
    Abbie G. Watkins, Resp’t, v. Henry J. Vrooman et al., App’lts.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed January 19, 1889.)
    
    1. Wills—Mobtgage—Eobeclosube of—Equitable belief.
    By his will, a testator left property in trust to his daughter, Eliza Ann, for life, and upon her death to her heirs then living. She left her surviving Henry J.Vrooman and Helen Reynolds, two of the defendants. Prior to her death Yrooman applied to the plaintiff for a loan for said Eliza Ann, representing that she was the owner of the property. The loan was made and a mortgage given on the property to secure it. Subsequent to the death of the mortgagor the plaintiff learned that she had no title to the premises, but that the same was vested in Yrooman and Helen Reynolds, She thereup n applied to Yrooman for further security, and he executed and delivered to her an agreement assuming in terms the pay. ■ ment of the mortgage. An action was brought to foreclose this mortgage. and a few days after the commencement thereof Vrooman conveyed away all his interest in the said property to Bben 0. Reynolds, one of the defendants herein. It was claimed on the trial that a money judgment could not be ordered, because not claimed in the complaint. Reid, that in equity the relief to be administered will be adapted to the exigencies of the case' as they exist at the close of the trial.
    2. Same—Statute op uses—3 R. S., 2183, § 67. #
    
      Reid, that upon the death of Eliza Ann, notwithstanding the provision in the will whereby the trustee was directed to convey the estate to the remainderman, no formal conveyance was necessary, as the statute of uses accomplished this.
    3. Mortgage—When agreement considered as equitable mortgage— 3 R. S., 2194, § 137.
    
      Reid, that the agreement between Vrooman and the plaintiS assuming payment of the mortgage did not convey a fee within the meaning of the statute (3 R. S., 2194, § 137), but was in the nature of an equitable lien or mortgage.
    4. Same.
    A mortgage upon real estate is a mere chose in action, a security of a personal nature, and the fee does not pass to the mortgagee by virtue of the mortgage.
    5. Subsequent purchaser. unapfected by unrecorded agreement.
    The agreement between Vrooman and the plaintiff never having been recorded, a subsequent purchaser of the premises in good faith and without actual notice would acquire a title free from any lien or incumbrance.
    Appeal from a judgment entered at special term upon trial before the court. Material facts stated in the opinion.
    
      Cookingham & Sherman, for resp’t; E. D. Matthews, for app’lt Reynolds; F. C. Ingalls, for app’lt Vrooman.
   Kennedy, J.

William Miller died in 1843^ the owner and in possession of certain real estate, a portion of which is that described in the complaint. He left a last will, •which was afterwards proven before the surrogate of Oneida county .; and the same was recorded in the office of the clerk of said county as a will of real estate on the 1st day of November, 1878. The following is the fifth clause in said will:

’'Fifth. One equal, undivided third part of the said rest and residue of my estate, real and personal, I give, devise, and bequeath to my friend, William Broadwell, in trust, to pay the interest, rents, profits, and increase of whatever nature to my daughter, Eliza Ann, the wife of Adam Vrooman, to and for her sole use and benefit, discharged and free from all control of her present or any future husband; and I direct that the receipt or acquittance of said Eliza Ann shall be a sufficient voucher and discharge to the said Broadwell for the payment of any such interest, rents, profits, or increase; and upon the further trust that upon the decease of the said Eliza Ann, the said William Broad-well shall and will convey and deliver the said estate, real and personal, and all the increase in his hands, to the right heirs-then living of the said Eliza Ann ; which said conveyance, as well as that before mentioned, to be made by the said Ithaca Thompson, shall be in fee, with the proper words of perpetuity to vest an estate of inheritance.”

The lands described in the complaint form the above mentioned trusts estate. Eliza Ann Vrooman, the beneficiary named, from the death of Miller down to her death, which occurred on the 22d day of June, 1879, was in the actual occupation of the land. She left her surviving the defendant Henry J. Vrooman and Helen Eeynolds, her only heirs at law and next of kin.

