
    Ferral C. Dinniny, as Surviving Partner of The Butler Colliery Company, Respondent, v. Joseph E. Gavin and James T. Gavin, Appellants.
    
      Chattel mortgage — covenant therein, under seal, to pay nates secured thereby — enforcible, although the notes are outlawed — acquiescence in the mortgagee’s delay inforeclosing — a sale on foreclosure fixes the value.
    
    In an. action brought in December, 1898, by the plaintiff, as surviving partner of a Arm known as the Butler Colliery Company, to recover upon a covenant contained in a chattel mortgage given to his Arm, it appeared, that in July, 1883, the defendants gave to the plaintiff’s Arm a chattel mortgage under seal, covering the lease of a coal yard and certain personal .property, to secure the payment of notes of the defendants, “which the said Joseph E. Gavin and James T. Gavin hereby agree to pay,” because of a default in which payment the mortgagees, as they were authorized to do, entered upon and toolc possession of the mortgaged property in 1884, and about a week later leased it to the defendants, reserving to themselves some rights in the coal yard. Under this arrangement the defendants remained in possession until December, 1886, when. • the mortgagees foreclosed the mortgage, sold the property and realized only about a seventh of the mortgage debt.
    
      The present action was brought, upon the covenant contained in the mortgage; to recover the deficiency, as a defense to which the defendants pleaded the Statute of Limitations; they also claimed that the mortgagees, by taking possession of the mortgaged property in 1884 and not foreclosing the mortgage until 1886, became liable for the value of the property in 1884, and this, they offered to prove, exceeded the amount secured by the mortgage.
    
      Held, that the Statute of Limitations was not a defense to the action, as the-defendants had covenanted under seal to pay the amount for which the mortgage was given;
    That the fact that the Statute of Limitations was a bar to dny recovery upon the-notes themselves was immaterial, and did not affect the mortgagees’ right to enforce the covenant;
    That as the delay in the foreclosure was acquiesced in by the'defendants, as-appeared from the fact that they hired and used the property as tenants of the mortgagees, and as the trial court had credited them with the rent which they hád paid, and in this way they had the benefits of the delay, of the wear and. tear of the property, and of any depreciation, such delay did not constitute a. defense to the action;
    That as the fairness of the1 sale in foreclosure was not impeached it fixed the value of the property.
    Appeal by the defendants, Joseph E. Gavin and another, from a. judgment of the Supreme Court in favor of the plaintiff, entered in. the office of the clerk of the county of Chemung on the 6th day of February, 1895, upon the verdict of a jury rendered by direction of the court after a trial at the Chemung' Circuit.
    The defendants, July 13, 1883, gave the plaintiff’s firm a chattel mortgage under seal upon the lease of the coal yard of which the defendants were in possession as tenants, and upon the horses, wagons, etc., which they used in conducting their coal business, to secure the payment to said firm of ■$1,568.'T9, being the sum of four promissory notes of the same date, aggregating the same amount, payable respectively in three, six, nine and twelve months, with interest, “which the said Joseph E. Gavin and James T. Gavin hereby agree to pay.” The mortgage contained the usual power in case of default to enter and take possession of the mortgaged property, and to sell the same at public or private sale and to apply the avails to the payment of the debt. The defendants being in default in payment the plaintiff’s firm took possession of the property in the latter part of 1884, and about a week later, leased it to the defendants, reserving to themselves some rights in the yard. The defendants remained in possession under this arrangement until December 11, 1886, when the plaintiff’s firm foreclosed the mortgage and sold the mortgaged property, realizing $255.75.
    This action was commenced in December, 1893, to recover the balance unpaid upon the mortgage, the plaintiff relying 'upon the covenant of the defendants contained in the mortgage to pay the notes or their amount.
    The defendants pleaded the Statute of Limitations, and, in effect, that the mortgagees by taking possession of the mortgaged property in September, 1884, and not foreclosing the mortgage until December, 1886, thereby became liable for the value of the property at the time they took possession of it, and they offered to prove that such value was $1,800, but upon the plaintiff’s objection the evidence was not received.
    The court directed a verdict for the plaintiff for $1,910.11, being the amount of the -mortgage debt, with interest, less $54.18 paid by the defendants, and $255.75, the sum realized upon the foreclosure sale, and $300, the rent paid by the defendants to the plaintiff’s firm from September, 1884, to December, 1886.
    
      Mackey & Draper, for the appellants.
    
      Reynolds, Stanchfield & Collin, for the respondent.
   Landon, J.:

We think the mortgage, which, is under seal, contains a covenant by the deféndants to pay the amount for which the mortgage was given. The defendants thereby agree, under seal, to pay it, and that is enough. (Booth v. Cleveland Mill Co., 74 N. Y. 15.)

The fact that the Statute of Limitations bars recovery upon the notes does not bar it upon the covenant in the mortgage. The notes are not paid; the remedy upon them is barred, but it is not barred upon the covenant in the sealed instrument, and the plaintiff is at liberty to resort to that covenant to secure payment of the debt due him. (Hulbert v. Clark, 128 N. Y. 295.)

The defendants urge that because the mortgagees did not fore-' close the mortgage until more than, a year after they took possession , of the mortgaged property they should be held to have taken pos-" session of it in. full satisfaction of the mortgage, or should credit upon it the full value of the property at the time they took possession of it. The delay in the foreclosure was acquiesced in by the defendants, by their hiring and using the property as tenants of the mortgagees. The trial court credited them upon the mortgage debt with the rent which they paid. Thus the defendants had the benefit of the delay, and of the wear and tear of the property and of its depreciation -in value. The sale upon the foreclosure fixed the value of the property, its fairness not being impeached. (Casserly v. Witherbee, 119 N. Y. 522.)

The judgment should he affirmed, with costs.

All concurred.

Judgment appealed from affirmed, with costs.  