Farnham v. Mallory — 5 Abb. Pr. 380

Majority

p. 380

FARNHAM against MALLORY.

Court of Appeals ;

June Term, 1867.

Headnote

Capacity to Sue.—Estoppel.—Form of Judgment in Action on Guaranty. '

One "who has covenanted with executors, as such, that third persons shall satisfy and discharge a mortgage, is thereby estopped from denying the right of the executors to sue on such covenant, in their representative capacity.

In such an action, their interest in the enforcement of the covenant may be assumed.

In an action upon a covenant of guaranty by which the covenantor becomes surety for the punctual payment of the bond of other persons, and undertakes that, if default shall be made by them, he will pay and fully satisfy the mortgage mentioned in the bond, the judgment upon such default should not be that he should pay absolutely to the plaintiffs the amount due, but that he should pay and satisfy, or cause to be paid and satisfied of record the mortgage mentioned, within thirty days from the date of the judgment, or, in the event of his not doing so, then that he pay to the plaintiffs the amount.

Appeal from a judgment.

This action was brought by George" Farnham and Henry Womburgh, executors, against William M. Mallory, on a guaranty by Mallory of a bond given by the defendant, together with one Hiram W. Bostwick, to the plaintiffs, conditioned for the payment and discharge of a mortgage made by one Robert Miller, which was a lien on lands conveyed to the decedent by the defendant Mallory. The facts are more fully stated in the opinion of the court.

The following is a copy of the complaint:

“ The complaint of the plaintiffs respectfully shows, That before the making of the bond or written obligation hereinafter set forth, to wit, on or about the 26th of Jan.,

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1847, Lauren Mallory, one of the obligees in said bond named, sold and conveyed to William Womburgh, then of the town of Addison, by warrantee deed dated on that day, all those certain pieces or parcels of land described as follows : All that certain lot, piece, or parcel of land and premises situate and lying in the town of Big Flatts, being part of a tract of land conveyed by Henry Wisner, deceased, to John D. Coe and Benjamin Coe, beginning at the north-east corner of the lot hereby intended to be conveyed, being the north-east corner of a lot formerly owned by Henry Farr, running from thence south eighty-two degrees, east twenty-three chains and eighty-six links, to a stake to the lands of the late John Winton ; thence along the same south fourteen degrees and fifteen minutes, west one hundred and two chains into the Tioga River ; thence south seventy degrees and forty-five minutes, west eighteen chains and seventy-five links; thence north ten degrees, east one hundred and nine chains and forty links to the place of beginning ; containing two hundred and eleven acres, excepting and reserving one acre heretofore conveyed to the First Presbyterian Society in the town of Big Flatts, and a lot now occupied by Ariel Higbee, forty-two feet in front and running back to the brook, said lot fronting on the road leading to Painted Post, and a lot on the east side of the road leading to the Canal, sixty feet front, and running back one hundred and sixty feet, formerly occupied by Titus Todd, and a lot on the same side of the road last aforesaid sixty feet front, running back one hundred and sixty feet, now occupied by.....and formerly occupied by Richard Jones, and a lot seventy feet front and running back one hundred and sixty feet, formerly occupied by Mrs. Hannah Miller, on the north side of the road leading to the Horseheads, and all the fruit trees, excepting those in the orchard. Also, excepting and reserving the lands heretofore conveyed to the New York and Erie R. R. Co., as described in a deed dated Dec. 20,1840, recorded in the clerk’s office in the county of Chemung, in book numbered six, page two hundred and sixty, on the 16th of

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January, 1841. The covenants contained in said deed to be performed and fulfilled by the said party of the second part. Also excepting and reserving a lot heretofore conveyed to Alfred Griffin, John Minier, and George A. Gardiner, trustees of school district Ho. 1, in the town of Big Platts, county of Chemung, and State aforesaid, containing eighteen hundred and forty-eight feet of land, as described in the deed dated the 16th day of March, 1838.

