Seymour v. Lewis & Whitney

19 Wend. 512 | N.Y. Sup. Ct. | 1838

By the Court,

Bronson, J.

It was not denied on the argument, nor could it be, that both Hill and the Sea Insurance Company took the bond and mortgage subject to all the equities existing between the original parties. When the plaintiff’s note, which had already been negotiated, was afterwards paid, it was in law a satisfaction of so much of the mortgage debt; and the plaintiff had the right to insist that the payment should be allowed, whoever might hold the securities. How is it possible then that this action can be maintained ? It is said that the defendants made a contract to apply the amount on the bond and mortgage, which has been broken. The plaintiff has not counted upon such a contract. But, in truth, this was nothing more than a receipt for so much money to be endorsed when the note should be paid. The mortgage is yet outstanding, so far as appears, and the plaintiff must insist on this payment as against the holders. But should he neglect to do so, he could not call on the defendants to refund the money. Loomis v. Pulver, 9 Johns. R. 244.

The plaintiff complains that instead of endorsing the amount on the bond and mortgage, the defendants- have made it necessary for him to defend a suit in equity. We cannot presume that the insurance company will refuse to allow a payment which they cannot resist; but should they do so, and should the plaintiff be put to trouble or expense in defending his legal rights, that will not authorize him to recover back money paid in part satisfaction of a debt. If the mortgage had not been assigned, the defendants might put the plaintiff to the inconvenience of proving the payment, but that would not entitle him to recover back the money. ,

It is said that the defendants, having received the whole amount of the mortgage money on making the assignment, now hold the amount paid by the plaintiff without any title to it; and that it belongs to the plaintiff. It may be true that the defendants have $684 in their hands which does not belong to them; but it cannot be maintained that it belongs to the plaintiff. He paid it in satisfaction of a debt. The money belongs to the assignee of the mortgage. He is the person who h~s been wronged; and to him the defendants, or Whitney who made the assignment, are answer able. If subjected to this action they might be charged with a double burden.

New trial granted.