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Muir v. Greene

191 N.Y. 201 Court N.Y. Decision date 1908-02-18 English

Delivered by Haight, J.

Contents

Majority

p. 201
Robert Muir, Respondent, v. Harriette T. H. Greene, Appellant, Impleaded with Others.

Headnote

Mortgage — Foreclosure — When Defense of Want of Consideration Not Sustained. Where, in an action to foreclose a mortgage given by the mortgagor as security for the payment of a bond executed by herself and her husband in consideration of an extension of the time of payment of a sum of money due from the husband to the mortgagee and the advancement in the future to them both of additional sums up to a certain amount, it appears that no additional sums were advanced which could legally be held to come within the terms of the mortgage, the action cannot be successfully defended, on the ground that the bond provided for payment on demand, and, as the demand could have been made immediately, there was no extension of the time of payment of- the amount due from the husband, and, therefore, no consideration for the mortgage, where it appears from an examination of the bond that, although it does provide for payment on demand, it also indicates an intention that the demand should only be made at some time in the future, and it is found as a fact that the demand was not made until nearly three and a half years thereafter, thereby constituting a forbearance which sustains the validity of the instrument.
Muir v. Greene, 115 App. Div. 173 , affirmed.
(Argued January 31, 1908;
decided February 18, 1908.)
Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered ¡November 8, 1906, modifying and affirming as modified a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.
The nature of the action and the facts, so far as material, are stated in the opinion%
p. 202
Thaddeus D. Kenneson for appellant.
Mrs. Greene never came under any obligation to Mr. Brockway by virtue of the execution and delivery of the bond, because he' failed to perform conditions precedent to the creation of any obligation on her part to pay the debt of $2,851.18. (Lock v. Wright, 1 Strange, 569.) There was no consideration for the bond, and it is, therefore, void. (Code Civ. Pro. § 840; Recknagel v. Steinway, 58 App. Div. 352 ; Dorr v. Munsell, 13 Johns. 430 ; Dorlan v. Sammis, 2 Johns. 179 ; Strong v. Sheffield, 144 N. Y. 392 .)
Béla D. Eisler and Robert Goeller for respondent.
There was valid consideration for the bond and mortgage. (Dart v. McAdam, 27 Barb. 187 ; Price v. Alyea, 13 App. Div. 184 .)

This action was brought to foreclose a mortgage executed by the defendant Harriette T. H. Greene to the plaintiff’s assignor, Joseph D. Brock way.

On the 2-9th day of July, 1901, Robert M. Greene, the husband of the defendant Harriette T. II. Greene, was indebted to J oseph D. Brockway, in the sum of two thousand eight hundred and fifty-one and 18/100 dollars. Thereupon they joined in executing a bond to Brockway, in which they recited the following: “ Whereas, Robert M. Greene, one of the parties above named, is indebted to the said Joseph D. Brockway, the obligee herein, in the sum of two thousand eight hundred and fifty-one and-18 /100 dollars, which is now due, and the said Harriette T. Greene having requested the said Joseph D. Brockway to extend the time of payment of said sum and to advance to both of said obligors further sums of money not, however, to exceed the additional sum of six hundred dollars, and in consideration of the forbearance on the part of said Joseph D. Brockway, granted to said Robert M. Greene, and the advancement of such further sums as are herein provided, the said Harriette T. Greene has bound herself and assumed and agreed to be bound jointly and

p. 203
severally, with the said Robert M. Greene, to be liable for and with the said Robert M. Greene, jointly or individually to pay the said indebtedness of Robert M. Greene aforesaid, together with said sums that shall hereafter be advanced not exceeding, however, the additional sum of six hundred dollars,” etc. The bond was in the usual form, containing the condition that the sum of two thousand eight hundred and fifty-one and 18/100 dollars, with interest, should be paid upon demand, together with such further sums as shall hereafter be advanced by Brockway, with interest. At the same time Mrs. Greene executed the mortgage in question, to secure the payments provided for in the bond. Subsequently there was a loan of fifty dollars made by Brockway to Mrs. Greene, which was included in the judgment awarded to the plaintiff. This item, however, was struck out by the modified judgment, and no appeal has been taken from such modification. There was no further sum advanced by Brockway to Robert M. Greene or the defendant Harriette his wife.

The trial court found as a fact “that at the time of the• execution and delivery of the said bond and mortgage the said Joseph D. Brockway agreed not to demand payment of the said sum of two thousand eight hundred and fifty-one and 18/100 dollars from the said Robert M. Greene, or the said defendant Ilarriette T. II. Greene, until after the expiration of two or three months from said date.” The trial court also found that the said sum of two thousand eight hundred and fifty-one and 18/100 dollars had not been paid, nor any part thereof, and that on the 31st day of December, 1904, the plaintiff duly demanded the payment. And as conclusion of law the court found that the plaintiff was entitled to judgment for that amount, with interest, and that the mortgage be foreclosed and the premises sold for the payment thereof.

Inasmuch as the modification was with reference to an independent item of fifty dollars, the unanimous affirmance of the Appellate Division has settled all the other questions

p. 204
of fact involved in the litigation. It is now contended on behalf of the appellant that the Appellate Division having disallowed the item of fifty dollars advanced to Mrs. Greene, there was no consideration for her bond and mortgage; that under the condition expressed in the bond the payment of money secured by the mortgage was to be made upon demand, and that inasmuch as the demand could have been made immediately after the execution of the bond and mortgage, there was no extension of the time of payment. Our examination of the bond, however, leads us to the conclusion that such was not the intent of the parties. While it does provide for the payment of the two thousand eight hundred and fifty-one and 18/100 dollars on demand, it also includes such moneys “ as shall hereafter be advanced,” etc. Thus indicating an intention on the part of the .parties that the demand should only be made at some time in the future, for the advances that they contemplated were to be made in the future. Then, again, upon referring to the recital, it appears with reference to this identical sum, which it is stated was then due, “ that the said Harriette T. Greene had requested the said Joseph D. Brockway to extend the time of payment of the said sum.” Thus indicating that there was to be an extension for some time. The finding, therefore, of the trial court is not in conflict with the provision of the bond, in which it has been found that they contemplated an extension of time for two or three months from the date of the bond ; and inasmuch as the demand was not made until nearly three years and a half thereafter, there was consideration of forbearance which sustained the validity of the instrument. (Strong v. Sheffield, 144 N. Y. 392 .)

The agreement with reference 'to further advances is quite indefinite. They were not to exceed the sum of six hundred dollars, but no time or amount is specified in which any particular advance shall be made. FTo relief is sought in this case as against Brockway for any failure to make advances. And inasmuch as the advances were not necessary in order to furnish a consideration for the mortgage, no question is

p. 205
presented with reference thereto which calls for further consideration at this time.

The judgment should be affirmed, with costs.

Cullen, Oh. J., Vann, Willard Bartlett, Hiscook and Chase, JJ., concur ; Gray, J., absent.

Judgment affirmed.

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