| N.Y. App. Div. | Jul 1, 1897
Cecilia McKenna was -the owner of four lots on One Hundred and Second street in the city of New York. In July, 1894, she made a contract in writing with the plaintiffs, under which they agreed to do the brown stone work for four houses to be erected on these lots, and she agreed to pay $7,500 therefor. The contract provided for the payment of $3,800 of this amount in four installments, and the balance of $3,700 “in note to run for 3 months, when buildings is [are] inclosed, with security.” The plaintiffs furnished the material
“New York, January 9th, 1895.
“ I hereby agree to give Dempsey .& Smith a mortgage, the first-.after the: permanent loan on. four (4) houses situated on North side-of West 102nd Street,- 100 • feet east of Columbus Avenue, N. Y. City,, the said mortgage to be given immediately after the receipt by me of the permanent.loan. Said mortgage being for $8,600, for stone-work- on said houses, the receipt of which I hereby acknowledge-
“ CECILIA McKENNA,
“By James McKenna, Atty.”
This agreement was not kept. Shortly after the ■ permanent loan-■was effected Cecilia McKenna gave mortgages to Charles Riley,-and others to George W. Lumb and Charles L.. Lumb, and then conveyed the fee to Charles- W." Gilbert. The plaintiffs thereupon brought this action to .compel Cecilia McKenna, to-give . them"the mortgage which she had agreed to" give. To this end they prayed in their complaint that her conveyance of the fee to -the, defendant Gilbert should be set aside as wholly fraudulent and void. They also asked that, the mortgage to be given to them should be declared a prior- lien to the mortgages which had been made to the • defendants Riley and Lumb, on the ground that these defendants paid no consideration, or an insufficient consideration, for' their mortgages, and took them with full notice and.knowledge of the plaintiffs’ •rights under the agreement of. January 9, 1895.
Upon the trial it was proved without dispute that the deed to- the defendant Gilbert was really a mortgage to secure payment of a. balance due to him for mantels which he had- furnished to- the premises. This balance amounted to but $913.10 on -February '2, 1895, while the "equity in the property, which he acquired.as security probably exceeded $20,000. As to -the defendants Lumb, the proof failed to show any notice to them ;of. the agreement to -give. the plaintiffs a mortgage, and the plaintiffs on. this appeal- do not question the propriety of dismissing the complaint -so far' as ' these particular- defendants- are concerned'. In regard to the defendant Riley, the evidence as to notice was conflicting, with-.a-decided
Two opinions were written at the Special Term. The first relates to the capacity of the plaintiffs to maintain the action. It appeared on the trial that, after the suit was commenced,' the cause of action had been transferred to the Brainerd Quarry Company by an instrument of assignment delivered after all the defendants had been served. The suit could be continued in the name of the original plaintiffs under these .circumstances. (Code Civ. Proc. § 756 ; McGean v. Met. El. Ry. Co., 133 N.Y. 9" court="NY" date_filed="1892-04-12" href="https://app.midpage.ai/document/mcgean-v-metropolitan-elevated-railway-co-3632176?utm_source=webapp" opinion_id="3632176">133 N. Y. 9 ; Payne v. Wilson, 74 id. 348, 354.) And such seems to have been the conclusion of the learned trial judge, although at first he entertained some doubt on the subject. In his second opinion, however, delivered after a reargument, he directed judgment - against the plaintiffs on the ground that a present valuable consideration, as distinguished from a past indebtedness, is essential to support an agreement to give a mortgage, so as to make the specific performance of such an agreement enforcible in a court of equity; and he held that there was no sufficient proof before him of the present consideration which the law requires in a case of this character.
The appellants not oidy question the correctness of the rule of law thus laid down, but contend that, even if it be correct, the proof shows that the agreement upon which they rely was founded upon just such a present consideration as the rule prescribes. As I think they are right in the latter respect, it may not be necessary to determine whether the court below stated the legal proposition too strongly or not, but it seems to me that the tendency of the decisions and the weight of authority are in favor of the view of the law which was expressed at Special Term in regard to the necessity of a present consideration to create an equitable mortgage of which the specific performance will be decreed. In most cases, as was said in The National Bank of Norwalk v. Lanier (7 Hun, 623), “ equitable mortgages which have been upheld have been created to secure an advance of money or of credit made at the time, or of
But, as already intimated, I think there- actually was a present consideration for the agreement by Cecilia McKenna to give the plain-' tiffs a mortgage on her One Hundred and Second street property.
Security was expressly promised by the.original contract concerning the brown stone, to be given with the notes for the balance of $3,700 which should be due. when the buildings were inclosed. The subsequent execution and delivery of.the agreement to give the mortgage may well be regarded as a fulfillment of this promise, and as so relating back to it as to make the performance of the. work by. the plaintiffs a continuing consideration which was operative up to .the time of the 'mortgage agreement. Furthermore, 'the- mi contradicted testimony of James McKenna shows that instead of insisting on their pay for this brown stone as they might have done, the plaintiffs “ agreed to take a mortgage payable in a year.” This was
It follows that even on the theory upon which the case was tried • by the court below, the agreement of January 9, 1895, is to be deemed enforcible against Cecilia McKenna. We must next inquire to what' extent, if at all, is the equitable mortgage thus created in the plaintiffs’ favor entitled to priority over the subsequent mortgages to Riley and the conveyance (which, as we have seen, is really a mortgage) to Gilbert. Upon the evidence in this record it is a lien which certainly takes precedence of those asserted by Riley and probably of that asserted by Gilbert. The plaintiffs, upon the testimony of Gilbert himself, were entitled to have his deed adjudged to be merely a mortgage, whether it is subordinate to their equitable mortgage or not. The priorities of these mortgages can be adjusted in the new trial which we are constrained to order.
The judgment should be reversed, except as to the defendants Lumb, and a new trial granted, with costs to abide the event.
All concurred.
Judgment affirmed as to’defendants Lumb; as to other defendants, judgment reversed and new trial granted, costs to abide the final award of costs.