Hartley v. . Harrison

Mason, J. The rule is a familiar one that when the owner of land mortgages it to secure the payment of a debt, and afterwards sells and conveys the equity of redemption subject to the lien of the mortgage, and the purchaser assumes the payment of the mortgage as a portion of the purchase-money, the latter becomes personally liable for the payment of the debt of the former to the holder of the mortgage. (Russell v. Pistor and Wife, 3 Seld., 171, 173, 174; Halsey v. Read, 9 Paige, 446; Marsh v. Pike, 10 Paige, 595, 597; Cornell v. Prescott, 2 Barb. S. C., 16; Blyer v. Monhalland, 2 Sandf. Ch., 478; Ferris v. Crawford, 2 Denio, 595.) The law is well settled in this state'that the purchaser who takes a conveyance of the premises from the mortgagor, subject to the lien and payment of a mortgage, cannot set up the defense of usury against such mortgage and thus obtain an interest in the land which the mortgagor never agreed or intended to transfer to *172 him. (Post v. Dart, 8 Paige, 641; Shufelt v. Shufelt, 9 Paige, 145; Cole v. Savage, 10. Paige, 591; Ferris v. Crawford, 2 Denio, 598; Morris v. Floyd, 5 Barb., 130; Sands v. Church, 2 Seld., 347.) The principle upon which these proceed is, that the mortgagor may, if he thinks proper to do so, waive the usury and elect to affirm the mortgage by selling and conveying his property subject to the lien and payment of such mortgage, and the purchaser, in that' case, takes the equity of redemption merely and cannot question the validity of the mortgage on ground of usury. It follows, therefore, that Joseph Harrison cannot set up this defense of usury unless the release of Henry Harrison to him, of the covenants and agreements contained in the deed to him executed after the issues in this cause were joined, shall be held to have the .effect to'discharge him from his liability and authorize him to assert this defense. How, this release cannot have any such effect. Henry Harrison could not, upon any principle, release Joseph from the liability which he was under to the plaintiff in consequence of his taking a conveyance of the premises subject to the payment of this mortgage. His liability to the plaintiff was fixed the moment he received the conveyance, and it was not in the power of Henry Harrison to release him from it, and this land in his hands became the primary fund for the payments, and neither he himself nor Henry, so far as regards the plaintiff’s rights, could discharge him from it or release the land from the lien of these mortgages. This liability when once created was irrevocable, and neither Henry nor Joseph could avoid it. (7 Paige, 615, 639, 640, 641; 5 Seld., 83; 2 Denio, 45; 4 id., 97.) If I am correct in the views abóve expressed, it follows that the judgment of the court below is correct and should be affirmed. All the judges concurred in this result except Comstock, Oh. J. They, however, disclaimed any intention to pass upon the question whether the releases were not valid and effectual to discharge the grantee, Joseph Harrison, from any personal 'liability to the mortgagee for the payment of the mortgages.