57 How. Pr. 378 | The Superior Court of New York City | 1879
Lead Opinion
This proposition is not disputed, that Frank E. Wells, on accepting the conveyance of the mortgaged premises from George H. Wells and wife, wherein the former expressly assumed the payment of the bond and mortgage in suit, became, as between himself and George, primarily liable for the mortgage debt; and further, that the holder of the claim (the mortgagee) might enforce such liability' by personal judgment against him. But it is insisted that it was competent for George to discharge such personal liability against Frank, without the assent of the mortgagee, at any time before the latter had taken any step in his own behalf for its enforcement. The court so held at special term, and gave judgment for the defendant on the demurrer to the answer, wherein a release by George to Frank was set up as a defense to the claim by the mortgagee of personal liability against the latter. The ruling at special term is supported by the decision in Stevens agt. Casbacker (15 N. Y. Sup. Ct. [8 Hun], 116). In that case, as in the case in hand, the grantee had reconveyed to his grantor, and the latter had released the former from his agreement to pay the mortgage debt, and had gone into possession under the deed of reconveyance beforé the mortgagee commenced his action, in which he sought to charge the party personally on his agreement. The court held that the release was effectual as a discharge against the claim of the mortgagee. The learned judge says:
Concurrence Opinion
I concur in this opinion as a necessity from the authorities in this state.
Learned, P. J., dissented