author: Wright, J.

text:
    George Gillig v. Bertha Maass and others.
    On the 6th of November, 1851, B. M., the wife of M., was possessed of $5000 of separate personal estate,'which her husband desired to use in his business. He owned certain real estate in fee, and to obtain the money, and to secure to his wife the repayment thereof, he gave his bond and mortgage to W., who on the same day assigned the same to B. M., on receiving the $5000 and paying it over to the husband. The mortgage was duly recorded, on the 8th of November, 1857. The assignment was not put on record until November 21st, 1857, when it was recorded in the clerk’s • office, in the book of mortgages. B. M., on the 3d of November, 1855, assigned this mortgage to S. On the 14th of February, 1852, an agreement in writing was made between W. and one J., by which, after reciting the fact of the execution of the mortgage to W. of November 6, 1851, and that W. . was willing to enable M. “ to take up more money, and to increase his credit upon the security of such premises,” W. agreed that his mortgage should come after any mortgage that M. and wife might thereafter execute to J., for any amount less than $3000 ; and that any such mortgage should always have preference to, and be paid before, the said mortgage of W. This agreement was recorded in the clerk’s office, in the book of conveyances, February 23d, 1852. Pn the 18th of February, 1852, M. and wife executed a mortgage to J., on the same' premises, for $1500, which was recorded February 21st, 1852.. Subsequently, the premises having been sold upon the foreclosure of a prior mortgage, S. and J. claimed the sur. ' plus moneys arising from the sale ; the former as the assignee of B. M., and the latter in his own right.

      Held, 1. That the mere circumstance of B. M. uniting with her husband in the mortgage to J., it being done in ignorance of the fact that it was intended to give such mortgage a preference over the one held by her, was .not a ground, in equity, for postponing her mortgage or rending it subordinate to J.’s; the spirit and intent oí the act, and of the instrument which she executed, being to cut off her inchoate right of dower.
    2. That the agreement between W. and J. of February 14th, 1852, did not operate as a release of the mortgaged premises, the whole premises being still covered by the W. mortgage, and continuing subject to it. That it" was a mere personal contract or covenant, good between the parties, if W. had the right to make it.
    3. That the revised statutes, relative to the proof and recording of conveyances of real estate, have no application to an instrument like that executed between W. and J. That it was a paper not entitled to record; and J. acquired no rights by recording it; or if entitled to be recorded, it was not recorded according to law, and hence its record was not notice even to subsequent purchasers; nor did it confer any priority over B. M.’s assignment, afterwards duly recorded.
    4. That such paper should have been recorded in the book of mortgages, if any where, to have made the record effectual as against subsequent Iona fide assignees or purchasers from the mortgagee. That recording the paper in the book of deeds was not duly recording it, within the meaning of the recording acts, so as to be constructive notice to a subsequent mortgagee in good faith, or to affect a conveyance subsequently but duly recorded.
    5. That S. the assignee and holder of the senior mortgage, executed by M. to W. on the 6th o'f November, 1851, was entitled to the surplus moneys j that mortgage being prior in date and in record,- and still retaining its original priority in the hands of S., andB. M.’s rights and those of her assignee, not being affected by the attempted record of the agreement between W„ and J. '
    Appeal from an order of the Supreme Court for the payment of surplus moneys in a mortgage foreclosure suit. The fund amounted^ to. $1859.99 ; and the only claimants were the defendants, David Jones and Joseph T. Schmidt, each of whom claimed the whole. The facts are these : On the 6th of November, 1851, August F. Maass executed, together with his wife, a mortgage to Julius Walher, on certain real estate in Williamsburgh, to secure the payment of the bond’ of Maass for $5000 with interest. The principal was expressed to be payable on the 6th of November, 1857. This mortgage was duly recorded on the 8 th of November, 1851. By an assignment corresponding' in date to the mortgage, Walber transferred the same to Mrs. Bertha Maass, one of the mortgagors. The consideration of this assignment and transfer was the payment of $5000 in gold of her separate personal estate. The instrument of assignment was not put on record until the 21st of November, 1853, when it was recorded in the Kings county clerk’s office in the book of mortgages. Afterwards, Bertha Maass assigned this mortgage, by an instrument dated and acknowledged November 3d, 1855, to the claimant, Joseph T. Schmidt.
    On and about the 14th of February, 1852, an agreement in writing was entered into between Walber and the claimant Jones, which, after reciting the fact of the execution of the mortgage to Walber, of .the date of 6th November, 1851, proceeds thus : “ And whereas the said Julius Walber is willing to enable the said August F. Maass to take up more money, and to increase his credit upon the security of said premises : Now in consideration of the premises and of the sum of one dollar in hand paid to said Walber by said Jones, the receipt whereof is hereby acknowledged, said Walber agrees that his said mortgage, above described, shall come after any mortgage that said Maass and wife may hereafter execute to said Jones for any amount less than three thousand dollars ; and such mortgage or mortgages hereafter to be made and executed in favor of said Jones for any amount less than three thousand dollars, shall always have preference before the said mortgage of Walber above described, and shall always be paid before said $5000 mortgage held by Walber.” This agreement was recorded in the clerk’s office of Kings county, in the book of conveyances, on the 23d of February, 1852.
    On the 18th of February, 1852, Maass and wife executed a mortgage to the claimant Jones on the same premises, which were a brewery, to secure the payment of Maass’ bond to Jones for $1500 and interest, on or before the 30th of September, 1852 ; which mortgage was acknowledged on the 19th of February, 1852, and recorded on the 21st of February, 1852. This mortgage, by agreement between J ones and Maass, was given to secure Jones, (who was a maltster,) for advances of malt and hops furnished by him, or to be furnished to Maass, (a brewer,) and any indebtedness of Maass to J ones, by reason of malt and hops furnished him before or after the date of the mortgage. Mrs. Maass, at the time of joining in the execution of this mortgage, had not any knowledge or notice of, nor was she in any way privy to, the agreement between Walber and Jones, or the'fact that Jones’s mortgage was intended to have a preference over that held by her. No statement was made or any act done by her which misled, or deceived Jones ; and the latter took the agreement from Walber without requiring the production, at the time, of the bond and mortgage that had been given to him.
    Jones commenced dealing with Maass in November, 1851, by furnishing him malt and hops on account; and he made advances of malt and hops to Maass, until the death of the latter, which occurred in November, 1853. The amount of Maass’ indebtedness to him at the date of his $1500 mortgage, was $2178.59. After the mortgage was given, and from its date to Maass’ death, Jones advanced to him some $7823, and Maass paid in cash on the account some $7357,- leaving but about $465 of all the subsequent advances unpaid. After September 30th, 1852, the date of the maturity of his mortgage, Jones received from Maass on account some $6300.
    The surplus moneys claimed arose upon the foreclosure and sale under a prior mortgage of the same premises mortgaged to Walber in November, 1851, and to Jones in February, 1852 ; the defendant Schmidt claiming as the assignee of Mrs. Maass, and the defendant Jones, in her own right.
    The court at special term made an order declaring Jones entitled to the surplus moneys, and directing them to be paid to him, and that the costs of the proceeding be paid by Schmidt.
    On appeal to the general term this order was reversed; and it was further ordered that the moneys be paid to the claimant Schmidt, and that Jones pay the costs of the appeal, which were fixed at §20.
    From this order of the general term J ones appealed to this court.

