Gifford v. Corrigan

The facts which show that the deed of Father McEvoy was delivered to and accepted by Cardinal McCloskey are so fully considered in the opinion of the special term that further discussion is uncalled for. It may well be, as claimed for defendant, that the delivery was not to the cardinal in person, but it is shown to be in the hands of his agent; and when his personal attention was called to the fact there was no effective disclaimer.

The only question remaining is the validity of the release. Whether a covenant in a deed in which a mortgage is assumed can be released by the immediate parlies without consent of the mortgagee is a question which is not entirely settled. The better opinion seems to be that suggested in 105 N. Y. 228, 11 N. E. Rep. 498, to the effect' that such release will be ineffectual. As the right of the mortgagee does not depend upon privity of contract, but upon principles of equity arising from the situation, it is not easy to see how the right of the mortgagee should be affected by acts to which he is not a party. The special term decision to that effect is in harmony with the generally received opinion, and the judgment must be affirmed, with costs.

Dykman, J., concurs.

(dissenting.) The court of appeals held in this case that the deed was intended to convey a title for church purposes, and that the grantee, Cardinal McCloskey, obtained no personal beneficial interest therein. The grant is to Cardinal McCloskey as archbishop of Eew York. The lands are in this diocese. Although the deed contains the clause that the grantee assumes the mortgage on the property as part of the purchase price, the covenant is not one of the deceased cardinal personally. The cases that hold that a title is a mere description of the person do not cover this case. It seems to me clearly to be embraced within the principle established by Whitford v. Laidler, 94 N. Y. 145. The evidence fails to make a different ease from that heretofore presented to the court of appeals. Gifford v. Corrigan, 105 N. Y. 228, 11 N. E. Rep. 498. The evidence shows that Cardinal McCloskey was told some 18 months after the deed was executed that he was liable on this assumption clause, and it was read to him. He made no reply, except that he would “communicate with Father Keogh about it.” The book of the church lands contained no memorandum, or even mention, of a conveyance of these lands. The deed remained in the possession of the grantor until he died, in 1882, it having been executed in 1878. There is not a fact in the case *92that is not at variance with the finding that Cardinal McCIoskey either intended to or did assume the payment of the mortgage in question. The judgment should therefore be reversed, and a new trial granted, costs to abide the event.