Keeler v. Salisbury , 27 Barb. 485 ( 1858 )

By the Court, Johnson, J.

The case of Platts v. Walrath, (Lalor’s Sup. 59,) would be directly in point, and entirely conclusive upon this case, had the second mortgage been executed by the defendant alone. That case holds that the giving a mortgage upon real estate, as a collateral security to a note, by the maker of such note, forms no consideration for an agreement to throw off, or relinquish, a portion of the amount of such note. This proceeds upon the ground that a debtor is under a legal duty and obligation to pay all his debts, and that his whole estate is legally and honestly pledged to their payment; and that mortgaging a portion of it, is only pledging it in a different form for the same purpose. Gowen, J., who delivered the opinion of the court in that case, admits that, “ had the security been a collateral thing, or a chose in possession, the effect would have been different.”

The evidence in the case before us shows that the mortgage upon the 36 acres was executed by the defendant and his wife. The plaintiff therefore by this mortgage obtained a release of the wife’s right of dower, and consequently a security beyond what the law would give him upon the original indebtedness, and beyond what the defendant was under any legal or moral obligation to give. This, in my judgment, furnishes a good consideration to uphold the agreement to release and discharge the sum intended to be secured by the first mortgage, above the sum of $2500. It gave the creditors, if not “ a collateral thing,” at least an additional right, over which neither he nor the defendant had before any control. The case is thus, as it seems to me, brought directly within the principle of those cases which hold that where a debtor secures part of his indebtedness by the note or indorsement of a third person, and such note orindorsement is accepted by the creditor in satisfaction of the whole original debt, it is a good accord and satisfaction of the whole. (Boyd v. Hitchcock, 20 John. 76. Le Page v. McCrea, 1 Wend. 172. Kellogg v. Richards, 14 id. 116.) The additional security required, and -received by the creditor, for part of his debt, is a good consideration for the relinquishment of the residue, and may be pleaded as an accord and satisfaction, in bar of the recovery of any portion of the debt, beyond the sum thus secured.

When the second bond and mortgage were executed, the condition of the first bond was broken, and the plaintiff had commenced his action to foreclose the mortgage, although only a small portion of the annual payments were actually due. The cases show that after the condition is broken a valid satisfaction may be made upon an agreement which is not by deed. (Strang v. Holmes, 7 Cowen, 224. Smith v. Trousdale, 77 Eng. Com. Law R. 83. Pinel’s case, 5 Coke, 117.)

[Cayuga General Term, June 7, 1858.

Welles, Smith and Johnson, Justices.]

I think the charge is unexceptionable in all its positions, and that the refusal to charge as requested was correct. The declarations of the agent, Hoyt, made when the note was taken to him, so far as they went to show what he received it for, or on what account it was taken, were proper evidence, as part of the res gestae. The objection was too general to be available. It did not specify any particular ground of objection; and a portion of his statement was certainly competent evidence. As to the other objections, there was no exception taken to the ruling. And even if the decisions were erroneous, it is impossible to see how the plaintiff could have been prejudiced by them. A new trial should therefore be denied.