Gifford v. Corrigan

• Decision Date: 26 November 1889
• Citation: 117 N.Y. 257,22 N.E. 756
• Parties: GIFFORD v. CORRIGAN.
• Court: New York Court of Appeals Court of Appeals

117 N.Y. 257

22 N.E. 756

GIFFORD

v.CORRIGAN.¹

Court of Appeals of New York.

Nov. 26, 1889.

Appeal from supreme court, general term, second department.

Action to foreclose a mortgage, by Silas W. Gifford, receiver of John M. Masterton, against Cardinal John McCloskey and others. The mortgage was executed by the Father Mathew Total Abstinence Society No. 1, of Tuckahoe, which was made a defendant, and payment of it was assumed by McEvoy in a deed to him, and by McCloskey in a deed by McEvoy to him. McCloskey having died, his executor, Michael A. Corrigan, was substituted. Judgment was rendered against Corrigan for deficiency, which was affirmed by the general term, and he appeals.

DANFORTH and PECKHAM, JJ., dissenting.

Boardman & Boardman, (William Bradford and Edward C. Boardman, of counsel,) for appellant.

Ralph E. Prime, for respondent.

FINCH, J.

On a previous appeal we determined in this case that the record of the deed to the defendant's testator, McCloskey, by which the grantee assumed the payment of plaintiff's mortgage, was not, under the circumstances, sufficient proof of the delivery and acceptance of the deed. 11 N. E. Rep. 498. As the case now stands, the effect of that record is fortified by direct proof of the delivery and strong circumstantial evidenceof the acceptance. Both facts are now explicitly found by the trial court, but the appellant again denies the sufficiency of the proof. The mortgage was executed in 1869. The land which it covered was sold and conveyed to McEvoy in 1870. McEvoy was a parish priest, and held the title until 1878, when he conveyed to McCloskey, the defendant's testator, who in and by the deed assumed the payment of the outstanding mortgage. Two things occurred the next year. McCloskey was informed by letter that upon the premises owned by him, describing those conveyed by McEvoy, there was a mortgage to Masterton, payment of which was requested; and a few days after, in a personal interview with the attorney acting for the mortgagee, was told of the deed and its record, and the assumption clause was read to him, and his liability under it asserted. McCloskey answered that he would communicate with Father Keogh; that he had referred the matter to him; and that the witness would hear from Keogh. The latter was the successor to McEvoy, as parish priest, and owed his appointment to the cardinal. The second thing was that the account for the rents of the property collected by Keogh were by him returned once a year to the chancery office which managed the cardinal's business affairs relating to the church. Within one year, therefore, after the record of the deed, McCloskey knew all about it, and, instead of repudiating it and refusing acceptance, simply referred the creditor to the parish priest, who began a uniform system of collecting the rents of the property and returning the facts to the cardinal's business office, which was their proper repository. Keogh not only remained in possession under McCloskey, but insured the premises in the name of the cardinal. For some time after its record the deed remained in the custody of McEvoy, but as early as 1882 he delivered it to O'Connor, who was a clerk in the chancery office. The superintendent of that office was Preston. He is called in the record ‘vicar general,’ and ‘chancellor,’ and ‘monseigneur.’ Whatever his ecclesiastical title, his own evidence shows that he was merely a subordinate or secretary of the cardinal, with no authority of his own, and dependent wholly upon the directions of his superior, either general or specific. His attention was called to the deed after its delivery at the chancery office by O'Connor, who delivered it. Preston says that the next time he saw Keogh he ‘positively forbade him to have anything to do with that hall, or to accept any rent for it.’ This is said to have occurred in 1882. It does not appear that Preston had any authority from the cardinal to issue this order to Keogh, or any general direction which covered it. It is certain that Keogh did not obey it, for he continued to collect the rents and report them, as part of his parish accounts, to the chancery office. Preston was either ignorant of the current transactions, which it was his duty to supervise, or he had withdrawn his command, or the parish priest was deliberately defying his superiors, and they were patiently submitting to it. At all events, the deed rested in the chancery office; the priest kept possession of the property, and accounted for its rents to McCloskey; no offer of a reconveyance was made, and the record is searched in vain for any word or act of refusal or repudiation by McCloskey. On such a state of facts, the finding of the special term that there was a delivery and acceptance may easily stand, and must conclude us on this appeal.

But another circumstance introduces an additional defense, and raises a further question. Just after the issue of a summons in this action, and the filing of a lis pendens, the executor of McEvoy formally released McCloskey from his covenant; and the latter pleads that release. It asserts that the deed was never delivered, which is found to be an untruth; that the assumption clause was inserted by mistake and inadvertence, of which there is not a particle of proof; and then, in further consideration of one dollar, formally releases the cardinal from his covenant. This release was executed after knowledge of the deed to McCloskey, and the covenant contained in it, had reached the mortgagee; after the latter had accepted and adopted it as made for his benefit, and communicated that fact to the debtor by a formal demand of payment; after the mortgagee had for three years permitted the grantee to absorb and appropriate the rents and profits in reliance upon the covenant; and after he had commenced an action of foreclosure by the issue of a summons and filing of a lis pendens,-at a moment when the executor who released was aware that trouble was approaching, but before McCloskey was actually served, or had appeared in the action.

Is this release, thus executed, a defense to this action? I shall not undertake to decide, if, indeed the question is open, (Insurance Co. v. Nelson, 78 N. Y. 137;Comley v. Dazian, 114 N. Y. 167, 21 N. E. Rep. 135,) whether, in the interval between the making of the contract and the acceptance and adoption of it by the mortgagee, it was or was not revocable, without his assent. However that may be, the only inquiry now presented is whether it is so revocable after it has...