Foy v. Salzano ( 1913 )

Ingraham, P. J. (dissenting):

I think this judgment should be affirmed. The action was to foreclose a mortgage on certain real property given by one John Di Mattia to secure his bond for $4,500. The complaint, after alleging the execution of the bond and mortgage and the default, alleges that the defendants have or claim to have some interest in or lien upon the mortgaged premises or some part thereof which interest or lien is subject and subordinate to the lien of the said mortgage held by-the plaintiff.. The appellant, an infant under the age of twenty-one years, answered the complaint alleging that John Di Mattia, the father of this defendant, for the purpose of securing the payment to the infant defendant of the sum' of $1,000, with interest thereon, on or about the 20th day of April, 1.908, made, executed and delivered to the said appellant a bond bearing date on that day in the sum of $1,000, and as security for the payment of the indebtedness evidenced by that bond executed, acknowledged and delivered to the infant defendant a mortgage which was duly recorded upon the premises described in the complaint; that at the time of the execution and delivery of this instrument this defendant was an infant of the age of seventeen years; that thereafter this appellant executed and delivered to the said John Di Mattia, her father, an instrument in writing purporting to be a discharge of the said mortgage which instrument was duly recorded in the office of the register of the city and county of New York on October 19, 1908; that the appellant now" desires to disaffirm and reject the said discharge of the mortgage as aforesaid; and demands judgment that this mortgagefor $1,000, be reinstated, and the defendant appellant asks judgment foreclosing the mortgage for $1,000.

On the trial the plaintiff proved the mortgage alleged in the complaint and .its record which was on the 17th day of April, 1909, which was after the mortgage to the defendant appellant had been satisfied in the office of the register of the city and county of New York. To prove her defense the appellant was called as a witness. The mortgage to her which had been satisfied was proved and the satisfaction piece purporting to be executed by the defendant appellant was also proved. The appellant then testified that in 1908 when she was seventeen years of age and prior to the time that she married, her father came to her and made a statement with reference to giving her a gift, and in the month of April, 1908, she received from her father the mortgage specified in the answer. It is not alleged that the mortgagor was indebted to this defendant appellant when he executed the mortgage to secure payment of the bond nor does it appear that any bond was ever delivered to the defendant appellant. It is spoken of by the appellant as a gift, the gift consisting in the delivery by the father to the daughter of a mortgage to secure the payment of a bond for $1,000. Subsequently it would appear that the father procured from the defendant appellant a satisfaction piece of this mortgage which had- been recorded, then mortgaged the premises to secure the payment of the sum of $1,500, to the plaintiff, and afterwards conveyed the mortgaged premises' to the defendant appellant and her two sisters as tenants in common. In the absence of any consideration either paid by the defendant appellant to the mortgagor or the existence of any indebtedness or obligation from the mortgagor to the defendant appellant it seems to me there was no consideration for the promise to pay the sum of money secured by the mortgage or that it was a valid lien as against the mortgagor. Treating the transaction as a gift of a sum of money represented by the mortgage there was no delivery which was essential to make a valid gift. A mere delivery of an obligation to pay without, consideration creates no obligation that can be enforced against the donor. There is no evidence that this mortgage was accompanied by a bond under seal but even if there was a seal it was merely presumptive evidence of consideration and upon the evidence it would appear there was no consideration. The mortgagor having subsequently mortgaged the premises to the plaintiff it seems to me the plaintiff then acquired a lien superior to any lien of the defendant appellant and the trial judge was, therefore, quite right in refusing to eiiforce this satisfied mortgage.

I think, therefore, the judgment should be affirmed.

Judgment reversed and new trial ■ ordered, with costs to appellant to abide event.