Foster v. Newland

By the Court, Cowen, J. The only point seriously insisted on is, that a settlement of the mortgage and note was a condition to the plaintiff’s right of recovery, and that such settlement was not proved. The amount of the defendant’s admission was that there was more than $150 due, over and above the mortgage which was then in controversy. This clearly imported that the notes were settled and paid ; and after what the defendant said to Ellsworth the assignee who acted upon the representation, he is, we think, estopped to deny that so much is due, absolutely and presently. Ells-worth became an assignee on the faith of what the defendant said ; and there are numerous cases that after thus tak [96] ing an assignment upon the faith of what the debtor says, as to the validity or balance or other circumstance of the claim, he is estopped to impeach it by set off, payment, or even by showing that it arose on an illegal consideration. Buchanan v. Taylor, Addis. Rep. 155. Carnes v. Field, 2 Yeates, 541. Weaver v. M’Cord, 14 Serg. & Rawle, 304. Davison v. Franklin, 1 Barn. & Adolph. 142. There was no pretence of mistake or fraud ; and the defendant’s language might be taken as waiving a formal settlement of the mortgage. It is like an endorser waiving notice of dishonor. Though he may, if he choose, insist upon it as a condition, he shall not be heard to do so, after he has with full knowledge of all the facts promised to pay. All Ellsworth’s rights passed to T. Palmer. It is true-that the assignment was taken by Ellsworth as security for a pre-existing debt; and that may, according to the doctrine-which prevails in this court, with regard to commercial paper, be said to detract from the bona jides of the purchase. Ontario Bank v. Worthington, 12 Wend. 598 to-601. To conclude the defendant in the latter case, the assignee must part with some right on the credit of the paper. The doctrine has never been extended to the transfer of a chose in action specially accepted on the faith of an admitted debt at the time ; and it ought not to be. At such a rate an assignee can never be safe in taking paper to secure a previous debt. He tells the defendant his object, who replies, “ Yes, the paper was on good consideration and valid, and all obstacles to payment are removed. Take it as security.” What is this but promising on an original consideration to pay ; what is it but saying, if you will take an assignment, I will be bound 1 The assignment is taken, an action brought and costs incurred ; and it would be to sanction the sheerest fraud, were we then to allow a defence. The cases are numerous, and go on the ground of an estoppel in pais. The defendant draws the plaintiff into a series of action and expense, and meets him at the trial, with the declaration that all he said was false ; therefore the plaintiff must lose his security and pay the costs. In Hall v. White, 3 Carr. & Payne, 136, the defendant had admitted to the [97] plaintiffs that he had their deeds in his possession,, In detinue, the defendant proposed to show that the deeds never-had been in his possession. Best, Ch. J. held that he was. estopped on the ground that his admission had led the plaintiffs into the suit; and he directed a verdict for such damages as should compel the defendant to surrender the deeds., There are, I venture, a dozen cases to the same effect. I will only say they all quadrate with sound legal morals. See Welland Canal Co. v. Hathaway, 8 Wend. 433, Indeed the learned counsel who argued for the defendant hardly denied the general position that the plaintiff is entitled to the $150 ; but he strenuously insisted that the action is, premature, that although that sum is due, yet it is debitum in prcesenti, solvendum in futuro. That the right to demand payment hangs on a condition not yet fulfilled : the settlement both of the mortgage and notes„ It is an answer that the notes are literally settled, and the mortgage substantially so. The defendant says “ the latter has been repudiated in the vice chancery j but if it be restored on appeal, there is still $150 due, over and above the mortgage. It is ascertained to be out of the way; it can never touch me as, to that sum.” This is settling to all substantial purposes at least; the money is admitted to be due at all events, and no time insisted cn. Surely the condition is not confined to a technical insimul computassent. The meaning of the contract is that the defendant shall not be obliged to pay for the land twice : viz. to the plaintiff and also to Thompson.. He agrees with the assignee in effect, that the mortgage shall be considered as settled so far as to fix the small balance for which the assignment is taken; and the judge by limiting the recovery to that balance, secured him against all injury. New trial denied.