The Bank of Albion v. Burns.

for his wife and her lands, pledged as security, were discharged; so, in this case, Burns having no authority to pledge the mortgage as security for future liabilities, the mortgaged premises are not liable for such debts.

The point is made that Burrows had no knowledge that Mrs. Burns owned the land mortgaged; that he did not, therefore, know that the land was a security, furnished by a third person, for the debt of Burns; and the referee has found that Burrows had no knowledge or information that she was the owner. I really do not see how this fact can affect Mrs. Burns' rights touching the use that was made of the mortgage.

I hold that the mortgage was valid in the hands of the bank, precisely according to the terms of the bond. In Smith v. Townsend, there was nothing, at the time the mortgage was executed, to indicate in whom the title of the land was; and GOULD, J., said they were thrown back upon the legal presumption that the taker of a conveyance is held to take it according to the true title of the grantor, and with the knowledge of it. WRIGHT, J., said: It must be presumed that a mortgagee is cognizant of the title to the estate mortgaged, where there is no countervailing testimony. In the present case, the conveyance to Mrs. Burns was duly recorded, prior to the execution of the mortgage to Burrows, and this was notice of her title. The plaintiff is to be regarded as having notice that the land, described in the mortgage, was simply surety for the debt of Burns; and this brings us to the question, whether such surety has been discharged.

The referee has found that Burns was indebted to the bank $4,178.14 at the time the mortgage was executed, and that but little, if any portion of the debt, was ever paid, but that the same was extended from time to time, new notes being given therefor; that Burns' indebtedness gradually increased to over $14,000 at the time of his death (July, 1866). As I have come to the conclusion that the mortgage could not be held as a continuing security for the payment of future debts,

The Bank of Albion v. Burns.

thus differing with the referee, how will the facts just stated affect the case? The referce does not find that the notes and evidences of debt, existing at the time the mortgage was given, had not been delivered up to Burns upon the payment of cash or the making of new notes. The evidence shows that the account between the bank and Burns was continued in the usual way. Burns, from time to time, paid moneys into the bank, and made and delivered new notes, either upon new loans or in renewal of the debts he owed. No separate account of any $2,000 indebtedness was ever kept, nor were the bond and mortgage ever applied to any specific indebtedness of $2,000. As Burrows understood the matter, this was not necessary; but as we understand it now, the debt for which the land was pledged as security was a debt to be paid in three and six months, and the creditor had no right, as against the surety, to extend the time of payment and put it out of its power to enforce payment. The surety has always the right to pay the debt when it becomes due, and resort at once to the principal debtor for indemnity. This general dealing between the bank and Burns was continued from the execution of the mortgage (August, 1861), to the death of Burns, in July, 1866, several years after the death of Mrs. Burns. Burrows, understanding the mortgage to be a continuing guaranty, took, in April, 1865, Burns' note for $2,000, without an indorser.

Some other questions are presented by the case and by counsel, but, in my view, it is not necessary to remark upon them. It may, however, be well to say, that Burns delivered to Burrows another mortgage, of the same date, for $3,000, executed by himself and wife upon premises belonging to Burns, and for the purpose of securing his debt. In July, 1864, Burrows discharged this mortgage at the request of Burns. If the $2,000 mortgage upon Mrs. Burns' lands had been a continuing guaranty, she or her heirs would have been entitled to the benefit of this $3,000 mortgage. As Burns was the owner of this land covered by this mortgage, he had a right to deliver it as security for future advances.

Stahl v. Stahl.

The authorities cited by the counsel for the plaintiff in support of the position that extensions of the time for the payment of the debt will not release the security, are not applicable to this case. The securities, in those cases, were not furnished by persons other than the debtor. That the extension of the time, by a valid agreement, will discharge the surety is shown by Smith v. Townsend, supra. It cannot be necessary to cite authorities to show that where the creditor takes a new note for the old debt, giving time, and thus putting it out of his power to sue upon the old debt until the time given by the new note has expired, it will discharge any surety for the payment of the old debt.

The judgment must be reversed, and there must be a new trial; costs reserved to the final hearing. Judgment reversed.

DANIEL STAHL, Appellant, v. JOHN S. STAHL, Administrator, &c., and ENOCH STAHL, Respondents.