‘ ‘ Also one lot of land hereby intended to be conveyed, beginning on the line of the first described lot, at Joel Rowling’s south-east corner on said river ; thence along said Rowling’s south line westwardly to the east line of land of George Gardiner to his south-east corner, continuing the same course to the line of the original patent; thence easterly along the said patent line to the southeast corner of the first described lot, from thence northerly and westerly along the line of the said lot to the place of beginning. The exceptions and reservations of the original patent excepted, containing, by estimation, sixteen acres. The aforesaid survey, as the needle pointed in the year 1805, excepting and reserving all the right and privilege granted to Archibald Rousseau by an instrument of writing dated April 15, 1845, and recorded in the clerk’s office in the county of Chemung, in book of deeds, number eleven, page 287.

‘‘ That before the time of the sale and conveyance aforesaid, to wit, on or about the sixth day of Sept., 1831, one Robert Miller (who was at that time the owner of the land hereinbefore described), executed and delivered to Isaac Bronson a mortgage upon said land, to secure the payment to said Bronson of the sum of three thousand and five hundred dollars, which mortgage was at the time of the sale and conveyance aforesaid, a subsisting and valid lien and incumbrance upon the land aforesaid. That the said Lauren Mallory, at the time of the sale and conveyance aforesaid, promised and agreed with the said William Womburgh, that he would, within six months thereafter, pay, satisfy, and cause to be discharged of record, the said mortgage aforesaid. That in consideration of the

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sale and conveyance aforesaid, and the promise or agreement aforesaid made by the said Lauren Mallory to pay, satisfy, and discharge of record as aforesaid, the mortgage aforesaid, the said William Womburg paid to said Lauren Mallory a large sum ■ of money, to wit, about the sum of eleven thousand dollars. That the said William Womburg died on or about the 21st of May, 1853, leaving a will wherein he nominated and appointed the above named George Farnham and Henry Womburgh executors of his last will and testament, who did, before the making of the said bond or writing obligatory by Lauren Mallory and Hiram W. Bostwick, hereinafter set forth, duly qualify and enter upon the discharge of the duties of executors of the said last will and testament of the said William Womburgh, deceased. That the said Lauren Mallory neglected to pay, satisfy, or discharge the mortgage aforesaid, but the same still remained a valid and subsisting lien and incumbrance upon the land aforesaid at the time of the making of the said bond or writing obligatory hereinafter set forth.

‘ ‘ And the complaint further shows that the said Lauren Mallory and Hiram W. Bostwick, for the purpose of securing to the plaintiffs in this action, executors as aforesaid, the payment, satisfaction and discharge of the mortgage aforesaid, which still remained a lien and incumbrance as aforesaid, and for a valuable consideration made, executed and delivered to the plaintiffs aforesaid on the 26th of June, 1854, their bond or writing obligatory in words and figures following, to wit: [The bond is found in the opinion of the court.]

‘ ‘ And the complaint further shows that for the purpose of securing to the plaintiff’s executors as aforesaid, the punctual payment of all moneys, and a full performance by the said Lauren Mallory and Hiram W. Bostwick, of all the conditions and covenants mentioned in the bond or writing obligatory made by the said Lauren Mallory and Hiram W. Bostwick, and hereinbefore set forth, and for a valuable consideration the said defendant William M. Mallory did, on the 26th day of June, 1854, make,

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execute, and deliver to the plaintiff’s executors, as aforesaid, his written guarantee, which guarantee was annexed to said bond or writing obligatory as aforesaid, and was in words, &c. [This instrument is also set forth in the opinion of the court.]

“And the complaint further shows that the said Lauren Mallory and Hiram W. Bostwick have not, nor has either of them paid or caused to be paid or satisfied of record the said mortgage, or any part thereof, nor has the said defendant, William M. Mallory, paid or caused to be paid or satisfied of record the mortgage aforesaid, although often requested so to do, but the same still remains a valid and subsisting lien and incumbrance upon the land aforesaid.

“Wherefore the plaintiff’s executors, as aforesaid, demand judgment of this court that the defendant pay and satisfy, or cause to be paid and satisfied of record, the mortgage aforesaid, or that he be adjudged to pay to the plaintiffs the sum of seven thousand dollars, or such sum as may be sufficient to pay and satisfy of record the mortgage aforesaid, or such other and further relief and judgment as the court shall see fit to grant with costs.”

George T. Spencer, for the defendant and appellant.

