Titus v. Haynes — 31 N.Y. St. Rep. 409

Majority

p. 409

William P. Titus, Resp’t, v. John E. Haynes et al., Impl’d, App’lts.

(City Court of Brooklyn, General Term,

Filed May 3, 1890.)

Headnote

1. Mortgage—Rights of assignee not affected by subsequent agreement WITH MORTGAGEE.

Subsequent to the due assignment of a mortgage an agreement between the mortgagor and mortgagee by which the latter was to apply the rent of the premises occupied by her in payment of the interest, etc., was reduced to writing and a quit claim deed executed to her as security. Held, that this did not affect the rights of the assignee and furnished no defense to an action to foreclose the mortgage for non-payment of interest.

2i Evidence—Parol to vary writing.

The written agreement between the mortgagor and mortgagee stated that the quit claim deed was given as collateral for debts due on the property for taxes and interest, and was accompanied by a schedule of the debts. Held, that paroi evidence was inadmissible to vary the writing.

Appeal from judgment in favor of plaintiff, entered on the decision of the court at special term.

Action to foreclose a mortgage given by defendant Haynes and wife to defendant Merwin and by her assigned to plaintiff.

On the trial defendant Haynes was asked if there was any other consideration for the quit claim deed except the bill or schedule annexed. This question was excluded and defendant excepted.

Moore & Moore, for resp’t; S. A. Underhill, for app’lts.

On May 22, 1886, defendants Haynes and wife executed and delivered to the defendant Merwin their bond and mortgage on the premises Ho. 108 Second Place, Brooklyn, to secure the payment of $2,000 in three years, with interest at five per cent, payable on the 1st day of January and July. The bond contained the usual thirty day interest clause. This action was brought by plaintiff, as assignee of said bond and mortgage, to foreclose the same by reason of the default in the payment of the interest which became due July 1, 1888, plaintiff having elected that the whole principal sum should become due under the thirty day interest clause. The plaintiff claimed that said bond and

p. 410

mortgage were duly assigned to him by assignment dated May 22, ,1888, and recorded May 28, 1888. ■ ’ ’• > - ■' 1 ■ ’ ■

Defendant ¡Haynes and wife set up as a defense that the assignment of the bond and mortgage was not bona fide, 'and' that 'they had an agreement with the defendant ¡Merwin, who was a" tenant under Haynes of a portion of the premises,- that she was to apply .her rent to the payment of the interest to become due on her mortgage, and also the interest on a prior mortgage and taxes 'and water rates that were in, arrears; they claim that this agreement ¡was verbally made’in April-and was reduced to writing, and á quit claim deed- of the premises was made to the defendant 'Merwin on May 24, 1888, two days ’after .the' assignment of the 'bond and mortgage by Merwin to plaintiff as collateral security for the ¡payments to be made by her.

',, Whatever, may be the contentions betweeii the defendant Haynes and the defendant Merwin as to' what the agreement or arrangement between them was, it is a sufficient answer thereto for the purposes of this appeal'that the- learhed trial judge has found that said Merwin, duly assigned said bond and mortgage to the plaintiff, as alleged, on May 22, 1888. We have no hesitation in - saying, after a careful examination of all the evidence, that said finding was fully s sustained by the evidence. This being the case1, the appeal on the merits is substantially disposed of in favor , of the respondent.

' The exceptions taken at folios 89 and 91 are untenable. 'The agreement itself, “Ex. B,” stated precisely what the quit claim deed was given for, and that could "not be varied by paroi evidence. Defendant Haynes had already testified fully as to the events preceding the "delivery of “Ex.'B ” and the quit claim deed, and those papers were in evidence coupled with his testimony, as constituting his alleged defense; we are at a loss to discover how the exclusion of the question objected to excluded his alleged defense, as claimed by the learned cotinsel for appellants. '

Hone of the other exceptions to the findings and" conclusions of the court below possess any merit, or seem to call for any discussion.

The judgment must be affirmed, with costs.

Clement, Ch. J., concurs.