      A. J. Parker, for the appellant.
    I. Regarding Mrs. Maass as the bona fide holder of the Walber mortgage at the time of her executing the mortgage to Jones of the same property, “ with all her estate, title and interest, claim and demand, at law and in equity, in and to the mortgaged premises,” she can not be allowed in equity to set up the Walber mortgage to the prejudice of Jones. The necessary effect of her uniting in the mortgage, duly acknowledged according to the statute, is to postpone or render subordinate' her mortgage to his. This is no separation of the debt from the security, which was the ground of the decision in Aymar v. Bill, (5 John. Ch. R. 570.) The later decision, of Williams v. Thorn, (11 Paige, 459, 465,) is expressly in point. Whatever right she had, whether fee, dower or lien, open or secret, legal or equitable in the premises, whs covered by the words as it was the spirit and intent of the mortgage. (Jackson v. Willard, 4 John. 41; Otter v. Lordvaux, 39 Eng. Law and Eq. 611; Mickles v. Townsend, 18 N. Y. R. 575.)
    II. Mrs. Maass concealing the existence of her unrecorded assignment, and not only assenting to but joining in the mortgage to Jones, on the faith of which Jones made the advances, is estopped from setting up her claim to defeat his mortgage, (1 Story’s Eq. Juris. § 390; Lee v. Porter, 5 John. Ch. 271; Storrs v. Barker, 6 id. 167; L’Amoreux v. Vischer, 2 Comst. 281.) The referee finds that this neglect of her’s misled and deceived Jones as to the ownership of the Walber mortgage, and such was its natural and legal effect.
    III. By leaving the mortgage standing on the record in the name of Walber, Mrs. Maass authorized any person to deal with him as the owner. (1 Story’s Eq. Juris. § 390; James v. Johnson, 6 John. Ch. 417, 427; Vanderkemp v. Shelton, 11 Paige, 28, 38; Reed v. Marble, 10 id. 409; N. Y. Life Ins. and Trust Co. v. Smith, 2 Barb. Ch. 82.)
    IY. The assignment by Walber to Mrs. Maass not being recorded, was void as against Jones’ mortgage, first recorded. (See recording act, 1 R. S. 756, §§ 1, 2, 43, 44.) In Vanderkemp v. Shelton, (11 Paige, 28,) it is held that the revised statutes of 1830 extended the recording act to assignments of mortgages. • The case of James v. Morey, (2 Cowen, 246,) referred to by Judge Emott, was prior to the law of 1830 requiring assignments of a mortgage to be recorded. (See note to 2 Barb. Ch. R. 82, 84.)
    Y. It was immaterial as to Mrs. Maass whether the agreement between Jones and Walber was recorded. It is only against a subsequent purchaser from Walber, without notice, that this record would be material. (Mills v. Comstock, 5 John, Ch. 214, 221.) But the agreement was duly recorded as a conveyance. (Recording act, 1 R. S. 756, §§ 1, 2, 38.) It is within the terms of § 38, as an instrument by which the title to real estate may be affected in law or equity. It is absolute in its terms and not intended as a mortgage. It is a release of a priority, not conditional but absolute. In Vanderlcemp v. Shelton, (11 Paige, 28,) referred to by Judge Emott, the question as to the recording as a conveyance was not raised. The cases cited by Judge Emott are mistaken; the case cited as 18 John. 544, is Beelcman v. Frost, the same on appeal as 1 John. Oh. 300, (not 30,) but page 554 cited by the judge is the argument of counsel, which is overruled, page 563, where the court hold, with the Chancellor, that the record though erroneous, where the error was that of the clerk, was good for the amount stated in it; and that the party was not to be prejudiced by the mistake of the clerk.
    VI. The special term correctly held, that the payments by Maass to Jones subsequent to the maturity of the mortgage to Jones were not’ applicable on account of the mortgage. It distinctly appears that these payments were on account of further sales from Jones to Maass. As this is an appeal from an order after judgment, and not from a, judgment, the facts are re viewable in this court as well as the law. We are not confined to the findings of the referee. (Bates v. Voorhees, 20 N. Y. R. 525, 8; Griscom v. Mayor of N. Y. 2 Kern. 586, 8; Code, § 272, 268, 348.) The creditor has the right to apply a general payment to either of several demands against his debtor, as he elects. (Pattison v. Hull, 9 Cowen, 747, 765; Van Rensselaer v. Roberts, 5 Denio, 470.) And such appropriation is binding on all parties, whether principals, sureties or guarantors. (Allen v. Culver, 3 Denio, 290.)
    VII. The referee erred in not permitting the counsel for Jones to read from the ledger the debit side'of the account of Maass, after the counsel for Mrs. Maass had procured the introduction of the ledger and had read the credit side of the account. Also in not permitting the counsel for Jones to prove what became of the property covered by the chattel mortgage, and whether he had received any payment on account of the chattel mortgage. The inquiries made on the other side had made the proposed explanation necessary and proper.
    VIII. The order should be reversed and an order made giving the surplus to David Jones on his mortgage, with costs. If the court think it is not a proper case for a final order of reversal, then a further reference should be ordered with a view to ascertaining further facts.

      M. L. Townsend, for the respondent Schmidt.
    I. The mortgage to Walber (now in the hands of the-respondent Schmidt) is prior in date and prior in record to that given to the appellant Jones; and still retains its original priority in the hands of the respondent. This mortgage and the bond accompanying it were assigned by Walber to Mrs. Maass, November 6, 1851, by assignment in writing duly acknowledged, and for the consideration of $5000 cash paid by her to Walber. . This assignment was recorded in the book of mortgages November 21, 1853; and the bond and mortgage were assigned by her to the respondent by assignment in writing, November 3, 1855.
    II. The assignment by Walber to Mrs. Maass vested in her the whole legal and equitable title to the bond and mortgage ; and it was only necessary for her to record that assignment, (if at all,) to protect herself against a subsequent assignment of the bond and mortgage by Walber to a purchaser, whose assignment should be first duly recorded, and who should purchase in. good faith and for a valuable consideration, (within the meaning of the recording acts.) • (1 R. S. 756, § 1.) It was not necessary for her to record the assignment, in order to protect herself against a subsequent conveyance or mortgage from Maass, for the recording statutes only apply to successive purchasers from the same seller. (Raynor v. Wilson, 6 Hill, 469.) And the record of the assignment of the mortgage would only be constructive notice of such assignment, as against subsequent assignees of the mortgagee. (N. Y. Life Ins. &c. Co. v. Smith, 2 Barb. Ch. R. 82.)
    III. The agreement between Walber and Jones of the 14th February, 1852, is not an assignment of the bond and mortgage to Jones, nor can it be regarded as an assignment of any interest in the mortgage, within the meaning of the recording acts, so as if properly first recorded to render void the prior unrecorded assignment to Mrs, Maass. The agreement does not by its terms, (nor did the parties intend that it should,) transfer to Jones the bond secured by the mortgage, nor any interest in it; “an assignment of a mortgage without the debt is without meaning and void.” (4 Kent, 194, and cases there cited; Aymar v. Bill, 5 John. Ch. R. 570.) A purchaser within the meaning of the registry act, “must acquire the legal title, as well as an equitable right to the property.” (Peabody v. Fenton, 3 Barb. Ch. R. 451.) Jones, by this agreement, got no title to the bond and mortgage—no legal title, because of the terms of the agreement, and 'because the debt could not reside in one person while the security was in another—no equitable title or right, because the agreement was a fraud upon Mrs. Maass who owned the bond and mortgage and had them in her possession at the time, and who was not privy to the agreement, and had no knowledge of it.
    IV. Jones, by this agreement, (if he can be regarded as a purchaser,) was not a bona fide .purchaser, in good faith, within the meaning of the recording act. At the time this agreement was made Mrs. Maass had the bond and mortgage in her possession; they were chattels, no written assignment was necessary to transfer them. Jones did not therefore use proper diligence and care in treating with Walber, as the owner, without requiring the production by Walber, at the time, of the bond and mortgage; the highest evidence of his title, if he had any. As is said in James v. Morey, (2 Cowen, 289,) “ The registry of the original mortgage was notice to him of its existence. If he will deal without asking for the mortgage, he comes, without a semblance of equity, to demand that the prior bona fide assignee shall be postponed to his claim. When the mortgagee makes a second assignment, the assignee knows that a prior assignment may have been made, and consequently must, as to that fact, repose on the integrity of his assignor. If he should be deceived, it is more equitable that he should suffer than to divest the right of the first assignee, who had acquired the legal estate,” In
      Brown v. Blydenburgh, (3 Seld. 141,) the holder of a bond and mortgage assigned them to a third person to secure' a loan, (the assignment was not recorded,) and subsequently received from the .mortgagor a conveyance of the premises, and executed a discharge of the bond and mortgage. The court held, not only that the land still continued subject to the mortgage, but say, “that if the conveyance was made, and the discharge received, without the production of the bond and mortgage, this circumstance was a suspicious one and sufficient to ptit the mortgagor upon inquiry, and unexplained, to render him chargeable with knowledge of the fraud, and in equity still liable upon his bond.” And we respectfully submit that the view taken by the court below, in the opinion at general term, does not answer this point; for although the referee may have found that Jones took his agreement with Walber and the mortgage from Maass in good faith, the question is one of law, dependent upon all the circumstances, and the finding of the referee would not be conclusive; moreover, it is evident that the referee, by his finding, means merely that Jones took the agreement with Walber in good faith, in that he supposed that Walber was the owner of the prior mortgage and had a right to make the agreement, and that he took the mortgage in good faith in that he supposed he had obtained priority by virtue of the agreement. But the fact that Walber had n.ot the bond and mortgage in his possession at the time was enough to put Jones upon inquiry, and renders his transaction with Walber wanting in the element of good faith in law.
    Y. Jones is not a purchaser for a valuable consideration, within the meaning of the recording act. . The object of the Walber agreement, as expressed in the recital, was “to enable Maass to take up more money, and to increase his credit upon the security of the premises;” or, as appears from the testimony in the case, to enable Maass to obtain a credit from Jones for malt and hops, to be advanced by Jones to Maass subsequently. Walber, in effect, agrees that if Jones furnishes the credit, hy making the advances to Maass, and Maass and wife shall execute a mortgage to' him for that purpose, that mortgage so executed shall have priority. Jones by subsequently taking the mortgage, and fixing the amount, with Maass at $1500, and the time for-its payment September 30, 1852, himself fixed the amount of credit he was willing to give Maass, and limited the time of the credit. The agreement which Jones made with Maass at the time he ' took the mortgage, as to the purposes for which he was to hold it, as testified to by Jones and found by the referee, viz. “to secure Jones for advances of malt and hops furnished by him, or to be furnished, to Maass, and any indebtedness of Maass to Jones by reason of malt and hops furnished him, before or after the date of the mortgage,” was not in accordance with the Walber agreement. The agreement of Walber was a voluntary surrender of his right to priority, for an expressed purpose, to wit, to give Maass a credit for a specified sum, and for a' specified time, (as fixed by Jones and Maass in the mortgage.) It was not to pay or . secure an old indebtedness of Maass to Jones, for malt and hops previously furnished, to the amount of $2178.59, which Walber had no knowledge of, nor to secure u any indebtedness of Maass to Jones by reason of malt and hops furnished,” or credit given for an indefinite length of time. The relation of Walber to Jones by the agreement between them became that of surety for Maass’ benefit, and before Jones can claim any right at law or in equity, even against Walber, the agreement must be strictly complied with by Jones. The agreement, therefore, which Jones made with Maass, under which he now claims to hold his mortgage, is a fraud upon Walber, and gives Jones no right in equity to set up his mortgage against the Walber mortgage, and to ask that the latter (whether in the hands of Walber or his assigns) should b§ postponed to the former. In so far, at least, as he took and now claims to hold the mortgage to secure the antecedent debt of Maass of $2178.59, he can not claim the protection of the recording act, and can not hold it, as security for that indebtedness, as against even Walber; much less against Mrs. Maass or her assignee, the respondent. (Dickerson v. Tillinghast, 4 Paige, 215.)
    VI. The Walber agreement was not the subject of record ; and its record could give Jones no rights thereby. This agreement was not a conveyance, either absolute or conditional, of real estate. Walber, as mortgagee, had no interest in the estate which he could convey, (4 Kent, 163, and cases there cited,) and the agreement did not by its terms, and could not grant or convey to, or vest in Jones, any right, title or interest, in the premises. We have shown that the agreement was not an assignment of the bond and mortgage, nor of any interest in it. But the learned judge, in his opinion at special term, says, “ that it operated as a release to .Jones of the mortgaged premises to the extent of his mortgage.” _ If this be so, it is not benefitted by the recording act, for that act applies only (if at all) as between two assignments of the bond and mortgage) and not' as between an assignment of the bond and mortgage and a conveyance, or a release of the mortgaged premises. But how can the agreement operate as a release of the mortgaged premises ? The whole premises were still covered by the Walber mortgage, and continued subject to it—no specific portion of them was, by this agreement, taken out, granted, bargained, sold or released to Jones. The premises consisted of four lots-^-which one was released from the effects of the Walber mortgage ? or what portion of the debt was not secured by the mortgaged premises ? As respects the agreement, it was a personal contract or covenant, (good between the parties, if Walber had a right to make it,) but in no way affecting the title to real estate, nor benefitted by the recording act. The following cases are cited as furnishing some authority upon this point1. In Jackson v. Hopkins, (18 John. 487,) it is held) that a power of attorney to demand and receive a debt secured by a mortgage, and to execute a release and discharge thereof, is not within the (then recording) act concerning deeds. In Jackson v. Richards, (6 Cowen, 617,) a deed to A. was executed and recorded, and afterwards she put on record an instrument stating that she never accepted it—-held a paper not entitled to record. In Williams v. Bishop, (Hoff. Ch. R. 359,) it is held, that a power to assign mortgages, is not within the registry act, and its record is neither evidence- nor notice. The record as a deed of an absolute deed, intended as a mortgage, is not notice to a subsequent grantee or mortgagee. (White v. Moore, 1 Paige, 551; Dey v. Dunham, 2 John. Ch. 182; N. Y. Life Ins. Co. v. White, 17 N. Y. Rep. 469.)
    VII. It was not necessary for Mrs. Maass to have recorded the assignment by Walber to her, in order to protect herself against the subsequent agreement between Walber and Jones, even if that agreement can be construed as an “assignment” of the mortgage, or an interest in it, as held by the general term. The recording, statutes- do not declare a prior unrecorded “assignment of a mortgage,” void as against a subsequent assignment first recorded; and the act must be construed strictly. Before the revised statutes of 1830, the record of an assignment of a mortgage was not notice to any one of its existence, (James v. Morey, 2 Cowen, 246,) while now, if such an assignment comes-within the statutory definition of “conveyance,” (1 R. S. 762, § 38,) yet, the preference over the holder of a prior unrecorded conveyance given by the same statute, is only.to a purchaser of “real estate” conveyed by such “conveyance” and not to a purchase of the “ conveyance,” which an assignee of a mortgage would be, (1 R. R. 756, § 1;) and what is meant by “real estate” is defined in the same statute (1 R. S. 762, § 36,) as “lands, tenements and hereditaments,” which does not include mortgages. We submit that these considerations are overlooked by the general term, and by the Chancellor in Vanderkemp v. Shelton, (11 Paige, 28.) Ho necessity exists for recording an assignment of a mortgage. The mortgage is itself a chattel, (Power v. Lester, 23 N. Y. Rep. 531;) no written assignment is necessary to pass the title. It may he transferred by mere delivery; and possession furnishes the highest evidence of title.
    VIII. But if the Walber agreement was the subject of record, it should have been recorded in the book of mortgages, instead of conveyances; and its record in the book of conveyances is not notice, and gives Jones no rights, by virtue of the record. If the recording acts can be enlarged so as by construction to make them apply to assignments of mortgages, then, by the same power of construction and with greater reason, assignments of mortgages, (if recorded at all,) should be recorded in the book of mortgages, and every subsequent assignment, or quasi assignment, (Walber agreement,) in order to defeat the prior assignment by virtue of the recording act, must be recorded in the same book. This has been the universal practice since assignments of mortgages have been recorded—no layman, much less a lawyer, ever thinks of looking in the book of conveyances to see' if a mortgagee has made an assignment of his mortgage. (Vanderkemp v. Shelton, 11 Paige, 28.) It is well settled, that if a deed is not authorized or required to be recorded, or if the registry is not in compliance with the. law, the act of recording is a nullity, and then a subsequent purchaser is affected only by such actual notice as would amount to a fraud. (1 Story’s Eq. Jur. § 404; Frost v. Beekman, 1 John. Ch. 300; 18 John. 544; Astor v. Wells, 4 Wheat. 466) N. Y. Life Ins. Co. v. White, 17 N. Y. Rep. 469.) The recording as a deed, of an absolute deed, intended as a mortgage, is not notice to a subsequent grantee or mortgagee. (White v. Moore, 1 Paige, 551; Dey v. Dunham, 2 John. Ch. 182; Warner v. Winslow, 1 Sandf. Ch. 430; James v. Morey, 2 Oowen, 246.) If an absolute conveyance and the defeasance be recorded in the book of deeds, they are not constructive 'notice of the mortgage. (Jackson v. Van Val

