Mayo v. Davidge — 22 N.Y. St. Rep. 67

Majority

p. 67

Wallace Mayo, App’lt., v. Sallie M. Davidge et al., Resp’ts.

(Supreme Court, General Term, Second Department,

Filed February 11, 1889.)

Headnote

Mortgage—When mortgagor entitled to a judgment for cancellation.

The mortgage was given to secure the payment of any sum which should thereafter become due from Robert C. Davidge to the plaintiff for moneys that the plaintiff should thereafter advance for the account of said Davidge, in certain transactions in which both were engaged, and after the delivery of the bond and mortgage the plaintiff advanced no money, and before the commencement of the action, all the indebtedness due from defendants to plaintiff thereon was fully paid and discharged: Feld, that the defendants were entitled to a judgment for the cancellation and discharge of the mortgage.

Plaintiff brought this action for foreclosure of a mortgage upon lands made to him by defendant.

The mortgage was executed and delivered April 11, 1883, to secure payment of $2,000, with interest.

May 1, 1883, $1,500 was paid off on account of the prin- * cipal, and this action was brought to secure the balance of $500 remaining due, with the entire interest.

Issue was joined on plaintiff’s demurrer to the first amended answer of defendants, which set up in defense a counter-claim of $854.08.

The court (Pratt, J.) sustained the demurrer, and the general term (opinion by Barnard, P. J., May, 1887) affirmed on appeal. 8 £7. Y. State Rep., 844.

Issue was then joined on the second amended answer of defendants, setting up a new defense, that of payment of the mortgage debt. The court (Brown, J.) gave judgment for plaintiff, as prayed; but the general term, on appeal (opinion by Pratt, J., June, 1888), reversed, granting a ‘new trial. 17 £7. Y. State Rep., 1003.

p. 68

Defendants then served their third amended answer, and the cause finally came on for trial at the October term, 1888.

Upon the trial, defendants gave in evidence, to sustain their defense of payment, advances of money by defendant-R. 0. Davidge, for plaintiff, subsequent to the mortgage debt; which advances said Davidge testified were agreed by plaintiff to be accepted in payment of the balance due upon, the mortgage.

The plaintiff absolutely denied the making of any such, agreement and the alleged payment of the mortgage.

The court (Barnard, P. J.) gave judgment for defendant, decreeing payment of the mortgage debt.

From that judgment plaintiff now appeals.

Henry Sanger Snow, for app’lt; F. C. Cantine, for resp’ts.

—This is an action for the foreclosure of a. mortgage.

The complaint is in the usual form, and the defendants-came in with an answer which required a trial, and a trial was had and the trial judge made the following findings.-. The mortgage mentioned in the complaint was delivered April 11, 1883, and was given to secure the payment- of any sum- which should thereafter become due from Robert 0.. Davidge to the plaintiff for moneys which the plaintiff' should thereafter advance for the account of said Robert 0., Davidge in speculative transactions in which the plaintiff' and said Robert C. Davidge were then engaged; and after the delivery of said bond and mortgage the plaintiff advanced no money for the account of said Robert 0. Davidge in said transactions.

That before the commencement of this action all the indebtedness due from the defendants or either of them, to the plaintiff, upon said bond and mortgage was fully paid, and discharged.

As a conclusion of law the judge found that the defendants were entitled to a judgment for the cancellation of' the mortgage and for discharging the same from the records, with costs.

Judgment was then entered in accordance with such decision, and the plaintiff has appealed therefrom.

The conclusion of the trial judge was reached through some contradictory testimony, but we think the findings are supported. He took the same view of the case which we took when the case was before us on appeal (17 N. Y. State Rep., 1003), and the whole transaction seems to be harmonized by the finding and decision.

The judgment should be affirmed, with costs.