On the 17th of January, 1879, Henry J. Vrooman applied to the plaintiff for the loan by her to the said Eliza Ann Vrooman of the sum of $1,000. He represented at the time that said Eliza was the owner of the premises, and the money was loaned. To secure this the said Eliza Ann executed and delivered to the plaintiff the mortgage set forth in the complaint, describing the lands constituting the trust estate provided for in the above mentioned clause in the deceased Miller’s-will.

The interest was payable annually from January 1, 1879. The mortgage was recorded in the clerk’s office in Oneida county qn the 17th day of January, 1879. At the time the plaintiff lent the money and took the mortgage she did not know in whom the title vested, but supposed it to be in the mortgagor.

The interest becoming due January 1, 1880, was not paid. About that time the plaintiff learned that said mortgagor had no title to the premises mortgaged, but that the same became vested in said Henry Vrooman and Helen Eeynolds upon her death. She thereupon applied to said Vrooman for additional security; and he, on the 15th day of March, 1880, as is found by the court, executed and delivered to her the following paper:

1 This agreement certifies that I, Henry Vrooman, of Tren An, New York, do covenant and agree to and with Mrs. Abbie G-. Watkins, of Prospect, New York, that a certain mortgage for the sum of one thousand dollars, given about the first' day of January, 1879, to the said Abbie G-. Watkins by Eliza A. Vrooman, and which said mortgage was a lien on the premises therein described, is good for the face thereof, with interest; and the same is hereby made as against myself and' my heirs a lien on the said property in said mortgage described; and I further covenant and agree to pay the said sum of one thousand dollars and interest.
‘y (Signed)
^ March 15, 1880.”
HENEY VEOOMAN. [l. s.]
i£ Oneida County, ss.:
'£On the 15th day of March, 1880, before me came Henry Vrooman, the person named in and described in the above paper, and acknowledged to me that he executed the same.
“A. E. JONES,
££ Justice of the Peace."

On March 18, 1880, this paper was recorded in the Oneida •county clerk’s office in the book of assignments and satisfactions. About July 30, 1880, the clerk copied said record into the book of mortgages, but not in its regular order.

The summons in this action was served oh Vrooman about the 15th day of July, 1880. The defendants Reynolds were brought in as defendants" May 9, 1881.

On the 19th day of July, 1880, Vrooman conveyed all his interest in said lands to the defendant, Eben O. Reynolds, for the consideration of $3,000. This deed was recorded July 30, 1880. On the 29th day of March, 1881, the defendants, Eben 0. Reynolds and Helen E. Reynolds, his wife, conveyed the whole premises to one Theodore Johnson, for :$6,539.50. The $3,000 Reynolds was to pay Vrooman for his half was adjusted as follows: He assumed a mortgage on the land to one Hodges for $1,165; a mortgage thereon to Spriggs & Matthews for $100; paid in cash $875; he was to pay to his wife and take up a note she held ■ against the grantee, Vrooman, dated April 14, 1876, for f$400, amounting then to $520; one-half the funeral expenses, and a monument to Eliza Ann Vrooman, $100. He ■also agreed to pay to Mrs. Reynolds, his said wife, for the use of one-half of the farm, that and other debts sufficient in amount to make up the whole of the purchase price. The court finds that Eben 0. Reynolds, before he paid any part of the $875 on Vrooman’s debt had actual notice of the plaintiff’s mortgage and of the above mentioned agreement.

Nothing has been paid upon the plaintiff’s mortgage.

In her complaint, the plaintiff asks relief upon several grounds:

First. That the plaintiff’s mortgage be adjudged a lien upon the premises described therein from the time of making the same and the said agreement of Henry Vrooman, and that the same be foreclosed.

Second. That all the right, title and interest which said defendant, Henry Vrooman, had in said premises on "the 15th day of March, 1880, be sold, and the proceeds applied to pay the mortgage and costs.

Third. For a judgment against him for any deficiency.

Fourth. That Eben 0. Reynolds be declared to have purchased of Vrooman subsequent fo the mortgage and agreement, and that he acquired no title against the plaintiff by such purchase.

Fifth. That Vrooman be enjoined from receiving and. Reynolds from paying to him any of the purchase money.

