44 How. Pr. 368 | N.Y. Sup. Ct. | 1873
The action is for the foreclosure of a mortgage. The amount claimed to be due and secured thereby is $500, with interest from May 1, 1871. The defendants are Mary F. Van Rensselaer, Jane A. Martyn, John Van Rensselaer, and Horatio N. Squires, all of whom make default except the first-named Mary F. Van Rensselaer. The equity of redemption is in the defendant Jane A. Martyn, who took title subject to the mortgage.
It is conceded that the plaintiff, as the case stands before me, is entitled to have the premises sold and the avails applied on the debt claimed in the complaint. But Mary A. Van Rensselaer defends with a view to escape liabilicy for
. The issue before me is one between the plaintiff and Mrs. Van Rensselaer, and does not affect the case as regards the other defendants.
The complaint charges that Mrs. Van Rensselaer covenanted to pay the plaintiff the sum claimed, and mortgaged the premises as security for such payment.
In her answer Mrs. Van Rensselaer denies that she covenanted or promised to pay the debt; sets up that the debt was not her debt, but was the debt of John Van Rensselaer, her husband ; the mortgage was given as collateral security therefor; and, further, sets up payment as to part of the debt and an extension of the time of payment, without her consent, of the balance.
' The issues thus presented are: 1st, As to Mrs. Van Rensselaer’s personal liability; and 2d, as to the payment of part with a'n, extension of payment of the balance.
First. Did Mrs. Van Rensselaer covenant to pay the debt ? or, in other words, does the mortgage contain a personal obligation on her part to pay the amount-secured by it?
The proof shows that the debt was not her debt, but was the- debt1 of her husband, and that the mqrtgage was upon her individual property as security for his debt. It is insisted, however, that she is bound personally to its payment by the term and legal import of the mortgage.
A mortgage of property which, contains no covenant or promise to pay the money secured by it, nor. any express acknowledgment of indebtedness by the mortgagor, creates no personal liability (3 N. Y., 264 ; 41 N. Y., 201, 207, 208, 14 Barb., 242; 13 Barb., 63-73; 15 Wend., 218; 10 Johns., 56-7). These cases contain but the reiteration of the rule laid down in others cited in 3 N. Y., 264; Cro. Jac., 281; 2 Modern, 36; 6 Blackf., 161; 7 Watts, 360; 2 Munf., 337. The mortgage in this case contains no covenant or promise in terms to pay on the part of Mrs. Van Rensselaer,
In Howell agt. Price (1 Piere. Will., 292) the mortgage recited a consideration of three hundred pounds, in considering which the lord chancellor said : “ There did not appear to be any contract, either express or implied, for the payment of this mortgage moneyand when the case was subsequently again considered, he added in substance that the remedy of the mortgagee would be against the premises on default of payment. ' It is true the question of personal liability was not directly up in the case.
In Salisbury agt. Philips (10 John., 57) the action was on an instrument made real, the recital-in which was as follows: “ For and in consideration of the sum of twelve pounds to me in hand paid by Abraham Salisbury, I do hereby assign over to him and his assigns forever all the estate,” &c. It was held that there was no personal liability. I understand, too, although it is not expressly so stated, that there was a similar recital in the instrument considered by the chancellor in Hone agt. Fisher (2 Barb. Ch. 560), wherein he held in
In Vrooman agt. Dunlap (30 Barb., 202), the mortgagor was sought to be personally charged with the deficiency after sale of the mortgaged premises. There was no bond or separate personal obligation given to or accompanying the mortgage. It was held that there was no personal liability of the mortgagor. I infer the mortgage was in the usual form as regards the recital of a consideration. Here, too, the mortgage was given as security on the purchase by the defendant of the mortgaged premises.
In Severance agt. Griffith (2 Lansing, 38) the mortgage was not accompanied by any bond or personal security; and; as may be fairly assumed, was in the usual form as regards the recital of a consideration. The court remarked that the mortgagee had no remedy against the mortgagors personally; that the remedies he had were against the lands mortgaged.