—I. This is an action in equity to enforce the specific performance of a contract, having for its object to compel the defendant to procure the discharge of a mortgage which is alleged to be a lien on lands conveyed to the plaintiff’s testator. (1.) Although the distinction between actions at law and suits 'in equity is abolished-by the Code, the substantial difference between legal and equitable relief is preserved (Goulet v. Arseler, 22 N. Y., 225 , 228 ; Cole v. Reynolds, 18 N. Y, 74 , 76 ; Reubens v. Joel, 14 N. Y. [3 Kern. ], 493; Haywood v. City of Buffalo, 14 Id., 534; McCarty v. Edwards, 24 How. Pr., 236 ; Mutual Benefit Life Ins. Co. v. Supervisors, &c. of N. Y., 32 Id., 354 ). (2.) That the object of the action is to obtain .equitable relief, may be inferred also from the form of the summons, taken in connection with the prayer

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for relief in the complaint; the summons specifying that the plaintiff will apply for the relief demanded in the complaint, and the complaint asking that the defendant be required to perform specific acts (Code of Procedure, §§ 128, 129; McCarty v. Edwards, supra). (3.) The form of the action, statement of facts, and prayer for relief, require that upon an issue of fact upon the complaint, the same should be tried by the court, and not by a jury. This is not an “action for the recovery of money only, or of specific real or personal property,” &c. (Code of Procedure, §§ 253, 254; McCarty v. Edwards, supra). (4). This is not an action to recover damages. It is not alleged that such have been sustained ; none are demanded. The nature of the action is to be determined by the prayer for judgment or relief, as well as the statement of facts (Hubbard v. Eams, 22 Barb., 597 ; Gilbert v. Averill, 15 Id., 20).

II. As this is an action to obtain equitable relief, it must be determined, upon demurrer to the complaint, by the rules, and upon principles applicable to what are termed equitable actions. The demand for judgment or relief is as essential a part of the complaint, as the statement of facts ; and, if the facts alleged do not authorize the relief demanded, the complaint does not state facts sufficient to constitute a cause of action. When the sufficiency of the complaint is denied, the only question is whether, if the facts are admitted to be true, the plaintiff is entitled to the relief which he claims (Code of Procedure, §§ 141, 144 ; General Mutual Ins. Co. v. Benson, 5 Duer, 168 , 175 ; Livingston v. Painter, 24 How. Pr., 231 Craig v. Hyde, Id., 313 ; Mutual Benefit Life Ins. Co. v. Supervisors, &c. of N. Y., 32 Id., 359 ; Haywood v. City of Buffalo, 14 N. Y., 534 , 540). (1.) The court, upon a mere issue of law, cannot grant relief exceeding that demanded in the complaint (Code, § 275). In such cases the prayer for relief determines the judgment which is to be given. Upon demurrer to the complaint, therefore, if the facts stated do not authorize the relief demanded, the complaint cannot be sustained (Simonson v. Blake, 20

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How. Pr., 484 ; Marquat v. Marquat, 2 Kern., 336, 341 ; and cases above cited). (2.) The plaintiffs, having stated one cause of action, and framed their prayer for relief in accordance with the same, cannot recover for a different cause of action, though the facts might sustain it (Walter v. Bennett, 16 N. Y., 250 ; Lano v. Beam, 19 Barb., 51 ; Hess v. Buffalo & Niagara Falls R. R. Co., 29 Id., 391; Walton v. Walton, 32 Id., 203 ; Craig v. Hyde, 24 How. Pr., 313 ). (3.) It will appear that in this case the court has awarded judgment absolute, for a specific sum, as for damages—a relief exceeding that which is demanded in the complaint.

III. As this is an equitable action, to obtain specific equitable relief, and not an action for the recovery of damages or a specific sum of money merely, the complaint does not state facts sufficient to constitute a cause of action. (1.) The evident ground upon which the relief is sought, is, that the plaintiffs have an interest in lands incumbered by the mortgage satisfied which is set out in the complaint.' But the complaint nowhere shows that they have any such interest. The provisions of William Womburgh’s will are not set forth; and there is nothing to show that the executor acquired under it any interest in his real estate (Buck v. Buck, 11 Paige, 170). (2.) Such an interest is not to be inferred from the bond executed by Lauren Mallory and Bostwick. It is not recited in that instrument, and cannot be made out by inference or argument (Carpenter v. Stilwell, 3 Abb. Pr., 459 ; Boyce v. Brown, 7 Barb., 80 , 85.) (3.) The guaranty set out in the complaint was executed by the defendant to secure to the plaintiff the performance of the bond given by Lauren Mallory and Bostwick upon the nominal consideration of one dollar, and is not, therefore, founded upon such a valuable consideration as will authorize judgment for a specific performance (Adam's Eq., 78). (4.) No facts are stated in the complaint, which show that the plaintiffs are, in any manner, damaged by reason' of the mortgage they seek to have satisfied, or that they can by any possibility suffer any loss or even incon

