Marshall v. . DaviesMarshall v. . Davies
As thе order of the General Term does not state that the reversal was on any question of fact, it cannot be sustained unless it be made to appear that some error of law was cоmmitted by the trial judge. The ease came before the General Term on appeal from the judgment, and exceptions, only, and it had no discretionary power to order a new trial in the absence of legal error.
The only exception to rulings at the trial, which has been argued, is that taken by the defendant to the exclusion of the question to him, on his being -recalled after thе plaintiff had rested, whether he had had conversations with Mr. Miller in 1870 or 1871, at his office.
The question of fact at issue was whether the defendant had notified Mr. Miller of the sale of the mortgaged premisеs to Leslie, and had requested Miller to proceed to collect the amount which might become due -upon the mortgage at maturity. The defendant Davies, who had the affirmative of that issuе, testified in his own behalf that he sold the property to Leslie in October, 1871, and that at about the time the first or second installment of interest on the mortgage became due, after the sale, he went to Miller’s office and there told him that he had sold the property to Leslie, who had assumed the payment of the mortgage, and asked Miller to collect the interest of Leslie, and also the principal when it became due, and if he did not pay it to foreclose the mortgage at once, and that Miller assented to that proposition, and that from the time of that interview until the *419 6th of January, 1877, he thought he had no further interview with Miller or the plaintiffs.
Miller being called on the part of the plaintiffs testified positively that no conversation of that kind ever took plaсe. On cross-examination he was asked whether he had any conversation at all with the defendant Davies in 1870 or 1871, and he answered none that he remembered ; that he might have had conversations that he did not recollect, but none of the nature testified to by the defendant.
After, the plaintiffs had rested, the defendant Davies was recalled and asked whether he had had any conversation with Mr. Miller during the years 1870 or 1871, at his office. This question being objected to on the ground that the witness had already testified, was excluded, and exception taken.
The witness was then permitted to аssert the positiveness of his recollection of the conversation to which he had already testified and to state the circumstances which enabled him to be positive.
We cannоt discover any legal error in the ruling excepted to. The court went further than strict rules required it to go, in permitting the defendant to be re-examinéd as to his original statement. This however was purely disсretionary. If the question which was excluded was intended to refer to this conversation, the exception is groundless. If the question related to any other conversation the exceptiоn is equally without foundation. Unless the conversation sought to be proved was material and tended to maintain the issue on the part of the defendant, it was irrelevant. If it was material, then it ivas entirеly within the discretion of the court whether or not to permit the inquiry. The defendant had been examined in support of his allegation of notice and request to foreclose. He had testified tо a conversation with Mr. Miller upon which he relied, and that he thought there was none subsequent. Having rested his case, and the plaintiff having closed his testimony, the defendant had no legal right to re-oрen his own case and introduce evi
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dence to sustain his defense, which he might have introduced when the case was with him. No rule for the conduct of trials is more familiar than that the party holding the аffirmative is bound to introduce all the evidence on his side before he closes.
(Hastings
v. Palmer,
The findings of fact of the trial judge disclose no error in his conclusions of law. He finds no notice to the mortgagees of the conveyance from Davies to Leslie, and no request to the 2)laintiffs to foreclose, and there is no uncontroverted evidence in the case which required him to find those facts.
Whether, if they had been found, the defendant would have been entitled to judgment, we do not now decide. But clearly, in the absenсe of those facts, the defense cannot be sustained; As between the plaintiffs and the defendant
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Davies; he was the principal debtor, and the plaintiffs were not bound to look after thе taxes on the mortgaged premises. We have held that where the mortgagor conveys to a third party, who assumes the mortgage, the relation of principal and surety arises between the mortgagor and his vendee; and that after notice of this relation, the mortgagee is bound to observe it and abstain from doing any act to the prejudice of the mortgagor, or which would impаir his recourse against the mortgaged premises in case he should be obliged to pay his bond and be subrogated to the mortgage. The mortgagee in such a case, after notice, cannot with impunity release the land, or extend the time "of payment, or do any other act to the prejudice of the mortgagor; and the prohibited acts are determined by the law of prinсipal and surety.
(Calvo
v.
Davies,
It is very clear however that, in the absence of notice of any change in the position of thе mortgagor, and of any request to foreclose, a mortgagee out of possession may rely upon the personal liability of Ms debtor, and is not bound to look after or protect thе mortgaged premises; and that if he forecloses the mortgage, the debtor is entitled to credit only for the net proceeds of sale realized by Ms creditor, after the deduction of all liens for taxes, etc., and remains liable .for the deficiency. In the numerous foreclosures which have taken place in this State since the organization of the Court of Chancery, no claim to the contrary appears ever to have been made, and we can perceive no foundation upon which such a claim can rest.
The order of the General Term should be reversed, and the judgment at Special Term affirmed, with costs,
All concur.
Order reversed and judgment affirmed.