Brewster v. Carnes

• Decision Date: 07 December 1886
• Citation: 103 N.Y. 556,9 N.E. 323
• Parties: BREWSTER, Ex'r, etc., v. CARNES and others.
• Court: New York Court of Appeals Court of Appeals

103 N.Y. 556

9 N.E. 323

BREWSTER, Ex'r, etc.,

v.CARNES and others.

Court of Appeals of New York.

December 7, 1886.

Action to foreclose a mortgage for $4,000 on lands in Cattaraugus county, New York, executed by Calvin Dodge and wife to Philip Verplanck, as trustee for Mary A. Miller and John B. Miller, infants, dated March 10, 1868, recorded March 30, 1868. Verplanck, having been succeeded in the trust by James W. Taylor, assigned the mortgage to Taylor as trustee for said infants, by assignment dated August 2, 1869, recorded February 12, 1873. By assignment dated June 28, 1877, recorded July 14, 1877, Taylor assigned the mortgage to Mary A. V. Webster, formerly Mary A. Miller, one of the persons for whom he held it in trust. By assignment dated August 24, 1878, recorded August 24, 1883, Mary A. V. Webster assigned the mortgage to the plaintiff in this action.

There was due, at the time of the assignment from Taylor to Mrs. Webster, $1,000 of the principal, the balance having been previously paid. When Taylor assigned to Mrs. Webster, in 1877, he delivered to her the bond and mortgage, and they have never since been in Taylor's possession, but have been kept constantly by E. A. Brewster, who was Mrs. Webster's attorney, and who is the present plaintiff. Taylor was permitted, on behalf of the holder of the mortgage, to collect the interest, but was never authorized by either Mrs. Webster or the plaintiff to receive any part of the principal. The only answer in this action is by the defendant Spencer Carnes, who sets up payment of $1,000 of the principal to Taylor in January, 1880. Carnes obtained title to the mortgaged premises by sheriff's deed dated March 27, 1875, and recorded March 30, 1875. Carnes made payments of interest to Taylor on June 3, 1878, and December 4, 1879; the receipts therefor given by Taylor being signed by him as ‘attorney for mortgagee.’ In January, 1880, Carnes sent to Taylor two drafts, one for $300 and the other for $700, both payable to Taylor individually, and requested that the bond and mortgage be assigned to Thankful Carnes. The question presented is as to the validity of the payment in January, 1880. At that time the bond and mortgage in suit belonged to plaintiff, and were in his possession.

E. A. Brewster, for appellant, Brewster, Ex'r, etc.

G. S. Van Gorder, for respondents, Carnes and others.

MILLER, J.

Under the Revised Statutes (1 Rev. St. 763, § 41) the recording of an assignment of a mortgage is not, of itself, notice of such assignment to a mortgagor, his heirs or personal representatives, so as to invalidate any payment made by them, or either of them, to the mortgagee. The section of the statute above cited cannot be said to apply to the facts which are presented for consideration in the case under advisement, as is apparent from a careful reading of the same. The defendant who made the payment was not the mortgagor, nor his heir nor his personal representative. He was the purchaser of the equity of redemption, and became seized of the premises subject to the mortgage. He was not, therefore, a party named in the statute, or from its phraseology intended to be embraced within its terms. If the statute was designed to include a purchaser of the mortgaged premises, it, no doubt, would have so stated, and thus made it manifest that such was its intention. Nor was the payment made to the mortgagee, the party named, but to a third person, who claimed to act for the owner of the mortgage, without any authority at any time to receive payments upon the principal. It would seem, therefore, that the statute cited does not embrace any such case as is presented by the evidence here, and, if the payments made can be upheld, it must be upon some other and entirely different ground.

This is sought to be done, and reliance is placed upon Jones, Mortg. § 791, and Heermans v. Ellsworth, 64 N. Y. 159, which it is claimed bear upon the construction which is to be given to section 41 of the statute. In Jones on Mortgages the notice, it is said, must be given to the owner of the equity of redemption in order to protect the assignee against payments made in good faith by the mortgagor, or the party liable to pay the mortgage, to the assignor; that the recording of the assignment is not of itself such notice of the assignment as will afford such protection. This dictum would seem to be in direct conflict with the general rule relating to the effect to be given to the assignments of mortgages when placed on record, and to conveyances to subsequent purchasers of the mortgaged premises who take title subject to the mortgage. It is a well-established principle of law that the assignment of a mortgage, and the...