
    People ex rel. Bennett, App’lt, v. Joseph O. Miller, Register, etc., Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 15, 1887.)
    
    
      Í. Mandamus—When granted.
    A mandamus will not be granted as a matter of right, when there is a clear remedy at law.
    U. Same—When register not a proper party to a suit.
    Where there is a contest whether a mortgage should be marked of record a as satisfied, it is not proper to put the contest upon the register of deeds, who has no interest in the question, and who is acting under the record as the parties have made it. Pratt, J., dissenting.
    Appeal from an order refusing to direct a writ of mandamus to issue directing the register to satisfy a certain •mortgage of record.
    
      Foster & Stephens, for app’lt; Sewell & Pierce, for resp’t.
   Barnard, P. J.

The rule that a mandamus will not he granted as matter of right when there is a clear remedy at law, is well settled. People ex rel., etc., v. Campbell, 72 N. Y., 496. The papers show no clear legal right to the cancellation of the mortgage. The mortgage was for $5,000 and was given by one Hunt and wife to the executor of Tristram Allen. Tristram B. Allen assigned his interest in this mortgage to the Stationers’ Board of Trade, to secure $400, and this assignment was dated September 12, 1883, and recorded September 19, 1883. There was no assignment by the executors to Tristram B. Allen then on record, but in January following, one was given and recorded. A mortgage as between the parties passes by delivery and Tristram B. Allen probably owned the mortgage when he conveyed it to the Stationers’ Company. At all events, proof of that fact is possible and seems probable. Assuming that the purchasers from Tristram B. Allen need not search anterior to the date of the assignment to him in January, 1884, it is still an issuable fact whether she did not have actual knowledge of the transfer to the Stationers’ Company. It is also possible to show that the consideration paid by Mrs. Bennett was not what is shown in law as bona fide. The Stationers’ Company aver these facts to exist, and the only proper tribunal to determine the facts is a court of law.

' It is entirely unreasonable to put the contest upon a register of deeds who has no interest in the question and who is acting under the record as these parties have made it.

The order should be affirmed, with costs.

Dykman, J., Concurs; Pratt, J., dissents.

Pratt, J.

(dissenting)—Appeal from an order denying a motion for a peremptory writ of mandamus to compel the register of Westchester county to accept a satisfaction piece of a mortgage recorded in his office.

The defendant is bound to discharge the general duties imposed by statute on county clerks respecting the recording of written instruments relating to land in his county. In respect to the discharge of records, the statute (1 R. S., 761, part 28) provides: “Any mortgage that has been registered or recorded, or that may hereafter be recorded, shall be discharged upon the record thereof by the officer^, in whose custody it shall be, whenever there shall be presented to him a certificate signed by the mortgagee, his personal representatives or assigns, acknowledged or proved and certified, as hereinbefore prescribed, to entitle conveyances to be recorded, specifying that such mortgage has been paid or otherwise satisfied and discharged.”

It will be observed that this provision differs considerably from those which relate to the recording of conveyances. The recording officer must be satisfied that the satisfaction piece has been signed by and is properly proven as the act of the mortgagee or his assigns. It would, therefore, seem that the recording officer ought to require recorded evidence of the title of the person claiming to be an assignee of a mortgage before he can be compelled to take the risk of recording the satisfaction and entering on the margin of the record of the mortgage the reference to the recorded act by which it purports to have been discharged.

In this case, there is no question relative to the manner of proving the satisfaction piece, or of the identity of the party who signed it, with the assignee of the legal title of the mortgage. It is claimed simply that an instrument appeared on record showing that another party, who had not joined-.in the satisfaction piece, had an equitable interest in the mortgage. Hart had given his bond to the executors of Allen, secured by his mortgage (in which his wife joined), dated June 25, 1872, recorded June 27, 1872, for $5,000. While the legal title to this bond and mortgage stood in the executors, the son of their testator, assuming to have an existing “ interest ” in this mortgage, executed an instrument, dated September 12, 1883, purporting 'to assign “a part of his interest” in the mortgage to the Stationers’ Board of Trade, to hold the same to the amount of $400, and made the executors his attorneys, with power to assign and transfer that interest to that extent in the bond and mortgage, releasing the executors pro tanto, and requesting them to pay $400 to the board of trade, with the same force and effect as if that sum had been paid to him. There is no suggestion that the executors ever had possession of the bond or mortgage; on the contrary, it would appear that they never did act upon or recognize it any way; for, thereafter, and on the 24th of January, 1884, they executed an assignment of the bond and mortgage to this son, ' which was recorded March 29, 1884. The son thereafter, and on June 2, 1884, assigned the bond and mortgage to Emma E. Burnett, whose assignment was recorded October 1, 1886. She assigned the bond and mortgage to Braker & Ferris, March 9, 1886, recorded April 10, 1886, and they reassigned it to her April 23, 1886, recorded October 1, 1886, on which day the relator, who owned the land, presented her satisfaction, duly proven, to defendant, and offered to pay his fees, etc. Defendant refused to discharge the mortgage of record, or to accept said satisfaction piece for any purpose, on the ground that there appeared to he an outstanding interest in the mortgage in the board of trade, as assignee of a part thereof.

