
    Silas D. Gifford, as Receiver, etc., Resp’t, v. Michael Augustin Corrigan, Executor of Cardinal John McCloskey, Deceased, Impleaded, etc., App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 4, 1889.)
    
    1. Deed—What will import delivery and acceptance oe deed.
    Where, in an action to foreclose a mortgage, subsequently the mortgagor, who owned the title, conveyed the property to one McEvoy, who-assumed the payment of the mortgage. Thereafter the said McEvoy executed a deed of the same premises to John McCloskey, archbishop of Hew York, the deed containing a covenant on the part of said McCloskey assuming the payment of the mortgage. The title to church property in the Roman catholic church is frequently vested in the archbishop, and the business relating to the real estate is conducted through the chancery office. The deed in question was delivered to those who had authority from the archbishop to accept it and who were its proper custodians. Some two years after the record of the deed, the archbishop was informed of its existence, and of the clause on Ms part assuming the payment of the mortgage. At this time the parish priest was in possession of premises, leasing it out and collecting rents therefrom which were turned into the parish fund. When the attention of the archbishop was called to the fact of the delivery of the deed, he made no disclaimer. Reid, that there was a delivery and acceptance of the deed by the archbishop. Barnard, P, J., dissenting.
    3. Same—When release op covenant ineffectual.
    A covenant in a deed in which a mortgage is assumed cannot be released without the consent of the mortgagee, and such release is ineffectual.
    Appeal from a judgment rendered after trial at the special term against the defendant for the amount of a deficiency on a mortgage debt assumed by his testator.
    This action was brought to foreclose a mortgage. The property in question was mortgaged by the defendant, TÍie Father Matthew Total Abstinence Benefit. Society, to-one John M. Masterton. Subsequently the society conveyed the property to one John McEvoy, who, by the terms of the deed, assumed the payment of the mortgage. Thereafter the said McEvoy executed and recorded a deed to John McCloskey, archbishop of New York, of the same premises, which deed also contained a covenant on the part of McCloskey assuming the payment of the mortgage. William P. O’Connor, executor of John McEvoy, after-wards executed to McCloskey a release of the covenant in the deed to the latter. The deed was never delivered toMcCloskey personally, hut it was delivered to those who had authority from the archbishop to accept it, and who, under the rules relating to the care and charge of the church property, were its proper custodians.
    When the archbishop was informed of the existence of the deed, and of the clause assuming on his part the payment of the mortgage, he made no disclaimer. At this; time the property was in the hands of a parish priest, who-leased it out, collecting the rents therefrom and turning them into the parish fund.
    The following is the opinion of the special term:
   Brown, J.

The main question in this action is whether the deed describing and purporting to convey the mortgaged premises from John McEvoy to Cardinal McCloskey was actually delivered to and accepted by the grantee.

In determining this • question of fact certain other facts which are undisputed need to be stated.

McEvoy was a Eoman Catholic priest, having charge of a parish at Tuckahoe, in Westchester county, and had acquired title to the mortgaged property in 1870.

Before the execution of the deed to the cardinal, McEvoy had acquired title to other lands than those covered by the mortgage, and the deed purports to convey not only the mortgaged premises, but another lot adjoining of about the same size.

The title to church property in the Eoman Catholic Church is frequently vested in the archbishop, and the business relating to the real estate so held is transacted through the chancery office, of which, at the time of the occurrence of the events narrated, Father Preston was the head or chancellor, and William P. O’ Connor the secretary. This office was the proper depository of all deeds of church property.

Father Preston testifies in reference to deeds: “It (the deed) is ordered to be sent to me, and is filed away in my office. It generally does not go to the archbishop at all.”

From and after the year 1878 Father Keogh was parish priest at Tuckahoe, having charge under the direction of the archbishop of the church property at that place.

Keeping these facts in view, I think the evidence in reference to the particular deed in question shows that it was delivered to and accepted by the archbishop.

It is true it was not personally delivered to him, but it was delivered to those who had authority from the archbishop to accept it, and who, under the rules relating to the charge and care of the church property, were its proper custodians. McEvoy had acquired the property for church purposes, and it is fair to assume that by the deed in question it was intended to transfer the title to the archbishop ■for the same purpose. The deed is dated May 8, 1878, and was recorded two days later. In January, 1880, the archbishop was informed by Mr. Ohas. H. Ostrander, who was at that time the attorney for the mortgagee, of the existence and record of the deed and of the clause, assuming upon his part the payment of the mortgage, an^ ti-'t he was liable to the mortgagee, and was requested to pay the-mortgage. He told Mr. Ostrander, that he had referred the-matter to Father Keogh, and that he, Ostrander, would hear from him about it, and a few days thereafter Father Keogh called on Mr. Ostrander and talked with him about it.

