Van Amburgh v. Kramer , 23 N.Y. Sup. Ct. 205 ( 1878 )

Gilbert, J.:

The evidence in this case merely shows that the bond and mortgage in suit were not made upon a valuable consideration. But there are other considerations which are sufficient in equity to support transactions between husband and wife, when the cliams of creditors do not intervene. Indeed, it has been held that a bond and mortgage may be made by way of gift. (2 R. S., 137, § 4; 4 Kent, 465 ; Isenhart v. Brown, 2 Edw. Ch., 341 ; Bucklin v. Bucklin, 1 Abb. App. Ca., 42 ; Hunt v. Johnson., 44 N. Y., 27.) And as between the parties, when a mere nominal consideration is inserted in a deed for the pur-pose of supporting it, evidence of the non-payment of such consideration will not destroy the deed. The grantor may sue the grantee and recover it. (Meriam v. Harsen, 2 Barb. Ch., 232, 267.)

■ Moreover, the seals are presumptive evidence of a consideration, and such presumption is not overcome by proof that a valuable consideration was not paid. (2 R. S., 406, § 77; Anthony v. Harrison, 14 Hun, 198 ; S. C., Court App. MSS.) But it is unnecessary to pursue this subject, because the referee did not find that the bond and mortgage were made without any consideration. On the contrary, he refused the defendant’s request that he should find that there was no value or consideration paid therefor.

The only remaining question relates to the effect of the fact that Mrs. Richards, the plaintiff’s assignor, united with her husband in a conveyance of the mortgaged premises. That conveyance purported to convey the land described, and also all the right, title and interest, claim and demand of the grantors, of, in and to the same, to the grantee, to have and to hold the premises granted, with the appurtenances, etc. A mortgage is not either a jus in re or a jus ad rein. ' Whatever form may be given to the instrument, the mortgagor continues to be the owner of the land, and the mortgage is a mere lien. The mortgagee cannot, in any way, convey, devise or incumber the land, for he has no estate in it, or title thereto, nor has he any right to the possession thereof. The mortgagor can maintain an action of trespass against him. The mortgage passes to executors, as a chose in action, and it is extinguished by payment or tender of the debt to which it is incidental. (Korbright v. Cady, 21 N. Y., 343, 364 ; Cholmondely v. Clinton, 2 J. & W., 1, 178 ; Ten Eyck v. Craig, 62 N. Y., 406, 421.) As Mrs. Richards had no estate or interest in the land, she could convey none, and her deed did not for that reason operate as a grant, nor did it operate as a bargain and sale, for she received no consideration therefor. Its only effect was to release her inchoate right of dower. (1 R. S., 739, § 143 ; Teft v. Munson, 63 Barb., 31-37.) Such was manifestly the intention of the parties to the conveyance, and that must govern in the construction of the instrument. (1 R. S., 748, § 2.) 1. The haben-dum is restricted to the premises conveyed and the appurtenances thereto. (4 Kent, 468.) 2. There are no words apt to discharge or release a chose in action. 3. She executed and acknowledged the instrument as wife. 4. She had a dower right, and to release that was a proper and apparently the only purpose of her uniting in the conveyance. (Power v. Lester, 23 N. Y., 527 ; Gillig v. Maass, 28 id., 191.)

That the conveyance did not operate as an estoppel against her is shown by the fact that she gave no warranty. (Sparrow v. Kingman, 1 Coms., 246.) That the mortgage was impliedly excluded from the operation of such conveyance, we think is shown by the instrument executed by Richards, the husband and the principal grantor, and delivered to the grantee simultaneously with the delivery of the conveyance, whereby Richards, the husband, agreed to pay off the mortgage. This paper and the conveyance, together, constitute but one transaction, the legal effect of which was a conveyance of the land, subject to the mortgage, to be afterwards paid by Richards.

The judgment must be reversed and a new trial must be granted at Special Term, with costs to abide the event.

BakNard, P. J., and DykmaN, J., concurred.

Judgment reversed and new trial granted at Special Term, costs to abide the event.