Henry Baker, Appellant, v. David B. Alger, Survivor, etc., Respondent

Henry Baker, Appellant, v. David B. Alger, Survivor, etc., Respondent. (Argued January 12,1872; decided May term, 1872.) This action was brought to compel the discharge of a judgment obtained against plaintiff by the firm of Alger & Bro., of which firm defendant was the surviving partner. / Plaintiff alleged that defendant agreed to accept his mortgage for $950 in full payment and satisfaction of the judgment, which was accordingly executed and delivered and had been paid, but that defendant refused to cancel the judgment and it remained a cloud upon the title of plaintiff’s real estate. Upon the trial it appeared the mortgage given was signed by plaintiff and wife. It was not claimed and did not appear that the wife signed in pursuance of any agreement that the judgment should be canceled in consideration of the release of her dower rights. Held, that such release could not be deemed a consideration for defendant’s promise, and that without it the mortgage formed no consideration and the agreement was void. A. Anthony for the appellant. H. M. Taylor for the respondent. [MAJORITY — Gray, C.,] Gray, C., reads for affirmance; all concur, Lott, Ch. 0., not sitting. Order affirmed, and judgment absolute directed against plaintiff.