Chard v. Hamilton

Macomber, J. The action was brought to foreclose a mortgage executed by George W. Holt and his wife, Amelia, upon certain premises in the village of Westfield, and for the recovery of any deficiency which might arise upon the sale of such mortgaged premises. Judgment was sought, not only against the personal representatives of Holt and of Charles Ensign, but also against this respondent Cornelia A. Hamilton, as the personal representative of Elisha W. Ensign. The bond for which such mortgage was given as collateral security was executed by Charles Ensign and Elisha W. Ensign and George W. Holt to Rufus C. Palmer, the appellants’ intestate, on the 1st day of June, 1872, and was conditioned for the payment by the obligors of $15,000 in one year from its date, with interest. All of the parties to the bond are dead, Elisha W. Ensign having died before either of the others. The referee dismissed the complaint on the ground, as stated in his opinion, that the estate of Elisha W. Ensign was discharged, at law, by his decease, and, inasmuch as he had no interest in the consideration of the bond, that he was in fact merely a surety, and that there was no moral obligation resting upon his representative to pay any deficiency which might arise upon the sale of the mortgaged premises. The obligatory part of the bond is as follows: “For which payment, well and truly to be made, we bind ourselves, our heirs, executors, and administrators, firmly by these presents. * * * The condition of this obligation is such that if the above-bounden Charles Ensign, Elisha W. Ensign, and George W. Holt, their heirs, executors, or administrators, shall well and [576] truly pay, or cause to be paid, unto the above-mentioned Rufus C. Palmer, his executors, administrators, or assigns, the just and full sum of fifteen thousand dollars, in one year from the date hereof, with interest payable semiannually, without fraud or delay, then the above obligation to be void; otherwise, to remain in full force and virtue.” Upon the face of this instrument, the obligation of the promisors therein was joint, and not several. Wood v. Fisk, 63 N. Y. 245. The words binding the executors and administrators of the obligors are of no moment in the construction of the instrument, and no point is made by the appellant’s counsel that it was intended thereby to charge at law the estate of Elisha W. Ensign, in case he should die before the others. If such a point were made, it would be untenable. Waters v. Riley, 2 Har. & G. 305; Bishop v. Church, 2 Ves. Sr. 100; Pickersgill v. Lahens, 15 Wall. 140; Richardson v. Horton, 6 Beav. 185. See, also, as inferentially containing the same principle: Simpson v. Vaughan, 2 Atk. 31; Thomas v. Frazer, 3 Ves. 399; Burn v. Burn, Id. 573; Sumner v. Powell, 2 Mer. 30. As the rule stood at the time of the execution of this instrument, the liability at law on the part of the estate of Elisha W. Ensign ceased at his death, and the only obligation for the entire debt rested thereafter, at law, upon the surviving obligors. 1 Pom. Eq. Jur. § 409; 2 Chit. Cont. 1411; 1 Pars. Cont. 30, and the cases there cited and considered. As this case comes up upon the judgment roll only, the appeal must be determined by the sufficiency of the findings, in any view which may be taken of them, to warrant the judgment pronounced. Insurance Co. v. Barnard, 96 N. Y. 525. There is an apparent discrepancy or contradiction between the seventeenth and eighteenth findings, on the one hand, and the twenty-first and twenty-second findings, on the other. By the seventeenth and eighteenth findings the referee holds that there is no evidence in the case that any agreement was entered into between Elisha W. Ensign and Rufus C. Palmer to the effect that the obligor should be bound as surety, only, for Charles Ensign and George W. Holt, or that Elisha W. Ensign intended to be bound in any other capacity than as principal on such bond. But by the twenty-first finding it is asserted that the bond in suit was executed by Elisha ■W. Ensign solely for the accommodation and benefit of Charles Ensign and George W. Holt, and by the twenty-second finding that the consideration of the bond was a balance of money due from Charles Ensign and George W. Holt to the obligee, the plaintiff’s intestate, upon the sale by him to Charles Ensign and George W. Hoit, as copartners, of his interest in'the propeller Colorado, and for moneys borrowed by them, as such copartners, from the obligee, all of which facts, the referee further finds, were known to the said Palmer at the time of the execution of the bond. Under these findings, Rufus C. Palmer must be deemed to be conclusively charged with actual’knowledge that the principals upon the bond were Charles Ensign and George W. Holt, and that Elisha W. Ensign was a surety only. This fact enables the personal representative of Elisha W. Ensign to interpose a complete defense to the claim made by the plaintiffs in this action, and she is not relegated to a mere-right of action over against the estates of the two principals. Richardson v. Draper, 87 N. Y. 337. There appears, therefore, no equity existing in behalf of the appellants by which the estate of the surety, who had died before his principals, should be charged in this action, inasmuch as the instrument was executed before the passage of section 758 of the Code of Civil Procedure. Elisha W. Ensign, not having any beneficial interest in the bond, or in any of the dealings of the parties leading up to its execution, and being but a surety, merely, to the knowledge of the obligee, and not having been secured by his principals in any respect, was, by his death before the principals, discharged of any liability inequity as well as in law. Getty v. Binsse, 49 N. Y. 385; Wood v. Fisk, 63 N. Y. 245; Risley v. Brown, 67 N. Y. 160. The plaintiffs have failed to [577] show that the estate of Elisha W. Ensign should be charged for the default of his principals. The judgment appealed from should be affirmed. Dwight, P. J., concurs.