108 N.Y. 157 | NY | 1888
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The appeal is to succeed or fail upon the findings of the trial judge. From those it appears as a fact that the payment of the mortgage was made by Webster to Jasper Waterman; that he had no authority to receive it; that it was wrongful and unwarranted, and, therefore, gave no support to the satisfaction or discharge which he signed and delivered to Webster. Against the conclusion of the trial judge the appellant contends (1), that the only parties to the mortgage were Webster and Jasper Waterman; and (2), that *163
even if the mortgage was in whole or in part for the benefit of the plaintiffs, Jasper Waterman had the same right to receive the moneys secured thereby that he would have if upon the face of the mortgage it appeared to be for his sole benefit. In support of this contention the appellants cite section 113 of the Code of Procedure (then in force), which declares that the trustee of an express trust "may sue without joining with him the person for whose benefit the action is prosecuted," and which applies that character to one "in whose name a contract is made for the benefit of another," and from it he argues that the conclusion of the trial court is wrong. The point was not taken on the trial, nor does it seem to have any application. The payment was without suit, and how it would have affected the parties had it been made in the course, or as the result of legal proceedings we need not inquire. There was no suit, consequently no question as to proper parties. But the special authority of the mortgagee was the same as the general law on which the appellants rely. The mortgage provides that in case of default in payment, the mortgagee might sell the premises and retain the amount then due for principal and interest. This authority was not resorted to. The payment was voluntary, and the cases (Considerant v. Brisbane,
The learned counsel for the appellants also argues that Webster is protected by the provision of section 66, 1 Revised Statutes, page 730, title 2, part 11, chapter 1, article 2. It also seems inconclusive. "No person," it says, "who shall actually and in good faith pay a sum of money to a trustee, which the trustee as such is authorized to receive, shall be responsible for the proper application of such money, according to the trust; nor shall any right or title derived by him from such trustee, in consideration of such payment, be impeached or called in question, in consequence of any misapplication by the trustee, of the moneys paid." What authority had Waterman to receive the payment? If the above views are correct he had no authority, and as Webster acted in violation of the agreement embodied in his mortgage, he cannot be deemed to have acted in good faith in making payment. The lien in question was not for the benefit of the mortgagor; he had been separately provided for and was fully paid. It was created for the benefit of the plaintiffs by the direction of their father, from whom the consideration moved, and with the concurrence of the defendants. It remained, notwithstanding the fraud or mistake by which the defendants were actuated in placing a formal discharge upon the record, and whether it was by one or the other the plaintiffs should not suffer. The mortgage had for its object the benefit of the plaintiffs. They were the persons intended to be benefited, and were so named. For this reason also they are entitled to maintain this action.
We think the court below committed no error, and that the judgment appealed from should be affirmed.
All concur.
Judgment affirmed. *166