Jackson v. Nicol , 48 N.Y.S. 974 ( 1897 )

Hatch, J.:

When the Nieol mortgage, which is the subject of foreclosure, was given, it was promised by the defendant Muxlow that it should be a second lien upon the premises made subject thereto. He was conversant with the business carried on by his wife and paid the rent for the property occupied by her to the landlord. He knew that the consideration for the Nieol mortgage was the past-due rents, the payment of which was essential to prevent dispossession proceedings threatened by the landlord, and' it was his proposition to procure the Nieol mortgage to be executed.

We think this state of facts sufficient to call for the application of two principles of law, either of which is sufficient in answer to the appellants’ contention. The promise of Muxlow was to make the Nieol mortgage a second lien upon the property. This he could only do by a discharge of his mortgage or by subordinating the lien thereof to the Nieol mortgage. The latter was the course he chose to adopt, and when he executed the instrument which accomplished that purpose he simply executed the agreement which he had made. Nothing more remained to be done, and from that instant the defendant Muxlow’s mortgage became subordinated to the lien of the Nieol mortgage. The question of a consideration was, therefore, immaterial. (O. P. R. R. Co. v. Forrest, 128 N. Y. 83; Bunn v. Winthrop, 1 Johns. Ch. 329.) The debt of Muxlow’s wife furnished a sufficient consideration for the Nicol mortgage. (Demarest v. Wynkoop, 3 Johns. Ch. 129; Grocers' Bank v. Penfield, 69 N. Y. 502.)

As .we have seen, Muxlow had full knowledge of the matters, agreed that the mortgage should he a second lien, and thereby secured the continued possession of the premises occupied by his wife, and led the plaintiffs to rely upon the security they obtained as a second mortgage. This condition presents all the elements upon which to base an estoppel, and if a consideration for the defendant Muxlow’s agreement was an essential element, he should be held estopped from denying that he had received the same. (Trenton Banking Co. v. Duncan, 86 N. Y. 221; Conrow v. Little, 115 id. 387.) No other question is presented for our consideration.

The judgment should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.