
    William Dempsey and John Smith, Appellants, v. Cecilia McKenna and Others, Respondents.
    ■ Specific performance of an agreement to give a mortgage—necessity of a present consideration—enforcible against purchasers with notice■—nnaction, after the assignment of the claim, may be continued, in the name of the original'plaintiff.
    
    
      ■ Where an owner of, houses, in process of construction, promises, in writing, to give contractors, for a balance due on the brown stone work of the houses, a note at three months when "the buildings shall be inclosed, “with security,” . and after they- have furnished the material and labor as agreed executes a fur-. .. ther instrument by which she agrees to give them,-in payment of their claim, a. mortgage upon the houses payable, in one year, which- the contractors agree to accept, instead of insisting upon their pay, the execution and delivery of the agreement to give the mortgage may be regarded as a fulfillment of the prior promise to give security, and as so relating back to it as to make the performance of the work by the contractors a continuing consideration which, being operative up to the time of the making of the agreement to give, the mortgage, is sufficient to support it and to make its specific performance enforcible in equity against transferees of the property who have paid no consideration' oían inadequate one, and who have had notice of the existence of the agreement upon the part of the owner to give the mortgage to the contractors.
    Where a cause of action has been duly assigned by the plaintiff after an action has been begun upon it, and after all the defendants have been served, the action may, under the provisions of section 756 of the Code of Civil Procedure, be continued in the name of the original plaintiff.
    
      Semble, that a present valuable consideration, as distinguished from a past indebtedness, is necessary in order to make the specific performance of an agreement to give a mortgage enforcible in a court of equity.
    Appeal by the plaintiffs, William Dempsey and another, from a judgment of the Court of Common Pleas for the city and county of New York in favor of the defendants,, éntered in the office of the clerk of said court on the 6th day of November, 1896, upon the decision of the court rendered after a trial at an Equity Term thereof, which judgment dismissed the action on the merits with costs in favor of the defendants Gilbert, Kiley and Dumb.
    This appeal was transferred from the first department to the -second department.
    
      Andrew J. Shipman, for the appellants.
    
      James Kearney and Ed/ward S. Glinch, for the respondents. Kiley and Gilbert.
   Willard Bartlett, J.:

Cecilia McKenna was -the owner of four lots on One Hundred and Second street in the city of New York. In July, 1894, she made a contract in writing with the plaintiffs, under which they agreed to do the brown stone work for four houses to be erected on these lots, and she agreed to pay $7,500 therefor. The contract provided for the payment of $3,800 of this amount in four installments, and the balance of $3,700 “in note to run for 3 months, when buildings is [are] inclosed, with security.” The plaintiffs furnished the material and labor as thus agreed, and at the beginning of 1895 the balance of $3,70.6 was due. They received. $100 on account, and on Januuary 9,: 1895, Cecilia McKenna, executed and delivered to them this- • paper: ' ' ■ • .

“New York, January 9th, 1895.
“ I hereby agree to give Dempsey .& Smith a mortgage, the first-.after the: permanent loan on. four (4) houses situated on North side-of West 102nd Street,- 100 • feet east of Columbus Avenue, N. Y. City,, the said mortgage to be given immediately after the receipt by me of the permanent.loan. Said mortgage being for $8,600, for stone-work- on said houses, the receipt of which I hereby acknowledge-
“ CECILIA McKENNA,
“By James McKenna, Atty.”

This agreement was not kept. Shortly after the ■ permanent loan-■was effected Cecilia McKenna gave mortgages to Charles Riley,-and others to George W. Lumb and Charles L.. Lumb, and then conveyed the fee to Charles- W." Gilbert. The plaintiffs thereupon brought this action to .compel Cecilia McKenna, to-give . them"the mortgage which she had agreed to" give. To this end they prayed in their complaint that her conveyance of the fee to -the, defendant Gilbert should be set aside as wholly fraudulent and void. They also asked that, the mortgage to be given to them should be declared a prior- lien to the mortgages which had been made to the • defendants Riley and Lumb, on the ground that these defendants paid no consideration, or an insufficient consideration, for' their mortgages, and took them with full notice and.knowledge of the plaintiffs’ •rights under the agreement of. January 9, 1895.

Upon the trial it was proved without dispute that the deed to- the defendant Gilbert was really a mortgage to secure payment of a. balance due to him for mantels which he had- furnished to- the premises. This balance amounted to but $913.10 on -February '2, 1895, while the "equity in the property, which he acquired.as security probably exceeded $20,000. As to -the defendants Lumb, the proof failed to show any notice to them ;of. the agreement to -give. the plaintiffs a mortgage, and the plaintiffs on. this appeal- do not question the propriety of dismissing the complaint -so far' as ' these particular- defendants- are concerned'. In regard to the defendant Riley, the evidence as to notice was conflicting, with-.a-decided preponderance in favor of the conclusion that he was informed of Cecilia McKenna’s agreement with the plaintiff's before he took his own mortgages. We infer that this was also the opinion of the learned trial judge, for he omits all reference in his decision to the question of notice to Riley, while he expressly finds that there was no notice to the Lumbs.