(GENERAL TERM, EIGHTH DISTRICT, SEPTEMBER, 1869.)

An action upon a judgment against the defendants therein, entered in form against them jointly, is presumptively an action against joint debtors. The plaintiff sued the representative of a deceased judgment debtor, and the surviving co-judgment debtor, upon a judgment in usual form, recovered nearly twenty years previously on contract against the defendants therein, alleging execution returned unsatisfied against the said defendants and the insolvency of the survivor.-Held, on demurrer by the administrator, for want of a cause of action, that the complaint was good.

It is sufficient, in such an action, if the complaint states the survivor's insolvency, without averring the issuing and return of an execution unsatisfied against him.

THIS was an appeal taken from an order granted upon a hearing at a Special Term of the court, whereby a demurrer interposed by the defendant John S. Stahl, was sustained to the complaint of the plaintiff in the action,

Stahl v. Stahl.

which stated that in July, 1847, Wm. P. and Willard J. Daniels recovered a judgment in the Supreme Court against the defendants, Enoch Stahl and John Stall, junior, for $924.98, in an action on contract, on personal service of process. The docketing of the judgment was averred and that Wm. P. Daniels died prior to May 16, 1867, and left a will; the complaint named the executors and stated that they and Willard J. Daniels sold and transferred the judgment to the plaintiff May 16, 1867. That John Stahl, junior, was dead, and the defendant, John S. Stahl, was administrator, &c.; that the judgment remained wholly unpaid and unsatisfied, that the defendant, Enoch Stahl was entirely worthless and insolvent, and that execution had been issued to the sheriff of Niagara county, where the defendants resided, and returned wholly unsatisfied. Judgment was demanded against the defend ants for $924.98, with interest from July 2d, 1847.

The grounds of demurrer were:

1st. That no cause of action was stated against John S Stahl, administrator of, &e.

2d. Defect of parties, defendant, in joining Stahl, a sui viving joint debtor with John S. Stahl, administrator of, &

3d. That it did not appear that any action or proceeding had been had against Enoch Stahl, the surviving joint debtor, before commencement of this action, nor that the redy against him had been exhausted, nor that he was insolvent.

4th. That several causes of action had been improperly joined, as the complaint set forth a cause of action at law against Enoch Stahl, and an equity action, or forts which required the equitable relief of the court, as , the other defendant. The court ordered judgment for the defendant, John S. Stahl, with liberty to the plaintiff to amend, &c.

Webster & Hunting, for the plaintiff.

L. F. Bowen, for the defendant.

Present-MARVIN, LAMONT and BARKER, JJ

Stahl v. Stahl.

By the Court-MARVIN, P. J. Judgment was recovered against the two Stahl's in the Supreme Court, nearly twenty years before this action was commenced, in an action on contract. The plaintiff is the assignee of the judgment. One of the Stahl's is dead, and the defendant, John S. Stahl, is administrator of his goods, &c. The other judgment debtor, Stahl, is entirely worthless and insolvent, an execution had been issued upon the judgment and returned wholly unsatisfied, but when does not appear.

These facts are admitted by the administrator; but he insists that they are not sufficient to constitute a cause of action against him. I think we must hold that Enoch Stahl and John Stahl, Jr., were joint debtors. The judgment is the evidence of their indebtedness, and it is against them jointly. The judgment would have been in this form, if it had been recovered upon a demand rendering them liable jointly and severally. But as the action is upon the judg ment, I think we must regard the liability at law as joint only. I understand it to be well settled, that an action at law could not be maintained upon any contract, whether joint or several, against a surviving debtor, and the personal representatives of a deceased co-debtor. The remedies against the surviving debtor, and the representatives of the deceased co-debtor, and the judgments to be entered, were different, and, in practice, they could not be united and carried into effect together. If the obligation was joint and several, a separate action could be maintained against the surviving debtor, and the representatives of the deceased. If the obligation was joint only, then, at law, the action was confined to the survivor; but, as great injustice might happen to the creditor, in case he should be deprived, as he was at law, of any remedy against the estate of a solvent deceased debtor, the surviving debtor being entirely insolvent, courts of equity interposed and afforded the remedy. As it was a rule in courts of equity, that the court would not take jurisdiction, and give relief in cases where the remedy was adequate at law; and as the remedy against the surviving debtor was clear and ade