[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 160
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 161 We think the plaintiff's right to enforce the mortgage may rest upon the agreement of the defendant, and his intention, founded upon it, to give it effect in the hands of the plaintiff, inasmuch as it is supported by a good consideration.
There was sufficient consideration to support an agreement in the relinquishment by the plaintiff of his right to proceed against Albert. And the trial court has found upon evidence to support it that such was the consideration of the agreement which induced the plaintiff to accept the assignment.
Had the defendant for such a consideration executed and delivered to the plaintiff a bond and mortgage for $7,500, its validity in the mortgagee's hands, and his right to enforce it, would not admit of controversy.
Instead of taking that course the mortgagor executed the agreement before us, in which he not only consented to the assignment, but in addition covenanted that there was due and unpaid on the bond and mortgage the full amount purporting to be secured thereby. This was in legal effect a promise to pay to the assignee the moneys secured by it. (Eder v. Rouse, 15 Wend. 218.) And this proposition might be given application in support of the judgment, were it not that we prefer to rest our decision upon the broader ground that the practical effect of the agreement was the creation of a valid and effectual bond and mortgage. Here was a bond and mortgage made for a given purpose. That purpose had in part been accomplished when the parties to it determined to make still further *Page 164 use of it. For a valuable consideration it was assigned to the plaintiff, and thereby he acquired title. Had it been done without the consent of the mortgagor it could not have availed him. But the mortgagor consented, and in writing. He did more, he covenanted that the whole amount secured by the bond and mortgage was due and owing thereon. And from this instrument it is apparent that it may be assumed to have been the intention of the parties that these securities should first have a valid inception in the hands of the plaintiff.
That, as between themselves, the intent of the parties must govern and be allowed to give force and effect to the bond and mortgage in the hands of the plaintiff is established by authority.
In Purser v. Anderson (4 Edw. Ch. 17), the court considered the question whether a bond and mortgage which had been paid, and thereby became satisfied and "a dead letter" in the hands of the mortgagee, could be assigned so as to be of any effect or avail to the assignee. It was held that "with the assent and concurrence of the mortgagor it could be assigned, and in the hands of an assignee for value it would be available as against the mortgagor and mortgagee."
This proposition was cited with approval in Hoy v. Bramhall (19 N.J. Ch. 563).
In Hubbell v. Blakeslee (71 N.Y. 63) it was held that if the mortgagor pay the mortgagee the amount secured by the mortgage, yet if it was agreed at the time, and payment was received, on the condition that the mortgage should be kept alive and transferred to another creditor of the mortgagor, such an agreement would have been valid, and the payment would not have extinguished the mortgage.
As between themselves in such case, whether or not the mortgage retain life is determined by the intent of the parties. (Cady v. M. Bank, 14 N.Y.S.R. 99; Champney v. Coope, 32 N.Y. 543. )
The judgment should be affirmed.
All concur.
Judgment affirmed. *Page 165