14 N.Y. 126 | NY | 1874
The contract for the purchase of the wood was . made by the defendants Maltby and Houston, with Hubbard, the owner of the land from which it was taken. Hubbard was in possession of the premises, and, by the contract, the defendants were to cut the wood and to pay Hubbard a certain price per cord on the 1st of March-,, 1871. The defendants did not know until on or about the-24th of February, 1871, of the plaintiff’s mortgage, or that. there was any incumbrance on the land. The wood had then, been cut, and nothing remained to be done by the defendants, under the contract, except the payment of the purchase-price.. There can be no doubt that the title to the wood vested in the defendants upon its severance from the land. They weretbe owners of the wood by purchase from the owner of the; land, and were debtors to Hubbard for the agreed price-. The fact that the land was mortgaged when the contract was made, or when the wood was cut, did not affect the defendant’s title to the severed property, and although the cutting of the wood impaired the security of the mortgage, the defendants were not responsible to the mortgagees for the resulting injury, unless they cut the wood, knowing of the lien, and with intent to injure the plaintiff in respect to his security. (Van Pelt v. McGraw, 4 Comst., 110.) There is an additional reason in this case why the plaintiff is precluded from treating the act of the defendants, in the
We express no opinion whether such an action could be maintained, but we think it is clear that until prevented by the order of the court, the defendants could lawfully pay the debt to Hubbard, and that if they had refused, he could have maintained an action to recover it.
The defendants were neither parties or privies to the agreement between Hubbard and the plaintiff, as to the application of the fund, and they owed no legal duty to the plaintiff to ■defer the payment of their debt at his request. That agreement recognized Hubbard’s right to receive the payment, and no legal proceedings having been taken to prevent it, the.payment to him was a valid discharge of their obligation.
The judgment should be affirmed.
All concur.
Judgment affirmed.