Urum. Or mum. LAW LIBRARY Van Nest a. Talmage. where such an action has been held not to be local. None have been reported. There are at least three decisions at special term of this courtwhich have been reported, holding such actions to be local. (Mairs a. Remsen, 3 Code R., 138; Wood a. Hollister, 3 Abbotts' Pr., 14; Starks a. Bates, 12 How. Pr., 465.) I am inclined to follow these authorities. The order must be reversed, and the place of trial changed to Monroe county, with $10 costs of the motion, and $10 costs of this appeal to the defendants, to be collected on final judgment. Order affirmed, with costs. VAN NEST a. TALMAGE. Supreme Court, First District; General Term, Dec., 1863. PAYMENT.-ACCORD AND SATISFACTION.-MATTER OF DEFENCE. REPLY.-RECEIPT.-RELEASE. Where a debtor and creditor have made an agreement reciting the payment of the debtor's obligation, except a specified sum, an action by the latter to recover that balance is properly brought upon the original obligation, not upon the subsequent agreement. In an action of a nature which was formerly cognizable at law, the plaintiff is not required to anticipate and avoid matters of defence, and is at liberty to disprove or impeach them, although he has put in no reply.* A receipt or release may be avoided by proof that it was obtained without consideration, or by misrepresentation, or that it has been rescinded by argument. Appeal from a judgment. * It seems, however, that he is at liberty to anticipate a defence in some cases. In Wade a. Rusher (4 Bosw., 537), it was held that in an action where the setting aside of a release or account stated is necessary to reach the relief sought, the complaint may, after stating the original cause of action, set forth the defence which it is anticipated defendant will interpose, with statements which avoid the defence. So in Thompson a. Minford (11 How. Pr., 273), it was held that plaintiff may amend his complaint, in a proper case, by adding allegations necessary to show securities or evidences of debt, taken for the cause of action set out in the original complaint,-e. g., a foreign judgment recovered upon it. Van Nest a. Talmage. This action was brought by Abraham R. Van Nest, Jr., against Thomas G. Talmage, to recover $8,929.25 as balance due on two bonds given by defendant to Abraham R. Van Nest and assigned to plaintiff. The defence was payment, with accord and satisfaction. The cause was tried before Mr. Jus tice Clerke and a jury. The defendant obtained the affirmative of the issue, and proved the execution of an agreement of the parties, under seal, dated April 19th, 1845, in which plaintiff accepted certain real estate and securities in payment, "leaving a balance as from the first of May, 1845, A. D., of $3,352.20 secured," &c. Defendant also put in evidence a receipt, as follows: "New York, 23d October, 1846. Rec'd from Thomas G. Talmage, a deed for 640 acres of land in Johnson county, in the State of Illinois; 20 shares of the Exchange Hotel Company stock, of Richmond, Va.; and his note of hand for $200, in full payment of the within agreement; said Talmage agreeing to pay any taxes that may have been imposed on the lands in Illinois, up to and including the year 1845, if any remain unpaid up to that time. Abm. R. Van Nest, Jr." The plaintiff sought, upon various grounds, which sufficiently appear from the opinion, to avoid this receipt. The defendant had judgment, from which the plaintiff appealed. John J. Townsend, for the appellant.-I. To sustain the defence of payment, no evidence was offered. The defence of a parol accord, and satisfaction of the "bonds and obligations in the complaint mentioned," has never been recognized as valid. (Neal a. Sheaffield, Cro. Jac., 254; Preston a. Christmas, 2 Wils., 86; Anon., Cro. Eliz., 46; Oliver a. Lease, Cro. Car., 86; Kaye a. Waghorne, 1 Taunt., 428; Strang a. Holmes, 7 Cow., 224; Mitchell a. Hawley, 4 Den., 414; Smith a. Trowsdale, 3 El. & Bl., 83; Welch a. Lynch, 7 Barb., 381.) The defendant has not alleged satisfaction of the condition. The allegation of parol satisfaction of the bond is no defence. (See Hill a. Stocking, 6 Hill, 277.) II. No defence was proved to plaintiff's first cause of action. The general expression, that Latson's bond for $8,000 was taken in payment on account, could not, if considered without reference to extrinsic circumstances, outweigh the subsequent speci Van Nest a. Talmage. fic recognition of the debt. (See Tobey a. Barber, 5 Johns., 68; Coonley a. Coonley, Hill & D. Supp., 312; Johnson a. Weed, 9 Johns., 310; Noel a. Murray, 13 N. Y., 167.) Again: the expression has less weight; for the term payment does not imply "exchange or compromise, accord or satisfaction." (Manice a. Hudson River R. R. Co., 3 Duer, 426.) When the court refers to the extrinsic circumstances (see Blossom a. Griffin, 13 N. Y., 569), it further appears that upon the construction claimed by the defendant the agreement was without consideration. III. If it be the true construction of the agreement of April 19th, 1845, that the demand against the defendant, on the bond first mentioned in the complaint, was to be satisfied by the receipt of Latson's bond; it was without consideration, and void,— Latson having assumed the payment of the defendant's bond. (Del. & Hudson Canal Co. a. Westchester Co. Bank, 4 Den., 97; Burr a. Beers, 24 N. Y., 178; Lawrence a. Fox, 20 Пb., 268.) IV. There is no evidence of any satisfaction of the obligation set up as the second cause of action, or of the money due by the condition of it. V. The paper dated 23d October, 1846, does not prove the receipt of the property referred to in it-so far as the deed of Illinois land is