Gushee v. Union Knife Co. judgment lien for such balance only, and then we would have had to pay that portion only to relieve our property from this lien; and this would really fulfil the spirit of the law and not do violence to the opinion of this court as laid down in Meech v. Ensign, 49 Conn., 191. H. G. Newton, for the appellees. GRANGER, J. This is a suit to foreclose a mortgage upon certain property and a judgment lien upon certain other property. It appears that in 1875 the Naugatuck Wheel Company, a joint stock corporation, mortgaged to Ebenezer H. Ives two pieces of land in the town of Naugatuck to secure a note of $8,000; that only about $3,000 of the note has been paid; that the mortgagee has died and by his will given the note and mortgage to Fanny S. Gushee, one of the plaintiffs and wife of the other plaintiff; and that the mortgaged property has been conveyed to the Union Knife Company, the present defendant, which assumed and agreed to pay the mortgage debt. It further appears that the plaintiffs have brought an action against the Union Knife Company upon its promise to pay the mortgage debt, to recover the balance due on the note, and have attached five pieces of land belonging to the company, all in the town of Naugatuck, and obtained judgment against the company in the suit for $5,662, and that a certificate of a judgment lien upon the lands attached has been filed by them. And they now, by the present suit, seek a foreclosure of the mortgage and of the judgment lien. The defendant in its answer admits all the allegations of the complaint, but asks for equitable relief on the ground that the original mortgage is more than sufficient to pay the remainder of the mortgage debt, and that it would be inequitable that the property covered by the judgment lien should be taken for the debt when it is fully paid by the mortgaged property; and the defendant prays that the latter property may be appraised, and if on appraisal it shall be found of less value than the amount of the mortgage Gushee v. Union Knife Co. debt, the lands held by the judgment lien shall stand charged only with the balance of the debt so found to be due. The plaintiffs demurred to this answer, and the court sustained the demurrer, and no other plea being filed, passed a general decree of foreclosure, covering all the property. From this decree the defendant has appealed. The statute under which the judgment lien was obtained by the plaintiffs (Acts of 1878, ch. 58,) is a recent one, and few questions have yet arisen as to its operation and effect. The question here raised has never before been presented to this court, but we know of no principle or practice in analogous cases which will sustain the claim of the defendant. The plaintiffs have obtained a legal right to the full security which they hold, and they are entitled to hold it till their debt is paid. The only remedy of the defendant is to pay the debt and thus redeem the property. The statute (Acts of 1878, ch. 129, sec. 2,) which has been cited by the defendant's counsel as a ground for the granting of the equitable relief asked, has no proper application to the case, and can not, we think, by construction be so extended as to apply to it. That statute applies only to the case of a foreclosure which becomes absolute by a failure to redeem, in which case, if the property is insufficient to pay the debt, the court may appoint appraisers to ascertain its value, and in a suit afterwards brought on the note the excess of the debt above that value may be recovered, and only such excess. It was not intended to apply to the case of a judgment lien already obtained on the mortgage debt. The question here is wholly one of marshaling securities. The judgment lien stands on as legal ground as that of the mortgage, and there is no equitable rule by which we can give one an advantage over the other. If there is reason for limiting the rights of the creditor under the judg ment lien, it should be done by legislation. As the statute now stands it provides that the judgment lien "may be foreclosed or redeemed in the same manner as mortgages upon the same estate." Acts of 1878, ch. 58, sec. 5. 54 108 57 141 Saunders's Appeal from Probate. There is no error in the judgment complained of. In this opinion the other judges concurred. JOHN E. SAUNDERS'S APPEAL FROM PROBATE. New London Co., May T., 1886. PARK, C. J., CARPENTER, PARDEE, On an appeal from a decree of probate approving a will, on the ground F, the other legatee, also testified that there had been no undue influence The existence of undue influence may be inferred from the facts and circumstances of the case, even if there be no direct and positive evidence of it. But the facts and circumstances ought to be such as to lead justly and reasonably to such a conclusion. [Argued May 25th-decided June 18th, 1886.] APPEAL from a probate decree approving the will of Roxanna Saunders, deceased; taken to the Superior Court in New London County, and tried to the jury before Torrance, J. The reason of appeal assigned was that the testatrix, at the time of the execution of the will, was very infirm, and with her mind diseased and weakened, and that while in this condition she was prevailed on to make the will, to the great injury of the appellant, by the importunities and false Saunders's Appeal from Probate. representations of Clark R. Cook and Fanny Cook, two of the legatees under the will. Fanny Cook was the sister and Clark R. Cook the nephew of the testatrix. John E. Saunders, the appellant, was her only child. He received by the will only some pictures and a desk. The other legacies were $500 each to two churches; $500 each to Clark R. Cook, Levi Saunders and Emily C. Palmer; the household effects of all kinds except wearing apparel, certain pictures and a desk, to Fanny Cook; her wearing apparel to three women named; and the residue in trust to Emma J. Saunders, daughter of the appellant, for her life. Upon the trial, in support of the claim of undue influence, and in connection with other proof, the appellant introduced, without objection, various witnesses, who testified to the declarations made by Clark R. Cook soon after the date of the instrument, stating "that he and Aunt Fanny had got the will fixed as they wanted it; that John had got enough already; that they had got it fixed now with a man put in as executor who was not afraid of John Saunders." Fanny Cook and Clark R. Cook were subsequently called by the appellees as witnesses, to testify that they never exercised any influence over the testatrix relative to the matters in controversy. On the argument of the cause the counsel for the appellees claimed, and requested the court to instruct the jury, that the evidence of the declarations made by Clark R. Cook was not admissible for any purpose. The court did not charge as requested, but on this part of the case charged as follows: [The charge on this point is given in full in the opinion of the court, and is therefore omitted here.] The appellant, admitting that upon the question of undue influence the burden of proof was upon him, claimed that, inasmuch as fraud and undue influence are not ordinarily susceptible of direct and positive proof, it was not incumbent upon him to prove the exercise of such influence by direct and positive evidence, but that the jury might infer it from facts and circumstances, proved or admitted, Saunders's Appeal from Probate. attending the transaction; and that if the jury were satisfied from such proof that undue influence was in fact exercised, it was sufficient. Upon this part of the case the court charged the jury as follows:-"The existence and exercise of such an undue influence is not often susceptible of direct and positive proof. It is shown by all the facts and circumstances surrounding the testatrix, the family relations, the will, her condition of mind and of body as affecting her mind, her condition of health, her dependence upon and subjection to the control of the person influencing, and the opportunity of such person to wield such an influence. Such an undue influence may be inferred as a fact from all the facts and circumstances aforesaid, and others of like nature that are in evidence in the case, even if there be no direct and positive evidence of the existence and exercise of such an influBut the facts and circumstances ought to be such as to lead justly and reasonably to such an inference, and such inference is not to be drawn unfairly or unreasonably." ence. The jury returned a verdict setting aside the will, and the appellees appealed to this court, on the ground of error in the rulings and charge of the court. D. G. Perkins, with whom was L. Brown, for the appellants (originally appellees). 1. The court erred in not making it clear to the jury that the declarations of Clark Cook could not have any effect upon the testimony or the rights of Fanny Cook. As admissions he had no right to make them except to affect himself. Treated as a contradiction of his own testimony they could not be taken as a contradiction of her testimony. But the court told the jury that they were admissible “to contradict the witnesses who were charged with having used undue influence." These witnesses were Clark and Fanny Cook. But the evidence was not introduced for the purpose of contradicting them. They had not then testified. It was offered as substantive evidence, as a part of the appellants' proof of a matter, the affirmative of which rested. |