6 N.J. Eq. 37 | New York Court of Chancery | 1846
On the 18th March, 1830, Aaron Peck gave his note, of that date, to Samuel Condit, for $1500 payable on demand, with interest; and, to secure the payment of it, executed and delivered to Samuel Condit a mortgage, of the
There can be no doubt that if Condit had not assigned his mortgage, but had himself filed tho bill for foreclosure, the court would have given effect to his agreement under seal, if produced by the administrators of Dodd, that the Dodd mortgage should be considered and held to be the first lien ; whether that agreement was considered as only a covenant or as something moro. Nor can there be any doubt that the assignee of a bond and mortgage takes them subject to all equities existing in favor of the mortgagor against the mortgage. But the question involved in this case is whether, when there are two mortgagees, one pier wd the ether subsequent, wd the subsequent mortgagee
For myself, I should be satisfied to let the result to which I have come in this cause rest on the "ground on which, thus far, I have put it. But, perhaps, it is the duty towards the parties, of a court whose decisions are subject to the review of a higher tribunal, to state every view that occurs to it which may have an influence on the decision of the cause, one way or the other. This is a case 'which, in view of the facts as they are claimed to exist on the part of the defence, may be said to bo of a very extraordinary character; so much so as to impress the idea that the defence should be examined with care. The view to which I have alluded as being proper to bo suggested respects the answer of the defendants. It appears to me there is an evident halting in it as to several important matters. They say that, on the 26th August, 1836, they released the lot secondly described in their mortgage, to the owners thereof according to law', from the operation and lien of their mortgage; and that the said release was made with the knowledge, approbation and consent of A. Peck and of Samuel Condit. That afterwards, on the said 26th August, 1836, Condit made and entered into an agreement in writing, under his hand and seal, to and with the defendants, dated the day and year last aforesaid, whereby he stipulated and agreed, for the considerations therein named and referred to, to and with these defendants, that the said Dodd mortgage should bo considered and held as the first lien on the land described in, the mortgage to Condit, as by the said agreement, now in the posession of these defendants, will appear. That the said agreement was made and entered into by Condit with a full knowledge that these defendants had made the said release. In a subsequent part of the answer they say, that the said agreement wa3
On looking at the writing called the agreement of Condit, we find it makes no reference whatever to the release given by these-defendants. It states the two mortgages, and that he, Condit, has agreed, for certain good causes and consederations, to give priority in payment to the Dodd mortgage; and then declares, that in consideration of the premises and of $1, to him paid, (without saying by whom,) he has thereby consented, covenanted and agreed to and with the said administrators of Dodd, that the Dodd mortgage shall be considered and held as the prior lien on &c. This writing is signed by Dodd only. The release executed by these defendants-recites that A. Peck, on the 1st May,.,, 1830, had executed and delivered.to Samuel M. Dodd a bond, and Mortgage for $2400 and interest on certain premises in Orange, one of which is a lot &c; (describing the second lot mentioned in that mortgage;) and then declares that they, for a good and valuable consideration, and of $1 to them paid “by John Peck the present owner of the said lot,” release the same from the operation of the said mortgage. The two instruments are sepa- - rate and distinct from each other, neither having any reference to the other. Now, as to the character of the answer, it is to-be remai’ked, first, that it does not allege that there was any connexion between the two writings, or that one was executed in consideration of the other. It is, indeed, inconceivable how are-lease by the holders of the Dodd mortgage, to John Peck, of a lot covered by that, the subsequent mortgage, which the Condit prior mortgage did not cover, could be a consideration for Con— dit’s giving priority to the subsequent mortgage over his, on the .only lot his mortgage covered, the only security he had. There -is something in that which ordinary men, dealing upon ordinary principles and motives, can not understand. But Condit’s agreeing and covenanting, that the subsequent mortgage should be considered and held as the prior incumbrance on the lot covered by the first mortgage, might be an inducement or consideration, for the holders of the subsequent mortgage to release from its-
Again, the answer does not state that these defendants were, or that either of them was present when Condit “made and entered into” the agreement, (to use the language of the answer,) nor that there had been any previous negotiation between Condit and them, or either of them, in reference to the subject matter of the release and agreement, or either of them. If the two were connected, and the release was given by these defendants in consideration of Condit’s writing, called the agreement, the counsel for these defendants would certainly have obtained that information from the defendants : he could not have failed to make the inquiry. And, if he was so informed, it is not conceivable that the astute draftsman of their answer could have put the answer in the shape he has given it.
Again, it is not alleged in the answer that the writing called Condit’s agreement was delivered to these defendants. A slight reading of the answer might make the impression that it was delivered to the defendants. The making the agreement, or writing called an agreement, is spoken of in several different places in the answer ; but in each of them there is an absence of the allegation of delivery, a circumstance which we have not a right to overlook. In each of the different places the allegation is, that Condit made and entered into an agreement to and with these defendants. This seems to be going far for the defendants to swear to, if they were not present at the time the writing was made, and it was not delivered to them; for an agreement in its proper legal sense requires the mind and assent of two persons. A reference to the language of the answer and of the writing itself will show on what ground the language of the answer was adopted. The answer says, that he, Condit, made and entered into an agreement in writing, under his hand and seal, to and with the defendants. By turning to the writing we find that the answer uses the language and form of expression of the writing. The writing says, Be it known &c., that I have consented, cov
But I am glad that I have been able to decide the cause very satisfactorily to my own mind, by the application of a just and equitable general principle; and have not been obliged to put the decision of a case so unexampled in some of its features on the defects in the answer on which I have felt it my duty to make the foregoing comments.
I am of opinion that the complainants’ mortgage is entitled to preference.
Decree accordingly.