Opinion
Argued November 29, 1880
Decided December 7, 1880
Hamilton Wallis for appellants. Aaron Pennington Whitehead for respondent.
This action can be maintained upon the cause of action given to the plaintiff by the deed executed by Williamson to Kennedy and Hutchinson, the appellants, and the prior contracts between the parties need not be resorted to for that purpose. That deed recites that the parties thereto had become jointly interested in the purchase of certain lands from the plaintiff and from others; that for the convenience of the parties the title to the lands so purchased had been taken in the name of Williamson, to be held for the use and benefit of all the purchasers, in the proportions named; that the grantees had agreed to assume and pay their proportions of the mortgages executed by Williamson for portions of the purchase-money of the lands, and that it was deemed proper and expedient for Williamson to convey to the grantees their interests in such lands. The deed conveys so much of the lands as had not been sold by the purchasers, and the conveyance is subject to plaintiff's mortgage and other mortgages which the grantees in certain proportions assume and agree to pay as part of the consideration or purchase-money. This agreement contained in this deed can be enforced by the plaintiff as mortgagee. And the right to maintain the action rests upon the principles laid down in Lawrence v. Fox ( 20 N.Y. 268); Burr v. Beers (24 id. 178); Thorp v. Keokuk Coal Co. (48 id. 253); Campbell v. Smith (71 id. 26), and kindred cases. The claim that there is no consideration to uphold the agreement, is without any foundation. As between Williamson and the grantees in his deed, they were bound to assume and pay portions of the mortgages, and they could not have compelled him to convey to them the land which he held for their benefit until they either paid or assumed to pay their portions of the mortgages. Hence the conveyance to them furnishes ample consideration for their agreement.
Upon the trial the defendants gave some evidence tending to show that the plaintiff had informed the defendants that he would purchase the property at the foreclosure sale for the amount due upon the mortgage, and that they need not attend the sale, and that they, in consequence thereof, did not attend the sale; and hence they claim that the mortgage ought to be treated as paid. But this evidence on the part of the defendants was disputed by the plaintiff, and the court at Special Term found the facts upon this issue in favor of the plaintiff. That finding concludes us, and there is therefore no basis for this claim made by the defendants. There are no facts upon which they can found an argument that the mortgage must, as to them, be treated as paid, or upon which they can claim that the plaintiff is, as to them, estopped from claiming payment from them of the amount awarded to him.
A further point is made, that the defendants were entitled to a jury trial. We are of opinion that the plaintiff's remedy upon the covenant sued on was an action at law. The relief demanded and granted was a purely money judgment. There were no equities to adjust, and no equitable relief was needed. But the point that the defendants were entitled to a jury trial was not taken in such manner that we can consider it. The case was noticed and moved for trial at a Special Term before a judge without a jury. Before the counsel for the plaintiff opened his case, the counsel for the defendants "objected to the jurisdiction of the court, and demanded a jury trial." The court did not pass upon the question thus raised, but reserved its decision. Both parties then proceeded with the trial, both gave evidence, and the case was submitted to the trial judge. It does not appear that either party asked the judge to decide the question reserved, or objected to finishing the trial before him. By trying the case before him and finally submitting it to him for decision without insisting upon a jury, both parties must be held to have waived a jury trial. The defendants should have insisted upon a ruling by the judge upon their right to a jury trial, and if he ruled adversely to them, they should then have taken an exception. If he declined to rule at all or decided to reserve his decision, they should have excepted to this; or as soon as the nature of the case was developed by the opening or the evidence, they should have insisted upon a ruling and taken their exception. ( Sharpe v. Freeman, 45 N.Y. 802.) When the judge decided to reserve his decision, the parties could not have understood that he would first try the case and then determine whether he had the right to try it. It must have been understood that he would reserve the decision until he could see from the opening or some evidence, whether the action involved matters of equity or of purely legal cognizance, and then decide the question reserved. The judge, by proceeding with the trial to its termination, must have determined that the defendants were not entitled to a jury trial, and no exception was taken to this determination. It would not be just to allow the defendants, under such circumstances, to go through the trial and take their chances of succeeding, and then, after an adverse decision, raise the question that they ought to have had a jury trial. Hence the exception filed by the defendants after the decision of the case, that the judge "did not determine as a conclusion of law that he had no jurisdiction to hear or determine" the action, is not available to them. If it was intended to present the question that they should have had a jury trial, for reasons stated it came too late.
The judgment should be affirmed.
All concur.
Judgment affirmed.