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venience therefrom. (5.) The plaintiffs sue in their special character as executors of the will and testament of William Womhurgh, deceased ; hut the complaint does not state or show facts authorizing them to sue in that capacity. Neither does it appear that the will of William Womhurgh was ever proved, or that letters testamentary were issued to the plaintiffs by any court or authority. It is not enough that they were so nominated in the will, or that they duly qualified and entered upon the discharge of their duties as executors. It is not even alleged that the plaintiffs are executors (Merrill v. Seaman, 2 Seld., 168; White v. Joy, 3 Kern., 83 ; Sheldon v. Hoy, 11 How. Pr., 11 ; Bangs v. McIntosh, 23 Barb., 591 ). (6.) The contract of the defendant does not authorize the plaintiffs to bring this action in the capacity of executors, because ; first, they seek relief on grounds extrinsic of the contract; secondly, the defendant’s contract contains nothing showing the plaintiffs’ character as executors; and, thirdly, even if it did, he is not estopped from denying their light to such character (Welland Canal Co. v. Hathaway, 8 Wend., 480 ; First Baptist Society v. Rapalee, 16 Id., 605 ). (7.) The plaintiffs, having sued in their assumed character as executors, are not now at liberty to claim the right to recover in an individual character. The complaint shows that any damage arising in consequence of a breach of the defendant’s agreement has been sustained by the heir or devise of William Womhurgh, and not by the plaintiffs (Chateau v. Suydam, 21 N. Y., 179 ). (8.) Even if the defendant’s contract is to be deemed an admission by him of the plaintiffs’ character as executors, it does not admit them to be such by authority derived from any sources in this State, and hence they cannot sue in its courts as such (Parsons v. Lyman, 20 N. Y., 103 ; Newton v. Bronson, 13 Id., 587). (9.) The plaintiffs do not show that they are entitled to relief in equity. On the other hand, the remedy at law furnishes adequate redress (Mutual Benefit Life Ins. Co. v. Supervisors, &c. of N. Y., 32 How. Pr., 359 ). (10.) The plaintiffs, having invoked the equitable powers only of the

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court, and failed to make out a case of equitable cognizance, are not entitled to judgment (Haywood v. City of Buffalo, 14 N. Y. [4 Kern.], 534, 540).

IV. The complaint shows that Isaac Bronson, the mortgagee in the mortgage mentioned therein, is a necessary party to this action. Both the prayer for relief and •the frame of the complaint are such that the matters in controversy cannot be determined, in this action, unless such mortgagee is a party thereto. The amount of interest due on the mortgage is not stated ; and 'the defendant is interested that any adjudication of that amount should be binding on him (Hubbard v. Eames, 22 Barb., 597 ; Gilbert v. Averill, 15 Id., 20). (1.) It does not appear from the complaint that the mortgage is due. The defendant is therefore entitled to be made a party, that he may be bound by the adjudication of that question; since, if the mortgage is not due, payment cannot be compelled as against him. (2.) Judgment according to the prayer of the complaint would give the defendant the option of paying the mortgage to Bronson, in preference to the payment of so much as would be necessary to satisfy the same. Bronson is, therefore, a necessary party, for the purpose of receiving the money, and being required, on payment, to satisfy the mortgage of record (Code of Procedure, § 274; Wells v. Smith, 7 Abb. Pr., 261 ; Gilbert v. Averill, 15 Barb., 20 ; Wandle v. Turney, 5 Duer, 661 ). (3.) Judgment should be reversed, and given for the defendant on demurrer.

