
    George Farnham et al., Respondents, v. William M. Mallory, Appellant.
    Demurrer overruled; judgment absolute modified on appeal.
    
      George T. Spencer, for the appellant.
    
      J. W. Dininny, for the respondents.
   Davies, Ch. J.

The plaintiffs’ claim in this action is based upon a guaranty of a bond made by Lauren Mallory and Hiram W. Bostwick, to the plaintiffs in these words:

“ Know all men by these presents that we Lauren Mallory and Hiram W. Bostwick, of Corning, Steuben county, Hew York, am held and firmly bound unto George Farnham and Henry Wombough, both of Addison, Steuben county, Hew York, executors of the last will and testament of William Wombough, deceased, late of Addison, in said county of Steuben, in the sum of seven thousand dollars, lawful money of the United States of America, to be paid to the said George Farnham and Henry Wombough, executors as aforesaid, the survivors or survivor, or his or their assigns, for which payment, well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally firmly by these presents. Sealed with our seals, dated 26th day of June, in the year 1854.

The condition of this obligation is such, that if the above • , bounden Lauren Mallory and Hiram W. Bostwick, their heirs, executors or administrators shall, well and truly, pay and satisfy of record, or cause to be fully paid and satisfied of record, and fully discharge a certain indenture of mortgage made and executed on the 6th day of September, 1851, by Robert Miller to Isaac Bronson, then of the city of Hew York, to secure the payment of $3,500 and interest, which mortgage is on the lands conveyed to said William Wombough, now deceased, by the said Lauren Mallory and his wife, by deed, bearing date the 26th day of January, in the year 1847, which lands are situate in the town of Big Flatts, Chemung county, New York, and which mortgage is duly recorded in Chemung county clerk’s office, and which is to be paid, satisfied and discharged by the above bounden Lauren Mallory and Hiram W. Bostwick as follows, viz.: One thousand dollars and all of the interest on said $3,500, due on the 1st day of July, 1855, and all that shall remain unpaid after making the said payment on the 1st day of July, 1855, as aforesaid, of the said sum of $3,500, together with all the interest thereon, shall be fully paid on the 1st day of July, 1856, and the mortgage shall be fully satisfied and discharged on the 1st day of July, 1856, so that it shall be no longer a lien or incumbrance on said lands, nor of any force or effect without fraud or delay, then the preceding obligation to be void, otherwise to remain in full force and virtue.” The defendant, William M. Mallory, on the 26th day of June, 1854, did make,' execute and deliver to the plaintiffs, as executors as aforesaid, his written guarantee of said bond or obligation, and which was annexed to said bond and is in these words:

“For and in consideration of the sum of one dollar to me in hand paid, the receipt whereof is hereby acknowledged, I do hereby become surety for the punctual payment of all moneys and full performance of all of the conditions and covenants in the annexed bond mentioned to be paid, done and performed by Lauren Mallory and Hiram W. Bostwick, and if any default be made by them, or if they shall refuse or neglect to fully pay or fulfill all or any of the payments, or perform all or any of the conditions mentioned in said bond at any time, I hereby agree to pay and fully satisfy and discharge the mortgage mentioned in said bond, and fully perform in every respect all of the agreements and conditions mentioned in said bond, and at and within the time therein stated.”'

The complaint averred that, on or about the 26th day of January, 1847, the said Lauren Mallory sold and conveyed to the said William Wqmbougli, by a warranty deed of that day, certain pieces and parcels of land therein described. That before said sale and convey anee,, to wit, on or about the 6th day of September, 1851, one Robert Miller, who was at that time the owner of said lands, executed and delivered to Isaac Bronson a mortgage upon said lands to secure the payment to said Bronson of the sum of $3,500, which mortgage was at the time of the sale and conveyance aforesaid, a subsisting and valid lien and incumbrance upon the said lands. That said Lauren Mallory at the time of the sale and conveyance aforesaid, promised and agreed with the said William Wombough, that he would within six months thereafter, pay, satisfy and cause to be discharged of record the said mortgage. That in consideration of the sale and conveyance aforesaid, and the promise or agreement aforesaid made by the said Lauren Mallory to pay, satisfy and discharge of record as aforesaid the said mortgage, the said William Wombough paid to said.Lauren Mallory about the sum of $11,000. That the said William Wombough died on or about the 21st day of May, 1853, leaving a will, wherein and whereby he appointed these plaintiffs executors of his last will and testament, who did before the making of the said bond or writing obligatory, by said Lauren Mallory and Bostwick, above set forth, duly qualified and entered upon the discharge of the duties of executors of said last will and testament. That the said Lauren Mallory had neglected to pay, satisfy or discharge the mortgage aforesaid, and that the same still remained a valid and subsisting lien and incumbrance upon the lands aforesaid, at the time of the making of the said bond or writing obligatory. The complaint further averred that said Lauren Mallory and Bostwick, for the purpose of securing to these plaintiffs, executors as aforesaid, the payment, satisfaction and discharge of the mortgage aforesaid, which still remained a lien and incumbrance aforesaid, and for a valuable consideration made, executed and delivered to said plaintiffs said bond or writing obligatory. The complaint also averred that, for the purpose of securing the punctual payment of all moneys and the performance of all the conditions and covenants mentioned in said bond, by said Lauren Mallory and Bostwick, the said defendant made, executed and delivered to them the written guarantee therein set forth, and which has been already described.

