespass committed by H. in cutting over the boundary line, and payments of money by W. in satisfaction of the judgment recovered against both in the action, are to be treated as advancements under the agreement. A promissory note by H. to W. for the amount due on the agreement, though secured by a mortgage on land of H., is not a payment of the indebtedness unless so agreed, and H. is not entitled to a conveyance until payment of the note. If the mortgage has been foreclosed, such foreclosure is a payment of the note to the extent of the value of the land foreclosed on, but an incomplete foreclosure is not a payment.
SMITH, J.
The expense of defending the trespass suit was a part of the expense incurred in operating the lot. Holmes is in no position to contend, and does not contend, that the trespass was wilful. The trespass was committed by him, and it is fair to assume that he supposed the tract in controversy was a part of the lot he purchased with money furnished by Woodward. For the proceeds of the lumber cut on the disputed tract Woodward has accounted, or is accountable, to him. The trespass suit was against them jointly, and Woodward, having paid the judgment and borne the expense of the defence, is entitled to judgment for the larger sum ($777.84).
In the equity suit, Holmes is not entitled to a decree for the conveyance of the lots without performing the contract on his part. The giving of his promissory note in 1886 was not a payment of the amount then due from him in the absence of an agreement to that effect, and the amount of the prior indebtedness was not extinguished. Moore v. Fitz, 59 N.H. 572, and authorities cited. No suggestion has been made that the mortgage has become foreclosed. The order at the trial term was, that Holmes pay whatever sum is due on the mortgage note. If the mortgage has become foreclosed and the mortgage property was of sufficient value to pay the note, then nothing is due upon it; but if it is insufficient, the balance due can be ascertained upon a hearing at the trial term.
Exceptions overruled.
CARPENTER, J., did not sit: the others concurred.