47 N.J. Eq. 351 | New York Court of Chancery | 1890
The object of this suit is the foreclosure of a mortgage made by Marieu Passage to Paul Tulane, in November, 1878, to secure the payment of $3,799.79, with lawful interest, which was then six per cent. By the terms of the mortgage'the interest was to be paid annually, on the 1st day of April, and the principal was to be paid on the 1st of April, 1880.
In 1878, in order to pay off a mortgage then encumbering her house, upon which she was obliged to pay interest at the rate of seven per centum per annum, she applied to Mr. Tulane to lend her the money necessary to enable her to do so. He complied with her request, taking from her the mortgage now in question. About that time he told her that he would charge her interest upon his loan at the rate of five per cent., and also, at her solicitation, that he would retain that interest from his-annuity to her. Thereafter he sent her $100 instead of $300 each year, until his death in March, 1887, and did not make demand for the payment of interest on his mortgage. His agreements to pay the annuity, to accept five per cent, interest upon his loan and to retain that interest from the promised annuity, were merely verbal. There is not a particle of written evidence of them.
The circumstances that, after they were made, he paid only $100 for the annuity and failed to demand payment of the interest reserved to him by the bond, and mortgage, are corroborative of his intention to perform his promises, but the facts, that he did not endorse upon either the bond or mortgage an acknowledgment of the receipt or satisfaction- of any interest, or give receipts or acquittances to Miss Passage, or leave any memoranda for the-guidance or direction of his representatives, indicate that he was-not fully determined that his promises should be executed, or that he would extend his benefaction to the ultimate relief of Miss Passage or her estate, from the obligation of the mortgage to-
It is clear that Mr. Tulane’s promise was not made binding upon him by a sufficient consideration.
His promise and intent, then, standing alone, unsupported by a consideration, or not put in technical, form to raise a conclusive presumption of consideration, was not sufficient, in the law, to discharge the interest debt. A debt on bond and mortgage cannot be extinguished by a mere statement of the creditor that he Avill not enforce it, or that he forgives it, or even by the receipt for the whole, when, in fact, a part only has been paid. Where the purpose is to voluntarily extinguish such a debt, it must be executed by an instrument as solemn as the instrument by which the debt is created. Irwin v. Johnson, 9 Stew. Eq. 347.
But it is insisted that, if there be neither an enforceable agreement, nor that which will operate as an equitable release of the debt, in this case, there is at least sufficient to show that the unenforceable agreement was executed, and that, thereby, the disputed interest, now claimed by the administrators of Mr. Tulane, went to Miss Passage by way of completed gift. Delivery is essential to the completion of a gift. "When a thing given is capable of actual delivery, there must be such a delivery, and where there can be no actual delivery, there must be some act equivalent to it. “It must be,” said Chancellor Kent (2 Kent Com. 439),
I do not perceive any ground upon which the defendants’ claim ■can be maintained, and I will therefore decree that the complainants are entitled to be paid the interest in dispute.