
    Josephine Antoinette Cambreling, Resp’t, v. Ella Ward Graham et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 15, 1895.)
    
    Mortgage—Satisfaction .
    The satisfaction of a mortgage on premises owned by the holder thereof in common operates in favor of his cotenant, when made voluntarily, without any misunderstanding or mistake of fact, and with actual knowledge of the legal effect of such act.
    Appeal from portions of an interlocutory judgment, fixing the respective interests of the parties, and directing a sale of the premises.
    
      F. R. Coudert, Jr., for app’lt Ella Ward Graham; E. Luther Hamilton, for app’lt Grace Graham Cambreling; Henry L. Sprague, for resp’t, Josephine Antoinette Cambreling.
   Per Curiam.

Cornelia Flora Graham died August 17, 1885, seized of the premises in question, which were subject to a mortgage of $12,500, whereupon Robert McC. Graham, her husband, acquired an estate of tenancy by the curtesy therein, and, in addition, under the will of Cornelia Flora Graham, he became seized of an undivided one-fourth of said premises, and her children, Josephine, Grace, and Douglas, each became seized of an undivided one-fourtli thereof. April 17, 1887, Grace Graham, for a nominal consideration, conveyed her interest to her father, Robert McC. Graham, and a few months later, but before attaining their majority, Josephine and Douglas united in a conveyance of all their right, title, and interest in such premises to their father. Before the execution of such conveyance, and on the 3d of August, 1887, Robert McC. Graham intermarried with Ella” Ward. July 9, 1888, Robert McC. Graham, for a nominal consideration, conveyed to his wife, Ella Ward Graham, all his right, title, and interest in and to such premises. On the same day he executed and caused to be duly recorded a satisfaction piece of the mortgage of $12,500, which was an incumbrance upon the property at the time of the death of his first wife. Subsequently, and in December’, 1890, Robert. McC. Graham died intestate. When Josephine reached her majority, for the purpose of making void and dis< avowing the deed executed by her jointly with her brother, Douglas, she conveyed her right, title, and interest in the premises to Henry L. Sprague, in which it was recited that such was the object of its execution and delivery. Thereafter Sprague conveyed such undivided interest to her. Later on, Douglas Graham, becoming of age, also took the necessary steps to disavow the deed made by him during his minority. Josephine thereupon commenced this suit in partition, which has resulted in a judgment that the property , be sold, and adjudging the interests of the several parties therein to be as follows:

“ The plaintiff is entitled to one undivided fourth part thereof in fee, subject to the right of curtesy initiate of her husband, the defendant Nicholas Cambreling. The defendant Ella Ward Graham is entitled to one undivided half part thereof in fee. The defendant Douglas Graham is entitled to one undivided fourth part thereof in fee.”

With so much of the decision as determines that the plaintiff, Josephine, and the defendant Douglas had a right to disaffirm the deed which they executed as minors, the appellant Ella Ward Graham makes no complaint, but she insists that her husband never intended that Josephine and Douglas, his children and cotenants, should have the benefit of any portion of the $12,500 mortgage which he paid off, and she urges that she is entitled to be subrogated to all his rights in such respect. The referee reached the conclusion that a case was not made out for the equitable relief asked for by the defendant Ella Ward Graham, because the satisfaction of the mortgage by Robert McC. Graham was a voluntary act, made without any misunderstanding or mistake of fact, and with actual knowledge of the legal effect of such act As we have reached the conclusion that his position in such respect was well grounded, it wi 11 be unnecessary to discuss the equitable principles invoked by the appellant. The facts which induce our concurrence in the position taken by the referee may be briefly Stated as follows: At the death of Cornelia Flora Graham the $12,500 mortgage was held by Louisa A. Steinwav, and in May following the full amount due on the mortgage was satisfied of record. This was claimed to have been done under a mistake, and thus Mr. Graham was led to consult his counsel, who advised him of the'rights which the after-born children of his first wife had in the premises, and the effect which might follow a satisfaction of the mortgage. He was further informed, while he would have the right of subrogation against the children, the better course would be to take an assignment of the mortgage. The advice of his counsel was followed, an assignment of the mortgage obtained, and a memorandum made upon the margin of record of the mortgage referring to the assignment. From that time until the mortgage was satisfied of record by him—more than two years later—it was held open and retained in his possession. It cannot even be said that, owing to the lapse of time, he had forgotten the advice of his counsel which led him to correct the original mistake for the purpose of protecting himself as against his children, for his attention was sharply called to it by the letters of his counsel* written shortly before the mortgage was satisfied, which letters were written in the course of preparation and execution of the deed by which the property was conveyed to his wife. In the first letter, his counsel,' among other things, say :

“We had advised in other cases, and think it quite ns well in your case, to take a quitclaim from the two minor children also, as they are of sufficient years to fully understand what they are signing, and would consider themselves, when of full age, morally bound to ratify and confirm.”

The second letter reads as follows:

“We inclose proposed deed to Mrs. Graham, which you can execute. It says, ‘Subject to existing incumbrances.’ The mortgage that you hold is outstanding, as you remember, and may or may not merge, according to your intentions. The proposed will of Mrs. Graham is prepared, and ready for you to examine. You are doubtless aware that marriage and birth of a child will revoke your own will, if made before marriage.
Respectfully, Coudert Brothers.”
“[Inclosures.]
“And on the margin, ‘You can execute deed, and satisfy mortgage afterwards, if you wish.’ ”

The further fact is established that he well knew that his minor children would have the right to disavow the deed executed by them when they should reach majority. In the first place, he was so advised in the first letter, from which we have quoted, in which it was suggested that a deed be taken from the minors, because they would consider themselves morally bound to ratify and confirm it when they should become of age. His knowledge of the rights of the minors is further evidenced by the testimony of his wife and grantee, Ella Ward Graham, who testified that “he said, as they were minors, there would be a question to be decided by law as tó their signature, if they wanted to disavow it later, if anything happened to him.” In'the light of these facts, and without a suggestion in the record that he was deceived or mistaken, there is no basis for a different conclusion than that reached by the referee. The appeal of Grace Graham Cambreling complains of so much of the judgment as adjudges that the defendant Ella Ward Graham owns one-half of the premises ; her claim being that she should have been adjudged to be the owner of an undivided one-fourth interest therein. That she was of full age when she executed the deed which she sought to have set aside in this suit, is conceded. The ground upon which she sought to attack the validity of the deed was that it was procured from her by her father by means of misrepresentations and undue influence. The referee decided that her contention was not supported by the evidence, and in that view we concur.

The judgment should be affirmed, with costs to the special guardians, payable out of the proceeds of the sale of the property.  