Sixth. For such other and further relief as may seem just and equitable.

On the trial, it was claimed by the appellant that a. money judgment could not be ordered in the case, because not claimed in the complaint. The evidence given upon the theory upon which the case was disposed of was sufficient to justify the granting of the relief awarded. It is a. general rule in equity that the relief to be administered will be adapted to the exigencies of the case as they exist at the close of the trial. Spears v. The Mayor of New York, 87 N. Y., 359, 376; Benedict v. Benedict, 85 id., 625; 107 id., 154; 11 N. Y. State Rep., 261.

The court, upon conflicting evidence, found that the defendant, Henry J. Vrooman, duly executed and delivered the agreement of March 15th, 1880. We think this finding justified by proof. By this agreement, under seal and for sufficient consideration, the said Vrooman covenanted and agreed to pay the plaintiff $1,000 and interest, being the sum secured by said mortgage. No good reason can be suggested why this obligation was not incurred by him, and the whole of the mortgage remaining unpaid, why the judgment against him for that sum with interest is not-: just and fully warranted by the evidence; or why, within the rule suggested as to the granting of relief in equity cases, it was not adjudged against him.

The case shows no judgment against the defendant Helen Reynolds. She has joined with her husband, Eben C. Reynolds, in the appeal. As to her the same should be-■dismissed.

After this action was commenced the defendant, Henry J. Vrooman, sold and conveyed his interest in the real estate described in said mortgage to the defendant, Eben O. Reynolds, by deed dated and recorded as before stated. The consideration for the deed was $3,000. The grantee assumed the payment of two mortgages, liens upon the lands, amounting to $1,265, and he paid the grantor in cash $875; and out of the balance of the purchase price he was to pay a note his wife held against the grantor, the amount of which was $520; also one-half of the funeral expenses and other obligations owing by Vrooman, amounting to $340, being the balance of the purchase price. For this sum, $860 of the purchase money, with interest, judgment was ordered against tire appellant, Eben C. Reynolds, •upon the ground that by the before mentioned agreement. <of Henry J. Vrooman with the plaintiff an equitable lien was created and attached to his interest in said real estate in behalf of the plaintiff, and as. security for the payment -of her said mortgage debt; that the agreement to pay the debt and discharge the obligation of Vrooman by Reynolds -not having been performed by him by making such payments before he had actual notice of the existence of said equitable lien, he was bound to account for that part of said purchase money, and to pay the same over to her in discharge pro tanto of the mortgage debt.

Upon the death of Eliza Ann Vrooman, the cestui que trust in the will of William Miller, the trust terminated, and one-half of the trust estate passed immediately to Henry J. Vrooman, one of the two heirs-at-law of Eliza Ann, her surviving, freed from said life estate. Until the death of Eliza the interest of Henry J. was in the nature of a contingent remainder. The question whether this should ripen into an actual estate in fee depended upon the contingency of his surviving the life tenant. When that event occurred he became the absolute owner of an undivided one-half of the lands comprising said trust estate, and notwithstanding the provision in the will that upon the ■happening of this event the trustee was directed to convey the .trust estate, real and personal, to the remainderman, no such conveyance was necessary to vest the title in him. The transfer was made by operation of the statute of uses. 3 R. S., 2183, § 67; In the Matter of the Petition of Livingston, 34 N. Y., 555.

Henry J. Vrooman, therefore, was the owner in fee of an undivided one-half of the premises described in the plaint-tiff’s mortgage at the time he entered into the above-mentioned agreement.

The contention by the plaintiff is that by said agreement, as between him and the plaintiff, an equitable lien was created by which his said portion was charged with the payment of said mortgage debt. The defendant Reynolds urges upon the other hand, admitting the execution of the agreement, that the effect of it was to convey an interest in the fee in said real estate, and because it was not executed pursuant to the requirements of the statute in such case, provided nothing passed under it to affect his rights as a subseqent purchaser. The statute referred to provides: Every grant in fee of a freehold estate shall be subscribed and sealed by the person from whom the estate or interest ■conveyed is intended to pass, or his legal agent. If not duly acknowledged previous to its delivery, according to the provisions of the third chapter of this act, its execution and delivery shall be attested by at least one witness ; or if not so attested it shall not take effect as against a purchaser or incumbrancer until so acknowledged.” 3 R. S., 2194, § 137-

The agreement in question was not duly acknowledged,, the officer failing to certify that he knew the person making the same. It was not attested by a witness. The claim by the appellant that the justice who took the acknowledgment may be regarded as an attesting witness is not tenable, since, if he did not know the maker and was not present at the time of its execution, he could not be regarded as a subscribing witness.

