Forbes v. Reynard

McLaughlin, J.: • The parties to this action entered into a contract by which the defendant agreed to sell and the plaintiff to purchase certain real estate in the city of New York for $52,000, $1,000 of which was paid at the time the contract was executed ; $31,000, agreed to be paid at the time fixed for the closing of the contract, when title was to pass, and the balance to be paid by the purchaser assuming a mortgage -for $20,000 upon the premises. At. the time fixed for the closing of tlie-title, August 31, 1904, the plaintiff refused to perform, upon the ground that the premises "ere not only incumbered by the $20,000 mortgage which he had greed to assume, but by another mortgage for $14,500, and he ubsequently brought this action to recover the $1,000 paid and [308] $500 expenses incurred in searching the title. The answer denied the material allegations of the complaint. ■ ■ At the trial the question litigated simply related to the validity bf the $14,500 mortgage. The trial coVrt' found that the mortgage had been- satisfied: and was dot a. lien upon the premises in question and dismissed the complaint upon the merits, and plaintiff appeals. I am of the opinion that the complaint was properly dismissed. There was no dispute ds tó the facts relating to the alleged mortgage.. ' It was given on the 11th of February, 1878, to secure the payment of $14,500 within five years thereafter, recorded in the proper clerk’s office two - days later, and on the 19th of March, 1883,' assigned by the mortgagee to one' Siebert, as the guardian of certain infant children, and the assignment recorded the day following. Siebert, as such- guardian, on the 4th of April, 1883, executed a power of attorney tb one Oothout,. which provided, among other things, that the attorney was authorized to'“'receive all sums of money * * * now due or hereafter at any time to beconre due to me as guardian and trustee of said minors, including all principal and interest qf any bonds and mortgages * * * and ■ upon payment of any mortgage * * * to execute and acknowledge sufficient certificates to discharge .the same of record.” The power of. attorney was. also recorded and on the 28th of March,. 1889, Oothout, ás such attorney, gave a certificate of ..the satisfaction of the mortgage, which was also recorded. The appellant contends that 'inasmuch as the power of att'or-l ney attempted to confer powers upon the attorney which the | guardián!could not delegate, that, that invalidated the entire instrin ment. If it be assumed that the instrument is subject tb.tlie criticism that certain powers which the guardian ,could not delegatel were attempted to be given to the attorney, this does not aid the! appellant, The guardian not only had the. right* but it was his duty,I to collect debts, due to and enforce claims in. favor of his wardl (Chapman v. Tibbits, 33 N. Y. 289), and for. this purpose he hadl the power by'virtue of his appointment to employ an attorney (15 Am. & Eng., Ency. of Law [2d-ed.] 56.) He could employ ar attorney to foreclose the mortgage, and such employment woulc necessarily cany with it the power on the part of the attorney td receive the- amount due and satisfy the. mortgage, if paid before [309] judgment, or if judgment were taken, to satisfy that, if paid before sale. Here, the guardian appointed an attorney to receive the principal of an overdue mortgage, and,-on receipt of the amount due, to give a certificate of satisfaction. This, at most, was but the delegation of a ministerial act, and as such could be delegated by the guardian to the attorney. (Gates v. Dudgeon, 173 N. Y. 426; Myers v. Mutual Life Ins. Co. of N. Y., 99 id. 1; Perry Trusts [5th ed.], § 409.) On the other hand, the mortgagor (the mortgage being past due) had a right to pay it, and if lie did so -to a person authorized to receive payment, he thereupon become entitled, as a matter of right, to have the mortgage satisfied, and there was no obligation resting upon him to see that a proper application was made of the money. In addition to what has already been stated, there was no proof that the mortgage, if not satisfied of record, was a hen upon the premises at the time fixed for the closing of the title; on the contrary, it appeared from plaintiff’s proof that the debt, to secure payment'of which the mortgage was given, became due and payable more than twenty years prior to the time fixed for closing the title. The mortgage was given February 11, 1878, to secure the payment of $14,500 within five years thereafter, or February 11,1883. The time fixed for closing the title was August ■ 31, 1904, more than twenty-one years after the mortgage became due. There was, therefore, a presumption, the debt having been more than twenty years past due, that it had been paid, and this was sufficient in the absence of any other evidence bearing on the subject, to show that the mortgage had ceased to be a lien on the real estate. It was a rule of the common law that the payment of a bond or other specialty wmuld be presumed after the lapse of twenty years from the time when it became .due, in the absence of evidence explaining the delay, and this rule has frequently been applied in this State. (Clark v. Hopkins, 7 Johns. 556 ; Jackson v. Pratt, 10 id. 381 ; Bean v. Tonnele, 94 N. Y. 381 ; Rosenstock v. Dessar, 109 App. Div. 10.) The debt, to secure payment of which the mortgage was given, as already indicated, was more than twenty years past due, and an action could not, therefore, have been maintained either upon the bond accompanying the mortgage or to foreclose the mort [310] gage itself (Code Civ. Proc, § 38,1) unless within that time there had been- a payment of either principal or interest. Plaintiff gave no . proof of such payment; on the contrary, the only evidence bearing on the subject is that given by-the defendant that, the mortgage had been, in fact, satisfied. Under such circumstances'the mortgage did not constitute.a valid objection to the title. (Belmont v. O’Brien, 12 N. Y, 394; Martin v. Stoddard, 127 id. 61 ; Katz v. Kaiser, 10 App. Div. 137 ; affd., 154 N. Y. 294 ; Knapp v. Crane, 14 App. Div. 120 ; Paget v. Melcher, 42 id. 76.) The fact that the guardian has, so far as the record shows, not. accounted- in court, is -of no importance. ' A guardian is not absolutely bound to account in court for the property of liis ward. ’ He .may account out' of court when the ward arrives at the age of twenty-one years and if such accounting be fairly and honestly made, and no advantage taken of the ward, a release given by him to the guardian is j.tist as effective as a decree entered in court. (Matter of Wagner, 119 N. Y. 28 ; Matter of Pruyn,14l id. 544.) The judgment appealed from,, therefore, should be affirmed, With costs. ■ . - O’Brien, P. J., Patterson, Laughlin and Houghton, JJ., concurred. Judgment affirmed, with costs. Order filed.