61 N.Y.S. 574 | N.Y. App. Div. | 1899
The mortgage which the plaintiff seeks to foreclose-was given April 27, 1861, by Nicholas S. Miller, upon three, parcels of land, of which he was the owner, to Peter I. Stophilbeen, to secure the
Upon these facts, we think the statute of limitations bars plaintiff’s recourse to the mortgagor, and to parcels 1 and 2. The payment of interest by Miller’s grantees after the mortgage became due was not Miller’s act; the extension or delay by the owner of the mortgage in exacting payment of the principal was not asked by Miller, or conceded to him; and hence whatever renewal of the mortgage was effected by the payment of interest was the act of others, and not of Miller, and therefore did not bind him.
It is contended, however, that Miller, in taking to himself the covenant of his grantee to assume the mortgage and pay it, employed the grantee to discharge Miller’s liability, and therefore whatever payments of interest the grantee made upon the mortgage were Miller’s acts. Murdock, v. Waterman, 145 N. y. 65, 39 N. E. 829, 27 L. R. A. 418, is cited in support of this contention. It was held in that case that the payment by the owners of one of the mortgaged parcels did not renew the mortgage, as to the owner of the other parcel, in the absence of evidence of agency of the payors for the owner of the
“The guiding and controlling consideration is that the payment must be made by a party to the obligation, or by his authorized agent. If payment by one is relied upon to take the contract out of the statute as to another, it must be shown that the party who made the payment was in fact or in law the agent of the other in respect to his liability. When the person paying is bound, those in privity with him may be bound, also.”
The mortgagor’s grantees were not the agents of the mortgagor. In the deeds to them, they covenanted to pay the mortgage debt. This covenant was one which the mortgagee could enforce. When they paid the interest, they paid it upon their own covenant, and also to protect their own title. As between grantor and grantee, the grantee was the debtor, and the grantor and mortgagor was surety. Whether one was the agent of the other depends upon their relations between themselves. As, by his assumption and covenant of payment, the grantee agreed to pay the debt he assumed, in' paying it he necessarily acted for himself; and thus he paid as principal, and not as agent. The mortgagor was not in privity with his grantee. He was not his heir, executor, or representative. He succeeded to no part of the mortgaged estate from him. Privity implies succession. He who is in privity stands in the shoes or sits in the seat of the owner from whom he derives his title, and thus takes it charged with the burden attending it. Here the grantee of parcel 3, in buying the mortgaged land, bought it subject to the mortgage; but, if he had not covenanted to pay the mortgage, he would have incurred no personal liability to pay it; and hence even the grantee of the mortgagor is not in privity with, the mortgagor, as to his covenant to pay, but that liability arises solely from his own covenant. It is apparent from the cases cited in the opinion in Murdock v. Waterman that the word “privity” is used in the sense we have indicated. Trust Co. v. Covert, 6 Abb. Prac. (N. S.) 154, and Hughes v. Edwards, 9 Wheat. 489, 6 L. Ed. 142. In these cases it was held that payments made by the mortgagor upon the bond which was secured by the mortgage would keep the bond and mortgage in life against the mortgagor’s subsequent grantees, for the reason that, the debt being the mortgagor’s, he could keep it alive by payments, and his grantees, having notice of the mortgage, sat in his seat, and were bound by his payments. He did not act as agent for them, but acted for himself as to the debt; and the mortgage, being security for the debt, and not a separate obligation for its payment, continued in life, along with the debt itself. In these cases the statute of limitations was not pleaded. See Fowler v. Wood, 78 Hun, 304, 28 N. Y. Supp. 976. We think the statute of limitations had run as to the mortgagor and parcels 1 and 2.
As the case was not tried before a jury, there was no need to move for a new trial on the minutes.
Judgment and order reversed as to the appellant, and new trial granted as to him; costs to abide the event. All concur, except KELLOGG, J., who dissents.