      kenburgh, 8 Cowen, 260; Brown v. Bean, 3 Wend. 208; Grimstone v. Carter, 3 Paige, 421.)
    IX. The mere act of Mrs. Maass, in joining with her husband in executing the mortgage to Jones, did not estop her (much less her assignee Schmidt) from claiming priority over Jones, (a.) As owner oí the Walber mortgage merely, she had no interest in the property which she could mortgage; a mortgagee’s interest is but a chattel interest. (Power v. Lester, 23 N. Y. Rep: 527, &c.; 4 Kent’s Com. 163, 7th ed. &c.; Waring v. Smith, 2 Barb. Ch. 119; Astor v. Miller, 2 Paige, 68.) (b.) Her husband being the owner of the fee of the premises, her only interest therein was an inchoate right of dower, which is all she conveyed by joining with her husband in the mortgage to Jones, (c.) The referee finds as matter of fact,- “That Mrs. Maass did not have any knowledge or notice of, nor was she in any way privy to the agreement between Walber and Jones, or the fact that Jones’ mortgage was intended to have a preference over that held by her.” She did not, therefore, act in bad faith in not stating to Jones that she held the Walber mortgage, The law will not presume a fraudulent intent on her part by her mere silence, under such circumstances. J ones did not suppose that he was getting from her any thing more than her inchoate right to dower—the mortgage was given to secure her husband’s bond, and not her own. J ones had already, as he supposed, bought of Walber the right of priority, and therefore could not have acted on the belief that he was buying that of her, which he now claims she is estopped from setting up; he paid her nothing for it. (Power v. Lester, 23 N. Y. Rep. 527; see Aymar v. Bill, 5 John. Ch. 570.) The first decision of the referee was therefore properly reversed by the general term. But the learned judge in his opinion at special term says, “that Jones was justified in treating with Walber, because he was the apparent (recorded) owner.” But how was Jones justified? Mrs. Maass was the real owner of the mortgage, and had it in her possession. Her omission to record the assignment was no fraud—it deprived her of no right, except as against a subsequent assignment first duly recorded—-it conferred no right upon Walber to treat with Jones, in relation to the mortgage, nor upon J ones to treat with him, unless he should comply strictly with the registry act; and then he would be justified by the ZcW and not by his faith in Walber.
    X. Assuming that the mortgage to Jones obtained priority over the mortgage to Walber, by virtue of the Jones and Walber agreement or otherwise, that priority is gone and the mortgage extinguished as against the mortgage to Walber by reason of the payments made by Maass to J ones upon the account which the mortgage to J ones was given to secure; and the decision of the referee in his second report is correct. It appears that the account between Maass and Jones was continued as a running account from the commencement of his dealings with Maass until his death, and a pass book kept which was balanced monthly, and that Maass made payments upon the running account from time to time, amounting in all to $7367.78. If the cash payments made by Maass are applied to the advances subsequent to the date of the $1500 mortgage, it will leave but $465.38 of those advances unpaid. Since the maturity of the $1500 mortgage, Maass paid in cash upon the account $6301.73, a sum more than sufficient to satisfy the mortgage, and the old debt of '$2178.59. Walber, by his agreement, had surrendered his right to priority, only “for the purpose of enabling Maass to take up more money and to increase his credit,” his lien continued, and attached itself as against J ones’ mortgage, the . moment the object of Walber’s agreement was accomplished. Walber, by his relation to Jones as surety, or even as a junior mortgagee or incumbrancer, would have had the right, whether before or after the maturity of Jones’ mortgage, to have paid to Jones the amount of the advances ($1500) and to have had the mortgage satisfied or assigned to him, or he be subrogated to the rights of Jones under it. Jones had no right, as against Walber or his assigns, to continue and enlarge a credit with Maass indefinitely. If he could do so, he has no right to ask that the lien of the Walber mortgage should be postponed until it should suit his convenience or interest to close his account with Maass. The principle contended for by the appellant’s counsel, would place the rights of the holder of the Walber mortgage at the mercy of Jones’ account books. The learned, judge at special term, in overruling the referee as to the effect of the payments made by Maass to Jones, seems to lose sight of the Walber agreement, and of his relation to Jones thereby, and seems to determine the rights of Walber or his assigns, by the agreement between Jones and Maass, which Walber never assented to, and had no knowledge of.
    It is submitted that Jones’ rights, as against Walber, must depend upon the agreement he made with Walber— that Walber’s rights were not the subject of barter by Jones and Maass, and that the risghts of Mrs. Maass or her assignee, the claimant Schmidt, can not be defeated by the fraudulent acts of either Walber, Jones or Maass, or the three together. When Jones had made advances to the amount of §1500, and Maass had credit to that amount and these advances were paid, by Maass, the object of the Walber agreement was fully accomplished, and it was functus officio. (Craig v. Tappin, 2 Sandf. Ch. 78; Bank of Utica v. Finch, 3 Barb. Ch. 293; Truscott v. King, 2 Seld. 147.)
    X. The mortgage now held by the respondent is entitled to priority, and the order of the general term should be affirmed, with costs.
   Wright, J.

