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maturing of the bond and mortgage, McCrum having then come into the position of surety, requested the plaintiff (the mortgagee) to proceed immediately to foreclose and collect the debt, on the ground that the premises, which were then sufficient to satisfy the mortgage, might depreciate so as to become an inadequate security. The plaintiff neglected for a year to commence his suit, and the proof now shows that although the premises were of sufficient value to pay the mortgaged debt and costs of foreclosure at the time the request was made, they have since so far depreciated as to make it altogether probable that there wi be a deficiency after applying the proceeds of the sale. The question is whether defendant McCrum should be made liable for such deficiency.
only to the extent of such injury. The solvency of the debtor or the sufficiency of the fund at the time. when the request to collect was made, and subsequent insolvency or insufficiency, are essential parts of the defence of the surety, and must be alleged and proven by him. Thomas on Mort., 70, 71; Remsen v. Beekman, 25 N. Y., 552.
Plaintiff claims, however, that defendant McCrum has not brought himself within the rule releasing sureties, he not having shown that the defendant Weinberg is insolvent; and that, as it does not appear but that plaintiff may be able to collect any deficiency out of her, defendant McCrum is not shown to have sustained any injury from the plaintiff's delay.
Held, The rule seems to be, that if the creditor omits to do an act, on the requirement of the surety, which equity and his duty to the surety enjoins on him to do, and the surety is injured by the omission, the latter ought not to be held. That duty enjoins upon the creditor to enforce payment from the party primarily liable; and if being requested by the surety to collect the debt when it is collectible from such party, by measures of active diligence, the creditor refuses or neglects to do it until it becomes uncollectible from the principal, such conduct ought to be a defence in equity to any suit brought against the surety to charge him with the payment of the debt; but failure on the part of the creditor to comply with the request of the surety to enforce payment of the debt will not exonerate the surety unless it result in actual injury to him, and then
The answer to this is, that if it turns out that the deficiency can be collected from Weinberg, it will be the duty of the plaintiff to so collect it, and in that case there is no occasion for a decree holding the defendant McCrum; but if it cannot be collected from Weinberg, and the defendant McCrum should be made liable, he would be thereby damnified through the plaintiff's neglect to the precise extent of the payment which he would thus be compelled to make. The mortgage having been collectible out of the property when the surety requested its collection, he ought not now to be called upon to make up for the subsequent depreciation of the property, and therefore there should not be any such direction against him in the judgment. Such direction, if effectual, would compel him to meet a deficiency which would not have existed if the creditor, the plaintiff,
had complied with his reasonable re- city. Section 16 of the act provided that thereafter no person should be elected to the office of justice of the peace in said city, and it expressly repealed all acts and parts of acts, and all provisions of the charter in relation to a justice's court in said city inconsistent with the said act. At the charter eletion in said city on the 6th of March, 1867, seventy-eight votes were cast for the office of justice of ceived a majority. the peace, of which the relator re
Previously thereto, the Municipal Court, created by the act of 1876, had been organized, and the judges thereof, appointed pursuant to the provisions of the act, had entered upon the duties of their office. A notice of the
charter election was published as required by law, but no notice was given that a justice of the peace for said city would be elected.
Statements of the inspectors of election showing the votes given as above stated, were filed and produced to the common council, and the relator thereupon requested that body to certify to his election, which was refused.
It is claimed on behalf of the relator that the act of 1876, so far as it attempts to abolish the office of justice of the peace in said city, is unconstitutional.
There must be judgment for a sale of the premises, and making the defendant Weinberg liable for any deficiency.
Opinion by Reynolds, J.
N. Y. SUPREME COURT.
TERM. FOURTH DEPT.
The People, ex rel. Henry E. White, applt., v. The Common Council of the City of Rochester, respt. Decided June, 1877.
Under § 12, Art. 14 of the Constitution, the
nicipal Court of the City of Rochester, and
Appeal from an order of the Special Term in Monroe, denying the relator's application for a mandamus to compel the said Common Council, as a board of canvassers, to certify who was elected to the office of justice of the peace at the city election held in March, 1877.
The charter of the city of Rochester, passed 8 April, 1861 (Laws, 1861, ch. 143), provided that there should be three justices of the peace of said city (86), one of whom should be elected in each year, for a term of three years ($7).
By chapter 196 of the laws of 1876, the legislature established a local court of civil jurisdiction in said city, called the Municipal Court of the City of Rochester, and conferred upon its judges the jurisdiction theretofore vested in the justices of the peace of the
I. Van Voorhies, for relator and applt.
I. B. Perkins, city att'y, for respt. Held, That the act creating the "Municipal Court" of the city of Rochester, in effect abolished the office of justice of the peace of said city.
Section 12 of Art. 14 of the Constitution vests in the legislature power to abolish all local courts in cities and villages.
The justices of the peace created by the same day personally had them rethe charter of the city of Rochester had not the same functions as justices of the peace in towns. Their civil jurisdiction was the same, but they had no criminal jurisdiction, except to issue warrants returnable before the police justice, and except also that upon a return to a criminal warrant stating the absence from the city or inability of the police justice, the justice before whom the prisoner was brought had jurisdiction of the case. Their term of office was three years, that of justices in towns four.
