Coles v. Appleby

New York Supreme Court

Coles v. Appleby

29 N.Y. Sup. Ct. 72

DecidedSeptember 15, 1880

StatusPublished

This text of 29 N.Y. Sup. Ct. 72 (Coles v. Appleby) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Coles v. Appleby, 29 N.Y. Sup. Ct. 72 (N.Y. Super. Ct. 1880).

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Opinion

«Gilbert, J.:

Before the assignment of the bond and mortgage in suit, ■Benham, the mortgagor, had conveyed the mortgaged premises to Beach. Afterwards the mortgagee received from Beach the full amount of the mortgage debt. Ordinarily this would be legally regarded as a payment thereof. But it appears that Beach had •occasion to procure a satisfaction of a mortgage -for a like amount -which the plaintiff held against one Betts. Accordingly, he caused -the bond and mortgage in suit to be assigned to the plaintiff, and 60 transferred the same to him in substitution for the Betts mortgage. That, therefore, was equivalent to the making of a new mortgage by Beach, and it occurred before Appleby acquired any •Interest in the mortgaged premises. Although Beach was bound both by contract and professional duty to satisfy the mortgage, instead of keeping it alive, yet it is plain that''he did not do so. The taking of the assignment of it to the plaintiff and his subse-quent payments of interest thereon, show that a payment was not intended by him. The decision at Special Term on this point, we think, was clearly correct.

The lot of Appléby should be sold first, for the reason that as between Beach, Appleby’s grantor and Benham, Baldwin’s grantor, Beach would be estopped from claiming that the bond and mortgage in suit had not been paid, Beach having received from. Benham sufficient money to pay it, and having undertaken to pay it. These grantees stand in the shoes of their respective grantors.

None of the exceptions affect the case as it really stood before -the court.

[75]*75The question, whether the infant defendants were proper parties, is not regularly before us.

Judgment affirmed, with costs.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Judgment affirmed with costs.

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«Gilbert, J.:

Before the assignment of the bond and mortgage in suit, ■Benham, the mortgagor, had conveyed the mortgaged premises to Beach. Afterwards the mortgagee received from Beach the full amount of the mortgage debt. Ordinarily this would be legally regarded as a payment thereof. But it appears that Beach had •occasion to procure a satisfaction of a mortgage -for a like amount -which the plaintiff held against one Betts. Accordingly, he caused -the bond and mortgage in suit to be assigned to the plaintiff, and 60 transferred the same to him in substitution for the Betts mortgage. That, therefore, was equivalent to the making of a new mortgage by Beach, and it occurred before Appleby acquired any •Interest in the mortgaged premises. Although Beach was bound both by contract and professional duty to satisfy the mortgage, instead of keeping it alive, yet it is plain that''he did not do so. The taking of the assignment of it to the plaintiff and his subse-quent payments of interest thereon, show that a payment was not intended by him. The decision at Special Term on this point, we think, was clearly correct.

The lot of Appléby should be sold first, for the reason that as between Beach, Appleby’s grantor and Benham, Baldwin’s grantor, Beach would be estopped from claiming that the bond and mortgage in suit had not been paid, Beach having received from. Benham sufficient money to pay it, and having undertaken to pay it. These grantees stand in the shoes of their respective grantors.

None of the exceptions affect the case as it really stood before -the court.

[75]*75The question, whether the infant defendants were proper parties, is not regularly before us.

Judgment affirmed, with costs.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Judgment affirmed with costs.

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Bluebook (online)

29 N.Y. Sup. Ct. 72, Counsel Stack Legal Research, https://law.counselstack.com/opinion/coles-v-appleby-nysupct-1880.