The claimants are the holders and owners of mortgages, subsequent in order of time to that under which the mortgaged premises were sold, and the surplus fund realized. The mortgage under which Schmidt claims was • executed and duly recorded in November, 1851 ; and that of the claimant J ones, in February, 1852. If this were all, the mortgage of Schmidt. being prior in date, and prior in record, to that given to J ones, the right of Schmidt to the fund would be clear. It is contended, however, by Jones, that the original priority or preference of lien of the mortgage held by Schmidt, as assignee, was, by agreement with the mortgagee, postponed to his mortgage, and that consequently he is entitled to stand in the place of the owner or assignee of the first mortgage in respect to the surplus moneys. This is met by the allegation that at the time the agreement was made with the original mortgagee, he was not the owner of the mortgage, or having any interest therein, he having assigned the same to a bona fide purchaser; and that neither the agreement for preference was entered into, nor the mortgage of Jones given, under circumstances that either legally or equitably conclude such assignee or purchaser from insisting on the right of priority.

The mortgage just given and recorded was to one Julius .Walber, who, simultaneously with its execution, assigned it to Mrs. Bertha Maass, for a valuable consideration. Walber really never had any interest in the mortgage. Mrs. Maass was possessed of $5000 of separate personal estate, which her husband desired to use in his business. He was the owner in fee of real estate in Williamsburgh, and to obtain the money, and secure her, he gave his bond and mortgage to Walber, the latter assigning the bond and mortgage to Mrs. Maass, on receiving the $5000 and paying it over to the husband. This was undoubtedly the true nature of the transaction, and shows that Walber, though nominally the creditor and mortgagee, had no real interest, and that Mrs. Maass was a purchaser in good faith and for value. There is not the slightest ground to impute fraud or bad faith to Mrs. Maass, either in the inception of her mortgage or its assignment. In November, 1851, therefore, she was the assignee of the Walber bond and mortgage for value and in good-faith. Her assignment was not placed upon record until some two years afterwards; nor was it necessary in order to protect herself against a subsequent mortgage or conveyance from Maass, for the recording statutes only apply to successive purchasers from the same sellers, (Raynor v. Wilson, 6 Hill, 469,) and the record of the assignment of the mortgage would only be constructive notice of such assignment, as against subsequent assignees of the mortgagee. (N. Y. Life Ins. Co. v. Smith, 2 Barb. Ch. R. 82.) The omission to record it would be no fraud upon a junior mortgagee, nor estop her .from setting up her claim to defeat" his mortgage.

Some four months after the Walber mortgage had been given, recorded and assigned to Mrs. Maass, Maass, who was dealing with Jones in malt and hops, and who was indebted to him, and desired further credit, entered into an arrangement by which he was to give Jones a mortgage as security for present indebtedness and further advances. But Jones knew of the existence of the prior mortgage, and that it was a subsisting lien; and, moreover, that p,ny subsequent mortgage he might take would be of little value as a security, without priority of lien. Accordingly he enters into an agreement in writing with Walber, in which for a nominal money consideration, and for the purpose of enabling Maass, as the writing expresses it, to take up more money and to increase his credit upon the security of the mortgaged premises, Walber agrees that the mortgage of November, 1851, (then owned and possessed by Mrs. Maass,) should come after any mortgage that Maass and wife thereafter might execute to Jones, for any amount less than three thousand dollars, and that such mortgage thereafter to be made in favor of Jones, should always have preference before the mortgage of November, 1851, and should always be paid before said $5000 mortgage. This agreement was followed by the execution to Jones of a mortgage by Maass and wife to secure the bond of Maass to Jones for the payment of $1500 and interest, on or before the 30th of September, 1852, The mortgage was recorded on the 21st of February, 1852, and the written agreement of Walber two days afterwards, in the book of conveyances, in Kings county clerk’s office. Although Mrs. Maass united in the execution of this mortgage, it is found by the referee (and the evidence fully sustains the finding) that she had no knowledge or notice of, nor was she in any way privy to the agreement between Walber and Jones; nor did she know or understand that J ones’ mortgage as intended to have a preference over that held by her. In short, that at the time of joining in the execution of the , Jones mortgage, she was entirely ignorant of any arrangement or agreement to give it a preference over his own, or of the fact that it was intended to have a preference; nor was she a party or privy in any way to the arrangement between Jones, Walber and Maass. Ko statement was made or act done by her which misled or deceived Jones as to the ownership of the Walber bond and mortgage; and he took the agreement from Walber without requiring the production, at the time, of the papers. If Jones was deceived at all, as to such ownership, it was by Walber and Maass, the former holding himself out as owner, when he knew that he had no title or interest either in the debt or in the security. ' The mere fact of Mrs. Maass uniting with her husband in the mortgage to J ones, under these circumstances, is not a ground in equity for postponing or rendering subordinate her mortgage to his. The spirit and intent of the act, and of the instrument which she executed, was to cut off her inchoate right of dower. This was the effect of the deed, and all that was within the contemplation of the parties. The debt was the husband’s, and the premises. mortgaged were his; he was the mortgagor in fact, and she united in the deed, not to transfer any present right, but to cut off or convey an inchoate interest, as the wife of the mortgagor in the premises mortgaged. Of course, a mortgagor of premises, who himself holds á mortgage thereon at the time he mortgages his interest in the premises to another, can not set up such prior mortgage, or any interest he has acquired under the same, against his own mortgagee, or any person claiming under him. But Maass was the mortgagor, in this case, and it was "his premises that were mortgaged to Jones.

At the time therefore the Jones’ mortgage was given and recorded, Mrs. Maass, the assignor of the claimant Schmidt, was the bona fide owner of the mortgage given to "Walber in 1851, and which was the prior lien on the premises, and she was not chargeable with any fraud dr bad faith, either in its inception or assignment, - or in the course of the subsequent dealings between Walber, Jones and her husband, which equitably should entitle Jones, or his mortgage, to precedence.

But it was said, at the special term, that Jones was justified in treating with Walber, because, by the record, he was. the apparent owner of the mortgage; and that Waller’s agreement operated as a release to Jones of the mortgaged premises to the extent of his mortgage. This position, however, seems to have been abandoned in the argument at bar. The fact that Walber was the recorded owner of the mortgage, gave no binding force to any agreement that Jones might enter into with him in respect to it, or its priority, unless with the knowledge and privity of the real owner. Mrs. Maass was the real owner of the mortgage, and had it in her possession. Her omission to record the assignment was no fraud. It deprived her of no right, except as against a subsequent assignment first duly recorded; and it conferred no right upon Walber to treat with Jones in relation to the mortgage, nor upon Jones to treat with him, unless he should comply strictly with the recording act; and then he would be justified by the law, and- not by his faith in Walber. Hor did the agreement operate as a release of the mortgaged premises. The whole premises were still held by the Walber mortgage, and continued subject to it. Ho specific portion was thereby taken out, granted, bargained, sold or released to Jones. All that can be said of the writing "is, that it was a personal contract or covenant, good between the parties, if Walber had the right to make it.

It is now, however, claimed, that if not an assignment of the mortgage itself, it'was in effect an assignment to Jones,' a subsequent purchaser in good faith, and for a valuable consideration, of an interest in it, and the instrument having been first duly recorded, the effect, under the recording acts, is, as against such subsequent assignee or purchaser to invalidate the assignment to Mrs. Maass. I shall not agitate the question whethér the recording acts apply to the assignment of a mortgage. In Vanderkemp v. Shelton, (11 Paige, 28,) the Chancellor was of the opinion that, since the revised statutes, the provisions of those acts extend to such a case; although, at least, a plausible argument may be made against such a construction. It is enough that I am of the opinion that the revised statutes, relative to the proof and recording of conveyances of real estate, &c., have no application to an instrument like that executed between Walber and Jones; that it was a paper not entitled to record, or if entitled, was not recorded according to law, and hence its record was not notice even to subsequent purchasers, or conferred priority over Mrs. Maass’ assignment afterwards duly recorded. Now, what was the writing ? In terms and effect it was a mere personal contract between two holders of mortgages, for the postponement of one mortgage to the other. No interest in the mortgage itself, no title or right to the prior bond and mortgage, was tranferred to Jones. The agreement did not by its terms (nor did the parties intend that it should) transfer to Jones the bond secured by the mortgage, nor any interest in it. An assignment of a mortgage without the debt is, under the recording acts, unmeaning. It cannot be pretended that any interest was, or was intended to be, conveyed in the mortgaged premises, or in the security as such. It is in substance a stipulation, as to the law of the case, not as regards any thing entering into or affecting the debt or the security-^for both the debt and the lien of the mortgage were to remain, but in relation to priority simply. By the law, the mortgage earliest in date, and of record, was the first lien, and entitled to be first enforced, but the party supposed to be the mortgagee stipulates, in the particular case, to relinquish -his legal right to precedence. That the owner of the mortgage may contract to do this is plain ; and if the contract be in good faith, and founded on a valuable consideration, a court of equity would adjust the rights of the parties accordingly. Such an agreement, however, is not entitled to be recorded; nor would the record thereof be constructive notice to any body, or invalidate any previous transfer of the postponed security. It is only an instrument in writing by which an estate or interest in real estate is created, aliened, mortgaged or assigned, or by which the title to real estate may be affected in law or equity, that the provisions of our recording statutes have any application. (1 R. S. 762, § 38.) If the conveyance does not affect any interest in the real estate, or the title thereto in law or equity, no benefit is to be derived from the record. An assignment of a mortgage may, by construction, be brought within the purview or intention of the recording acts; but an instrument that neither -in terms or by legal construction creates, aliens, mortgages or assigns real estate, or by which the title thereto' is affected legally or equitably, is not, within any adjudged case, the proper subject of record. What interest in real estate, of in the mortgaged premises, did Walber’s agreement create, alien, mortgage or assign ? None whatever. It had no relation to the debt, or the security, or the equity of redemption. It was certainly nó grant or release of the equity of redemption, for that was in Maass ; nor by any just construction an assignment of the mortgage or any interest in it.

