Luetchford v. Lord

• Decision Date: 26 April 1892
• Citation: 30 N.E. 859,132 N.Y. 465
• Parties: LUETCHFORD v. LORD et al.
• Court: New York Court of Appeals Court of Appeals

132 N.Y. 465

30 N.E. 859

LUETCHFORD

v.LORD et al.

Court of Appeals of New York,

Second Division.

April 26, 1892.

Appeal from supreme court, general term, fifth department.

Action by Mary E. Luetchford against Elizabeth Lord and another to foreclose a mortgage. From a judgment of the general term reversing a judgment for plaintiff, plaintiff appeals. Reversed.

Horace McGuire, for appellant.

William N. Coggswell, for respondents.

BROWN, J.

The complaint in this action alleged the execution and delivery by the respondent and her husband, George D. Lord, to one William Allen, of a joint bond, bearing date September 6, 1877, to secure the payment of the sam of $5,500 on January 1, 1890, with interest payable semiannually, and as collateral security thereto a mortgage upon real estate situate in the county of Monroe. It alleged the death of Allen and the assignment of said bond and mortgage to the plaintiff by the executors of his last will, and the failure upon the part of the defendants to pay the amount due thereon, and demanded the usual judgment of foreclosure and sale of the mortgaged property, and that the defendants be adjudged to pay any deficiency that should remain after applying to the payment of the debt all the proceeds of the sale applicable thereto. The real estate mortgaged was owned by Mrs. Lord, and she alone defended the action. The answer alleged that a part of the consideration of the bond and mortgage was the securing to said Allen of a sum of money won by him from George D. Lord at a game of poker; that at the time of the execution of said bond and mortgage the persons who would have been entitled to the real estate described in the mortgage, if said defendant had then died, were her four children who were named, and all of whom were then living. It prayed that said bond and mortgage be declared void and canceled, or, if the court should decree that the same injured to the benefit of the respondent's children, for such other relief as should be just.

This defense was based upon 1 Rev. St. p. 663, §§ 16, 17, which, so far as material, are as follows: Section 16: ‘All things in action, judgments, mortgages, conveyances, and every other security whatsoever, given or executed by any person, where the whole or any part of the consideration of the same shall be any money * * * won by playing at any game whatsoever, * * * shall be utterly void, except when such securities, conveyances, or mortgages shall affect any real estate, when the same shall be void as to the grantee therein so far only as hereinafter declared.’ Section 17: ‘When any securities, mortgages, or other conveyances executed for the whole or part of any consideration specified in the preceding section shall affect any real estate, they shall inure for the sole benefit of such person as would be entitled to the said real estate if the grantor or person incumbering them had died immediately upon the execution of such instrument, and shall be deemed to be taken and held to and for the use of the person who would be so entitled.’ Upon the trial, after the plaintiff had given proof sufficient to entitle him to the judgment asked for, the respondent called as a witness her husband, George D. Lord, and proved by him that, at the time of the execution of the bond and mortgage, she had four children, and that they were all living at the time of the trial. The record then contains the following statement: ‘The defendant thereupon offered to prove by the witness George D. Lord that a part of the consideration of the said bond and mortgage and at least the sum of seven hundred and fifty dollars thereof, was for money won by said William Allen of said George D. Lord by playing at a game of chance, called ‘poker,’ and that at least the sum of seven hundred and fifty dollars of the said bond and mortgage was for the payment and security of said gambling debt, and no other or different. The plaintiff thereupon objected to the proving of such fact by the witness George D. Lord, on the ground that the said George D. Lord is incompetent to testify to any conversation or transaction between him and said William Allen, deceased, by the provisions of section 829 of the Code of Civil Procedure. The objection was sustained by the court, and the offer of the defendant excluded, to which ruling the defendant then and there duly excepted.' The exception to this ruling of the court presents the question to be decided upon this appeal. The special term gave judgment for the plaintiff, which was reversed by the general term.

The appellant contends that the witness was interested in the result of the action, for the reason that her defeat upon the issue raised by the answer would have discharged the witness from all liability upon the bond; and, as the obligation was joint, this contention is sound, unless it is overcome by the application to the facts of the case of the statute heretofore quoted. The respondents' claim is twofold. First, that the result of proving the facts pleaded in the answer under the operation of the statute would be to work a transfer of the bond and mortgage from the...