Benham v. Pennock

OSBORN, J.:

This action was tried at the Schoharie Circuit before Mr. Justice INgaíls, without a jury, in January, 1877, upon an admitted state of facts. Upon these facts the learned justice ordered judgment for defendant, with costs, and from the judgment entered thereon an appeal was taken to this court.

The plaintiff’s claim is, that by the terms of the bond on which the action is brought, the sum of fourteen hundred ($1,400) dollars reserved therein, was made a trust-fund by plaintiff’s intestate for tbe benefit of bis heirs, and that notwithstanding its assignment by the intestate in his lifetime, for a full and valuable consideration together with the mortgage accompanying the same, and by the assignee named in the first assignment, afterward reassigned; and notwithstanding the fact that the full amount due thereon was paid to such last-named assignee before the commencement of this action, who acknowledged the complete satisfaction of such bond and mortgage, this action can be maintained.

This position of the plaintiff is clearly untenable, and the authorities cited by the counsel have no application to the facts conceded in this case. The intention of the parties to the bond and mortgage is obvious. The wife of the plaintiff’s intestate refused to unite with him in a deed of certain premises of which he had the fee. To protect the purchasers against any loss from and on account of the inchoate dower right of his wife, a certain portion of the purchase-money or price was reserved and this bond and mortgage given. This sum so kept back and reserved was simply to protect and secure the grantee under his deed, by leaving one-third of the purchase-price unpaid upon the mortgage and bond, from and against any interest of his wife in said premises, in the event that 'she outlived him. The language of the bond, so far as it affects this action, is as follows : “ The sum of $1,400 is set apart and to be considered a standing indemnity, on interest, against said claim of dower, the interest to be paid to the said Benham (the intestate) anually during his life. In case he outlives his wife, the whole sum to to be paid to him or his heirs, executors and administrators twelve months after her decease.” In the event that the wife survived her husband and should elect to have one-third of the premises set apart for her use, instead of taking the interest on the sum so reserved, then no interest was to be paid on the sum secured by the bond and mortgage during her life, but the principal sum and interest from her death to be due and payable twelve months thereafter, “to the heirs, executors and administrators of John P. Ben-ham,” the intestate. But in the event that she should take the interest on the $1,400 so secured, “ and this she did, having outlived her husband,” then in that event, upon her death the unpaid interest and the principal sum were, by the terms of said bond, made due and payable, “ to the heirs, executors and administrators of the said intestate ” twelve months after Ms death. The intestate assigned all Ms interest in the bond and mortgage in Ms lifetime, as be bad a right to do. Its conditions, so far as the wife’s interest was concerned, bad been complied with, and before this action was commenced the bond and mortgage had been fully paid to the owner and holder thereof. It would be manifestly unjust to the obligors to be obliged to pay twice, unless some principle of law requires it, and from a careful examination I am satisfied such is not the ease.

The judge at the Circuit was right in his conclusions of law upon the undisputed facts, and the judgment appealed from must be affirmed, with costs.

LeaRNed, P. J., and Bockes, J., concurred.

Judgment affirmed, with costs.