If the Walber agreement, therefore, was not the subject of record, J ones acquired no rights by recording it. But if it were treated as an instrument within the recording act, nothing would be gained if it were not recorded according to law. It would neither make Void Mrs. Maass’ assignment, nor confer priority over such assignment which was subsequently duly recorded. The statute directs that different sets of books shall be provided for the recording of deeds and mortgages; in one of which sets all conveyances absolute in their terms, and not intended as mortgages, or as securities in the nature of mortgages, shall be recorded; and in the other set such mortgages and securities shall be recorded. (1 R. S. 756, § 2.) The paper writing between Walber and Jones, which seems not to have heen under seal, was recorded, subsequent to the Jones’ mortgage, in the book of deeds. This was not a compliance with the terms or intention of the statute. The paper, if any thing by which a title or interest in real estate was affected, was not an absolute conveyance. An assignment of a mortgage is but a conveyance or transfer of a conditional estate or interest, and of a security for the payment of money; and certainly it can not be claimed that this paper should have a more enlarged operation and effect than if the mortgage itself had been assigned. It was in no sense a conveyance of real estate absolute in its terms. It was the writing of the supposed mortgagee; and if it had a relation to any thing it was to an interest in the security, and not in the real estate covered by it. It should have, heen recorded in the book of mortgages, if any where, to have made the record effectual as against subsequent bona fide assignees or purchasers from the mortgagee. Eecording the paper in the book of deeds in the Kings county clerk’s office was not duly recording it, within the meaning of the recording acts, so as to be constructive notice to a suhseqent mortgagee in good faith, or to affect a conveyance subsequently but duly recorded. In N. Y. Life Ins. Co. v. White, (17 N. Y. R. 469,) it was held -that a loan office mortgage recorded out of the order due to its date was not recorded according to law, and that such entry did not afford the notice contemplated by the legislature. In Sawyer v. Adams, (8 Verm. Rep. 172,) a mortgage deed was recorded fraudulently by the town clerk, on the back leaf of a former volume of records in" which no mortgages had been recorded for upwards of twelve years previously. It was held that the mortgage was not duly recorded, and that a subsequent attaching creditor had a priority over the mortgagee; although the "statute of that state did not in terms direct the order in which conveyances should be recorded, but simply made it the duty of the clerk “truly to record all deeds and conveyances,” &c. Our statute provides for two sets of books of record; one for conveyances absolute'in their terms, and not intended as mortgages or as securities in the nature of mortgages; and tjje other for such mortgages or securities. To record a mortgage, or a conveyance intended as a mortgage, or a security in the nature of a mortgage, in the book of conveyances absolute in their terms, would not be a lawful record. Such conveyance would not be, in the words of the statute, “ duly recorded,” so as to be constructive notice to a subsequent assignee or purchaser in good faith and for a valuable consideration from the mortgagee.

I think, therefore, that the assignee and holder of the mortgage of November, 1851, is entitled to the surplus moneys. " Such mortgage being prior in date and in record to that given to the appellant J ones, still retains its original priority in the hands of Schmidt. Mrs. Maass’ rights, and those of her assignee, were not affected by the attempted record of the agreement between Walber and J ones; nor is there any thing in the circumstances of the case, as between Mrs. Maass, the assignee and holder of the senior mortgage, and Jones, the junior mortgagee, to equitably, entitle the mortgage of the latter to priority.

This view disposes of the case, and obviates the necessity of inquiring whether, if the Walber agreement is to be regarded as giving priority to the Jones mortgage, that priority was not extinguished and gone by the payment, in fact, to Jones of the amount of his mortgage after its maturity. This was the ground taken by the referee, and it seems not to be without force. Priority of lien of the Jones mortgage,- if obtained at all, was by virtue of the Walber agreement. Walber stipulates, with the view of enabling Maass to take up more money and to increase his credit upon the security of the mortgaged premises, that any mortgage Maass may execute to Jones, for an amount less than $3000, shall take precedence of his own. By virtue of this agreement, a mortgage to secure a present indebtedness of Maass would be entitled to no priority. It was only a mortgage to secure future advances that Walber stipulated should come before his mortgage; and Maass and Jones were to fix the amount of future credit, not to exceed three thousand dollars. ■ A bond and mortgage were executed for $1500, payable on the 30th of September, 1862, thus fixing the amount and time of credit. Jones continued his dealing with Maass, furnishing him malt and hops, and Maass making large payments on account, up to the death of the latter in November, 1853. Of the advances made by Jones from the date of the mortgage to Maass’ death only about the sum of $465 were unpaid, and after the 30th of September, 1852, (the time the mortgage matured,) Jones received from Maass on account some $6300, a sum more than sufficient to satisfy the mortgage and Maass’ old debt. Walber, by his agreement, had surrendered his right of priority only “for the purpose of enabling Maass to take up more money and to increase his credit.” His lien continued, and attached itself as against J ones’ mortgage, the moment the object of the agreement was accomplished. When J ones had made advances to the amount of $1500, and Maass had credit to that amount,, and these advances were paid by Maass, the object of the agreement was fully accomplished. Walber, even as a junior mortgagee or incumbrancer, had the right before or after the maturity of the Jones mortgage to have paid to Jones the amount of the advances, ($1500,) and to have had the mortgage satisfied or assigned to him, or to be subrogated to the rights of Jones under. it. It can hardly be claimed that Jones had any right, as against Walber or his assigns, to continue and enlarge a credit with Maass indefinitely. If, he would do so, he has no right to ask that the lien of the Walker mortgage should be postponed until it should suit his convenience or interest to close his account with Maass.

The order of the Supreme Court should be affirmed.

Marvin, J. did not sit, in the case.

All the other Judges concurring, except that Rosekrans, J. thought that Walker’s stipulation affected real estate and might be recorded,

Order affirmed.


source: Caselaw Access Project

author: Balcom, J.

license: Public Domain

text:
    Williams v. Vanderbilt.
    In an action against a carrier of passengers, to recover damages for the failure of the defendant to carry the plaintiff from New York to San Francisco, via Lake Nicaragua, according to his agreement, for neglect of duty in furnishing suitable accommodations &c., for detentions and delays on the route, and for sickness caused by unnecessary exposure to an unhealthy climate, &c.; it was held, that it was entirely proper fort he judge to receive evidence as to how much the plaintiff was exposed to the sun and rains while crossing the isthmus, and to show that the climate there was bad and unhealthy, so that the jury could determine whether the plaintiff’s sickness was caused by the defendant’s negligence or breach of ’duty.

      Held, also, that the time the plaintiff lost by reason of his detention on the isthmus; his expensés there, and of his return to New York; the time he lost by reason of his sickness", after he returned to New York; and the expenses of such sickness ; so far as the same were occasioned by the defendant’s negligence, or breach of duty; were legitimate and legal damages, which the plaintiff was entitled to recover.
    The defendant, a common carrier of passengers, agreed to transport the plaintiff from Ne.w York to San Francisco, by an agreement which specified that that portion of the route which was between San Juan del Sur, and San Francisco, should be traversed in a particular steamer—the North America. Held, that the promise to carry the plaintiff in a particular vessel was a minor part of the contract, which was to carry the plaintiff through; and that the loss or wrecking of'the North America did not excuse the defendant from carrying him heyond San Juan del Sur.
    That if the loss of the North America was the act of God, it was the duty of the carrier to exercise diligence in providing another vessel, for the carriage of the plaintiff, and to use all the means in endeavoring to supply another vessel, which a diligent, careful man exercises in regard to his own affairs.

      Sold, also, that the plaintiff could recover hack the money he had paid to be carried from New York to San Francisco, and his expenses while necessarily detained upon the isthmus, and the expenses of his journey from there hack to.New York, if the defendant, by the exercise of proper diligence, could have carried him from San Juan del Sur to San Francisco ; or if his detention on the isthmus, and subsequent return to New York, were justly imputable to the defendant’s neglect of duty. ¡

