Jackson v. Stackhouse

1 Cow. 122 | N.Y. Sup. Ct. | 1823

Curia, per Woodworth, J.

The defendant was not entitled to notice to quit; there was no privity either of contract or estate between the defendant and the lessor of , the plaintiff The relationship of landlord and tenant did not exist between him and the mortgagee. (2 John. 84. 4 John. 215. 3 John, 422.) The indorsement on the bond by Roseveit, was intended to discharge Thurman from personal liability only, and that the mortgage should remain a lien, pn the land. It may be questioned, whether the writing can-have any effect. A release, not by deed, and without consideration, is void ; (13 John. 87) no consideration is stated, and it is not under seal; if it had been, it would be construed as a covenant not to sue Thurman, and operate as a release to avoid circuity of action. (2 John. 448, Harrison v. Close & Wilcox.)

If the debt due on the bond was in judgment of law released, the mortgage would be discharged also. But the writing being inoperative, the mortgage remains in force. The motion for a non-suit was properly overruled.

The release given in evidence by the the defendant, discharged the judgment obtained against the mortgagor, for two years interest on the bond ; it also contains general words, “ in full, of all debts, demands, judgments, executions and accounts, of whatsoever nature, in law or equity.n It is well settled, that where there are general words alone, . in a deed of release, they shall be taken most strongly against the releasor ; but where there is a particular recital, and then general words follow, the general words shall be qualified by the particular recital. (5 Bac. tit. Rel..(K) 710.)

Thus, if a release acknowledges the receipt of £10:,. and , thereof acquits and discharges the person of whom it is received, and also of all actions, debts and demands, by the release nothing is discharged but the £10; for the last words-are limited by the first. (2 Roll. Ab. 409. 3 Mod. 277. 1 Ld. Ray. 235. 4 B. & P. 113. 5 Bac. 711.) So in this case the release discharged the judgment only ; the general words have no effect beyond it. The evidence offered to. prove that it was agreed that the mortgage should be held by the mortgagee, as a cover for the benefit of the mortgagor, was irrelevant and inadmissible, inasmuch as it would contradict the indorsement signed by the mortgagor, which states that the mortgage might be foreclosed as security for the interest then due on the same. Thurman was properly rejected as a witness ; the defendant held under him, and . whether bound to protect the defendant or not, he had an interest in the possession, which could not be supported by-his testimony.

The defendant offered to prove by parol, that the bond •* was discha ged, at the time the indorsements were made, for a full and satisfactory consideration. I think the Judge erred in considering that fact before proved by the indorsements. It was certainly admissible to prove payment of the bond, as a distinct fact, unconnected with the indorsements. This was substantially offered, and had it been proved, the plaintiff could not recover. On this ground I am of opinion that the verdict be set aside, and a new trial granted, with costs to abide the event.

New trial granted.