The judge thought that if the agreement on the part of Seligman was not carried out, and the proceeds applied, in the way indicated by the agreement, upon the note, Shaw might have an action against him for breach of the agreement, but the agreement was not one that Pinet could avail himself of as a defense to the note.

The counsel for plaintiff, to support this judgment, maintain that in assumpsit against joint debtors it is no defense that one of them has heen discharged from his share of the debt by an unsealed instrument in writing, or by an oral agreement, although such contract or agreement is founded upon a sufficient consideration; citing McAllester v. Sprague, 34 Me. 296; Drinkwater v. Jordan, 46 Id. 432; Matthey v. Gally, 4 Cal. 62; Walker v. McCulloch, 4 Greenl. 428; Shed v. Pierce, 17 Mass. 623. The doctrine of these cases is stated by Mr. Justice Heydenfeldt in Matthey v. Gally, supra, as follows:

"It is well settled that a covenant not to sue operates as a release, but the reason for it is only to avoid circuity of action. If the covenant not to sue be broken, the strict right of the covenantee is to recover on the covenant, and, as the recovery must be the same in both suits, the doctrine of release is resorted to to avoid circuity. But this doctrine, being technical, cannot be extended in its construction; and where the debt is joint, and the covenant not to sue is made to a portion only of the debtors, it will not be held as a release of either, but the party who holds the covenant must be left to his action upon it."

See, also, Leake, Cont. 928; 1 Pars. Cont. 28.

But I think these authorities have no application to the case made by the defendants here. And this Court has held that, in the case of a sole debtor, an agreement not to sue is not an independent or collateral undertaking, but goes directly to destroy or modify the original contract, and can be pleaded in bar for that reason, and not on the ground of avoiding circuity of action. Robinson

v. Godfrey, 2 Mich. 408; Morgan v. Butterfield, 3 Id. 615. It may be true that the arrangement between Seligman and Shaw did not amount to anything more than an agreement not to sue Shaw for his liability on the note, and that it was not the intention of Seligman to release the Pinets, as he was to collect the two-thirds of them. But the intention manifestly was that Seligman should look to the Pinets for two-thirds and to Shaw for onethird. The Pinets have paid their two-thirds, and now the case stands like this: Seligman is suing the Pinets and Shaw jointly for the recovery of the one-third of the note which he had agreed with Shaw he would not sue, but which might be paid out of the profits of the Norway. I cannot agree to any rule of law which will permit Seligman to collect out of the Pinets, after he has received two-thirds from them, this one-third which he has solemnly agreed with Shaw to wait upon him for. If there was a valid consideration for his agreement, as I think there was, and Shaw was the sole debtor upon this one-third, the authorities cited by plaintiff hold that he could plead it in bar of this suit, and that, if Seligman recovers in this action, because the debt is a joint one, Shaw then has an action for the damage occasioned him upon this agreement against Seligman. Seligman agreed to release Shaw from two-thirds of the debt, and to give him an opportunity to pay the other third outside of the Pinets. There is now no debt remaining on the note except this one-third, which Seligman has agreed with Shaw shall be paid in a particular way, an agreement for a breach of which Shaw can recover damages. Why, then, pursue this old idea, and hold that the Pinets and Shaw must submit to a judgment against all of them jointly in this suit? For the result in such case will be that, if the Pinets are forced to pay it, they can sue Shaw for contribution, and, after he has paid it back to the Pinets

(for they have already paid their share), then Shaw can sue Seligman upon his agreement not to sue and recover his damages. Why not avoid at once this circuity of action, and hold Seligman to his agreement with Shaw, which, if kept, would relieve the Pinets from any further payment on the note, and Shaw from any liability, except such as arises under the new agreement?