    The true rule is that the non-performance of a contract i& not excused by the act of God, where it may he substantially carried into effect, although the act of God makes a literal and precise performance of it impossible.
    This action-was brought to recover damages for the failure of the defendant to carry the plaintiff from New York city to San Francisco, via Lake Nicaragua. Three claims in the complaint charged the defendant with neglect of duty as a common carrier in not transporting the plaintiff. The fourth and fifth claims charged the defendant with fraud in not transporting the plaintiff. The action was tried at the Cayuga circuit, in October, 1855. One D. B. Allen acied as agent of the defendant, at the city of New York. He delivered tickets to the plaintiff, about the 1st of March, 1852, for transportation to San Francisco. One entitled him to a passage to G-reytown at the mouth of the Nicaragua river, in the ship Prometheus, which was to sail on the 5th of that month; another entitled him to a passage up the Nicaragua river, through Nicaragua lake and thence by land to San Juan del Sur on the Pacific ocean; the other entitled him to a passage from the latter place to San Francisco, on the steamer North America, which was ■ advertised to leave San Juan del Sur about fifteen days after the plaintiff would arrive there, according to the usual course of conveyances. The defendant owned the ship Prometheus, and was one of the owners of the North America. The Accessory Transit Company issued the ticket which entitled the plaintiff to a passage up the Nicaragua river and through Lake Nicaragua. . The plaintiff left New York in the Prometheus on the-5th of March, 1852, and arrived at G-reytown on the 15th of that month, where he was detained eleven days. He then started for San Juan del Sur, on steamers of the Accessory Transit Company. He arrived at a place on the way, called San Carlos, on the 31st of March, 1852, where he was taken sick; and he there received news that the North America was lost or wrecked about the 27th of the previous month; which fact was not known to the defendant at the time of making the contract, nor until about the 20th day of April, 1852. The plaintiff arrived at San Juan del Sur on the 4th day of April, where he remained until the 9th day of May, 1852, endeavoring, but unsuccessfully, to procure a passage to San Francisco. He then returned to New Yorb. He remained sick from the time he was taken at San Carlos until long after his return home, with a fever peculiar to the climate of Nicaragua.
    The plaintiff gave evidence, upon which the jury found the defendant was a common carrier of passengers from New York to San Francisco. The judge submitted to the jury the question whether the defendant was or was not such a common carrier; and the defendant’s counsel excepted to the charge in that respect. The plaintiff gave evidence of representations, at the time he paid for his passage and procured his tickets, that the Nicaragua route was healthy. They were made by a person in the defendant’s office, who had the model of a ship, and to whom the plaintiff and other passengers were directed for information by Mr. Allen and others in his presence. The defendant’s counsel objected to this evidence, and excepted to its admission by the judge. - The plaintiff gave evidence that the climate at Greytown, and all the way over to the Pacific coast, and at San Juan del Sur, was unhealthy. This was received under the defendant’s objection and exception. The plaintiff proved that he paid Allen $250, in all, for the entire passage from Hew York to San Francisco. He also proved what his expenses were after he first landed at Grey town until he arrived back at Hew York.
    When the plaintiff rested, the defendant’s counsel moved for a nonsuit, or that the complaint be dismissed, but did not specify any ground for the motion. The judge refused to grant the motion, and the defendant’s counsel excepted. The judge then decided that the plaintiff was not entitled to recover tin the claims for fraud, being the fourth and fifth in the complaint, on the ground that the only representations or suppressions of 'facts respected the climate and healthfulness of the country on the isthmus, and it was not alleged in either the fourth or fifth claim that the plaintiff became sick. The defendant’s counsel then moved that a nonsuit be entered as to the fourth claim in the complaint; which motion was denied, and the defendant’s counsel excepted.
    The judge charged the jury, that if the Horth America had become a wreck by the act of God, so that the defendant could not perform his obligation according to its terms, it was his duty to provide another vessel, with, care and diligence ; and if he did not employ all reasonable care ’ and diligence, he being held to strict care and diligence, in providing another vessel to take the plaintiff the residue of the voyage, the plaintiff was entitled to recover. To which portion of the charge the defendant’s counsel excepted.
    The judge also charged the" jury: “If the plaintiff has experienced loss of money, loss of health, detention upon the isthmus, derangement of his plans by reason of a violation by the defendant of an arrangement which he made, and which he assumed when he received the plaintiff on board his vessel, then you are to render to the plaintiff full compensation. If this loss of the plaintiff was the result of a misfortune, or the act of God, for which the defendant was not responsible—if he and his agent employed all the means which a diligent, careful man takes, in regard to his own affairs, in supplying another vessel—if every thing was done that could he done, or that could reasonably be required of the defendant to relieve the passengers on the isthmus—then. the defendant is not liable.”
    The defendant’s counsel excepted generally to those parts of the charge which instructed the jury, that it was the duty of the defendant to supply another vessel-to take the place" of the North America. He also excepted to so much of the charge as left the jury at liberty, under the evidence, to award damages to the plaintiff, against the defendant, for faults occurring in the transportation from San Juan del Norte to San Juan del Sur. Also, to so much of the charge on the subject of damages as instructed the jury that they could award damages for the loss of time of the plaintiff, for his sickness while on the isthmus, for his expenses while on the isthmus, for the expenses of his return to New York, and for his sickness after his return to New York, separate exceptions being taken to the allowance of each of said items of damages. The judge had previously charged the jury that the plaintiff was only entitled to recover for such sickness as was caused by the neglect or breach of duty by the defendant. The jury rendered a verdict in favor of the plaintiff for $850 damages.
    The defendant moved for a new trial, at a special term, on a case containing his exceptions; which motion was denied. Judgment was rendered on the verdict, against the defendant, in favor of the plaintiff, which was affirmed, and a new trial denied, at a general term of the supreme court in the seventh district. The defendant thereupon appealed to this court.

      Charles A. Batallo, for the appellant.

      George Bathbun, for the respondent.
   Balcom, J.

This court decided, in Quimby v. Vanderbilt, (17 N. Y. Rep. 306,) that a part owner of one of several lines for the transportation of passengers, running in connection over different portions óf a route of travel, may contract as principal for the conveyance-of a passenger over the whole route; and that such contract may be established by the circumstances, notwithstanding the passenger receives tickets for the different lines, signed by their separate agents. Also, that passage tickets are generally to be regarded as tokens rather than contracts, and are not within the rule excluding parol evidence to vary a written agreement. That decision shows, that the judge properly refused in this case to nonsuit the plaintiff,'and that he did not err in submitting the question to the jury, whether the defendant was not a common earner of passengers from New York to San Francisco by way of Nicaragua, and did not contract, as such, to carry the plaintiff the entire route for the $250, which the defendant’s agent received of him.

The evidence that representations were made to the plain- ' tiff, when he made the contract for his passage, as to the healthfulness of the climate on the isthmus, and to show that such representations were false, was given before the judge decided that the plaintiff could not recover for fraud, under the fourth or fifth claim in his complaint; and when he so decided and charged the jury that the plaintiff could only recover for such sickness as was caused by the defendant’s neglect or breach of duty, the question of fraud was out of the case. The defendant, therefore, was not prejudiced by the evidence that such false representations were made to the. plaintiff. ■

It was entirely proper for the judge to receive evidence as to how much the plaintiff was exposed to the sun and rains while crossing the isthmus, and to show that the climate there was bad and unhealthy, so that the jury could determine whether the plaintiff’s sickness was caused by the defendant’s negligence or breach of duty.

The appellant’s counsel contends that the contract proved, did not absolutely bind the defendant to carry the plaintiff from San Jnan del Sur to San Francisco, but only required him to furnish the plaintiff a passage upon the North America ; and that the loss or wrecking of that vessel excused the defendant from carrying the plaintiff beyond San Juan del Sur. I can not agree to this proposition. In the first place, the jury must have found that the defendant was a common ■carrier of passengers from New York to San' Francisco, and contracted' as such to transport the plaintiff from the former to the latter place, or they could not have rendered a verdict, under the charge, in favor of the plaintiff. In the next place, if the loss or wrecking of the North America was the act of God, it was the duty of the defendant to exercise diligence in providing another vessel for the carriage of the plaintiff. He was bound to use all the means, in endeavoring to supply another vessel, which a diligent, careful man exercises in regard to his own affairs. He could not heedlessly leave the plaintiff upon the isthmus to die, or work his way to San Francisco, or back to New York as he best could.

The main thing the defendant agreed to do was to carry the plaintiff from New York to San Francisco. His promise to carry him in a particular vessel from San Juan del Sur-, to the latter place, was a minor part of the contract; though, if such vessel had not been lost,- he would have been obliged to carry the plaintiff in it.

I have asserted the doctrine that the loss of the North America did not-wholly absolve the defendant from all duty under the contract. The true rule touching this question is laid down 'by Professor Parsons. He says, “The non-per-' formance of a contract is not excused by the act of God, where it may be substantially carried into effect, although the act of God makes a. literal and precise performance of it impossible.” (2 Parsons on Cont. 3d ed. 185; see also White v. Mann, 26 Maine Rep. 361.)

The .defendant, notwithstanding the loss of the North America, could have substantially carried the contract into effect to transport the plaintiff to San Francisco, if he had exercised proper diligence, according to the verdict of the jury. For, according to the verdict, he could, by the exercise of due diligence, have procured another vessel and taken him to San Francisco; and that would have been a substantial performance by the defendant of the contract to carry the plaintiff in the North America from San Juan del Sur to San Francisco. The correctness of these views is so clear to my mind that I must reject as unsound whatever there is to the contrary in Briggs v. Vanderbilt, (19 Barb. 222,) and Bonsteel v. The same, (21 id. 26.)

The remarks of the judge, which authorized the jury to award damages to the plaintiff for “derangement of his plans by reason of a violation by the defendant of an arrangement which he made and which he assumed when he received the plaintiff on board his vessel,” were somewhat obscure. They were interpreted by the Supreme Court to mean that the jury might award damages to the plaintiff for breaking up his journey, rendering it necessary for him to return. But this court can not determine whether those remarks were right or wrong, because no exception was taken to them by the defendant’s counsels

The time the plaintiff lost by reason of his detention on the isthmus; his expenses there, and of his return to New York; the time he lost by reason of his sickness, after he returned home; and the expense of such sickness; so far as the same were occasioned by the defendant’s negligence or breach of duty; were legitimate and legal damages, which the plaintiff was entitled to recover. He could not procure a passage from San Juan del Sur to San Francisco, and therefore had the right to return to New York and his home. If one of the plaintiff’s limbs had been broken, through the carelessness of the agents or servants of the defendant, it is settled that he could have recovered the expenses of the sickness occasioned thereby, and for the consequent loss of time; and also compensation for the bodily pain and suffering caused by such breaking of his limb. (15 N. Y. Rep. 415; 18 id. 534.)

