Purdy v. Coar

• Decision Date: 05 June 1888
• Citation: 109 N.Y. 448,17 N.E. 352
• Parties: PURDY v. COAR.
• Court: New York Court of Appeals Court of Appeals

109 N.Y. 448

17 N.E. 352

PURDY

v.COAR.

Court of Appeals of New York.

June 5, 1888.

Action for foreclosure of a mortgage, by Elijah F. Purdy against Mary Jane Coar. Judgment for plaintiff, and defendant appeals.

Harris & Corwin, (John H. Corwin, of counsel,) for appellant.

S. W. Rosendale, for respondent.

FINCH, J.

This is a case in which dates are of importance. On September 8, 1884, one John Coar was the owner of the premises now in controversy. On that day he made and executed to one Frederick C. Walker a bond and mortgage to secure $7,000, and interest. Two days later, and on September 10th, Coar conveyed the property to Marshall, and the latter to Mrs. Coar, the present defendant. In the absence of any proof to the contrary, it must be presumed that these deeds were delivered at their date. 2 Greenl. Ev. § 297; Van Renssellaer v. Vickney, 3 Lans. 59; Elsey v. Metcalf, 1 Denio, 323;Harris v. Norton, 16 Barb. 264. On September 12th the mortgage to Walker was recorded. On September 14th, as appears by its date, Coar signed a certificate that the Walker mortgage was a good and valid security, and that there was no defense to it. He had then ceased to be the owner of the property, and had no authority from his wife, who was owner, to make such representation. On September 23d the deed to Mrs. Coar was put on record, and thereafter, and while the record title was in her, and on the 14th of October, the Walker mortgage was assigned to the present plaintiffs, who bought it in reliance upon Coar's certificate. That assignment was recorded October 15th. For default of payment, this action was commenced to foreclose the mortgage. Mrs. Coar defended, alleging that no consideration passed from Walker; that she signed the mortgage supposing that the consideration named had been paid; that the plaintiffs gave no consideration for the assignment; and that the mortgage was void for want of consideration. Upon the trial she sought to prove this defense in various ways, but all her efforts were baffled by the ruling of the court that she was estopped by her husband's certificate, made when he had ceased to have any interest in the land, and when she alone had become the owner. She called her husband as a witness, and asked him to state ‘all the facts concerning the inception and continuance of the mortgage.’ The question was objected to as incompetent and immaterial, and because the witness was estopped by his certificate from attacking the mortgage. But he made no such attack. He put in no answer, and was not defending the action. Granting that he was estopped as a party, his evidence was admissible in behalf of his wife, unless she also was estopped by the certificate. She asked what consideration he received from Walker, and whether his wife knew of the sale of the mortgage to plaintiffs. All these inquires were excluded. She attempted, also, to assail the consideration sworn to by plaintiffs as the basis of their purchase. She asked how the cabinet work of which he spoke, was paid for; and whether Coar's notes, which the plaintiffs surrendered, were at that time due. These questions were not allowed to be answered. By these rulings the whole defense pleaded was made unavailable. Judgment went for the plaintiffs, which was affirmed by the general term upon the ground that the certificate of the husband estopped the wife. That learned court seemed guided by a conviction that the certificate was made before the conveyance to Mrs. Coar; and the result is arrived at by presuming that the certificate was delivered at its date, although all the facts rebut that presumption; but that the deed to Mrs. Coar was not delivered at its date, although all the facts favor that presumption. And this error is intensified by the suggestion that there is no proof when that deed was delivered. The defendant offered to show that, when her husband made the arrangement with plaintiffs for a sale of the...