The question then presented, is, what if any estate in the lands in question did the agreement affect? It is quite apparent that the most which can be claimed is that it amounted to an equitable mortgage, intended to secure by lien thereon the debt owing the plaintiff. If this is the only character to be given it, it would seem to follow that it was not a grant in fee, and didnot convey a freehold estate. A mortgage upon real estate is a mere chose in action, a security of a personal nature alone; a pledging of the land as security for the payment of a debt. The fee does not pass to the mortgagee by virtue of the mortgage. Westbrook v. Gleason, 79 N. Y., 23; Kortwright v. Cady, 21 id., 343;. Power v. Lester, 23 id., 527, 531; Merritt v. Bartholick, 36 id., 44; Trimm v. Marsh, 54 id., 599.

The agreement was therefore not an instrument conveying, a foe and' not within the provisions of the statute quoted. An equitable mortgage may be constituted by any writing from which the intention to create it may be gathered. Miller on Equitable Mortgages, 1; In the Matter of the Petition of Howe and Wife, 1 Paige, 125; Chase v. Peck, 21 N. Y., 581: Payne v. Wilson, 74 id., 348. The paper executed by the defendant Yrooman created an equitable lien or mortgage-upon his part of the land and a security which could, therefore, be enforced.

This agreement not having been recorded, a subsequent purchaser of the premises in good faith and without actual notice would acquire a title free from such lien. The defendant Eben 0. Reynolds having become such purchaser took his title unaffected by this equitable lien, and had he paid the full purchase-price before notice of its existence, no-obligation to the plaintiff would have remained.

The court below has found that $860 of the purchase-price-was unpaid at the time Reynolds, the grantee, received actual notice of the existence of this equitable mortgage. It was by agreement provided that he should pay this by assuming a debt owing his wife by the grantor and certain other obligations against him. These the grantee has not in fact paid; and said balance of the purchase-price remains-due and owing by him. The lien of the equitable mortgage of Yrooman attaches to this part of the purchase money, and unless the agreement to assume the debts of the grantor above-referred to operated as an actual appropriation of the same, equity will compel its payment in discharge of the mortgage debt.

Upon this question the court below found: c'‘ The consideration for said transfer from said Vrooman to Reynolds was made up as follows: Mortgages on land conveyed, $1,365; cash paid, $875; debts owing by the grantor, Vrooman, $860. ” He also finds that Reynolds on the 31st day of July, 1831, and before the payment by him of any part of said $860, had actual notice of said mortgage and agreement, and of plaintiff’s claim thereunder. These findings no doubt bring the case within the principle of Lawrence v. Fox (20 N. Y., 368), and kindred cases, asserting the doctrince that an action lies upon a promise made by the defendant upon a valid consideration to a third person for the benefit of the plaintiff, although the plaintiff was not privy to the consideration. There is no finding that the grantee, Reynolds, undertook or promised the grantor, vrooman, to pay these debts, if they in fact existed, out of the consideration for the conveyance.

So far as the lights of the plaintiff are concerned, defendant Reynolds still owes Vrooman §860, and to that sum in his hands, the equitable lien attached, in favor of the plaintiff upon her mortgage, and she had a right to have the same appropriated to that purpose.

In the disposition made of the case, we do not see how ' Johnson, the subsequent grantee of Reynolds and his wife, was a necessary party to the action.

Judgment against the appellants Henry J. Vrooman and Eben 0. Reynolds, affirmed, with costs; as against the appellant, Helen Reynolds, the appeal is dismissed, without, costs. Order appealed from affirmed, without costs.

All concur.  