Two opinions were written at the Special Term. The first relates to the capacity of the plaintiffs to maintain the action. It appeared on the trial that, after the suit was commenced,' the cause of action had been transferred to the Brainerd Quarry Company by an instrument of assignment delivered after all the defendants had been served. The suit could be continued in the name of the original plaintiffs under these .circumstances. (Code Civ. Proc. § 756 ; McGean v. Met. El. Ry. Co., 133 N. Y. 9 ; Payne v. Wilson, 74 id. 348, 354.) And such seems to have been the conclusion of the learned trial judge, although at first he entertained some doubt on the subject. In his second opinion, however, delivered after a reargument, he directed judgment - against the plaintiffs on the ground that a present valuable consideration, as distinguished from a past indebtedness, is essential to support an agreement to give a mortgage, so as to make the specific performance of such an agreement enforcible in a court of equity; and he held that there was no sufficient proof before him of the present consideration which the law requires in a case of this character.

The appellants not oidy question the correctness of the rule of law thus laid down, but contend that, even if it be correct, the proof shows that the agreement upon which they rely was founded upon just such a present consideration as the rule prescribes. As I think they are right in the latter respect, it may not be necessary to determine whether the court below stated the legal proposition too strongly or not, but it seems to me that the tendency of the decisions and the weight of authority are in favor of the view of the law which was expressed at Special Term in regard to the necessity of a present consideration to create an equitable mortgage of which the specific performance will be decreed. In most cases, as was said in The National Bank of Norwalk v. Lanier (7 Hun, 623), “ equitable mortgages which have been upheld have been created to secure an advance of money or of credit made at the time, or of advances to be made in future and actually made, and not as security for an antecedent indebtedness.” The case of Burn v. Burn (3 Ves. 582) is cited, however, as an exception, and it is said that, there, “ an agreement to give a mortgage for an antecedent indebtedness was held to create'a specific lien.” T find no warrant in the report itself for this statement of what wras decided in that case. The question there before the chancellor was whether three bonds, which in form bound three partners jointly, but not severally, having been filled up as joint bonds through mistake and the ignorance of the parties, could' be treated as several bonds in the administration of the assets, the real intention of the obligors having been that each partner should be' severally bound. . The chancellor held that the mistake could be corrected and the bonds, reformed as against creditors. No question of consideration was discussed, and the citation of this case in The Matter of Howe (1 Paige, 125) has no significance on that subject. The only case’s cited by the appellants, in which it distinctly appears that the agreement to give a mortgage was for the purpose of securing an antecedent indebtedness, are Card v. Jaffray (2 Schoales & L. 374) and Sir Simeon Stewart’s Case, (Id. 381); but in neither instance does it appear that the character .of the consideration was discussed. On the other hand, the necessity of a valuable consideration moving at the .time is assumed by Stoddard v. Hart (23 N. Y. 556, 561) and other cases cited in the Special Term opinion.

But, as already intimated, I think there- actually was a present consideration for the agreement by Cecilia McKenna to give the plain-' tiffs a mortgage on her One Hundred and Second street property.

Security was expressly promised by the.original contract concerning the brown stone, to be given with the notes for the balance of $3,700 which should be due. when the buildings were inclosed. The subsequent execution and delivery of.the agreement to give the mortgage may well be regarded as a fulfillment of this promise, and as so relating back to it as to make the performance of the. work by. the plaintiffs a continuing consideration which was operative up to .the time of the 'mortgage agreement. Furthermore, 'the- mi contradicted testimony of James McKenna shows that instead of insisting on their pay for this brown stone as they might have done, the plaintiffs “ agreed to take a mortgage payable in a year.” This was a present- consideration of- value within the authorities. It is enough that the creditor, on the faith of the agreement, has acted to - his prejudice unless the agreement be sustained. (National Bank of Norwalk v. Lanier, supra.)

It follows that even on the theory upon which the case was tried • by the court below, the agreement of January 9, 1895, is to be deemed enforcible against Cecilia McKenna. We must next inquire to what' extent, if at all, is the equitable mortgage thus created in the plaintiffs’ favor entitled to priority over the subsequent mortgages to Riley and the conveyance (which, as we have seen, is really a mortgage) to Gilbert. Upon the evidence in this record it is a lien which certainly takes precedence of those asserted by Riley and probably of that asserted by Gilbert. The plaintiffs, upon the testimony of Gilbert himself, were entitled to have his deed adjudged to be merely a mortgage, whether it is subordinate to their equitable mortgage or not. The priorities of these mortgages can be adjusted in the new trial which we are constrained to order.

The judgment should be reversed, except as to the defendants Lumb, and a new trial granted, with costs to abide the event.

All concurred.

Judgment affirmed as to’defendants Lumb; as to other defendants, judgment reversed and new trial granted, costs to abide the final award of costs.  