If the relator's mortgage furnished evidence upon its face that it belonged to the mortgagees as executors of the will of Mr. Espie, then the certificate of Wright, one of the executors, duly acknowledged, showing that it was paid, entitled the relator to have it discharged upon the record. During the lives of both executors, either one had power to discharge a mortgage belonging to them as executors; (Wheeler v. Wheeler, 9 Cowen, 34;Stuyvesant v. Hall, 2 Barb. Ch. 151; Bogert v. Hertell, 4 Hill, 492; Williams on Executors, 3d Am. ed. 810;) and on the death of one, all the rights and powers of both vested in the survivor. (Hudson v. Hudson, Cas. Temp. Talbot, 127; Williams on Executors, 814; Addison on Contracts, 362.)
These positions are not questioned by the respondent's counsel, who do not deny the sufficiency of the discharge in *Page 233 case the mortgage was shown to be the property of the executors in their representative character; but they insist, that by its terms the mortgage appeared to be the private property of the executors. The terms of the mortgage do not warrant this conclusion. The only case cited in its support is that of Peck v. Mallams, (6 Seld. 509.) What was said in that case, in reference to a similar mortgage, related rather to the rules of pleading than to the rules governing the interpretation of contracts. It was said in answer to the defendant's objection, that the plaintiff did not make title to the bond and mortgageby his complaint. By the strict rules of pleading in force when the pleadings in that case were made, when no intendments in favor of the pleading were allowed, (2 H. Bl. 530; 1 Hill, 74; 2 Mylne Craig, 422; 2 Phillips, 28,) an allegation that a promise was made by A. to B., executor c. of C., would not sustain an action in favor of B. in his representative character, the words "executor c." being treated merely as descriptive of the person. (2 Chitty on Pleading, Springfield ed. 1844, 103, note b; 5 East, 150; 5 Binney, 16; 2 Barb. 368.) All that was involved, upon this subject, in the judgment in Peck v. Mallams, was the rule of pleading, and I regret being compelled to say that the syllabus of the case in the report, (for which I am responsible,) erroneously states the rule as applicable to the interpretation of the contract. The judge who delivered the opinion merely expressed a doubt in that respect, the case not requiring a decision of the question. (6 Seld. 537, 538.)
In determining the effect of contracts, such strictness of interpretation as that applied to pleadings is not admissible; language sufficiently definite to show the intention of the parties being all that is required. Looking at the language of the mortgage in this case, as furnishing evidence of that intention, it would seem very clear that the mortgage was made to the mortgagees as a contract with them in their representative, and not in their individual characters. No *Page 234 other meaning can be given to the language, unless we assume that the words, "executors of the estate of James Espie, deceased," were added to the names of the mortgagees, in a contract having no relation to the affairs of the estate, for the sole purpose of identifying the parties. I venture the assertion that such an addition to the names of parties in a private contract, for the mere purpose of description, was never known, and it would be very unreasonable to hold that such was the object of the addition in this case. If the decision in Peck v. Mallams were to be regarded as declaring a rule for the interpretation of contracts, instead of a rule of pleading merely, it could not be reconciled with the late cases in this court of Babcock v.Beman, (11 N.Y. Rep. 200,) and Chouteau v. Suydam, adm'r, (21 id. 179.) My conclusion, therefore, upon this point is, that the mortgage upon its face appeared to be the property of the executors in their representative character, and was properly discharged by the certificate of the survivor.
