Griswold v. Griswold

7 Lans. 72

• Court: New York Supreme Court
• Decided: May 15, 1872
• Status: Published

Opinion

Mullin, P. J.

The judgment of the referee cannot be sustained. The undertaking of Manly was not to assume or pay tire debt of any person, but it was to satisfy the mortgage held by himself against the defendant upon a new and sufficient consideration, moving between him and the defendant, upon the faith of his promise to satisfy the mortgage; the executor of Laona James, at the request of the defendant, discharged the claim he and his wife owned, as legatees under her will against Parley.

It is true that the executor never executed any technical release, but the legatees entitled to the debt did, with his assent and approval, agree to release Parley, and Parley and the other heirs of Laona released the executor from any claim they or either of them might have against him for the property of said estate.

This was done, because it was understood that Parley was released.

This was an accord and satisfaction. (Palmerton v. Huxford, 4 Den., 166; Farmers' Bank of Amsterdam v. Blair, 44 Barb., 641; Neary v. Bostwick, 2 Hilt., 514.)

In view of these facts no court would permit either the executor or legatee to recover against Parley.

This being so, there was no debt remaining due from Parley to which the undertaking of Manly could be collateral. If the plaintiff can be said to have anything to do with that debt, he assumed an amount of it equal to his bond and mortgage, and agreed to pay it; such an understanding is in no sense collateral.

The substance and effect of the arrangement was, that Manly promised to cancel and discharge his bond and mortgage in consideration that defendant would discharge the debt due from Parley: This was a sufficient consideration in law to support the promise. (1 Parsons on Contracts, 364, 1st edition ; Same, 369.)

As equity treats as done, that which a party has agreed to do, it will hold the mortgage satisfied and discharged.

The judgment must be reversed and a judgment entered that 'the bond and mortgage be satisfied and the latter canceled of record, with the costs of the action and of the appeal to the defendant.

Judgment reversed.