W. W. Gilbert vs. J. &. J. G. Averill, 15 Barb. 20

By the Court, Hand, J. The conveyance of the mortgaged premises to the plaintiff, was by a quit-claim deed from the mortgagor; and the complaint alleged that he held them in fee, subject to whatever was justly and equitably due to one of the Averills; and for the payment of which the bond and mortgage was held. The land is clearly the primary fund for the payment of the bond and mortgage. (Tice v. Annin, 2 John. Ch. Rep. 128. Bigelow v. Bush, 6 Paige, 343. Heyer v. Pruyn, 7 Id. 465. Jumel v. Jumel, Id. 591. Vanderkemp v. Shelton, 11 Id. 28. Halsey v. Reed, 9 Id. 446. And see Ferris v.

Crawford, 2 Denio, 595; Cumberland v. Codrington, 3 John. Ch. Rep. 229; King v. Whitely, 10 Paige, 465.) If by the terms of the deed the plaintiff was to pay the mortgage, and the amount thereof was deducted from the consideration money, it seems, as between him and the mortgagor, in equity, the plaintiff is personally liable for any deficiency. (Halsey v. Reed, supra.) As he gave but $1100, and the land is said to be worth about $10,000, it is probable such was the understanding. But it is sufficient that this land is primarily liable for the debt.

That renders it necessary that Sylvester Gilbert should be a party; certainly, if the mortgage only, and not the bond is to be discharged. He is entitled to have the bond satisfied out of the land; and the mortgage should not be canceled without his being discharged from all liability. An estoppel by record should be mutual; and the decree between William Gilbert and the defendants, directing the record of the mortgage to be canceled, and the mortgage delivered up, would not be conclusive that the bond also had been satisfied; the latter being the principal debt, of which the mortgage is a mere security.

A voluntary discharge of the mortgage by the assignee, might have the effect to discharge the obligor also; but these proceedings are between other parties and in invitum, and the decree must necessarily be specifically confined to the mortgage. I do not say that Sylvester Gilbert is a necessary party to a suit to have the bond and mortgage both given up and discharged. It would seem that he would have no occasion to complain, if he is entirely discharged of all liability, although in consequence of a decree between others. But upon this point I express no opinion.

The demand of judgment in this case only refered to the mortr gage, and a decree affecting the bond was therefore erroneous. Probably it was inadvertently entered in this form. [Schenectady General Term, January 3, 1853. Willard, Hand, Cady and C. L. Allen, Justices.] Again, I think James Averill was a competent witness for his co-defendant. The evidence shows that he had no interest whatever in the bond and mortgage; and this accords with the pleadings. He bid them off at the comptroller’s sale, and perhaps paid the purchase money; but he told the auctioneer to put the purchase down to James Gr.

Averill, and the comptroller assigned them directly to the latter, and James Averill has always disclaimed any ownership, and clearly he had none. He . was not jointly interested or liable with James Gr. Averill, and a separate judgment can be entered. {Code, § 397.) I think there should be a new trial, with leave to the plaintiff to amend his complaint if he shall be so advised, upon payment of the costs of putting in the answers of the defendants. Ordered accordingly.