If, however, a different interpretation be given to the language of the mortgage, and it is held, by its terms, to have belonged to Maycock and Wright in their private character and not as executors, the certificate and acknowledgment of Wright would be equally effectual for its discharge. Any one of several joint payees of a note, bond or other personal obligation, has a right to receive payment of, and to discharge such obligation. (Pierson v. Hooker, 3 John. 68; Bulkley v. Dayton, 14 id. 387; Murray v. Blatchford, 1 Wend. 583; Stuyvesant v.Hall, 2 Barb. Ch. 151.) KENT, Ch. J. in Pierson v. Hooker, says: "It is a general principle of law, that where two have a joint personal interest, the release of one bars the other." If there are any exceptions to this rule the subject of the present controversy is not among them. According to the decisions in this state, a mortgage is but a security for a debt, and is treated as a mere personal contract. (Green v. Hart, 1 John. 580, 590;Runyan v. Mersereau, 11 id. 534; Martin v. Mowlin, *Page 235 2 Burr. 978; Browne on the Stat. of Frauds, § 65.) So far as the mortgagor is concerned, all the mortgagees are to be regarded as one person, and he has a right to deal with each as representing all. This was held, as between a vendor and two vendees of land, in Carman v. Pultz, (21 N.Y.R. 550,) and no reason is perceived why the principle is not equally applicable between a mortgagor and mortgagees. By accepting a joint mortgage, each mortgagee gives to every other the power which this principle implies, as each member of a copartnership clothes each of his copartners with power to bind him in all matters within the scope of their joint business. Except for the purpose of receiving payment and acknowledging satisfaction, the powers of an ordinary joint obligee over the obligation would not probably correspond with those of a partner; but to that extent they must be identical, otherwise the obligor could never safely pay to one of several obligees. The certificate of one mortgagee, therefore, if both were living, was sufficient to entitle the mortgagor to a discharge of his mortgage upon the record. The practice in the register's office in the city of New York, it seems, has been otherwise, and the decisions of the Supreme Court in the first district have been in accordance with that practice. (ThePeople v. Miner, 32 Barb. 612.) In some other counties the practice has been to discharge mortgages upon the certificate of one of several mortgagees, and great confusion would arise from a decision by this court that such discharges were ineffectual.
The death of one of two joint mortgagees does not deprive the other of the right to receive payment of, and to discharge a mortgage held by both, but renders such right exclusive in the survivor. (Addison on Contracts, 285.) What is said in the books to which we are referred by the respondent's counsel, against the right of the survivor in such cases to take the whole money, relates to the equitable and not to the legal right. (Rigden v.Vallier, 2 Vesey, sen. 258; 2 Story's Eq. Jur. § 1206; 2 Powell on Mortgages, 699, 700.) *Page 236 There was never any doubt that the entire legal interest remained in the survivor. (1 Chitty on Pleading, 19, 20; Rolls v.Yate, Yelv. 177, and note 1.) The only doubt was, whether the survivor did not take the whole interest, legal and equitable, according to the rule of survivorship applied to a joint tenancy in lands; but it was finally held, the case of Petty v.Styward, (1 Eq. Cas. Abr. 290,) being the leading case, that although the entire legal interest vested in the survivor, he was to be regarded in equity as a trustee for the personal representatives of deceased parties for their equal shares. (2 Fonbl. Eq. 103, and notes.) I believe it was never questioned that the party having the entire legal interest in any demand, in the absence of fraud, could discharge it.
Whether, therefore, the mortgage belonged to the two mortgagees as private persons, or as executors, and whether the register was or was not bound, on the evidence which was before him, to take notice of the death of one of them, the certificate of the other, duly acknowledged, showing payment of the mortgage, entitled the mortgagor to have it discharged upon the record. (3 R.S. 5th ed. 57, 58, §§ 60, 61.)
The order appealed from, therefore, should be modified, so as to direct the issuing of a mandamus to the defendant, commanding him to receive and record in his office the certificate of payment of the mortgage of the relator, mentioned in the affidavits and proceedings in this case, and also to discharge such mortgage upon the record thereof.
Costs in cases of this kind are in the discretion of the court. (3 R.S. 5th ed. 909; Code, § 471; 20 N.Y. Rep. 529; Code, § 306.) As the defendant is a public officer, and appears to have acted in perfect good faith, and in accordance with a prior decision of the Supreme Court, he should not be charged with costs.
All the Judges concurring,
Ordered accordingly. *Page 237