
    Casper Dort, Resp’t, v. Eva Nicken, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 19, 1889.)
    
    Principal and agent — Ratification—Mortgage.
    Defendant and her husband executed a mortgage to secure the husband’s bond. Plaintiff was afterwards induced by the husband to advance the amount due on the mortgage on the agreement that he should be secured by mortgage on the premises, which then belonged to defendant. Such agreement was not authorized by defendant. A discharge of the mortgage was executed and delivered to defendant by the mortgagee. Held, that the mere requiring and paying by her for the record of the discharge was not a ratification of her husband’s agreement, and that a conclusion that she should execute another mortgage to secure these moneys did not necessarily follow from these facts.
    Appeal from the judgment of the special term of this court ini Erie county, restoring the lien of a discharged mortgage and requiring the defendant to execute another mortgage in place-thereof.
    
      H. N. Platt, for resp’t; Fitch & Braunlein, for app’lt.
   Macomber, J.

On the 26th day of May, 1875, this defendant, and her husband, Adam Nicken, being the owners in fee of the premises described in the complaint, executed and delivered" tor George Goetz and J. Martin Jones a mortgage upon said premises, to secure the payment of $1,100, with interest, which mortgage was thereafter duly recorded in the clerk’s office of Erie county..

The defendant is now the sole owner of the premises,, having acquired the same by certain mesne conveyances. On the 10th. day of November, 1887, there remained due and unpaid upon said mortgage the sum of $625. The mortgage was then held by one Louisa N. Groben. On the last named day this plaintiff, paid to Groben the amount due upon said mortgage. On the-15th day of November, 1887, the said Groben duly executed- and delivered to the defendant the proper discharge of said mortgage, which was on the 18th day of January, 1888, recorded and the mortgage discharged of record. The trial court has found that the plaintiff advanced the money for this mortgage unden an agreement- made by the defendant’s husband that the plaintiff should be secured for iN payment by another mortgage executed •by this defendant upon the same property. This promise was 'made without the knowledge or consent of the defendant It is not shown that the defendant did anything to induce the plaintiff "to advance moneys in behalf of her husband. The defendant has • done no act which would connect her with the perpetration of any ■deceit or fraud upon the plaintiff. She did, however, sometime •■after the discharge was executed and delivered, for the purpose ■of having the mortgage discharged of record, voluntarily pay to the clerk for recording the discharge the sum of fifty cents, and afterwards received from the county clerk the discharge which had been so recorded.

Upon this fact alone the learned trial judge has held the defendant liable for the indebtedness, upon the ground that by recording the discharge and paying for such record she ratified the act of her husband in inducing the plaintiff to advance the sum of $625, upon his promise that she would give security upon these lands. The learned trial judge, in his opinion, says: “ While, therefore, she did not authorize her husband to make the agreement which he entered into with the plaintiff for the loan of this money and its security by means of a mortgage to be executed by her, and which she refused to perform by giving the mortgage, ■she did, in this manner, obtain the fruits, result or benefit of the transaction. That was claimed by her as a matter of right, and the discharge was surrendered to her at her request, after it had been obtained by the plaintiff from the clerk’s office. And that was a ratification of the unauthorized agreement made by her husband in her behalf, upon which the plaintiff advanced this money, for she could not take the benefit derived, under that agreement, as she did, by providing for the recording of the discharge and afterwards requesting and securing its delivery to her, without assuming the obligations of the agreement under which •she became entitled to that discharge.”

The authorities cited by the learned judge, Hermans v. Clarkson, 64 N. Y., 171; Leslie v. Wiley, 47 id., 648; Andrews v. Ætna Life Ins. Co., 92 id., 597; Farmers Loan & Trust Co, v. Walworth, 1 Com., 433, and other cases which might be cited, show that a ratification may be made of an unauthorized act, •and that when made the same must be deemed a ratification of the whole of the tz’ansaction and not a part thereof only. Their ¡application to the facts disclosed in this case, however, is not readily apparent. The truth is, as between the husband and the wife, this defendant was a mere surety for the payment of the indebtedness which originally existed upon the premises. Her husband was the original debtor, and this property had been pledged as security for the payment of such indebtedness. Thez*e does not seem to be any connection between the procuring of the discharge of the old mortgage and the fraud in getting the money therefor, from the plaintiff, which would bind this defendant by way of ratification by simply being the involuntary recipient of the discharge of a mortgage procured by her husband.

Furthermore, it does not seem to us that the mere requiring and paying for the record of the discharge of the old mortgage can be deemed a ratification of any act of her husband. It is found as a fact by the trial court under the evidence that the same had previously been executed and delivered to her. As. between the parties, this was a complete discharge of the indebtedness. Placing such discharge upon record affected the rights of no person. Had it been shown that the defendant had done any act in aid of her husband in fraudulently pro: curing the moneys for the discharge of the old mortgage, a different question would arise. But we are of the opinion that under the findings of fact the conclusion of law that the defendant should execute another mortgage upon the same premises^ to reimburse the plaintiff for moneys fraudulently obtained from him does not necessarily follow, and for this reason the judgment should be reversed and new trial granted, with costs to. the-appellant to abide the final award of costs.

Barker, P. J., and Dwight, J., concur.  