8 Bosw. 396 | The Superior Court of New York City | 1861
The original validity of the mortgage given to the plaintiff upon the horses, stages and other personal property described therein is not questioned on this appeal. Yor is it suggested that the amount of the debt remaining due to the plaintiff
The appellants, Waterbury and Youngs, insist that they, being purchasers of the property, hold (or that Waterbury did hold, and Youngs now holds) the same free of any claim of the plaintiff under the mortgage, because the copy thereof, filed in February, 1855, (shortly before the expiration of the first year from its execution and delivery.) was not accompanied by a sufficient statement, showing the plaintiff’s interest at that time in the property.
The statement then filed, taken by itself alone, did not disclose the interest of the mortgagee, it neither stated, in terms, the amount which had been paid upon the mortgage debt, nor the amount which remained unpaid. It was, however, accompanied by a copy of an agreement made subsequent to the giving and filing of the original mortgage, .and such agreement was referred to in such statement, and the copy was filed therewith. If the two papers, read together in connection with the original mortgage, disclosed the interest of the mortgagee intelligibly, the statement should not be held insufficient, on the ground that the amount for which the mortgagee still held the mortgage as security was not specifically named. The agreement recited the several notes which were given to the plaintiff in part payment of the price at which he had sold his interest in the property, and stated when they were given, and when they had or would become due, according to their terms, and then proceeded to modify them in some particulars as to the times of payment; and it is not denied that the accompanying statement, filed with a copy of this agreement, and declaring that such only of the notes as according to the terms of that agreement had become payable, had been paid, sufficiently defined the mortgagee’s interest in the mortgaged property, so far as relates to the remaining notes. But the mortgage was also given to indemnify the plaintiff against certain outstandiug liabilities of himself and Jimmerson. Those liabilities were some of them outstanding, and are
If, therefore, the plaintiff’s claim against the appellants, who were subsequent purchasers, depends upon the accuracy of the statement in question, we are constrained to say that in respect of any claim in the plaintiff to a lien upon the property as security for any amounts or liabilities not mentioned in the statement, the statute was not complied with, and the mortgage became inoperative. (2 Rev. Stat., 3d ed., 196, § 11 ; Laws of 1833, ch. 279, § 3.)
But it does not follow that the mortgage became wholly void for this reason, not even as against creditors or subsequent purchasers in good faith. The statute requires, that a true copy of the mortgage be filed, “together with
So, if by mistake, or through misapprehension of what was necessary, he limits his claim oí interest under the mortgage to a less amount than is really due to him, the same result equally satisfies the statute and protects all third parties. As to them, he is bound by his statement.
It is suggested, that it was not necessary to repeat in the statement, when the copy of the mortgage was filed, that the mortgage still remained a security by way of indemnity for outstanding liabilities.
If the mortgagee had simply stated that his interest continued to be as expressed in the mortgage, except that
Unless, therefore, the want of a correct statement that • there were still liabilities outstanding, the payment of which was secured by the mortgage, is cured by some other fact or circumstance, then the amount recovered by the plaintiff out of the mortgaged property is too great. He should not have been allowed, as against the appellants, either the debt due to D. Willis, or the amount of taxes paid by him.
Ho such fact or circumstance is contained in the finding of facts by the Court at Special Term ; there the conclusion appears to proceed solely on the proposition that the statement as filed was sufficient. In the opinion of -the Judge it is stated that if the statement was not sufficient, the appellants cannot take advantage of the defect, because they had actual notice. Without questioning the proposition that the subsequent purchaser who can take advantage of such a defect in the refiling must be a purchaser in good faith, and that if he have actual notice both of the original mortgage and of the actual amount due, or at the time of his purchase secured thereby, he is not such a purchaser in good faith, there are two reasons why we think the appellants may take advantage of the defect in the present case. The first is that the Court at
Obviously it is not enough that they had notice of the existence of the mortgage, for the whole purpose and object of the refiling at the end of the year is that creditors and purchasers may be informed what is the interest of the mortgagee at the time, and the mortgage ceases to operate if that be not .done. The second reason is that the proofs do not warrant a finding that the appellants knew or had reason to suspect or believe that the statement filed in February, 1855, was not strictly true; it was not shown that they had any notice that any outstanding liabilities of Jimmerson & Beers, mentioned in the schedule annexed to the mortgage, were still outstanding and unsatisfied. On the contrary, the very notice publicly given by the plaintiff, produced in writing, which he says he read at the auction sale at which the appellant, Waterbury, purchased the property, states that he has a mortgage, aud that $5,243.50, with interest from February 1st, 1854, is unpaid thereon, all of which is due and collectible. This not only does not give notice that the mortgage is held also as an indemnity against other liabilities then outstanding, but it excludes any such idea.