J. W. Dininny, for the plaintiffs and respondents.

—I. It appears from the complaint that the plaintiffs were duly appointed, and did duly qualify as executors of the last will and testament of William Womburgh, deceased, and were, at the time of the commencement of this action, acting as such. (1.) This was sufficient to authorize them to sue as executors ( 9 How. Pr., 251 ). Any further allegations would have rendered the pleadings objectionable ( 10 How. Pr., 48 ). (2.) This action is brought by the plaintiffs in the capacity or character in

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which they took the bond and guaranty ; and the defendant is estopped from denying his liability, or the right of the plaintiffs to bring the action in that capacity ( 16 Barb., 281 ; 1 Sandf., 168 ).

II. The plaintiffs may maintain this action in their own names, in them individual capacity (Merritt v. Laman, 6 N. Y [2 Seld.], 168; White v. Joy, 13 N. Y. [3 Kern.], 83).

III. There is no defect of parties. (1.) The guaranty upon which this action was brought was executed by the defendant alone. It was an individual undertaking to pay and discharge the mortgage, upon the contingency that Lauren Mallory and Hiram W. Bostwick should not. (2.) It does not appear in any of the pleadings that either Isaac Bronson or Robert Miller was living at the time of the commencement of the action. (3.) The objection that they are not joined cannot be taken by demurrer. (4.) Bronson could not have been joined as a defendant. The plaintiffs had no claim against him, and they relied upon the bond in the guaranty, as an indemnity against any claims which he might make ( 14 How. Pr., 460 ; 28 Barb., 602 ). (5.) Miller could not have been joined. This action could in no manner prejudice his interests or rights. He could not have been compelled to satisfy the mortgage. The plaintiffs had no claim against Mm. The allegation that the mortgage was unpaid must be taken as true (Cutler v. Wright, 22 N. Y., 472 ). Upon the latter supposition, the right of action was complete and properly brought.

IY. This action was properly brought in the name of the plantiffs. (1.) The bond to which the defendant annexed his guaranty, was given to plaintiff in the precise name and title in which the action is brought. Lauren Mallory and Hiram W. Bostwick were under obligations to pay the mortgage to Bronson, and thereby save the estate of Womburgh, and the plaintiffs, harmless from its operation. The bond was founded on a valuable consideration, and was a valid obligation. Being such, the defendant had a right to, and, in fact, made a valid guar

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anty of the performance thereof. (2.) It was unnecessary to allege that the plaintiffs had any interest in the land covered by the mortgage. The agreement made by Mallory to pay and discharge the Bronson mortgage was not a covenant which ran with the land. It had been forfeited previous to the death of William Womburgh, and Mallory was liable to an action on that agreement at the time of the former’s decease. (3.) It was a personal action, and Ms executors were the proper parties to bring it.

Y. The complaint states facts sufficient to constitute a cause of action. It sets forth the making of the bond, the guaranty, and the forms, terms and conditions thereof ; the failure of Lauren Mallory and Hiram W. Bostwick to pay the mortgage, and that the defendant had not discharged ■ the same of record as he was bound to do.

YI. Mo question on the demurrer can arise on this appeal. The appeal to this court is from the judgment entered on the decision of the general term of the supreme court affirming the order made at a special term thereof.

—The plaintiffs’ claim in this action is based upon a guarantee of a bond made by Lauren Mallory and Hiram W. Bostwick to the plaintiffs, in these words:

“Know all men by these presents, that we, Lauren Mallory and Hiram W. Bostwick, of Corning, Steuben county, Mew York, are held and firmly bonded unto George Parnham and Henry Womburgh, both of Addison, Steuben county, Mew York, executors of the last will and testament of William Womburgh, deceased, late of Addison, in said county of Steuben, in the sum of seven thousand dollars, lawful money of the United States of America, to be paid to the said George Parnham and Henry Womburgh, executors, as aforesaid, the survivors or survivor, or his or their assigns, for which payment well and truly to be made we bind ourselves, our heirs, executors, and administrators, jointly and severally,

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firmly by these presents. Sealed with our seals, dated the 26th day of June, in the year 1854.

