Opinion
Argued April 7, 1879
Decided April 15, 1879
Lewis Sanders, for appellant. F.A. Paddock, for respondents.
The defendant upon the conveyance to him did not assume the payment of the mortgage. The mortgage was a lien upon the land, and his grantor was personally liable upon his bond for the mortgage debt, but the defendant did not become personally bound to pay the mortgage. After the defendant had taken the conveyance default was made in the payment of interest, and this default having continued for more than thirty days, the principal sum by the terms of the mortgage became due at the option of the mortgagees. The defendant thereupon verbally agreed with the mortgagees that if they would not exact payment of the principal, or foreclose the mortgage, and would give time for the payment of the interest then due, he would when the next installment of interest became due, pay the interest then in arrear, together with that which should accrue to that time. The mortgagees assented to this arrangement, and took no proceedings to collect the mortgage debt or interest during the time specified in the agreement. This action is brought upon the defendant's promise to pay the two installments of interest, and the only question is whether the undertaking on the part of the defendant was to answer for the debt, default or miscarriage of another. If it is, not being in writing, it is void by statute. (2 Rev. Stat., 136, § 3.)
It does not admit of doubt that the forbearance of the plaintiff to take proceedings to foreclose the mortgage upon the request of the defendant, was a good consideration for his promise to pay the interest. (Addison on Contracts, 12; Parsons on Contracts, vol. 1, p. 443.) But if the defendant's promise was to pay the debt of another, the fact that it is supported by a good consideration will not save it from the condemnation of the statute. In addition, the promise must be in writing, and no matter what consideration exists, if the promise is collateral, a writing is the only competent evidence to establish it. ( Mallory v. Gillett, 21 N.Y., 412.) But the defendant's promise was not a promise to answer for the debt of another, within the meaning of the statute. When it was made he had the legal title to, and possession of the mortgaged premises. The mortgage had been reduced several thousand dollars by payments, and the defendant by virtue of his ownership of the land, presumptively had an interest to protect it from sale on foreclosure. He was enabled by virtue of the agreement to take and control the rents and profits of the land during the time specified therein, and the plaintiffs meanwhile forbore to enforce their rights as mortgagees. The consideration of the defendant's promise was one running directly to him from the promisees. The agreement was entered into by the defendant for his own benefit, for the purpose of protecting his interest in the property covered by the mortgage. It was an arrangement with the lienors, for delay in enforcing their lien on the defendant's land.
The circumstances bring the case directly with the third class of cases enumerated in Leonard v. Vredenburgh, (8 J.R., 28,) viz.: where the promise to pay the debt of another, arises out of some new and original consideration of benefit or harm, running between the newly contracting parties. In this class of cases the subsisting liability of the original debtor, is no objection to a recovery. And when the purpose of the promise is to secure a benefit to the promissor, by relieving his property from a lien, or securing and confirming his possession, the promise is original and not collateral although a third person may be personally liable for the debt, and the promise may be in form a promise to pay such debt, and although the performance of the promise may result in discharging the debt. ( Farley v. Cleveland, 4 Cow., 432; Mallory v. Gillett, supra.) The case of Mallory v. Gillett, contains an able and elaborate review of the decisions upon the section of the statute we are now considering, and the opinion of COMSTOCK, Ch. J., recognizes and enforces the distinction between promises to pay the debt of another, entered into for the benefit of the original debtor, and in aid of the original contract, and promises which though in form promises to pay the debt of a third person, are not made for the purpose of securing or performing the original duty, but for the benefit of the promissor, although such security or performance may be the consequence. In a learned note in 1 Sand. 211 C, it is said: "Whether a case comes within the statute depends not on the consideration of the promise, but on the fact of the original party remaining liable, coupled with the absence of any liability on the part of the defendant, or his property, except such as arises from his express promise." We need not consider whether this statement of the doctrine is precisely accurate in all its parts, in view of the present state of the decisions, but it recognizes the validity of a verbal promise made under the circumstances of this case, and in that respect accords with the authorities before cited.
We think the judgment is right, and it should therefore be affirmed.
All concur.
Judgment affirmed.