Forrester v. Parker — 6 N.Y. St. Rep. 274

Majority

p. 274

George S. Forrester, Pl’ff, v. Andrew D. Parker, Def’t.

(New York Common Pleas, General Term,

Filed April 4, 1887.)

Headnote

1. Mortgage—Extension of time—Ample consideration—Agreement-FOR, NEED NOT BE IN WRITING.

An extension of time to pay a debt is ample consideration for a mortgage and for the covenant of the mortgagor to pay the debt. An agreement for extension need not be in writing, acceptance of the bond of the debtor payable in one year, upon that understanding, is sufficient.

2. Same—Recording of.

The recording of a mortgage is not for the protection of the mortgagor.

It appears from the evidence in the case, that one Andrew J. • Parker, the father of defendant, was indebted to the plaintiff, and, desiring further time," brought to him a mortgage, executed by the defendant to secure the bond given by him (Andrew J. Parker), payable in one year, and asked for an extension of time and that the mortgage be not recorded.

In the mortgage was a covenant to pay the debt.

Further time was given, the mortgage not recorded, and the property was sold without notice of the mortgage to-the vendee.

Plaintiff sued on the covenant in the mortgage and obtained judgment.

p. 275

Motion by defendant for a new trial upon exceptions directed to be heard in the first instance at the general term.

Phillips & Way, for deft; Hector M. Hetchings, for pl’ff.

The plaintiff testified that he gave Andrew J. Parker, Sr., an extension of one year on receiving the mortgage executed by the plaintiff. The extension was ample consideration for the mortgage, and the defendant’s covenant ¿to pay the debt which was contained in it. It was not necessary that the agreement for extension should be in writing, the acceptance of the bond of the debtor, payable in one year upon that understanding, was sufficient.

The receipt and acceptance of the bond of the debtor and of the mortgage made by the defendant, if nothing else were done, and there were no other proof of extension, would be sufficient ground for presuming that there was an agreement to give an extension for the time that the new obligation and the security had to run. Walrath v. Thompson, 6 Hill, 540 .

There is no force in the objection that the mortgagee should have recorded the mortgage. The defendant held the property and could have protected himself, when he conveyed it away, by giving notice of the mortgage to his grantees. The recording of a mortgage is not for the protection of the mortgagor.

It is not suggested that there was any question of fact in the case. Defendant moved for a direction of a verdict in his favor, and that being refused, did not ask for the submission of the case to the jury. It was therefore properly disposed of by. the judge upon the uncontradicted evidence.

The exceptions must be overruled and the motion for a new trial denied, with costs.

Larremore, Oh. J., and Van Hoesen, J., concur.