Elder v. Rouse

15 Wend. 218 | N.Y. Sup. Ct. | 1836

By the Court,

Nelson, J.

It is not material in this case to decide whether the interest of a pew-holder, in a house of public worship, is real or personal estate under the act incorporating religious societies in this state, 2 R. S. 292,2 Black. Com. 428, Toller’s Ex’rs. 200, 1 Bac. Abr. 601, 5 Cowen, 496, 3 Paige, 302, 1 Pick. 104, 3 id. 346, 9 Johns. R. 147, as we are satisfied upon an examination of the instrument, that there is upon its face, what may be deemed an express covenant by the defendant to pay the debt within the statute, 1 R. S. 738, § 139; It is apparent also, it was not the intent of the parties that the plaintiff should in the first instance seek a remedy against the property. There is nothing in the mortgage indi- > eating the necessity of such a step before a resort to the person ; on the contrary, the whole instrument shows the object of it was simply to secure the payment of the debt.

Where one person acknowledges, by deed or otherwise, a certain sum to be due to another, an action of debt or assumpsit, as the case may be, will lie to recover it. 2 Bac. Abr. 279. Vin. Abr. Debt, K.pl. 12; G.pl. 16, 17. 2Cowen, 536. 10 Wendell, 675. The language is equivalent to a formal covenant or promise, and the appropriate action would lie without the allegation of either : they being implied. The acknowledgement of the indebtedness itself creates a legal liability sufficient to sustain the action, 1 Chitty, 101, 2, 299, 346, and the admission in this case is as broad as that contained in a single bond. The case in this respect differs from Brisco v. King, Cro.Jac. 281,and Sailsbury v. Philips, 10 Johns.R.51. In the first of those cases the sale was an absolute one, and so intended upon the face of it, with a defeasance or right of redemption, and this merely for the benefit of the feoffor; in the other, the terms of the instrument clearly imported that upon neglect to pay the money, the assignee was to sell the interest in the lease, and in that way refund himself. Here the debt is acknowledged to be due upon the face of the instrument, and the property is transferred simply for the purpose of securing its payment. ,

Assuming the instrument to be a mortgage oí personal property, there is no pretence for saying that the plaintiff is bound to sell the property first, and can sue only for a deficit. The remedy by action to recover the debt after default, exists in full force, unless taken away by a stipulation in the mortgage, which is not to be found- here.

The plaintiff, I am of opinion, has shown a good cause of action, and is entitled to judgment.