Van Keuren v. Corkins

Gilbert, J. The main question in this case is whether payments made by a mortgagor to the mortgagees on account of the mortgage debt, after the latter have assigned and- thereby parted with all their interest in the mortgage, without notice of such assignment, are valid, and we are of the opinion that they are. The mortgagor purchased the mortgaged premises of the mortgagees, and gave the bond and mortgage in question in part payment of the purchase-money thereof. There is not the slightest evidence that he had any actual notice, when such payments were made, that the mortgage debt had been transferred or assigned. No assignment had been recorded, but if the fact were otherwise the payments would still have been good. For it is expressly provided by statute, that the recording of an assignment of a mortgage shall not be deemed, in 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. 1 R. S. 763, § 41. Payments made by the debtor to the original creditor in good faith, and without notice that such creditor had parted with the debt, have always been upheld. In Reed v. Marble, 10 Paige, 413, Chancellor Walworth held that “ the assignee of a bond and mortgage, as well as assignees of other choses in action, must give notice of the assignment, if he wishes to protect himself against a bona fide payment to the assignor by the mortgagor,” and in so doing he only reiterated an elementary rule of law. It is objected that the judge at special term did not find that the payments were made in good faith. He did find, however, that the payments were valid and effectual. That necessarily comprehends every fact which is essential to make them so. It is again urged that the judge erred in refusing to find, as requested by the plaintiff, that the mortgagor made no inquiry for the bond and mortgage, and that no representations, as to the custody or ownership of them, were made to him when the payments were made, and that he did not require the delivery of them to him when he made the last payment. The answer to this is, that there was no evidence in respect to these facts. There is evidence which warrants the finding that the bond and mortgage were in the possession of George, one of the mortgagees,- who received the payments as late as March 25, 1870, for it was proved that an indorsement on the bond of that date was in his handwriting, and it was admitted [357] on the part of the plaintiff that the balance due upon the bond and mortgage was paid July 23, 1868. Evidence was given by the plaintiff tending to show that the bond and mortgage were in the possession of other persons when all the payments were made. Where there is a contrariety of evidence the court cannot be called upon to find" the disputed fact in favor of or against either party, and a refusal to do so furnishes no ground for an exception. Beck v. Sheldon, 48 N. Y. 369. For this reason, also, the finding of the court, that the bond and mortgage remained in the possession of George until March 25, 1870, ought not to be disturbed. Hnder some circumstances the omission of a mortgagor, when paying off his bond and mortgage, to require a delivery up of the securities, may raise a presumption that the payment was not made in good faith. Brown v. Blydenburgh, 7 N. Y. 141; Doubleday v. Kress, 50 id. 410. But no such presumption can arise in this case,. because each assignee of the mortgage had permitted George, from time to time, to receive payments on account of bo!;h principal and interest, thereby impliedly constituting him their agent for that purpose. Having repeatedly given their sanction to such acts on the part of George, without any notice that the bond and mortgage had been assigned, or that there was a lack of authority in George to receive the payments, they are estopped to deny his authority. For the same reason the receipts given by George were properly admitted in evidence as the acts of the parties who had thus empowered him to act in their behalf. The bTewburgh Savings Bank unquestionably is a subsequent purchaser in good faith (1 R. S. 762, §§ 37,38), and the assignments of the bond and mortgage, not having been recorded, were, by the express provisions of the statute, void as to such purchaser. 1 R. S. 756, § 1; 762, § 38. The mortgage was properly discharged of record. Id. 761, § 28. When the mortgage to the bank was given nothing appeared on the record to apprise them that the plaintiff’s mortgage was outstanding. They are, therefore, perfectly protected by the record. The cases of Raynor v. Wilson, 6 Hill, 469, and N. Y. L. Ins. Co. v. Smith, 2 Barb. Ch. 82, to which we were referred, contain nothing in conflict with this principle. These remarks, if correct, dispose of all the questions in the case, and require an affirmance of the judgment. The judgment is affirmed, with costs. Judgment affirmed.