| N.Y. Sup. Ct. | Sep 7, 1857
It was quite uncertain upon the evidence, whether the payment of the ten dollars by Newsam to Chamberlin was before or after the note became due. The referee has found it was before; and in accordance with the general rule in such cases, his decision of the question is final.
The making of the payment before it was legally demandable, was a sufficient consideration for the agreement between Chamberlin and Newsam, that the time for the payment of the balance of the note should be extended until it should be convenient for the latter to pay it; and the effect of that agreement was, to postpone the time for the payment of the balance after the note should become due by its terms, for such a period as under all the circumstances of the case should be reasonable. (Howes’ Executor v. Woodruff, 21 Wend. 640.)
This extension of the time for payment, by a valid and binding agreement, without, so far as appears, the consent, or even knowledge at the time, of Finch, the surety of Newsam in the note, discharged Finch from all liability, on the note as such surety. And although the mortgage from Newsam to Finch was conditioned for the payment of the note to the latter, as it appears the note was held by the firm of Chamberlin & Wood, to whom it was payable, and it is fairly to be inferred from the evidence that Finch received the mortgage merely for his indem
The finding of the referee, that at the time the defendant took the property under the mortgage, no default in performing the conditions of the mortgage had occurred, involves the conclusion that a reasonable time for the payment of the note according to the agreement of extension had not elapsed; and the court cannot upon the evidence, in the absence of all proof as to the circumstances to be regarded on that question, say that the referee erred in that conclusion.
Although Finch was discharged from liability on the note, he might enforce the mortgage given as security to him for its payment, for the benefit of Chamberlain <fc Wood, the creditors in the note, who had an equitable interest in the mortgage, but subject to any defense which might be set up as against them.
It was expressly provided in the mortgage, that until default in the payment of the mortgage debt, Hewsam should have the possession of the property, unless Finch, his executors, administrators or assigns should sooner demand the same. Ho default had taken place, and the taking was without the consent or knowledge of Hewsam, and without any demand of the property of him or of Ms agent who was then in possession of the property.
For the foregoing reasons, I think the judgment at special term was right, and should be affirmed.
Johnson, T. R. Strong and Welles, Justices.]