It may be observed, at the outset, that the board of trade could never claim more than $400 interest in this mortgage in any event, and that Emma E. Burnett’s title and right to give satisfaction, pro tanto, the balance cannot be questioned. It is, therefore, difficult to see why it was not the duty of the register to have, at least, accepted the .satisfaction piece and recorded it; and I cannot see why it was not his duty to have entered a reference to it on the margin of the record, and there might, perhaps, be some question whether or not the register was obliged to make any such entry until the discharge was complete. I think, however, he ought to have received the satisfaction piece and made the entry referring to it. It is assumed that the discharge must be accomplished, if at all, by the acts of both parties •claiming under the mortgage. Hence, it is assumed that there must be an entry to two satisfaction pieces; and if so, I fail to see why it was not the purpose of the statute to require an entry or entries to meet the emergencies which may arise. Certainly the register had no right to require the joint act of Emma E. Burnett and the board of trade in one instrument before he could legally relieve the owner of the land to any extent.

But this application was for a peremptory mandamus to •satisfy the mortgage in toto', and, therefore, it may be said that unless the relator was strictly right in his entire application, it was within the discretion of the special term to refuse to grant this writ for any purpose. This brings us to the question whether or not the board of trade was “an assignee of mortgage” to any extent. As bearing on this inquiry, it may be observed that it does not claim to be the .assignee of any part of the legal title. It now claims to hold only as an equitable owner pro tanto. Upon this point I regard it as entirely clear that so long, as least, as the executor held the legal title to the bond and mortgage, the so-called assignment by the son was wholly inoperative to create any interest in the mortgage or bond. He had no title to or in this particular asset which he could assign. How could he have embarrassed the proceedings of the executors in the administration of their trust by selecting this or that particular asset as the subject of his transfer? If he could thus have chosen one asset, why not another? This is a very different thing from assigning a part of the distributive share of the estate. Besides that, the instrument executed to the board of trade by the son seems to •contemplate that it shall not of itself be operative to pass .any estate in the mortgage. On the'contrary, the operative assignment was to be by the executors under the power thereby given to and the request made upon them; at least, it would seem to be necessary that there should have been some ratification of this son’s attempt to reach this particular asset before the board of trade could acquire any interest in it. It would seem, therefore, that no estate in this bond and mortgage passed to the board of trade by the son’s so-called assignment.

Its claim must, therefore, rest upon the point that the son’s after-acquired title inures to its benefit by way of estoppel—feeding the estoppel, as it is sometimes expressed. But that can only happen by virtue of a covenant of warranty or other covenant for title or quiet possession (McCusker v. McEvey, 11 Am. Rep., 295; Doe & Potts v. Dowdall, id., 757) in cases of assignment, and the same principle seems to be recognized in our own courts by the late Justice Lott in House v. McCormick (57 N. Y., 320-1). It would, therefore, seem that the entire legal title to this bond and mortgage passed under the executor’s assignment to the son, and so on down to Emma E. Burnett, so that she owned the entire estate therein.

We think it must be held that the relator’s remedy was by mandamus, and that he was entitled to that relief to this extent, at least, viz.: That the register should have been required to accept the satisfaction piece, to record it and make an entry upon the margin of the record of the mortgage of the discharge pro tanto.

A suit for damages would scarcely be regarded as an adequate remedy for the owner of land who is entitled to have the record of his title cleared under such circumstances as these.

We think, therefore, that the order should be reversed, but without costs, and that it should be remitted to the special term to proceed in the premises upon usual notice as shall then seem best for the determination of the questions, whether it be by granting the peremptory writ to the extent here indicated and denying the motion without prejudice as to an absolute discharge, or to allow an alternative writ which shall cover both points.  