.“The condition of this obligation is such, that if the above bounden Lauren Mallory and Hiram W. Bostwick, their heirs, executors, or administrators, shall well and truly pay and satisfy of record, or cause to be fully paid and satisfied of record, and fully discharge a certain indenture of mortgage made and executed on the sixth day of September, 1831, by Robert Miller to Isaac Bronson, then of the city of New York, to secure the payment of the sum of three thousand five hundred dollars and interest, which mortgage is on the lands conveyed to said William Womburgh, now deceased, by the said Lauren Mallory and his wife, by deed, bearing date the 26th day of January, in the year 1847, which lands are situated in the town of Big Flatts, Chemung county, New York, and which mortgage is duly recorded in Che-mung county clerk’s office, and which is to be paid, satisfied, and discharged by the above-bounden Lauren Mallory and Hiram W. Bostwick, as follows, viz :

“ One’thousand dollars and all of the interest on said $3,500 due on the first day of July, 1855, is to be paid to apply as a payment on said mortgage on the first day of July, 1855, and all that shall remain unpaid, after making the said payment, on the first day of July, 1855, as aforesaid, of the said sum of $3,500, together with all the interest thereon, shall be fully paid on 'the first day of July, 1856, and the mortgage shall be fully satisfied and discharged on the same first day of July, 1856, so that it shall be no longer a lien or incumbrance on said lands, nor of any force or effect, without fraud'or delay, then the preceding obligation to be void, otherwise to remain in full force and virtue.”

The defendant, William M. Mallory, on the 26th day of June, 1854, did make, execute, and deliver to the plaintiffs, as executors, as aforesaid, _ his written guarantee of said bond or obligation, and which was annexed to said bond, and is in these words:

“ For and in consideration of the sum of one dollar to

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me in hand paid, the receipt whereof is hereby acknowl-. edged, I do hereby become surety for the punctual payment of all moneys, and full performance of all the conditions and covenants in the annexed bond mentioned, to be paid, done, and performed by Lauren Mallory and Hiram W. Bostwiok, and if any default shall be made by them, or if they shall refuse or neglect to fully pay or fulfill all or any of the payments, or perform all or any of the conditions mentioned in said bond, at any time, I hereby agree to pay and fully satisfy and discharge the mortgage mentioned in said bond, and fully perform in every respect all of the agreements and conditions mentioned in said bond, and at and within the time therein stated.”

The complaint averred that on or about the 26th day of January,. 1847, the said Lauren Mallory sold and conveyed to the said William Womburgh, by a warranty deed of that date, certain pieces and parcels of land therein described. That before said sale and conveyance, to wit, on or about the 6th day of September, 1831, one Robert Miller, who was at the time the owner of said lands, executed and delivered to Isaac Bronson a mortgage upon said lands to secure the payment to said Bronson of the sum of $3,500, which mortgage was, at the time of tire sale and conveyance aforesaid, a subsisting and valid lien and incumbrance upon the said land. That said Lauren Mallory, at the time of the sale and conveyance aforesaid, promised and agreed with the said William Womburgh, that he would, within six months thereafter, pay, satisfy, and cause to be discharged of record the said mortgage.

That in consideration of the sale and conveyance aforesaid, and the promise or agreement aforesaid, made by the said Lauren Mallory to pay, satisfy, and discharge of record as aforesaid the said mortgage, the said William Womburgh paid to the said Lauren Mallory about the sum of $11,000. That the said William Womburgh died on or about the 21st day of May, 1853, leaving a will, wherein and whereby he appointed these plaintiffs executors of his last will and testament, who did, before the

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making of the said "bond or writing obligatory, by said Lauren Mallory and Bostwick, above set forth, duly qualify and enter upon the discharge of the duties of executors of said last will and testament. That the said Lauren Mallory had neglected to pay, satisfy, or discharge the mortgage aforesaid, and that the same still remained a valid and subsisting lien and incumbrance upon the lands aforesaid, at the time of the making of the said bond or writing obligatory. The complaint further averred that said Lauren Mallory and Bostwick, for the purpose of securing to these executors, as aforesaid, the payment, satisfaction, and discharge of the mortgage aforesaid, which still remained a lien and .incumbrance aforesaid, and for a valuable consideration, made, executed, and delivered to said plaintiffs said bond or writing obligatory. The complaint also averred, that for the purpose of securing the punctual payment of all the moneys, and. the performance of all the conditions and covenants mentioned in said bond, by said Lauren Mallory and Bostwick, the said defendaut made, executed, and delivered to them the written guarantee therein set forth, and which has been already described.