In Weed agt. Covill (14 Barb., 242) the action was on a chattel mortgage, which recited that for the consideration of one dollar, and to secure the payment of one hundred and ten dollars, it granted, &c. The question arose on demurrer to the complaint. It was held that there was no personal liability, not even for the one dollar. The court, per Hand, J., says there was no recital or declaration in the instrument that the defendant was personally indebted to the plaintiff, therefore no implied covenant to pay anything. It is merely a mortgage without personal liability.
In Culver agt. Sisson (3 N. Y., 264), two of the cases above particularly considered are cited with approval, to
And in the very recent case of Turk agt. Ridge (41 N. Y., 201—207), those cases again receive the approval ot the court of appeals, as does also Weed agt. Covill (14 Barb., 242).
It seems settled on authority, therefore, beyond peradventure, that a recital in a mortgage like that contained in the mortgage in this case was not an admission of indebtedness, from which a promise to pay the sum secured would be implied ; hence that no personal liability against the mortgagor was created thereby.
In many of the cases cited, too, the debt secured by the mortgage was the debt of a mortgagor. Not so in this case. Here the debt, to secure which the motgage was given, was the debt of another party.
I should not have deemed it necessary to examine these cases thus minutely, were- it not that I am cited to the case of Chase agt. Ewing (51 Barb., 597) as an authority, to the effect that the recital as to the consideration in the mortgage in this case, was such an admission of indebtedness as created a" personal liability against the mortgagor. Now, Judge Johnson was here examining the question whether the mortgage was an evidence of indebtedness, with a view to determine whether it passed under the clause of á will disposing of choses in action thus denominated. The mortgage was undoubtedly an evidence of indebtedness. So is the mortgage in this case. In law it falls under that .denomination. As Judge Johnson says: “That it is an evidence of indebtedness, seems too clear for argument.”
Every mortgage, whether it contain a personal liability clause or not, is an “evidence of indebtedness;” is a chose in action. ' It gives a right of action in case of default in the condition; to be enforced, however, against the property mortgaged only in case of the absence of personal liability.
Now, all that was decided in Chase agt. Ewing, was that the mortgage came within the denomination of “evidence of debt,” as that language was employed in the clause of the will there under examination.
It was not there decided that the usual recital in a mortgage, as to consideration, "which is generally inserted to uphold the grant which follows it, was an admission of indebtedness, creating a personal liability against the mortgagor. If the case did so hold, the decision would be flatly in conflict with the cases above cited, and manifestly unsound. The cases above examined, both in the English and American courts, including those in the court of last resort in our own. state, where these cases have received direct and unmistakable sanction, are flatly against such ruling. But the case, as I conceive, does not go the length claimed, and the recital urged upon my consideration and above examined, does not impart an admission of indebtedness creating personal liability.
Nor is there any other recital or statement in the mortgage amounting to such an admission. Stress is placed on the condition in regard to the payment. It is, however, the usual condition inform. The language is, ‘‘this grant is intended as security for the payment of five hundred dollars and interest,” &c. The condition is very much the same as in the mortgage under examination in Severance agt. Griffith (2 Lans., 38), and does not differ materially from those contained in other mortgages in the cases above examined.
It is further stated that a policy of insurance was assigned also as security ; but this is nothing more than a pledge in addition to the land, even if it be conceded that the policy
Second. The conclusion at which I have arrived on the point above considered renders the examination of the remaining issue, as to payment of part of the debt and an extension of the time of payment of the balance without the mortgagor’s consent, wholly unnecessary. Mrs. Van Rensselaer, having parted with the equity of redemption, has no interest in the controversy except to escape personal liability.
If, however, the testimony of Mr. Van Rensselaer be credited, the defense on this issue is established. Where a wife mortgages her separate property as security for her husband’s debt, her position is that of. surety, in which case, if there be an extension of the time of payment without his consent, the mortgage is discharged (Bank of Albion agt. Burns (46 N. Y., 170). But an examination of this branch of the case is unnecessary.
The plaintifl is entitled to the reversal of the judgment oí foreclosure and sale of the mortgaged premises, none oí the defendants having answered except Mrs. Van Rensselaer, who, as is proven, had conveyed the equity of redemption to the defendant Martyn.
The plaintiff, too, should have costs, as in case of failure to answer, except as against Mrs. Van Rensselaer, who is entitled to costs of the action on her part against the plaintifis.