That the courts held by the justices of the peace of the city of Rochester were inferior local courts, within the meaning of the Constitution, Dawson v. Horan, 51 Barb., 459, and the legislature, consequently, had power to abolish them.
corded. At this time Smith, the mortgagee, was not a creditor of Leslie's, and had given him no consideration for the mortgages. They were never delivered to Smith, and, in fact, he did not know of their existence. On December 2, 1871, McCurdy purchased of Leslie both mortgages with the accompanying bonds, giving him in payment therefor another bond and mortgage for $5,000, upon which one year's interest was due. On the same day Leslie delivered to MeCurdy assignments of these mortgages duly signed by Smith, but these were not recorded by McCurdy until June 9, 1873; Smith was not present at their delivery to McCurdy, and had no personal knowledge of it. Leslie continued owner of the property until July 30, 1872, when Johnson, the defendant, terre tenant, purchased it of him, the consideration he gave for it being $12,000; money previously deposited by him with Leslie. Leslie, who was Johnson's conveyancer and confidential adviser, represented to him at the time that the premises in question were not mortgaged otherwise than by two first mortgages mentioned in Leslie's deed to him (not the mortgages in question); Johnson believed him, and had no knowledge of the existence or record of the mortgages sued on nor any knowledge or notice of their assignment, nor did he become informed of them until after April 1, 1873. Johnson could not, by inquiring of Smith, have obtained any knowledge to the contrary of that given him by Leslie, as Smith had no knowledge of the mortgages nor of the delivery of the assignments thereof to McCurdy, nor of the contents
Order affirmed, with ten dollars costs of appeal and disbursements. Opinion by Smith, J.
SUPREME COURT OF PENNSYLVANIA,
A mortgage given without consideration, and
recorded, but retained in the possession of the mortgagor, is inchoate, not void; and where subsequently negotiated to a third party by the mortgagor, who gives an assignment executed by the nominal mortga
gee, it is valid against all except those who have meanwhile acquired liens upon the mortgaged premises.
Charles M. S. Leslie, a conveyancer, on April 9, 1869, executed and acknowledged, but did not deliver to Alexander Smith (one of his employees), two mortgages, each for $3,000, upon adjoining properties of which he was then the owner, and on
There were also, at the time these mortgages to Smith were created, other mortgages and titles to property belonging to Leslie in Smith's name, for which the latter had paid nothing. There was no evidence that McCurdy was aware when he took Smith's assignment of the mortgages, that there had been no actual delivery of them to Smith by Leslie.
of those assignments to McCurdy. possession of McCurdy as a bona fide holder by the negotiation of Leslie himself. It is said, inquiry would have led to no result, for Leslie deceived him when he purchased by withholding the information. But that is nothing. The law imposed the duty of a search on the purchaser, which would have led to a knowledge of the mortgages. These Leslie could neither produce nor explain away, for they were in the hands of McCurdy.
A verdict was rendered for the plaintiff for $3,706 in each case, upon which judgments were subsequently
It is argued that the mortgages when recorded were not binding on Held, no error. It must be con- Leslie, and were therefore void. The ceded that the mortgages in these conclusion is not logical. They were cases, while remaining in the hands not binding, it is true, until he negoof Leslie, the mortgagor, were not tiated them. They were not absoavailable to any one else. The intent lutely void, for if so, Leslie could inof the mortgagor, who had entire con- fuse no life into them by negotiation. trol over the instruments, was to raise They were inchoate, but not void, money upon them. Smith, the nom- until he negotiated and delivered. inal mortgagee, was but an instru- them. The purpose of recording was ment in his hands to effectuate his to enable him to negotiate by anticipurpose. He could not have used pating other liens. How far such a the mortgages without Leslie's con- negotiation as took place here would sent, for Leslie retained their posses- be good by relation against an intersion for his own lawful ends. But vening incumbrancer or purchaser, is when Leslie negotiated them, using not a question now, for they were the signature of the nominal mort- actually negotiated long before Johngagee, he then parted with them, son bought. No one has been injur making them binding on himself, and ed, for like a judgment to secure on all others possessed of no inconsis- future advances, the recording was tent rights attaching to the mortgaged notice, and the actual advance was premises. Johnson, having purchased precedent. Unless we hold that a afterwards, was therefore bound by mortgage for the purpose of negotiathe mortgages, unless he had no notice tion is absolutely void, because no of them, actual or constructive. The immediate consideration passed, we mortgages were clearly constructive must sustain these. True, the consinotice, being duly recorded and lying deration was not complete, and Leslie directly in the line of his search. He could have defended against one who was bound to inquire into their exis- obtained surreptitious possession withtence as valid incumbrances, and in-out delivery; yet his act became com quiry would have traced them to the plete when he himself negotiated and
public or private sale, and for the best price they can obtain for the same, all my real estate, howsoever and wheresoever the same may be situated, and to give good and sufficient deed or deeds for the same, and pay over the proceeds arising therefrom, after paying the expenses of the sale thereof and all liens and encumbrances thereon, to the said Roman Catholic Bishop of the Diocese of Raphoe, Parish of Rye, County of Donegal, Ireland, in trust, nevertheless, for the purposes hereinafter mentioned.
"Seventh. I hereby order and direct, and it is my will that the money bequeathed and ordered to be paid to said Bishop of the Diocese of Raphoe, in and by the fifth and sixth items of this, my will, shall be used by him for the following purposes, namely: For the purchase of site for, and the erection and maintaining of a school-house thereon for the benefit of the Roman Catholic children of the Parish of Rye, said school to be erected and built in the Parish of Rye, County of Donegal, Ireland. To have and to hold the same to said bishop and his successors forever.
"Eighth. It is my will, and I hereby direct that said school, to be erected and maintained under the provision of the foregoing items of this, my will, shall be under the control and management of twelve respectable farmers of the Parish of Rye, and the said Bishop of the Diocese of Raphoe; said farmers to be appointed by said bishop, and are to receive no remuneration for their services.
"Ninth. It is my will and desire that the said school shall be named