JBoardman & Boardmah, for appl’ts; Ralph E. Prime, for resp’t. ' . .

In 1882, Father McEvoy took the deed to the chancery office and delivered it to Mr. O’Connor, the secretary, who-received it, and it does not appear from the evidence that, it was ever returned to McEvoy. At this time and in 1880, when Ostrander saw and spoke with the archbishop about the property, Father Keogh was in possession of the building on the mortgaged premises, leasing it out and collecting-rents therefrom, and paying them to the chancery office, and this he did every year from 1879 to 1885, inclusive. The-accounts of Father Keogh contained statements of the rent, collected from the mortgaged premises, were all examined by O’Connor in the regular course of business, and the-money was turned into-the parish funds.

These facts clearly import a delivery and acceptance of the deed. The only evidence to contradict this conclusion, is that of Father Preston, that when he heard of the collection of rents from the hall on the mortgaged premises, he-told Father Keogh that he must have nothing to do with that property,” and the fact that the property was never entered in the booksin the chancery Office. With reference to the last fact it is sufficient to say that the books do not contain a complete record of church property.

The statement of Father Preston to Father Keogh cannot, be regarded as a repudiation of the deed in view of the fact that it was made in 1882, and for three years after that, Keogh continued to collect the rent and pay it over to the-chancery office. _Nor does it appear that at the time of the-direction aforesaid there was any intent of returning to Mc-Evoy or Keogh the rents that had been previously collected. As already stated, the deed conveys not only the mortgaged premises, but also an adjoining piece of land. There is no-claim made that when attention was called to the .deed at the time of its delivery by McEvoy to O’Connor, or at any time since there was any disclaimer of taking title to the-adjoining lot.

This fact, as well as the acceptance of the rents, characterizes the transaction, and shows clearly the acceptance of the deeds.

With reference to the release, I think it was not competent, for the executor of McEvoy, without the consent of' the mortgagee, to release the archbishop from the covenant, in the deed.

The plaintiff must have judgment, with costs.

Pratt, J.

The facts which show that the deed of Father McEvoy was delivered to and accepted by Cardinal McCloskey are so fully considered in the opinion of the special-term that further discussion is uncalled for.

It may well be as claimed for defendant that the delivery was not to the cardinal in person, but it is shown to be in the hands of his agent; and when his personal attention was called to the fact, there was no effective disclaimer.

The only question remaining is the validity of the release. Whether a covenant in a deed or paortgage so-assumed can be released by the immediate parties without consent of the mortgagee, is a question which is not entirely settled. The better opinion seems to be that suggested in Gifford v. Corrigan (105 N. Y., 228; 7 N. Y. State Rep., 7), to the effect that such release will be ineffectual. As the right of the mortgagee does not depend upon privity of contract, but upon principles of equity arising from the-situation, it is not easy to see how the right of the mortgagee should be affected by acts to which he is not a party..

The special term decision to that effect is in harmony with the generally received opinion, and the judgment must be affirmed, with costs.

Dykman, J., concurs.

Barnard, P. J.

(dissenting.)—The court of appeals held in this case that the deed was intended to convey a title for church purposes, and that the grantee, Cardinal McCloskey, obtained no pérsonal beneficial interest therein. The grant-is to Cardinal McCloskey, as archbishop of New York. The: lands are in this diocese. Although the deed contains the> clause that the grantee assumes the mortgage on the property as part of the purchase-price, the covenant is not one-of the deceased cardinal personally.

The cases that hold that a title is a mere description of the person do not cover this case. It seems to me clearly to be embraced within the principle established by Whitford v. Laidler (94 N. Y., 145).

The evidence fails to make a different case from that , heretofore presented by the court of appeals. Gifford v. Corrigan, 105 N. Y., 228; 7 N. Y. State Rep., 7.

The evidence shows that Cardinal McCloskey was told, some eighteen months after the deed was executed, that he was liable on this assumption clause, and it was read to him. He made no reply except that he would “communi- ' cote with Father Keogh about it.”

The book of the church lands contained no memorandum or even mention of a conveyance of these lands. The deed, remained in the possession of the grantor until he died, in. 1882, having been executed in 1878. There is not a fact in the case that is-not at variance with the finding that Cardinal McCloskey either intended to, or did,' assume the payment of the mortgage in question.

The judgment should, therefore, be reversed and a new trial granted, costs to abide the event.  