Wanzer v. Cary

19 N.Y. Sup. Ct. 403

• Court: New York Supreme Court
• Decided: November 15, 1877
• Status: Published

Opinion

Gilbert, J.:

The legal effect of the retransfer to Shurter and Seaman by Cary and the accompanying agreement under which such retransfer was made is the same, whether such transaction is treated as a technical payment or an accord and satisfaction of the mortgage debt. Neither Cary nor the mortgagor (his wife) who made the mortgage at his request and for his accommodation, having received any notice of either of the assignments of the mortgage, they had a right to deal with Shurter and Seaman, the mortgagees, on the faith of their continued ownership of the mortgage. There' can be no doubt that their agreement to take back the property, which was the consideration of the mortgage and to satisfy the latter, was an extinguishment of the mortgage debt. The only way by which an assignee of a mortgage can protect himself against a payment of the mortgage debt to his assignor, in money or sub modo, is by giving notice of his assignment to the mortgagor. If such notice is not given, a payment in either mode to such assignor is as valid and effectual as if it had been made to the assignee of the mortgage. (Van Keuren v. Calkins, 4 Hun, 159; affirmed by Court of Appeals; Harmans v. Ellsworth, 64 N. Y., 159.)

The judgment must be affirmed, with costs.

Dykman, J., concurred; Barnard, P. J., not acting.

Judgment affirmed, with costs.