King v. Whitely, 10 Paige Ch. 465

King v. Whitely

10 Paige Ch. 465 | New York Court of Chancery | 1843

The Chancellor.

The agreement between the complainant and Whitely, endorsed upon the mortgage, could only render the latter liable for the payment of the interest, at the rate of seven per cent, during the time of the extension agreed upon. Í The only question in this case, therefore, is whether the complainant is entitled to the benefit of an agreement made between the respondents and Wilkes, who does not appear to have been liable for the payment of the mortgage debt, or to have had any interest in discharging the mortgage, except so far as it was an incumbrance upon the premises which he conveyed to them.; Indeed the answer expressly denied the personal liability of Wilkes; and no proof whatever was introduced to show that he was under an obligation to any one to pay off and discharge the mortgage, or to satisfy any deficiency which might exist upon the foreclosure and sale under the mortgage.

¡ In Halsey v. Meed, (9 Paige's Rep. 446,),! came to the conclusion that the acceptance, by the grantee, of a conveyance which contained a recital that he was to pay off and discharge an existing incumbrance upon the premises conveyed, as in this case, was evidence of such an agreement between him and the grantor ; although the grantee *468had not himself executed the conveyance. It was also decided in that case, as well as ih,the previous case of Curtis v. Tyler Allen, (Idem, 432,) that where the grantor in such a conveyance "was personally liable for the payment of the incumbrance, the grantee became the principal debtor, by such an agreement; and that the grantor stood in the situation of a mere surety for him, as to the payment of such incumbrance, so as to give the holder of the incumbrance a right in equity to resort to the grantee for payment, if the premises upon which it'was a lien should prove insufficient'for that purpose.^ But the principle upon which the decisions in those cases,"and in others of the same class, are founded, does not apply to a promise made to a third person who is not personally liable, either at law or in equity, to the holder of the incumbrance; and who is under no obligation to any one for its payment.^ The principle of all those cases is that in equity the creditor is entitled to the benefit of all collateral obligations, for the payment of the debt, which a person standing in the situation of a surety for others has received for his indemnity, and to relieve him or his property from liability for such payment. ¡(See 9 Paige’s Rep. 435, and the cases there referred to.)

There is another class of cases in which the courts give effect to stipulations in marriage settlements, and in other contracts of a similar nature, in favor of third persons for whose particular and special benefit the stipulations were intended; although such persons were not parties to the contracts. (Bleeker v. Bingham, 3 Paige’s Rep. 246.) And in the case of Dutton and wife v. Poole, (1 Vent. Rep. 318, 332,) the court of king’s bench permitted the daughter to maintain an action of assumpsit, upon a promise made to her father, to pay a sum of money to such daughter, upon a consideration between the promissor and the father. The court in that case, however, put its decision upon the ground of the relationship between the father and his child ; and said the decision might have been otherwise if the payment had been required to be made to a stran*469ger. A similar decision was made by the supreme court of this state, in Schermerhorn v. Vanderheyden, (1 John. Rep. 139,) where a promise was made to the father, to deliver a desk to his daughter, upon a consideration paid by the father to the promissor. (See also Starkey v. Mill, Style’s Rep. 296.) These cases, however, all rest upon the ground that the person obtaining the promise, and from whom the consideration proceeded, intended it as a gift to the person in whose favor the stipulation was to be performed ; and who was particularly named or referred to in the agreement 3 as the person intended to be benefitted thereby. :

In the case under consideration, there was no promise to pay the bond and mortgage to the complainant, for his benefit. Hor was there any agreement in writing, signed by the respondents, to render them liable for the deficiency ; which deficiency,from the papers before the assistant vice chancellor, appears to have been the personal debt of the mortgagor only. - As there is nothing to show that Wilkes was under any obligation to pay off the mortgage, or that he intended to benefit either the mortgagor or the mortgagee, by the agreement with the respondents, recited in the conveyance to them, that agreement must be construed as a mere declaration that the property was conveyed to them subject to the lien of the mortgages thereon; and that the general covenants of seizin and warranty, in the conveyance, were not intended to extend to these particular incumbrances, of which the grantees assumed the payment in case they should wish to retain the title to the lands conveyed to them, j

For these reasons I think the complainant failed in showing that the respondents Whitely and Close were personally liable to him for the deficiency, if any there should be, upon the sale of the mortgaged premises. ["The part of the decree appealed from must therefore be affirmed with costs. (