concerned, because it is incompetent evidence to prove the conveyance of land. (Fox a. Reil, 3 Johns., 477; Welland Canal Co. a. Hathaway, 8 Wend., 480.) And defendant's counsel disclaimed offering it with that view; and as the defendant offered no other evidence of the receipt of the property mentioned in this receipt, there is a failure of proof in this respect. VI. Plaintiff's exception presents the question, whether it was competent for him to prove that the deed alleged to have been received by him October 23, 1846, was void. (1 Rev. Stat., 70, § 65; Powers a. Bergen, 6 N. Y., 358.) The consideration of a receipt is always open to explanation. (Houston a. Shindler, 11 Barb., 36; Murray a. Gouveneur, 2 Johns. Cas., 438.) A receipt, when set up as an item of evidence, is impeachable on any ground which would have been a good reply to it had it been set up in the answer as a bar to the action. (Graves a. Friend, 5 Sandf., 568, 572; McCrea a. Purmort, 16 Wend., Van Nest a. Talmage. 460, 473; Stafford a. Bacon, 1 Hill, 532; Carter a. Connell, 1 Whart., 392.) The defendant could not convey trust property to the plaintiff in satisfaction of his private debt. (Briggs a. Palmer, 20 Barb., 392, 404; Cruger a. Jones, 18 Barb., 467.) VII. The court erred in excluding evidence showing that defendant had no title to the Illinois land referred to in the receipt, and also evidence of misrepresentation and concealment: also evidence showing that the alleged settlement was rescinded. (Stafford a. Bacon, 1 Hill, 532; Carter a. Connell, 1 Whart., 392.) Fraudulent misrepresentation or concealment, or mutual mistake, will invalidate an ordinary contract. (Belknap a. Sealey, 2 Duer, 570; 14 N. Y., 143; Daniel a. Mitchell, 1 Story, 172.) In the case of the satisfaction of a precedent debt, a perfectly good understanding of the matter is essential to make it binding on the creditor and extinguish his original claims. (Galoupeau a. Ketchum, 3 E. D. Smith, 175.) VIII. The formal recognition by the defendant of his indebtedness to the plaintiff on the bond, at least entitled him to prove, in connection with it, that the alleged satisfaction was both invalid in its inception and had also been abandoned. Livingston K. Miller, for the respondent.-I. The property referred to in the agreement was taken in payment pro tanto. The bond was not cancelled in form, obviously because to do so might impair the mortgage that was collateral to it. It was only kept alive to keep alive the mortgage, but not as a valid debt against Talmage. It will be noted, that leaving Talmage out as a defendant was not an oversight. The plaintiff was earnestly requested by Latson to make him a party. (See Van Nest a. Latson, 19 Barb., 604.) How can this be accounted for but from the fact that Van Nest then considered he had discharged Talmage? II. 1. The alleged facts as to the trust character of the property, the false representations, and the rescission of the settlement, cannot be shown under the issue created by the pleadings, and the complaint is not founded upon the proper instrument. 2. That even if Talmage held title as trustee, not in his own right, his conveyance would be effectual as between himself and third parties, and only raise a question as between Van Nest a. Talmage. himself and his cestui qui trust. 1 Rev. Stat., 730, § 66, expressly covers this case. .3. The plaintiff's offer to show title in Dr. Van Pelt, was inconsistent with his offer to show title in Talmage as trustee, and therefore inadmissible. 4. The offer was properly rejected, and the plaintiff limited to a contradiction of the receipt. III. The main questions now before the court are, 1. Was the payment of the first and second mortgages, if they were paid, a payment of the collateral, or rather a reduction of it, pro tanto, leaving but $3,352.20 due? (See Champney a. Coope, 34 Barb., 539; Mead a. York, 6 N. Y., 449.) The authorities to sustain the claim of payment, where the agreement in terms recites payment, will be found in Noel a. Murray (13 N. Y., 167). Talmage was discharged by not being made a party. A mortgage is the collateral for a bond. The bond is the evidence of debt. So soon as the bondsman or mortgagor ceases to be the owner of the mortgaged property, and it is sold to another who assumes the debt, the new purchaser becomes primarily liable for the debt as the chief debtor, and the original bondsman is but his surety. (Belmont a. Coman, 22 N. Y., 440; Halsey a. Reed, 9 Paige, 446; Curtiss a. Tyler, Ib., 432; Burr a. Beers, 24 N. Y., 178. See Wheeler a. Newbould, 16 Ib., 392; Stearns a. Marsh, 4 Den., 227; 4 Kent's Com., 196.) In order to prevent a multiplicity of suits, and to determine the rights of parties, the statute allows a judgment in foreclosure against the mortgagor for deficiency. Impliedly, the only way of obtaining judgment against a mortgagor is by making him a party to the foreclosure, thereby to charge him with the deficiency. It is grossly inequitable to allow a party to come into a court of equity, sell the collaterals without notice to the mortgagor, and then, having deprived him of the opportunity to protect himself at the sale, having taken his property, to bring an action on his bond for deficiency. A court of law will not uphold it in the case of a pledge, and it is not to be presumed that a court of equity will in case of a mortgage. 2. The remaining question is as to the proper exclusion, by the court, of any evidence going to show that the receipt was improperly obtained. The $3,352.20 remaining due, was due on the agreement, which was now a new contract defining the relations of the parties, and liquidating the indebtedness at $3,352.20 secured by said |