Winslow v. Stoothoff — 104 A.D. 28

Majority

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Frederick K. Winslow, Respondent, v. Stephen W. Stoothoff, Appellant.

Headnote

.^Mortgage-.— agreement by a successor’ to the mortgagors title to pay it — consent by - the mortgagor and waiver of any defense based thereon— payment by the mortgagor’s successor in title of a deficiency judgment, recovered on the foreclosure of the mortgage—he cannot recover the amount from the mortgagor.

After the title to certain real'property, upon which one.Stoothoff had executed a mortgage, had become vested, subject, to the mortgage, in parties' named Winslow, an action'was brought to foreclose the mortgage." Thereupon the ' Winslows made an agreement with the holder of the mortgage, by which, in consideration of an extension of the time for ¡payment of the mortgage, - they hbund themselves' to pay the principal sum. and interest. Such extension -.agreement contained the following provision: '“ Nothing herein contained shall invalidate any of the securities now held fof said debt,, ór impair any condi- ■ tiori in said bond and mortgage contained.” ' ;

The holder of the mortgage obtained Stoothoff’s'consent to the, .extension by an instrument in the' following terms: “In consideration of tie foregoing exten- ■ sion of the time of the payment, of .the mortgage therein described, I hereby consent to the same arid, waive all defenses that I may have on account of said extension,” The~WinsIows were, not informed! of such consent until long after it was- given,. ' ’ l ;

Subsequently the holder of the mortgage began ¡ an action tb foreclose the same and recovered therein a deficiency judgment against .the Winslows and Stoothoff. . . 1 ■

Held, that the Winslows, who- paid .the'deficiency judgment, ¡were not entitled to compel reimbursement from Stoothoff. ‘ ■; ■ ;

Appeal, by the defendant, Stephen W. Stoothoff, -from a judgment of the Supreme Court in favor of the plaintiffs entered in the

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office of the clerk of the county of Kings on the 29th day of February, 1904, upon the decision of the court rendered after a trial at the Kings County Special Term.

Stephen W. Stoothoff, the defendant, mortgaged certain Brooklyn property to Frank 0. Lang. By mesne conveyances the title became vested in Harriet A. Winslow, subject to the Stoothoff mortgage. Harriet A. Winslow devised the premises to Delia 0. Winslow, Frances A. Winslow and Louisa Winslow. Subsequently Lang began a suit to foreclose the mortgage, whereupon Delia C. Wins-low, Frances A. Winslow and Louisa Winslow made an agreement with Lang by which, in consideration of an extension of the time for the payment of the mortgage, they bound themselves to pay the principal sum and interest. This extension agreement contained the following provision : “ Nothing herein contained shall invalidate any of the securities now held for said debt, or impair any condition in said bond and mortgage contained.” Lang obtained Stoothoff’s consent to the extension on the copy of the agreement which he retained, which consent was in the following xyords : “ In consideration of the foregoing extension of the time of the payment of the mortgage therein described, I hereby consent to the same and waive all defenses that I may have on account of said extension.” The Winslows were not informed of this consent until long after it was given..

Subsequently the executors of an assignee of the mortgage began an action to foreclose the same, making the Winslows, who had previously sold the property, and Stoothoff parties to the suit, and asking judgment, against them for any deficiency. In that action a deficiency judgment was obtained against the Winslows and Stoothoff for $677.90. This judgment was paid by Frederick K. Wins-low, the plaintiff, who is the assignee of any rights of Delia O. Winslow, Frances A. Winslow and Louisa Winslow.

Frederick K. Winslow thereupon brought this action to compel Stoothoff to pay the amount of the deficiency judgment, and has succeeded at Special Term, where it was held that his consent to the extension of the mortgage continued his status as the primary debtor, and that upon paying the amount of the deficiency judgment the Winslows became entitled to recover that amount from him.

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John T. SacJcett, for the appellant.

Melville J. France [Abram B. Bailey with him on the brief], for the respondent.

The extension given to the Winslows, would have operated to release Stoothoff from his obligation- as mortgagor to the extent of the value of thé land, if that extension had been 'given without Stoothof^’s consent. (Murray v. Marshall, 94 N. Y. 611 ; Antisdel v. Williamson, 165 id. 372.) The consent to. ¡the extension was obviously obtained to prevent this result.' The assumption by the Winslows of the payment of the principal sum- and interest secured by the bond and mortgage, in consideration of' the extension, had nothing to do with Stoothoff’s liability/ It was an independent promise to satisfy the mortgage' debt, made in order to secure a postponement in the enforcement of the .mortgage against the land for a period of three years. The Winslows did not thereby ■ agree to pay the mortgage debt if Stoothoff failed to pay it, but they assumed its payment absolutely. When, therefore, they were forced to pay, they were paying not Stoothoff’s debt but their own. I canñdt see how the fact that, the, deficiency judgment might be enforced against Stoothoff in any manner operates to: relieve the Wins-lows from their obligation under a wholly independent agreement ' made between them and the mortgagee. No privity between them , and Stoothoff was created by his. consent to the extension, which w.as.a transaction .wholly between him and the mortgagee, in nowise affecting the enforcibilit’y of their promise to pay the mortgage debt. The.extension agreement was fully executed so far .as the mortgagee is concerned, and he thereupon became entitled to.enforce that part of it which bound the Winslows to pay the mortgage debt.

■ For these reasons it seems to me that the judgment at -Special Term should have been the other way, and I, therefore, advise a reversal , >

Hirsohberg, F. J., Woodward and Jehks,' JJ., concurred; Hooker,-J., not voting. .

Judgment reversed and new trial granted, costs to abide the final award of ■ costs.

Cases cited

Murray v. Marshall 94 N. Y. 611 N.Y. 1884-02-08 p. 30