1 N.Y. 498 | NY | 1857
The correct method for the defendant to have brought the question which he wishes to raise, before the court, was to set out the mortgage verlatim, and then to have stated the matter of avoidance, which, upon his construction of the mortgage would have barred the action; or he might have denied the execution of the alleged mortgage. Either of these methods would have raised the question of law arising upon the instrument; but an averment that a certain clause is not contained in the mortgage, without giving its actual language, does not afford sufficient data for determining its legal effect. Such an answer would have been insufficient under the former rules of pleading. But as those rules are abolished, we are perhaps obliged to pronounce upon these securities in the light of such averments respecting them as the parties have furnished us with.
The complaint sets out the bond, and as a portion of it, the clause by which the payment of the principal of the debt was to be accelerated by a default in the interest; and it then states the execution of the mortgage on the same day “ as collateral security for the payment of such indebtedness,” and that it contained the same condition as the one in the bond. As the plaintiff was only bound to state the legal effect of his securities, leaving it to the defendant, if he questions the accuracy of the statement, to set them out or to deny the deeds, his pleading is not to be understood as averring that the mortgage contained a condition in the same language with that embraced in the bond. The complaint would be proved in substance if it should appear that the mortgage contained a reference to the bond in the usual form, “ according to the condition of a certain bond, bearing even date with the mortgage.” Such a reference would be sufficient to make the mortgage payable upon the same conditions, in all respects, with the bond; and it might, then, properly be said that the mortgage was upon the same condition as the bond. A mortgage is always collateral to the debt attempted to be secured, and when it refers to the instru
I conceive that the recording laws have nothing to do with the case. The defendant purchased with full knowledge of the plaintiff’s mortgage, and subject to it. The existence or effect of constructive notice, arising out of the record, is immaterial to the case. The defendant, by his purchase, undertook to pay off the mortgage, according to its terms. If the mortgage referred to the bond, and the answer does not deny that it did, he had notice of that instrument and was bound to make himself acquainted with its provisions. I am of opinion that the answer is insufficient.
The judgment of the Supreme Court should therefore be reversed and judgment should be' given for the plaintiff.
Judgment reversed without costs and judgment rendered for plaintiff, with leave to defendant to answer without payment of costs. *