
    Catherine O’Callaghan, Res’pt, v. John J. Barrett et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 16, 1892.)
    
    1. Mortgage—Assignee—Estoppel.
    Where an assignee of a mortgage does not record the assignment or give notice to the mortgagor of its existence, he is estopped from claiming that a payment made in good faith to the mortgagee by the mortgagor should not be credited on the mortgage.
    2. Same—Payment.
    Proof of such payment to the husband of the mortgagee is not sufficient to establish a credit on the mortgage, in the absence of competent testimony showing his agency.
    Appeal from judgment rendered upon the decision of the court at special term in an action to foreclose a mortgage.
    
      Henry Daily, Jr. {James M. Smith, of counsel), for app’lts ;
    
      Sullivan & Cromwell {Edward B. Hill, of counsel), for resp’t.
   Van Brunt, P. J.

This action was brought to foreclose a mortgage made by the defendant Barrett to one Ann Pratt, and by her assigned to plaintiff. The defendant Thomas O’Callaghan, Jr., is the owner of the equity of redemption. The answer of defendant O’Callaghan set up a payment of $1,000 beyond the amount allowed by plaintiff, and the question principally litigated upon the trial was whether this payment was or was not made. The assignment from Ann Pratt to plaintiff was made in 1884, though never recorded until February,. 1890. During this interval the defendant, O’Callaghan, in ignorance of the assignment to plaintiff, paid to Ann Pratt interest and part of the principal. The first knowledge that he had of the transfer or assignment of the mortgage would appear to have been just prior to the present action, which was begun in August, 1890. It thus appears that the plaintiff stood by and allowed Ann Pratt to hold herself out as the owner of the bond and mortgage, and to receive payments both of principal and interest from the defendant O'Oallaghan, and has thus estopped herself from claiming that any payments made to Ann Pratt should not be credited upon the bond and mortgage which were made before notice of the assignment.

We agree with the law invoked by the defendant, that where one allows another to have the appearance of ownership of personal property, and third persons, relying upon such appearance act, the real owner, as against such third parties, is estopped, from repudiating the acts of one who has been clothed with the appearance of ownership. We think, therefore, notwithstanding the assignment made by Ann Pratt to the plaintiff, that the latter’s failure to take any steps, either by recording the instrument or bringing home notice to the defendant, O'Callaghan, of her ownership, and allowing Ann Pratt to act as though she were still the owner, would entitle the defendant to have credited as a payment on the bond and mortgage any sum paid to Ann Pratt, the same as though it were paid directly to the plaintiff.

But was the $1,000 paid to Ann Pratt? The question is one of fact. The burden was upon the defendant of showing such payment. It is conceded that the payment of the $1,000 was not made either to the plaintiff or to Ann Pratt directly ; and, in sup-. port of the burden placed upon the defendant, he testified that such payment was made by check to Daniel Pratt, the husband of Ann, and by the husband delivered as part payment on a contract for the purchase of a house by Daniel Pratt from one Moore. It is not claimed that, when this payment was made to the husband, he had possession of the bond and mortgage; nor does defendant claim that he had any direct authority from plaintiff or from Ann Pratt to make any payment on the mortgage to Daniel Pratt. He testified to conversations with plaintiff and Mrs. Pratt subsequent to the giving of the check to the husband, in which, the question of their approval of the payment was discussed. The defendant also testified that Daniel Pratt, at the time of making the contract for the purchase of the house from Moore, requested him to let him have the $1,000, saying that his wife had told defendant’s father to tell him (defendant) to pay him the money; that upon delivering the check he instructed the husband to indorse it upon the bond; and that in response to such request the husband stated that it would be all right, “ that whatever is paid to me is the same as is paid to Ann." Such testimony was neither competent nor binding on Ann Pratt The husband could not, by his own declaration, prove that he was his wife’s agent. Apart, however, from the effect to be given to the admissions or declarations of an agent, the case fails to disclose subsequent competent evidence to prove that. Daniel was the agent of Ann Pratt. Assuming this statement to have been made by Daniel Pratt, there .is no presumption that the husband is the agent for the wife. Smith v. Fellows, 41 N. Y. Super. Ct., 36; Hoffman v. Treadwell, 2 T. & C., 57. In the absence, therefore, of competent testimony showing agency, neither the declarations of the husband, nor his acts in receiving the money, made the payment a payment to his wife.

Upon examining the testimony, it will be found that the defendant’s reliance to support his claim of payment must stand or fall upon the testimony of his father, O’Callaghan, Sr. It is true that there is some other testimony whose tenor might be regarded as supporting the view that the payment was authorized. For instance, the defendant himself testified that Pratt and his wife called upon him, and said they were going to buy a house, and that the defendant owed them $4,250 or $4,000, with which they could buy the house; and his subsequent testimony, that after the contract was signed the husband said to him that he (defendant) was to pay the $1,000 to Moore on the contract; that Ann (meaning his wife) “ told your father this morning to tell you to pay me $1,000, or whatever money was needed on this contract,” which statement the witness claims was verified by his father stating to him that it was all right. ¡Nbtwithstanding such testimony, however, we think, with the learned trial judge, that this evidence of the witness, O’Callaghan, Sr., is the only testimony directly connecting Ann Pratt with the payment prior to its being made. O’Callaghan, Sr., testified that, two or three days before the contract was made between Daniel Pratt and Moore, Ann Pratt told him to tell his son to pay the $1,000 to Pratt; and he further testified that she and the plaintiff afterwards approved it. This testimony was denied by Ann Pratt, and the husband, Daniel, not only denied that anything was said in respect to crediting such payment made to him upon the bond and mortgage at the time when the contract with Moore was made, but disclaimed any authority to receive money on the mortgage, and denied that he ever claimed any. There is thus a direct conflict of testimony, and there is no such great preponderance in favor of defendant as would justify us.in disturbing, under well-settled rules of law, the conclusion of the trial court. It was, as already stated, incumbent upon the defendant to show the payment. His defense was an affirmative one, and it was his duty to support it by a preponderance of evidence. Conceding, therefore, all the defendant claims as to the law, the trial court, upon the conflicting evidence, has found against him upon the fact of the authority of the husband to receive the payment for his wife. There is not presented a case wherein we would be justified in disturbing, upon the record, his conclusions.

In respect to the eighty dollars payment, which was not pleaded, the disposition made thereof by the trial judge was the only proper one that, under the circumstances, could have been made. We are of opinion that the judgment must be affirmed, with costs.

O’Brien and Barrett, JJ., concur.  