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Mack v. Anderson

66 N.Y. St. Rep. 836 Court N.Y. Sup. Ct. Decision date 1895-03-23 English

Delivered by Wright, J.

Contents

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John J. Mack, Pl’ff, v. Robert H. Anderson et al., Def’ts.
(Supreme Court, Oswego Special Term,
Filed March 23, 1895.)

Headnote

1. Principal and surety—Release.
In the absence of an express agreement to extend the time of payment of any part of the original debt, the mere taking of a second mortgage, though on time, does not, by implication, extend the time of payment of that part of the original debt for which 'it was given as additional, collateral security, and does not, therefore, release the surety of the debtor.
2. Same.
A stipulation between the mortgagor and mortgagee, after the commencement of an action to foreclose, by which the latter waives his right to a deficiency judgment, does not affect the liability of the farmer’s surety. ,
W. H. Kenyon, for pl’ff; D. D. Metcalf for def’t Anderson.

The plaintiff held a bond and mortgage executed .by the defendant Metcalf. The mortgage covered two parcels of

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land, one consisting of fifty acres, and the other of twenty-five acres. Subsequent to the execution of the mortgage, Metcalf conveyed by warranty deed the 25-acre parcel to Anderson, who paid full value, without notice of the mortgage. After the mortgage became due, Metcalf made and delivered to the plaintiff another bond and mortgage on other lands, to secure the payment in one year of $385, that being the interest then due on the first bond and mort gage. The plaintiff, after commencing this action to foreclose both mortgages, executed with Metcalf a stipulation by which the plaintiff waived “all claim to recover a judgment for deficiency herein ’’ against Metcalf, and Metcalf waived notice of application for judgment herein and of reference to that end. The defendant Anderson made default, and the action proceeded to judgment, no provision for a further judgment for a deficiency against Metcalf being made therein. Upon Anderson’s application the judgment has been opened as to him, and he allowed to come in and defend. He now urges: First, that, his land being pledged to secure Metcalf’s debt, he stands in a situation similar to that ' of surety to Metcalf, and. that the second mortgage operates as an extension of time of the payment of the original debt, and, therefore, that his twenty-five acres are released from the lien of the mortgage; also, second, that the stipulation is a release of a part of the bond indebtedness, and that such release operates also to discharge him as surety.

On the execution of the second mortgage, there was no express agreement to extend the time of payment of any part of the origk nal debt, and the mere taking of the samé, though on time, does not, by implication, extend the time of the payment of that part of the original debt for which it was given as addditional collateral security. Therefore, Anderson, the surety, is not thereby released. Cary v. White, 52 N. Y. 138 . The stipulation does not in terms release Metcalf, the original debtor, from his liability on the bond. Does it impliedly have that effect? Hot unless the bond is merged in the judgment herein. But, as to the rights of Anderson and the liabilities of Metcalf in the relationship of these codefendants to each other, the bond is not merged in the judgment in this action.- Wadsworth v. Lyon, 93 N. Y. 201 . The stipulation waived the right only to a contingency,—the right to take judgment in this action for a deficiency in the uncertain event of there happening to be a deficiency after the sale of the land; and its legal effect is limited to its strict terms, and they relate to the plaintiff’s remedy solely in this action. It does not prejudice Anderson’s right of subrogation, the right to pay the original debt, and take an assignment of the bond, mortgage, and judgment; for if he should thus seek to protect his rights, and there should prove to be a deficiency after applying on the mortgage debt the proceeds of a sale of the land described in the mortgage, exclusive of his own, the court, in order to protect Anderson’s equitable rights, would permit him, under section 1628 of the Code of Civil Procedure, to bring an action against Metcalf on the bond for such dciiciencjc The bond in his hands would still be valid for that purpose. Wadsworth v. Lyon, supra. Metcalf could

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not be injured by such a course, for he still owes the debt, and he knew at the time he took the stipulation that, as between himself and Anderson, he was obtaining no relief from his obligation on the bond in case Anderson should pay the debt and take an assignment of the securities. He was content to provide himself against liability for a deficiency in this action, and the parties, therefore, did not mention the bond or debt in their stipulation. The waiver of contingency in this case is far different from the positive act of releasing a part of a debt, or of releasing a security to which the surety would be entitled by the doctrine of subrogation, as was done in Barnes v. Mott, 64 N. Y. 397 . In this case the surety has lost no rights whatever by the stipulation.

Judgment is ordered for the plaintiff, with costs of the term Anderson.

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