165 N.Y. 372 | NY | 1901
On February 20, 1889, Cornelia Hall executed and delivered to George L. Parker her bond, conditioned for the payment of four thousand dollars on February 28, 1892, with interest payable semi-annually, and as security therefor a *374 mortgage of certain lands in the county of Orange. George L. Parker, on July 19, 1889, assigned the said bond and mortgage to Sarah C. Parker. On such assignment the defendants, by a separate instrument under seal, guaranteed to Sarah C. Parker the payment of said bond and mortgage. In April, 1890, default having been made in the payment of the previous half year's interest, Sarah C. Parker instituted an action to foreclose the mortgage, declaring her election that the principal should become due according to a stipulation to that effect contained in the mortgage. At this time one Penoyer had become the owner of the equity of redemption, but had not personally assumed the payment of the mortgage debt. Evidence was given on the trial to the effect that after the commencement of the foreclosure suit an agreement was made between Penoyer and Mrs. Parker, whereby, in consideration of the payment of the interest and costs and the delivery of further security for the payment of the debt, the default in interest was waived and the mortgage reinstated in accordance with its original terms. When the mortgage became due in 1892 Angelina R. Ketchum was the owner of the mortgaged premises, but was not personally liable for the mortgage debt. Evidence was given on the trial showing that at this time, in consideration of the execution and delivery of the personal bond of Angelina Ketchum, Mrs. Parker agreed to extend the mortgage for a further term of three years. In 1896 the mortgaged property was sold under the foreclosure of a prior mortgage and brought only sufficient to pay that mortgage and the expenses of foreclosure. Thereafter, the plaintiff, who had become the owner of the bond, mortgage and guaranty, brought this action to recover the amount due on the mortgage. The defendants answered, setting up among other defenses the two extensions of time already recited, by which it was claimed they were discharged from liability. The plaintiff had a verdict at Trial Term. The defendants' motion for a new trial was denied and judgment entered on the verdict. On appeal the judgment and order denying a new trial were reversed and a new trial ordered. The order *375 entered by the learned Appellate Division is somewhat peculiar, as it affirmed the findings of the jury on some of the issues in the case and reversed them on others. It is not necessary to give the details of this order; it is sufficient to say that concededly the appeal before us is in such shape that if it should be held that the extensions referred to wholly discharged the defendants from liability, the order of the Appellate Division must be affirmed.
The contention of the appellant is that as neither Penoyer nor Ketchum was personally liable for the mortgage debt, the extensions granted those persons did not discharge the original debtor, Cornelia Hall, entirely from her obligation, but only to the extent of the value of the mortgaged lands (of which no proof was given on the trial), and that the defendants were relieved from liability on their guaranty to no greater extent than their principal was discharged. The first proposition, that the bondsman was discharged only to the extent of the value of the land, is undoubtedly the law of this state. (Murray v.Marshall,
This case differs in principle from that of Vose v. FloridaRailroad Co. (
The order appealed from should be affirmed and judgment absolute directed for defendants on the stipulation, with costs.
PARKER, Ch. J., GRAY, BARTLETT, MARTIN, VANN and WERNER, JJ., concur.
Order affirmed.