Haile v. Nichols

23 N.Y. Sup. Ct. 37

• Court: New York Supreme Court
• Decided: November 15, 1878
• Status: Published

Opinion

BoaRdmaN, J.:

The referee has found that the bond and mortgage have not been paid in whole or in part. The weight of evidence sustains such finding. Indeed, the evidence of payment relied upon by defendants consists of the statement made by the plaintiff to Mr. Field, in Vermont. That statement is confused, inconsistent, and, to some extent, unintelligible. The manner in which it - was obtained detracts materially from its value as testimony. The explanations given by plaintiff of the testimony therein contained still further tends to destroy its force and effect. So that the referee was right in discrediting that statement, so far as it tends to establish a satisfaction of the bond and mortgage, if it can be said to have any such tendency. There is no evidence of an actual payment of any sum whatever upon this bond and mortgage. So far as defendants were concerned, it was wholly unpaid, principal and interest. They were, in effect, advised of that fact. By exhibit number four they assumed and agreed to pay the amounts remaining unpaid upon the mortgage in suit, and also a mortgage then lately executed on other property as collateral thereto. A reference to the latter mortgage, or its record, would have shown defendants the extent of their liability, and they must, therefore, have contracted with reference thereto. Property was put into the hands of defendants to enable them to make such payment, and they cannot now resist such payment on any speculative theories of the rights of Gregory, their grantor. Nor are the defendants, in my judgment, so situated that they can attack the consideration or validity of the mortgage in suit in plaintiff’s hands, except so far as it has been actually paid to her or her assignor. When Silas W. Gregory transferred to defendants $40,000, and the defendants, in consideration thereof, assumed and agreed to pay this mortgage, they were estopped from denying their liability. . They have been furnished with money, or its equivalent, with which to pay. It is part of the purchase-price of the property conveyed to them. It is not material whether S. W. Gregory owed the plaintiff. He could have provided for its payment to any third person or a bank, and the defendants could not have resisted its payment, because Gregory did not owe the individual or the bank. It is defendants’ own debt, and they are called upon to pay, and it is enough for them that they are protected in paying it in pursuance of their agreement. (18 Alb. Law Jour., 303, and cases there cited.) It is very like the case of a purchaser of real estate, subject to a usurious mortgage, which he agrees to pay. Though such mortgage is void as between the original parties, the purchaser cannot defend on that ground. (Hartley v. Harrison, 24 N. Y., 170.) The land in the hands of a purchaser becomes the primary fund for the payment of the debt. In the case at bar, the amount assumed is made definite and certain by the collateral mortgage described in exhibit number four, signed by the parties. There were no errors in the admission of evidence, or in the refusals to find as requested. The plaintiff was properly allowed to explain the facts in relation to her examination by Held, and the respects in which the same was erroneous. It was also proper to show by Mrs. Thayer the conduct and words of Field, from which unfairness and imposition might be imputed to Field in procuring plaintiff’s statement. It affected the reliability as well as the trustworthiness of the statement as reduced to writing by Field. From what has been already said, it is apparent the requests for findings made by defendants were properly denied. Besides, there is no satisfactory evidence that the mortgage and bond were ever delivered by Noyes P. Gregory to Silas W. Gregory, with the purpose of satisfying or discharging the same, Or that plaintiff knew of any such act when assignment to her was made. The bond and mortgage were assigned to her for a good and valuable consideration. Whether that was paid or not, is of no consequence to the. defendants. . There are no other points worthy of special notice.

The judgment should be affirmed, with costs.

LbarNed, P. J., and Bocees, J., concurred.

Learned, P. J. :

I agree with the opinion of my brother Bqardhan ; and I think that the case should not pass without a rebuke of the manner in which the defendants, or some of them, obtained a statement from the plaintiff. It appears that, at the urgent request of the defendant Lynde, one Henry K. Field, a justice of the peace, and an attorney in the State of Vermont, went to see the'plaintiff then in that State. It is evident that he made her understand that he came at the request of Mr. Palmer, her own counsel. He says that he did not tell her so ; but his own testimony shows that he did say to her things which made her believe, and were intended to make her believe, that he was acting for Mr. Palmer and on her behalf. The counsel for the defendants, in their points, insist that she did so believe. They say that her statement then made, “ was for Judge Palmer. It was to establish her rights in the suit, as she supposed.” Field told her that he was a magistrate, and that he had called to take her deposition; and he administered an oath. He told her “that counsel were very much surprised that she had left Plattsburgh so very unexpectedly and without their knowledge,” thus evidently giving her to understand that he meant her own counsel. He asked if Judge Palmer had written to her, and said he understood that Judge Palmer had written to her. This was deception upon his own statement. If the plaintiff’s testimony given on the trial is correct, actual falsehoods were uttered by him to deceive her, and threats of compulsion to make her testify. This conduct was wrong. The plaintiff was properly allowed by the referee to explain the truth in regard to statements thus obtained from her by a trick, under guise of a legal proceeding.

It should be said, in justice to the defendants’ attorneys and counsel, that nothing appears to connect them, in the least, with the deceit practiced on the plaintiff.

Judgment affirmed, with costs.