2 N.E. 20 | NY | 1885
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *361 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *363 What consequence resulted to the plaintiff, from the assignment to him of his own bond and mortgage, is the first question debated in this case. When that transfer was made he had already sold the land to the defendant, not only subject to the outstanding incumbrance, but taking her personal covenant to assume and pay the mortgage debt. He has been defeated upon the ground that, while the mortgage lien might survive, as a taking of the pledge for the debt, yet the transfer of his own bond to himself worked an extinguishment of the personal security, and, at the most, left in existence only a liability of the land to the extent of its value and with no remedy beyond.
Ordinarily such transfer of the bond would extinguish the debt upon the principle that one cannot sue himself, and so there happens a complete suspension of all remedy, and that where he who is entitled to receive, and he who ought to pay are one and the same, an extinguishment of the debt is inevitable. (Thomas
v. Thompson, 2 Johns. 471.) But here the one entitled to receive was not the one who ought to pay, but, on the contrary, one who stood merely as surety for another primarily liable, and the general rule ceases to be conclusive when questions of suretyship and the equities resulting therefrom disturb *365
its simplicity and introduce new and modifying elements. The defendant's acceptance of the deed with its assumption clause made her a covenantor as if an express agreement had been given. (Bowen v. Beck,
But the judgment for the defendant is sought to be sustained on another ground. In the foreclosure action, as we have said, both Fairchild and Mrs. Lynch were made parties defendant, and personal judgments against each for any ultimate deficiency were sought. Mrs. Lynch defended: denying her assumption of the debt; charging the bond and mortgage to be fraudulent; pleading her coverture; but among all her defenses, never alleging that of payment or the extinguishment of the bond. Before trial she signed a stipulation consenting that a judgment might be entered in the action for the relief demanded in the complaint, except so far as it sought to make her liable for a deficiency, and judgment was accordingly entered of foreclosure and sale and against Fairchild for a deficiency. The effect of this judgment she claims discharges her liability in two ways. She contends that the acceptance of the stipulation by the then plaintiff released her, and as a consequence released Fairchild, her surety, notwithstanding it conclusively established his liability; and whether he chose to avail himself of a defense personal to himself or not; and further insists that the judgment at all events conclusively determined that she was not liable for a deficiency. But it seems to us very clear that it determined nothing as between the co-defendants, Fairchild and Mrs. Lynch. Their rights as between themselves were not in issue, were not tried, were not decided, and were totally immaterial to the case before the court. It is doubtful, even, if the effect of the stipulation was not simply to withdraw from the case the then plaintiff's right of action for a deficiency against Mrs. Lynch, and leave it open for future litigation if such should be deemed necessary. But, whether that be so or not, it certainly did not adjudicate upon any rights or equities between Mrs. Lynch and Fairchild and left them wholly undetermined. These rights were not before the court; *368 neither pleaded nor proved; unessential to the judgment rendered, and so not involved in it. That the court had power to have determined the ultimate rights of the parties as between themselves is true; but where such are not material to the actual issues before the court, or to the relief to be administered, they must, at least, in some manner be brought to the notice of the court, and actually determined, or involved in the judgment rendered, before that judgment can operate upon them. The rule that a judgment is conclusive not only as to the questions litigated but those which might have been litigated, means such as were within the issues before the court and so might have been determined. Such was not the case here. Mrs. Lynch denied her personal liability to plaintiff in the foreclosure. Whether or not she was so liable to Fairchild by reason of his purchase of the bond was a question not presented, and which, as the case stood, could not have been tried. The necessary facts for such a determination were absent both from the pleadings and the proof.
The judgment should be reversed, and a new trial granted, costs to abide the event.
All concur.
Judgment reversed.