The principle on which a recovery, in such a case, is allowed .for bodily pain or suffering, loss" of time and expenses, sustains the recovery, in this case, for the plaintiff’s loss of health and loss of time, and his expenses during his sickness. And that the plaintiff could recover back the $250 he paid to be carried from New Vork to San Francisco, and his expenses while unnecessarily detained upon the isthmus, and the expenses of his journey from there back to New York, admits of no doubt, if the defendant, by the exercise of proper diligence, could have carried him to San Francisco before he left San Juan del Sur; or if his long detention on the isthmus and subsequent return to New York'were justly imputable to the defendant’s neglect of duty to him. But I will not discuss these questions further.

My conclusion is' that no error was committed on the trial which entitles the defendant to a new trial; and that the judgment of the Supreme Court should be affirmed with costs.

Rosekrans and Marvin, JJ. expressed no opinion.

All the other Judges concurring,

Judgment affirmed.


author: Balcom, J. Selden, J.

text:
    The People, ex rel. William Eagle, v. John Keyser, Register of the City and County of New York.
    The right to the money secured by a mortgage being personal, either one of several mortgagees can receive the same, and discharge the right to recover it of-the mortgagor.
    Where a mortgage was made to M. and ■#. describing them as “executors of E.,” and the money was made payable to them or their “ executors, administrators or assigns;” Held, that after the death of M., upon the refusal of bis executors to unite with W. in the execution of a satisfaction piece, the certificate of W. as surviving mortgagee, duly acknowledged, showing payment of the mortgage, whether the mortgage belonged to W. and M. as private persons, or as executors, entitled the mortgagor to have it discharged upon the record.
    The statute respecting the cancellation of the records of mortgages does not require that the satisfaction certificate shall be signed and acknowledged by the representatives of the deceased mortgagee, in such-a case, as well as by the survivor, to authorize the register to cancel the mortgage.
    The relator made a motion, on affidavit and notice, at a special term of the Supreme Court in the city of Yew York, for a writ of mandamus to be directed to John Keyser, register of the city and county of Yew York, commanding him to receive on file in his office a -satisfaction piece of a mortgage, and to cancel and discharge the mortgage of record.
    The mortgage had been recorded in the office of the register, and was made- by the relator to “Samuel Haycock and John Wright, executors of the estate of James Espié, deceased, of the second part,” to secure the payment of $1200 to “the said party of the second part, his executors, administrators or assigns.” The affidavit showed that Haycock had.died; that the relator paid the mortgage to Wright, the surviving mortgagee and executor, who executed, acknowledged and delivered to him a satisfaction piece of the mortgage; that the executors of Haycock refused to unite in the execution of the satisfaction piece, on the ground that they were in no way interested in the mortgage; and that the mortgage debt did not belong to the estate of their testator. That the defendant, as register, refused to receive the satisfaction -piece, or to place the same on file in his office, or to cancel or discharge of record in his office the mortgage, on the ground that the executors of Maycock had not united in the satisfaction piece.
    The motion for a mandamus was denied. The Supreme Court, at a general term in the first district, reversed the order denying the motion, and made an order that a mandamus issue, commanding the defendant, as register, to receive and file and record in his office the satisfaction piece. But the court would not require the register to discharge the mortgage on the record,
       The relator appealed from the order, so far as it did not direct the writ to command the register to do that act.
    The case was argued by M. S. Bidwell, for the appellant, and submitted upon points by Wetmore & Bowne, for the respondent.

         See 39 Bark 687, S. 0.

   Balcom, J.

According to the decision of this court in Peck v. Mallams, (6 Selden, 509,) the words “executors of the estate of James Espié, deceased,” annexed to the names of the mortgagees, must be held to be merely descriptive of the persons to whom the mortgage was given; and as the money mentioned in the mortgage was payable to Maycock and Wright, their “executors, administrators or assigns,” the register was bound to regard the mortgage as the private property of the mortgagees, their executors, administrators or assigns. His duty would have been different if the mortgage on its face had showed it was taken by Maycock and Wright ds executors of Espié, for a debt due his estate. (Bogert v. Hertell, 4 Hill, 492.)

There 'can be no doubt that where two executors take an obligation to themselves jointly, as representatives of their testator, for a debt belonging to his estate, one of them can receive pay and lawfully discharge the obligation, whether his co-executor be dead or alive. (Willard on Executors, 209, 269; 4 Hill, 492; Stuyvesant v. Hall, 2 Barb. Ch. R. 151; Douglass v. Satterlee et al. 11 John. 16; Murray v. Blatchford, 1 Wend. 583.) One of two administrators can do the same. (See authorities supra.) A surviving trustee may do this. (Hill on Trusts and Trustees, 3d Am. ed. 442; Lewin on Trusts and Trustees, Law Library, 4th series, vol. 72, p. 284.)

The Supreme Court of Pennsylvania held, in Penn v. Butler, (4 Dallas, 354,) where two persons sold real estate which belonged to them as tenants in common, and took bonds and mortgages in their joint names for the purchase money, that the surviving obligee and mortgagee “was entitled to the possession of the joint securities, and that he might recover the amount.” The same court held, in Bowes v. Seeger, (8 Watts & Serg. 222,) where a mortgage was assigned to two persons, that payment of it to one of such persons discharged the debt; and that the receipt of the one to whom the payment was made was evidence to show that the debt was discharged.

Kent, Ch. J. in delivering the opinion of the court in Pierson v. Hooker, (3 John. 68,) said: “It is a general principle of law, that where two have a joint personal interest, the release of one bars the other, (Ruddack’s case, 6 Co. 25;) and I can not perceive that the case of copartners in trade forms an exception to the general rule.” The court held in that case, that the release of a debt due a copartnership by one of several partners, by a writing under his hand and seal in the name of the copartnership, was binding on all the partners.

It was held in Austin v. Hall, (13 John. 286,) that in an action by tenants in common, for a trespass on land of which • they were the co-heirs, a release by one of the plaintiffs was a bar to the action.

Fitch & Buck v. Forman, (14 John. 172,) was an action on a covenant, by which the defendant bound himself to do a certain act by a certain day. Buck afterwards, by a writing under seal indorsed upon the original agreement, released the defendant from a performance within the time mentioned in the agreement, and extended the time of performance. And the court held that such release was a bar to the action, the breach of the covenant assigned being the non-performance of the act by the day mentioned in the agreement. Thompson, Ch. J. in delivering the opinion of the court, said: “They [the plaintiffs] had a joint personal interest, and the release or modification by one would bind the other.”

Judge OoWen laid down the rule in his treatise, (2 Cow. Tr. 2d ed. 772,) that, “A release by one of several persons, having a joint demand, is valid against all, even though stich demand be the proper subject of trespass or case, as for a wrong.” He cited the cases in Johnson’s Reports, (supra.)

The principle on which these cases were determined, authorized either Haycock or Wright to receive the money for which the mortgage was given, and to satisfy the same, though it was their private property, and held by them as tenants in common; and upon the same principle Wright, as surviving mortgagee after the death of Haycock, could lawfully receive the money mentioned in the mortgage and execute a certificate, satisfying the mortgage, which would authorize the register to discharge the same upon the record.

The right to the money, secured by the mortgage, being personal, (a mere chose or thing in action,) either mortgagee could receive the same and discharge the right to recover it of the mortgagor.

Bayley, J. said, in Barton v. Williams, (5 Barn. & Aid. 395,) “There may be cases in which the indivisible nature of the subject matter of the tenancy in common may raise an implied authority in one to sell the whole.” A mortgage is indivisible, and though payable to two persons jointly, the right to receive or recover the money due upon it is single. This right is not divided by the death of one of the mortgagees. Hence the death of Haycock did not affect the right of the surviving mortgagee to keep the mortgage in question, and receive the money due on it and satisfy it.

It is laid down in Gfraham’s Practice, that “On the death of the party with whom the contract was made, if tlie covenant or promise were to the deceased and another, jointly, the action must he brought by the survivor or his representatives, without joining the representatives of the deceased.” (Gra. Pr. 2d ed. 90; also see 17 N. Y. Rep. 354; Cow. Tr. 2d ed. vol. 1, p. 553; 1 East, 497; 4 Dallas, 357.)

The Supreme Court of Maine held, in Williams v. Hilton, (35 Maine Rep. 547,) that “a suit upon a mortgage, to obtain a foreclosure, may be brought and maintained by the surviving mortgagee.” But it has been held in Massachusétts that if a mortgage be given to two persons to secure their several demands, and such- demands and their different amounts are specified in the mortgage, each has a right to enforce his claim under the mortgage in a form adapted to his case; and that the surviving mortgagee can not maintain an action on the mortgage, to enforce payment of the debt due to the deceased mortgagee. (Burnett v. Pratt, 22 Pick. 556.) That case was correctly decided, because the mortgage itself divided the money between the mortgagees; so the mortgagor knew from the mortgage how much money belonged to each mortgagee.

But if it should he conceded that our-code now requires the representatives of the' deceased mortgagee to join with. the survivor in an action for the foreclosure of a mortgage taken by the deceased and the survivor in their joint names, as. tenants in common, such requirement would not take away the common, law right of the survivor to receive the money due upon the mortgage, when tendered to him, and satisfy the mortgage by a proper instrument in writing, and thus . compel the representatives of the deceased mortgagee to look to him for the money, if it, or any portion of it, belonged to such mortgagee. If the code required the representatives of a deceased partner to join with the survivor in bringing actions to recover debts due the copartnership, the survivor would still retain his common law right to receive payment of such debts, and completely discharge them by receipts or certificates.

It seems to me there can be no doubt that the payment of the mortgage to the surviving mortgagee discharged the mortgage, so that no action could be maintained on it by the representatives of the deceased mortgagee, or by .them, and the survivor, or by either.

The only remaining question is, whether the statute respecting the cancellation of the records of mortgages requires that the satisfaction certificate shall be signed and acknowledged by the representatives of the deceased mortgagee, as well as the survivor, to authorize the register to cancel the mortgage upon the record.

