Gaylord v. Knapp

Learned, P. J. : The referee finds that there was no bond executed with the mortgage. That finding is sustained by the evidence. No bond was found among the papers of the testator. The mortgage was found, and the bond would probably have been with it. There ■was evidence given that no bond had been executed. The recital in the mortgage of the existence of the bond is evidence of that fact. But it is not conclusive. The mortgage is valid, although there was no bond. And it is not necessary, therefore, to the validity of the mortgage, that the mortgagor should be estopped from denying the existence of the bond; so far as any rights under the bond are to be obtained. (Reed v. McCourt, 41 N. Y., 435 ; Champlain & St. L. R. R. Co. v. Valentine, 19 Barb., 484.) If, then, there was no bond given with the mortgage, the Revised Statutes confine the remedies of the mortgagee to the lands mentioned in the mortgage. (1 R. S., m. p. 738, section 159 [139]). The language of that section is explicit. But the plaintiff urges that the section speaks of the remedies of the mortgagee, and that it applies only to his remedies in that character. Such a construction would make the section meaningless ; because, as mortgagee simply, he would, aside from the section, be confined for his remedies to the land mentioned in the mortgage. And the plaintiff further urges that there was a debt contracted by the defendant to the testator ; that this has been ¡laid only in part; that, therefore, the plaintiff has a right of action upon that' debt to recover the balance. I am not prepared to say that this view may not be sound, whore there has been a pre-existing debt and a mortgage without bond, or separate instrument, or covenant, is taken as collateral to such debt; it may be that such debt remains, notwithstanding the mortgage; and that this section of the statute does not, apply in that case. (Hone v. Fisher, 2 Barb. Ch., 559.) But where thei’e has been no pre-existing debt, and a mortgage is given to secure the payment of a sum of money, then I think that the mortgagee’s remedies are confined to the land mentioned in the mortgage, unless he has taken an express covenant for the payment, or a bond, or other separate instrument to secure the same. (Hone v. Fisher, ut supra; Vrooman v. Dunlap, 30 Barb., [90] 203; Severance v. Griffith, 2 Lans., 38.) The reasons of this statute ■ (as indicated by the revisers), is probably, that when the mortgagee takes no covenant or written agreement to secure the payment of the money, he intends to accept the land as his security. The absence of any written agreement to repay must have been considered by them to be evidence that the party who received the money intended to incur no personal obligation. The opposite view, the revisers suppose “to be contrary to received and very natural opinions.” (See revisers’ notes to this section.) The plaintiff also has a claim in his complaint for an equitable lien for purchase-money. But such a lien does not exist where a mortgage has been taken. And, even if there were such a lien, it could be of no avail to the plaintiff in the present action. The premises which were sold to the defendant have already been foreclosed under the mortgage given for the purchase-money. The judgment should be affirmed, with costs against plaintiff as executor. Present — Learned, P. J. Boardman and Tappan, JJ. Judgment affirmed, with costs.