94 N.Y.S. 565 | N.Y. App. Div. | 1905
The action was brought to foreclose a mortgage given by the defendant under the name of Eva A. Mabee to the plaintiff’s intestate on the 31st day of March, 1897, to secure the payment of $750. The defendant plead payment and a counterclaim for work, labor and services amounting to $900. The referee found that the mortgage was not paid and that the defendant was entitled to a portion of her counterclaim.
The mortgage was accompanied by a bond, and both bond and mortgage was found amongst the papers of the deceased, together with a signed and witnessed, but unacknowledged, satisfaction of the mortgage. Upon the back of the bond, in the handwriting of the plaintiff’s intestate, appeared the following:
“ I hereby certify that I have received full satisfaction for the within bond, and hereby release the said Eva A. Mabee from any and all obligations because of the same.
“ December 2$th, 1899. LUCY B. POTTER.”
The defendant introduced in -evidence this written and signed admission of the mortgagee as evidence of payment, and supplemented it by showing extremely friendly relations between the mortgagee, an old lady whose son at the time of his decease was engaged to marry the mortgagor, and the performance of valuable services by the defendant for the plaintiff’s intestate, and various declarations by the plaintiff’s intestate as to her intention to pay for them.
No explanation was proved of the circumstances of making the indorsement, or that it'was intended for any purpose except a declaration that the obligation was paid.
In the absence of any facts impeaching the force of the admission, we think it was error for the referee to hold that the bond and mortgage were not paid. The signed statement was against the interest of the holder of the mortgage, and was as strong.an admission as she could make that full satisfaction of the obligation had been made, and was prima facie evidence of payment. (Matter of Kellogg, 104 N. Y. 648, 651; Risley v. Wightman, 13 Hun, 163; Roseboom v. Billington, 17 Johns. 182.) The services rendered by.the defendant to the plaintiff’s intestate being valuable, constituted a consideration for the satisfaction of the mortgage. Full payment was not necessary to make a valid consideration. Mere inadequacy of consideration, in the absence of fraud or deceit, is not, failure of consideration. (Earl v. Peck, 64 N. Y. 596; Cowee v. Cornell, 75 id. 91.) If the consideration was good as .between the parties, it was good as to all the world. The plaintiff’s intestate could place a high value on slight services and satisfy the mortgage in consideration of their being rendered to her, if she saw fitj and she and her representatives would, be bound by her executed agreement. The written admission signed by her established prima faeie that she had made such an agreement and carried it out. Until it was shown that the indorsement was made and signed for some other purpose, it was binding upon her and her estate.
It' is claimed that the fact that there was also an indorsement upon the bond that interest had been ..paid to April 1, 1900, a time subsequent to the date of the satisfaction, and that a formal satisfaction had been executed but not delivered, showed that there was no intention on the part of the mortgagee to satisfy the mortgage, but rather that it was her unexecuted-intention to give the obligation to the mortgagor.
The evidence falls short of establishing this. . It does not appear when the indorsement of interest was in fact made. It may have been indorsed prior to the date of the satisfaction. The fact that the plaintiff’s intestate procured a formal satisfaction to be drawn and had expláined to her the necessity of having it recorded in order to take the mortgage from record, is not inconsistent with her having actu
The plaintiff did not show sufficient facts to overcome the force of the written admission of his intestate, and the judgment must be reversed.
The defendant concedes that she should not recover upon her counterclaim if the mortgage is held to be paid and satisfied.
That part of the judgment allowing the defendant a recovery upon her counterclaim should also be reversed.
Both parties having succeeded in part, no costs óf this appeal should be allowed to either.
The entire judgment should be reversed, the referee discharged and a new trial granted, without costs of this appeal to either party.
All concurred, except Parker, P. J., and Smith, J., dissenting.
Judgment reversed on the law and facts, referee discharged and new trial granted, without costs to either party.