If the Pinets had not paid the balance of the note,the two-thirds,-then there might be some sense in applying the rule invoked by plaintiff's counsel, and shown in the authorities above cited, although we do not wish to say that we would apply it even in that case. But the case here is simply whether Seligman shall be held in law to carry out his agreement with Shaw, or whether he shall be permitted, in effect, to violate it, and to recover in this suit what he has agreed he would not collect in this way, and leave Shaw and the Pinets to right the wrong in some other action The intention of the parties, if known, ought to have effect, without any technicality of form or pleading standing in the way. The same authorities cited by counsel for plaintiff that go so far as to hold that a release of one joint debtor cannot be pleaded in bar for the others or for himself, in an action to recover upon the joint debt, yet hold that if the release is under seal it will discharge all the joint debtors. But under our laws to-day I think a discharge or acquittance. of a debt is just as good without a seal as with it. See Milliken v. Brown, 1 Rawle, 398.

The intention of the contract between Seligman and Shaw, as shown in this record, was that two-thirds, and that only, should be collected of the Pinets, and that the the other third should be paid by Shaw as heretofore stated. If the authorities cited by plaintiff's counsel, and referred to above, are followed, the intent of this contract between Seligman and Shaw is disregarded and violated.

There is no reason for doing so, except a technical one, which should have no force in this day and age. The Pinets, on the showing made upon the trial of this case, were discharged when they paid two-thirds of the note in suit, and Shaw, who is holden on the other third, is entitled to pay it according to the new agreement.

The judgment below must be reversed, and a new trial granted, with costs to defendants.

SHERWOOD, C. J., CAMPBELL and LONG, JJ., conCHAMPLIN, J., did not sit.

curred.

ADDIE L. KEAM V. CALISTA CONKWRIGHT ET AL.

Judgment creditor's bill-Mortgage-Fraudulent transfer-Husband and wife.

1. Complainant filed a creditors' bill to subject a mortgage, originally executed to defendant Levi Conkwright to secure part of the purchase price agreed to be paid on the sale of 80 acres of land owned by him, and which, after delivery, was changed so as to make defendant Calista Conkwright the mortgagee, to the satisfaction of a judgment in favor of complainant and against Levi Conkwright; and, on a review of the testimony, the Court find that such change was made with intent to defraud complainant, and affirm the decree below granting the relief prayed for.

2. The voluntary assignment of a mortgage to the mortgagee's wife, by substituting her name as mortgagee after the instrument has become operative by delivery, and without consideration, will not prevent the subjection of the mortgage to the equitable remedies of a judgment creditor of the husband, in order to apply it in satisfaction of the judgment.

3. Where land, paid for by a wife, is by mistake conveyed to the husband, and the wife sells the land as her own, and informs the purchaser that she is the owner, and both understand that

a purchase price mortgage shall be drawn in her favor, which, by a mistake of the scrivener, is drawn in favor of the husband, the correction of said mistake, after the delivery of the mortgage, by the consent of the mortgagor, by substituting the name of the wife as mortgagee, cannot be claimed to be in fraud of the husband's creditors, and need not be supported by a new consideration.

Appeal from Newaygo. (Palmer, J.)

Argued October 22 and 23, 1889. Decided November 15, 1889.

Judgment creditor's bill. Defendant Calista Conkwright appeals. Affirmed. The facts are stated in the opinion.

Fred A. Mann, for complainant.

Andrew Hanson and Dumon & Cogger, for appellant.

CHAMPLIN, J. Levi Conkwright being indebted to Addie L. Keam upon a judgment rendered before a justice of the peace on September 16, 1885, for $136.53, and finding no goods or chattels to satisfy the same, a transcript was filed with the county clerk of Newaygo county on January 31, 1888. An execution was issued returnable February 21, 1888, at which time it was returned unsatisfied. Complainant then filed a judgment creditor's bill to reach equitable interests and things in action, and, after making the general charges usual in such bills, on belief charged that since the existence of her judgment the defendant therein was the owner in fee of a certain 80 acres of land, describing it, of the value of $1,200, and that on March 17, 1887, he conveyed the same by warranty deed to John Shaw, who as part payment therefor executed a mortgage back to said Levi Conkwright for the sum of $675, with interest at 6 per cent., payable as follows: One hundred and seventy-five dollars. and interest, February 1, 1888, and the balance in annual