Johnson v. Parmely

21 N.Y. Sup. Ct. 398

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

Opinion

Smith, J.:

The plaintiff claims that in equity he is to be regarded as the assignee of the bond and mortgage. It is alleged, in defense, that the debt was paid to the college, and the mortgage was satisfied. And the real question is, whether the transaction between the plaintiff and the college is to be treated as a payment of the mortgage debt, or whether it is to be regarded as a purchase and assignment of the mortgage as between the parties now litigating.

It is true, that the form of the transaction, on the part of the college, was that of a receipt of money in payment of the debt. But the money was paid by Johnson, the plaintiff, at the request ánd in the presence of Gannett, then the owner of the equity of redemption, and in pursuance of an agreement between Gannett and the plaintiff, that the latter would advance the money to the college, take an assignment of the mortgage, which ivas then overdue, and extend the time of payment for a year. And, in pursuance of that arrangement, Johnson advanced the money to the college and requested an assignment; but the agent, who acted for the college, declined to execute an assignment, alleging that it was against the rules of the trustees of the college to assign mortgages, and thereupon the agent accepted the money from Johnson, and delivered to him the bond and promised to send to his attorney a discharge of the mortgage, which he did subsequently.

The plaintiff or his attorney has had possession of the discharge ever since, and the mortgage has not been canceled or discharged of record. In these circumstances, it is obvious that if Gannett were still the owner of the premises, he could not defeat the plaintiffs claim, in a court of equity, by the plea that the mortgage is discharged. As between him and the plaintiff, the intention was to keep the mortgage alive, and he subsequently recognized its existence and validity by conveying the premises, subject to the mortgage, his grantee assuming the payment of it as a part of the pm’chase-price of the land.

The appellant, Mrs. Parmely, is m no better position than Gannett, she having succeeded to his title with notice of the plaintiff’s claim.

Upon another ground, the plaintiff is entitled to enforce the mortgage as against Mrs. Parmely. The judge found that the consideration agreed to be paid by . her to her vendor for the premises in question -was $1,700, and that the vendor allowed licito deduct therefrom the sum of $575, as the amount then due on the bond and mortgage sot out in the complaint. She is, therefore, estopped from setting up that the mortgage has been paid.'

The exceptions taken by the defendant to rulings of the court upon questions of evidence have no merit.

The judgment should be affirmed, with costs.

Present — Talcott, P. J., Smith and Hardin, JJ.

Judgment affirmed, with costs.