The said complaint further averred that the said Lauren Mallory and said Bostwick had not, nor had either of them, paid, or caused to be paid, or satisfied of record, the said mortgage, or any part thereof; nor had the said defendant Mallory paid, or caused to be paid, or satisfied of record the mortgage aforesaid, although often requested so to do, but that the same still remained a valid and subsisting lien and incumbrance upon the land aforesaid.

Wherefpre the plaintiffs demanded judgment that the defendant pay and satisfy, or cause to be paid and satisfied of record, the mortgage aforesaid, or that he be adjudged to pay the plaintiffs the sum of §7,000, or so much as may be sufficient to pay and satisfy of record the mortgage aforesaid, or sucli other relief and judgment as the court should see fit to grant.

To this complaint the defendant demurred, and assigned the following causes of demurrer.

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1. That it does not appear by the complaint that the plaintiffs have legal capacity to sue as executors.

2. That there is a defect of parties in this, that the said Isaac Bronson is a necessary party, and is not made a party plaintiff' herein.

3. That there is a defect of parties, in that the said Robert Miller is a necessary and proper party, and is not made a party defendant herein.

4. That there is a defect of parties, in that the said Lauren Mallo :y is a necessary and proper party defendant, and is not made a party defendant herein.

5. That there is a defect of parties, in that said Bostwick is a necessary and proper party defendant, and is not made a party defendant herein.

6. That said complaint does not state facts sufficient to constitute a cause of action.

7. That it appears by the said complaint that the plaintiffs are not entitled to the relief therein demanded.

' 8. That it does not appear in or by said complaint that letters testamentary or of administration have been issued to the plaintiffs, or at what time, or by what court or authority.

9. That it does not appear in or by said complaint that the plaintiffs, at the time of the commencement of the action, or at any other time, had any estate or interest upon the lands upon which said mortgage was a lien or incumbrance, or that the plaintiffs were -in any way injured or prejudiced by the existence of said lien or incumbrance.

10. That it does not appear in or by said complaint that the defendant has had any notice of any breach of any of the conditions of the bond set forth in the complaint, of the refusal or neglect of the obligors therein to pay or fulfill all or any of the payments, or perform all or any of the conditions mentioned hr said bond,

11. There is no sufficient breach of any of the conditions of said bond set forth in the complaint alleged therein.

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12. There is no sufficient breach of the agreement of the defendant stated or alleged in said complaint.

Judgment was given for the plaintiffs, overruling said demurrer, at special term, unless the defendant, within thirty days, should answer on payment of costs. Said order, on appeal, was affirmed at general term.

The cause coming on again to be heard at special term, judgment was again rendered for plaintiffs for the amount then due upon the said bond and mortgage, amounting to the sum of $3,636.47, and the costs of this action. And, upon appeal to the general term, said judgment was affirmed, and thé defendant now appeals to this court.

The supreme court correctly held that the grounds assigned in the demurrer interposed by the defendant presented no obstacle to the plaintiffs’ recovery.

The engagement or contract of the defendant with these plaintiffs was absolute, that in the event Lauren Mallory and Bostwick should fail in the performance of their covenants, then the defendant agreed to pay and fully satisfy and discharge the said mortgage to Isaac Bronson, and fully perform in every respect all the covenants and agreements contained in the bond of Lauren Mallory and Bostwick on their part to be done and performed.

The prayer of the complaint was that the defendant should pay and satisfy, or cause tó be paid and satisfied, the said mortgage to Isaac Bronson, or should be adjudged to pay to the plaintiffs a sum sufficient to pay and satisfy of record the said mortgage.

As already observed, the judgment of the supreme court is that the defendant should pay absolutely to the plaintiffs the amount of the said judgment. In this I incline to think that court erred, and that the judgment should have been that the defendant should pay and satisfy, or cause to be paid and satisfied of record, the said mortgage to Isaac Bronson, within thirty days from the date 6f said judgment, or, in the event of his not doing so,

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then that he pay to the plaintiffs the amount of the said-judgment.

. With this modification, I am for the affirmance of the. judgment, with costs.

—This is an appeal from a judgment of the supreme court, in favor of the plaintiffs, on demurrer to the complaint.

