In re Coster — 2 Johns. Ch. 502

Majority

p. 502

In the matter of John G. Coster.

Headnote

Where, on a sale of mortgaged premises under a decree, the bond is fully paid, the obligor is entitled to have the bond and mortgage delivered up to him and cancelled.

The obligee, or purchaser of the mortgaged premises, is not entitled to retain them in his hands for his own convenience, or for greater security of his title under the decree, without the assent of the obligor.

But a third person, who pays off mortgage debts, for his own security, may be substituted in the place of the obligor, or mortgagor, and retain the bond and mortgage.

THE petitioner stated, that on the 18th of April last, he purchased the building called Washington Hall, under a decree of this Court. That Isaac Sebring, and four other persons, as trustees of the stockholders of the said hall, mortgaged the premises to Henry A. Coster, to secure the payment of a bond executed by the said Isaac Sebring, for the payment of 25,000 dollars. That the trustees mortgaged the premises to John Van Vechten, for the use and indemnity of Sebring. That the premises were sold under a bill and decree, in favor of the said Van Vechten and Sebring, in which suit Henry A. Coster was made a defendant; and upon such sale, the bond has been fully paid. That to

p. 504

render the title of the petitioner, under the decree, *more secure, he wishes to obtain from Henry A. Coster an assignment of the bond and mortgage; but Sebring objects to it, as it regards the bond, though the petitioner is willing the assignment should be so made, that Sebring and his representatives can never become answerable.

He prayed, therefore, for an order for the assignment of the bond and mortgage, as the Court might direct.

Riggs, for the petitioner.

Boyd, contra.

The obligor, having discharged his bond, is entitled to have it delivered up and cancelled. Neither the obligee, nor any other person, is entitled to retain it, for their convenience, without his assent. As there is no objection by the mortgagee to the assignment of the mortgage, the petitioner may take it; but the bond must be delivered up to the obligor, to whom it now belongs; and, if it had been insisted, the mortgage must have, also, been delivered up to him. A third person, discharging a bond and mortgage for his own safety, may be substituted, but when the maker discharges them, he is clearly entitled to have the instruments cancelled. The prayer of the petition is so far denied.

Petition denied.