But for this defect in the statement made on filing the copy of the mortgage, we should think there was no error in allowing the plaintiff’s lien and directing the payment of the amount due Willis, and reimbursing the amount paid for taxes of 1853 to the amount of $300, and all the interest which, under the laws regulating tfie collection of taxes, was chargeable thereon. The Court did, however, allow two sums, $251.73, and another tax which, with interest, amounted, when paid, to $181.45, but the original or principal amount of which was not proved. In
In regard to the alleged agreement by the plaintiff to take $2,500 in stock, it must suffice to say that we do not think the finding of the Court is against the weight of the evidence, but the contrary.
It was strenuously insisted upon by the appellants that the mortgage could not, as against subsequent purchasers, operate to bind property not owned by the mortgagors when it was given, but afterwards, in the course of their business, substituted for portions of the mortgaged property used up or disposed of; that the covenant in that respect is personal to the original mortgagors; and that the only new property substituted or brought within the terms of the mortgage as to substitution, was purchased by the appellants, after they became owners of the mortgaged property. Although the Judge, at Special Term, in the memorandum of opinion printed in the case, does consider the substituted property bound by the mortgage, neither his conclusions of law, nor the judgment of the Court, adjudged such property to be subject to the lien of the mortgage. All that is directed to be delivered to the receiver, and all that is to be sold, is the property now remaining, which was included originally in the mortgage.
Instead of charging the substituted property with the lien of the mortgage, the Court have charged upon the appellants the value of'the property, which was included in the mortgage, and which it is admitted they have consumed, sold, destroyed or disposed of. In this there is nothing inequitable.' The value of this portion, of the property is also agreed upon; and if what remains of the property should not produce sufficient to satisfy the debt due to the plaintiff, it is difficult to suggest a reason why they ought not to make it good.
This is the only personal liability cast upon them by the judgment. Even conceding that they took the property in hostility to the mortgage, not only not assuming to pay it, but denying that it was an existing lien, still they took, with notice of the mortgage, and had no right to deprive the plaintiff of his security by destroying or disposing of the property.
As to the appellants’ claim to an allowance, by way of counterclaim, founded on the fact that the plaintiff was a stockholder; we think that the question involved therein is not open to discussion. The case of Bailey v. Bancker, (3 Hill, 190,) must be deemed to dispose of the question. The appellant, Waterbury, being himself a stockholder, can only set up the claim in a proper action against the stockholders generally for a contribution.
And the alleged counterclaim, founded on the supposed subscription of the plaintiff, for $5,000 of stock in the Stage Company, was properly rejected: First, because the facts proved show that that subscription was abandoned; second, because no such counterclaim was set up in the answer; and this is fatal, since, to allow it, because some evidence of it was given, would not be to disregard amere variance,
The judgment is, we think, for the reasons first above stated, erroneous, in so far as relates to the allowance, out of the proceeds of the mortgaged property, of the sum paid for taxes and the debt due Willis; and, as to the appellants, should be modified by abatement to that extent. This, however, does not deprive the plaintiff of his right to have the full amount from the Stage Company, who have not appealed.
If the plaintiff should consent to deduct, from the recovery from the appellants and the mortgaged property, the two items thus specified, leaving the judgment to stand for the full amount as to the other defendants, the modification should be made and the judgment as modified be affirmed without costs on the appeal.
If he do not so consent the judgment must be reversed, and a new trial ordered, with costs to abide the event.