Mack v. Austin

Hardin, J.: No express covenant to pay the sum named in the condition of the mortgage was inserted and none can be implied. (1 R. S., 738. § 139; Hone v. Fisher, 2 Barb. Ch., 559; Severance v. Griffith, 2 Lans., 38; Culver v. Sisson, 3 N. Y., 264; Turk v. Ridge, 41 N. Y., 201; Gaylord v. Knapp, 15 Hun, 87; Coleman v. Van Rensselaer, 44 How., 368.) The argument of the appellant, that the words of the mortgage [536] import an intent on the part of the mortgagor to charge her estate generally with the debt, in this law action upon the terms of the mortgage, does not aid the appellant, as none of the words of the mortgage contain a promise or covenant to pay the sum named in the mortgage. Had the action been to recover an indebtedness, created or existing independent of the mortgage, a different question would have been presented. Then the authority of Elder v. Rouse (15 Wend., 218), as approved by Hurlbut, J., in Culver v. Sisson (3 N. Y., 266) would apply. In the latter case it was held that an action would not lie upon a chattel mortgage which does not contain an “ express promise to pay or a distinct acknowledgment of an existing debt.” We have not the case of an action on the original debt with the mortgage used as evidence of it or as evidence that the mortgager being a married woman intended to charge her separate estate with the payment of such debt. But a complaint in which the plaintiff puts forth the theory that the testatrix has covenanted by the terms of the mortgage to pay the- debt, or that a promise to pay should be implied, and that such covenant' or promise has been expressly charged upon the estate of the deceased. Such legal liability, as the plaintiff sought to establish it, failing, the complaint cannot now after trial, and without amendment, be upheld, and a cause of action of a different character supported by a different theory be sustained. (Stevens v. Mayor, 84 N. Y., 296; Salisbury v. Howe, 81 id., 134.) We must hold(l) that the mortgage contained no covenant to pay any deficiency; (2) that none can be implied; and (3) that this action, predicated upon the terms of the mortgage, cannot be shifted into an action of debt or to recover upon indebtedness existing independent of the terms of the mortgage. The result at the circuit merits our approval and the judgment is affirmed. Smith, P. J. and Barker, J., concurred. Judgment affirmed, with costs.