The case made "by the complaint is as follows : Lauren Mallory owned lands, on which there was a mortgage lien of $3,500.

He sold and conveyed the lands to William Wom"burgh, "by warranty deed, and agreed with the latter to assume, pay off, and discharge the mortgage. Womburgh died, and the plaintiffs were appointed his executors. For the purpose of securing performance of the agreement, to satisfy the mortgage, Mallory, with Hiram W. Bostwick as his surety, made a "bond to Womhurgh’s executors, in the penal sum of $7,000, conditioned that they would satisfy and discharge the mortgage by installments—the last one to be paid on the 1st July, 1856.

The defendant thereupon, and by a separate instrument, under seal, became surety for Mallory and Bostwick, and agreed that in case they should neglect or refuse to fulfill the condition of the bond, he would perform it according to its terms.

All the parties having omitted performance of the condition, this action was instituted to enforce the defendant’s obligation.

The facts above cited are all alleged in the complaint, and very manifestly show a good cause of action.

The case, briefly stated, is this: The defendant covenanted and agreed with the plaintiffs that Mallory and Bostwick should satisfy and discharge the mortgage. They omitted -so to do, as did also the defendant; the latter was, consequently, in default on his agreement.

, The supreme court was very clearly right in giving judgment for the plaintiffs on the demurrer.

p. 397

Nor was the complaint open to any technical or formal objection as a pleading.

The plaintiffs were authorized to maintain the action as executors. It is averred that William Womburgh was dead, and that they had been duly appointed the executors of his will and testament; and it also appears that the bond and instrument of suretyship were made to them as such executors. The defendant, having made the agreement with them as executors, is estopped from denying their right to bring the action in their representative cajjacity ; and it must be assumed, too, that they have an interest in the enforcement of the agreement. The defendant, by his agreement, was under personal engagement to them as executors; and having broken his covenant with them, they could enforce his liability.

The only difficulty in the case is in the form of the judgment.

The judgment, as entered, is absolute—that the plaintiffs recover the amount remaining unpaid on the mortgage, to wit, §3,686.47, with interest from October 4, 1858.

There is no security that the plaintiffs will appropriate the recovery to the payment of the mortgage debt.

If collected by them, they may refuse, or become unable to satisfy the debt with the money, and leave the bond to be enforced against the obligor.

There should be a provision in the judgment to meet this contingency.

If the executors had, in fact, paid off the debt and satisfied the lien, there would then be no difficulty ; their recovery should then be absolute for the amount paid.

But this they have not done. They have yet suffered no damage, and the action is brought with a view to protect them (and those interested through them' in having the agreement fulfilled) from injury.

The action is for a specific performance of personal

p. 398

covenants —a specific performance of an agreement of indemnity.

There was no difficulty, consequently, in so framing the judgment or decree as to meet the requirements of the case, and protect the rights of all interested in the subject-matter of the action, although not parties.

The judgment should have been to the effect that the defendant specifically perform his covenant and agreement, by satisfying and discharging the mortgage within a time to be specified, or, in default thereof, the plaintiffs recover judgment against him for the sum remaining unpaid on the mortgage ;• that judgment be forthwith docketed against him for such amount, to stand as security and to be enforced by execution, in case of his neglect to satisfy and discharge the mortgage within the time specified ; that, in case of sale or collection under execution, the sheriff bring the amount collected into court to abide its order, and that the plaintiffs be at liberty to apply to the court for further relief, if necessary. Also that the plaintiffs recover the costs and disbursements of the action.

This, in my judgment, should have been the form of the decree.

I am therefore of the opinion that the judgment of the supreme court in favor of the plaintiffs, on the demurrer to the complaint, should be affirmed, with costs, but with a modification of the details in accordance with the above suggestions. And in my judgment the defendant should be charged with the costs on the appeal to this court. The litigation is without excuse on his part.

His agreement was clear and specific, and, for aught that appears, was fairly and understandingly entered into.

It should have been faithfully performed.

The modification now suggested is formal merely, and is to meet a contingency which may arise in case of justification by him in his unfaithfulness. He should therefore reap no benefit from it.

p. 399

The judgment against him is in effect affirmed ; and it should, as I think, "be with costs of appeal.

On consultation, the judgment was modified in accordance with opinion of Davies, Ch. J.