The said complaint further averred that the said Lauren Mallory and said Bostwick had not, nor had either of them paid, or caused to be paid or satisfied of record the said mortgage or any part thereof; nor had the said' defendant Mallory paid or caused to be paid or satisfied of record the mortgage aforesaid, although often requested so to do, but that the same still remained a valid and subsisting lien and incumbrance upon the lands aforesaid.

Wherefore the plaintiffs demanded judgment, that the defendant pay and satisfy, or cause to .be paid and satisfied of record the mortgage aforesaid, or that he be adjudged to pay to the plaintiffs the sum of $7,00b or so much as may be sufficient to pay and satisfy of record the mortgage aforesaid, or such other relief and judgment’ as the court should see fit to grant. To this complaint the defendant demurred and assigned the following causes of demurrer:

1. That it does not appear by the complaint that the plaintiffs havé legal capacity to sue as executors.
2. That there is a defect of parties in this that the said Isaac Bronson is a necessary party and is not made a party plaintiff herein.
3. That there is a defect of parties in that the said Bobert Miller is a necessary and proper party, and is not made a party defendant herein.
4. That there is a defect of parties in that said Lauren Mallory is a necessary and proper party defendant, and is not made a party defendant herein.
5. That there is a defect of parties in that said Bostwick is a- necessary and proper party defendant, and is not made a party defendant herein.
6. That said complaint does not state facts sufficient to constitute a cause of action.
7. That it appears by the said complaint that the plaintiffs are not entitled to the relief therein demanded.
8. That it does not appear in or by said complaint that letters testamentary or of administration have been issued to the plaintiffs, or at what time or by what court or authority.
9. That it does not appear in or by said complaintx that the plaintiffs, at the time of the commencement of the action or at any other time, had any estate or interest in the lands upon which said mortgage was a lien or incumbrance, or that the plaintiffs were in any way injured or prejudiced by the existence of said lien or incumbrance.
10. That it does not appear in or by said complaint, that the defendant has had any notice of any breach of any of the conditions of the bond set forth in the complaint,' of the refusal or neglect of the obligors therein to pay or fulfill all or any of" the payments, or perform all or any of the conditions mentioned in said bond.
11. There is no sufficient breach of any'of the conditions of said bond set forth in the complaint alleged therein.
12. There is no sufficient breach of the agreement of the defendant stated or alleged in said complaint.

Judgment was given for the plaintiffs, overruling said demurrer, at Special Term, unless the defendant within thirty days should answer on payment of costs. Said action on appeal was affirmed at General Term.

The cause coming on again to be heard at Special Term,, judgment was again rendered for plaintiffs for the amount then due upon the said bond and mortgage amounting to the 'sum of $3,686.47, and the costs of this action. And upon appeal to the General Term, said judgment was affirmed, and the defendant now appeals to this court.

The Supreme Court correctly held that the grounds assigned in the demurrer interposed by the defendant, presented no obstacle to the plaintiffs’ recovery.

The engagement or contract of the defendant with these plaintiffs was absolute, that in the event Lauren Mallory and Bostwick should fail in the performance of their covenants, then the defendant agreed to pay and fully satisfy and discharge the said mortgage to Isaac Bronson, and fully perform in every respect all the covenants and agreements contained in the bond of Lauren Mallory and Bostwick, on their part to be done and performed. The prayer of the complaint was that the defendant should pay and satisfy or cause to be paid and satisfied the said mortgage to Isaac Bronson,, or should be adjudged to pay to the plaintiffs a sum sufficient to pay'and satisfy of record the said mortgage.

As already observed, the judgment of the Supreme Court is that the defendant should pay absolutely to the plaintiffs the amount of the said judgment. In this, I incline to think that the court erred, and that the judgment should have been that the defendant should pay and satisfy or cause to be paid and satisfied of record the said mortgage to Isaac Bronson, within thirty days from the date of said judgment, or in the event of his not doing so, then that he pay to the plaintiffs the amount of the said judgment. .

With this modification, I am for the affirmance of the judgment with costs.

So affirmed.  