1 Rob. 246 | The Superior Court of New York City | 1863
The assignee of a mortgage takes it subject to all the equities existing in favor of the mortgagor, or of any person who succeeds to his estate, at the time of the assignment (24 How. Pr. R. 505); and hence, Tatham’s right to require the application of the plumber’s bill towards the payment of the mortgage was as perfect as if Dunscomb had continued the owner of the mortgage. Tatham, by the assignment from Arment to him, succeeded to all the rights of Arment under his agreement with Dunscomb, and could have required Dunscomb, while he held the mortgage, or his assignee, afterwards, to deduct the amount of the plumbing work from the mortgage. It operated, therefore, as a payment pro tanto, and left only the balance due on the mortgage.
The mortgage, by its terms, was not payable until the
The plaintiff, in his complaint, elected to have the principal due, and the defendant had then the right, although after suit brought, to tender the amount of principal and interest due, and such tender, and a refusal to receive it, would extinguish the lien of the mortgage. (Kortright agt. Cady, 21 N. Y. R. 368.)
It is objected that Tatham is estopped from asserting the equity derived under the assignment from Arment, inasmuch as his immediate grantor had assumed' the mortgage for the whole amount, and agreed to pay it.
The general rule in respect to estoppels by deed is, that a man shall not be permitted to make any averment which contradicts the record of which he is a party. In other words, that he shall be concluded by the admissions in the deed to which he is a party. Hence, the grantee is estopped by the admissions of the grantor in the deed.
This rule, however, is not of uniform application, and it is unavailing except as between the immediate parties and privies of blood or estate. To a stranger it is wholly unavailable. (Jackson agt. Bradford, 4 Wend. R. 619; Jewell agt. Harrington, 19 id. 471.)
In Jewell agt. Harrington, the deed conveyed the premises “ subject, nevertheless, to the right of dower of Cloe Jewell, who was the widow of Samuel Nash, deceased, who was the former proprietor of the above described premises,” and the court held the grantee was not estopped from contesting the plaintiff’s claim for dower. They say the plaintiff is not privy to the deed in any way, but a stranger who had no interest or concern with it.
The only effect of the assumption of the mortgage by Smith was to make him surety for Cunningham, the mortgagor, and he became personally liable for the payment of
Even if Smith, who had assumed the mortgage, had been the owner of the premises at the time of this foreclosure, he would not be estopped by the recital in his hands. As Dunscomb, the mortgagee, was not bound by them, Smith would not be ; for there must be reciprocity to render an estoppel available. (Lansing agt. Montgomery, 2 Johns. R. 382.) But there is nothing in the assumption by Smith which binds his grantee. The defendant Tatham stands in no relation of surety in respect to the mortgage debt, and cannot in any way be affected by the purely personal obligation of his grantor.
There is, however, another reason why the doctrine of estoppel does not apply to this case. The deed from Cunningham to Smith, which recites the mortgage, and which, it is claimed, should operate as an estoppel, was executed and delivered before the agreement between Dunscomb and Arment, respecting the plumbing work, was made. At that time the whole amount of the mortgage was secured and unpaid, and it was proper for Cunningham to sell subject to, and for Smith to assume, the whole mortgage. The equity which was transferred to Tatham arose afterwards. The agreement with Arment for the plumbing work, and the performance of it by Arment, was after the assumption by Smith of the mortgage, and while Duns-comb was the holder of it.
It is clear, therefore, that in the hands of Dunscomb the plumber's bill would have been a good set-off against the
The plaintiff purchased the mortgage after all this took place, and he took it subject to these equities, which in my opinion were not defeated nor extinguished by the subsequent transfer of the mortgage to the plaintiff.
My conclusions are, that Tatham, having received, by transfer, the bill for plumbing work performed by Arment, under his contract with Dunscomb, could require its application as payment pro tanto on the mortgage, and that the tender of the balance due on the mortgage, and the refusal of the plaintiff to réceive it, extinguished the lien of the mortgage.
The conclusion of the learned justice was therefore correct, and the judgment should be affirmed, with costs.