The.statute is, that “Any mortgage that has been registered or recorded, or that may hereafter be recorded, shall be discharged upon the record thereof, by the officer in whose custody it shall be, whenever there shall be presented to him a certificate signed by the mortgagee, his personal representatives or assigns, acknowledged,” &c. (1 R. S. 761, § 28.) This statute does not mean that all the mortgagees, or their personal representatives, must execute and acknowledge the satisfaction certificate to authorize the officer, in whose custody the record of the mortgage shall be, to record it, and discharge the mortgage upon the record; provided a satisfaction certificate, signed and acknowledged by one of the mortgagees, discharges the mortgagor .from all claim of each and every of the mortgagees and their representatives, upon the mortgage.. (See 23 How. Pr. Rep. 223; 2 Barb. Ch. Rep. 151.) The statute respecting canceling dockets of judgments, is that the clerk may cancel and discharge them, “ upon filing with him an acknowledgment of satisfaction, signed by the party in whose favor such judgment was obtained, or by his executors or administrators, duly authenticated,” &c. (2 R. S. 262, § 22.) But who ever heard that it was necessary that all the parties, in whose favor a joint judgment is recovered,' should sign and acknowledge a satisfaction certificate to authorize the clerk to .cancel and discharge the docket ? The signing and acknowledging of the proper satisfaction certificate by one of the parties, who obtained such a judgment, has always been considered sufficient to justify the clerk in canceling and discharging the docket of it. And it is not at all probable that every body has been mistaken respecting the legality of this mode of satisfying judgments. I am not prepared to admit there has been an error touching it; for I think there has not been any.

For these reasons I am of the opinion the register should have received and recorded the satisfaction certificate, showing that the mortgage had been paid, and duly discharged the mortgage upon the record thereof. '

It follows that the portion of the order of the general term of the Supreme Court appealed from should be reversed, and a mandamus ordered to be issued as moved for by the relator.

I think no costs should be awarded to either party.

Selden, J.

If the relator’s mortgage furnished evidencf upon its face that it belonged to the mortgagees as executors of the will of Mr. Espié, then the certificate of Wright, one of the executors, duly acknowledged, showing that it was paid, entitled the relator to have it discharged upon the record. During the lives of both executors, either one had power to discharge a mortgage belonging to them as executors; (Wheeler v. Wheeler, 9 Cowen, 34; Stuyvesant v. Hall, 2 Barb. Ch. 151; Bogert v. Hertell, 4 Hill, 492; Williams on Executors, 3d Am. ed. 810;) and on the death of one, all the rights and powers of both vested in the survivor. (Hudson v. Hudson, Cas. Temp. Talbot, 127; Williams on Executors, 814; Addison on Contracts, 362.)

These positions are not questioned by the repondent’s counsel, who do not deny the sufficiency of the discharge in case the mortgage was shown to be the property of the executors in their representative character; but they insist, that by its terms the mortgage appeared tó be the private property of the executors. The terms of the mortgage do not warrant' this conclusion. The only case cited in itjs support is that of Peck v. Mallams, (6 Seld. 509.) What was said in that case, in reference to a similar mortgage, related rather to the rules, of pleading than to the rules governing the interpretation of contracts. It was said in answer to the defendant’s objection, that the plaintiff did not make title to the bond and mortgage by his complaint. By the strict rqjes of pleading in force when the pleadings in that case _-$ere made, when no intendments in favor of the pleading were allowed, (2 H. Bl. 530; 1 Hill, 74; 2 Mylne & Craig, 422; 2 Phillips, 28,) an allegation that a promise was made by A. to B., executor &c. of C., would not sustain an action in,favor of B. in his representative character, the words “executor &c.” being treated merely as descriptive of the person. (2 Chitty on Pleading, Springfield ed. 1844, 103, note b; 5 East, 150; 5 Binney, 16; 2 Barb. 368.) All that was involved, upon this subject, in the judgment in Peck v. Mallams, was the rule of pleading, and I regret being compelled to say that the syllabus of the case in the report, (for which I am responsible,) erroneously states the rule as applicable to the interpretation of the contract. The judge who delivered the opinion merely expressed a doubt in that respect, the case not requiring a-decision of the question. (6 Seld. 537, 538.)

In determining the effect of contracts, such strictness of interpretation as that applied to pleadings is not admissible; language sufficiently definite to show the intention of the parties being all that'is required. Looking at the language of the' mortgage in this case, as furnishing evidence of that intention, it would seem very clear that the mortgage was made to the mortgagees as a contract with them in their representative, and not in their individual characters. Ho other meaning can be given to the. language, unless we assume that the words, “executors of the estate of James Espié, deceased,” were added to the names of the mortgagees, .in a contract having no relation to the affairs of the estate, for the sole purpose of identifying the parties. I venture the assertion that such an addition to the names of parties in a private contract, for the mere purpose of description, was never known, and it would be very unreasonable to hold that such was the object of the addition in this case. If the decision in Peck v. Mallams were to be regarded as declaring a rule for the interpretation of contracts, instead of a rule of pleading merely, it could not be reconciled with the late cases in this court of Babcock v. Beman, (11 N. Y. Rep. 200,) and Chouteau v. Suydam, adm’r, (21 id. 179.) My conclusion, therefore, upon this point is, that the mortgage upon its face appeared to be the property of the executors in their representative character, and was properly discharged by the certificate of the survivor.

If, however, a different interpretation be given to the language of the mortgage, and it is held, by its terms, to have belonged to Maycock and Wright in their private character and not as executors, the certificate and acknowledgment of Wright would be equally effectual for its discharge. ' Any one of several joint payees of a note, bond or other personal obligation, has a right to receive payment of, and to discharge such obligation. (Pierson v. Hooker, 3 John. 68; Bulkley v. Dayton, 14 id. 387; Murray v. Blatchford, 1 Wend. 583; Stuyvesant v. Hall, 2 Barb. Ch. 151.) Kent, Ch. J. in Pierson v. Hooker, says; “It is a general principle of law, that where two have a joint personal interest, the release of one bars the other.” If there are any exceptions to this rule the subject of the present controversy is not among them. According to the decisions in this state, a mortgage is but a security for a debt,'and is treated as a mere personal contract. (Green v. Hart, 1 John. 580, 590; Runyan v. Mersereau, 11 id. 534; Martin v. Mowlin, 2 Burr. 978; Browne on the Stat. of Frauds, § 65.) So far as the mortgagor is concerned, all the mortgagees are to be regarded as one person, and he has a right to deal with each as representing all. This was held, as between a vendor and two vendees of'land, in Carman v. Pultz, (21 N. Y. R. 550,) and no reason is perceived why the principle is not equally applicable between a mortgagor and mortgagees. B.y accepting a joint mortgage, each mortgagee gives to every other the power which this principle implies, as each member of a copartnership clothes each of his copartners with power to bind him in all matters within the scope of their joint business. Except for the purpose of receiving payment and acknowledging satisfaction, the powers of an ordinary joint obligee over the obligation would not probably correspond with those of a partner; but to that extent they must be identical, otherwise the obligor could never safely pay to one of several obligees. The certificate of one mortgagee, therefore, if both were living, was sufficient to entitle the mortgagor to a discharge of his mortgage upon the record. The practice in .the register’s office in the city of Hew York, it seems, has been otherwise, and the decisions of the Supreme Court in the first district have been in accordance with that practice. (The People v. Miner, 32 Barb. 612.) In some other counties the practice has been to discharge mortgages , upon the certificate of one of several mortgagees, and great confusion would arise from a decision by this court that such discharges were ineffectual.

The death of one of two joint mortgagees does not deprive the other of the right to receive payment of, and to discharge a mortgage held by both, but fenders such right, exclusive in the survivor, (Addison on Contracts, 285.) What is said in the books to which we are referred by the respondent’s counsel, against the right of the survivor in such cases to take the whole money, relates to the equitable and not to the legal right. (Rigden v. Vallier, 2 Vesey, sen. 258; 2 Story’s Eq. Jur. § 1206; 2 Powell on Mortgages, 699,700.) There was never any doubt that the entire legal interest remained in the survivor. (1 Chitty on Pleading, 19, 20; Rolls v. Yate, Yelv. 177, and note 1.) The only doubt was, whether the survivor did not take the whole interest, legal and equitable, according to the rule of survivorship applied ■to a joint tenancy in lands; but it was finally held, the case of Petty v. Styward, (1 Eq. Cas. Abr. 290,) being the leading case, that although the entire legal interest vested in the survivor, he was to be regarded in equity as a trustee for the personal representatives of deceased parties for their equal shares. (2 Fonbl. Eq. 103, and notes.) I believe it was never questioned that the party having the entire legal interest in any demand, in the absence of fraud, could discharge it.

Whether, therefore, the mortgage belonged to the two mortgagees as private persons, or as executors, and whether the register was or was not bound, on the evidence which was before him, to take notice of the death of one of them, the certificate of the other, duly acknowledged, showing payment of the mortgage, entitled the mortgagor to have it discharged upon the record. (3 R. S. 5th ed. 57, 58, §§ 60, 61.)

The order appealed from, therefore, should be modified, so as to direct the issuing of a mandamus to the defendant, jcommanding him to receive and record in his office the certificate of payment of the mortgage of the relator, mentioned in the affidavits and proceedings in this case, and also to discharge such mortgage upon the record thereof.

Costs in cases of this kind are in the discretion of the court. (3 R. S. 5th ed., 909; Code, § 471; 20 N. Y. Rep. 529; Code, § 306.) As the defendant is a public officer, and appears to have acted in perfect good faith, and in accordance with a prior decision of the Supreme Court, he should not be charged with costs.

All the Judges concurring,

Ordered accordingly.