Opinion of the Court, per RUGER, Ch. J. discharges the grantor. (Calvo v. Davies, 73 N. Y. 211; Paine v. Jones, 76 id. 274.) The seal attached to a sealed instrument is presumptive evidence of a sufficient consideration, and the provision of the Revised Statutes does not change the rule of law that parol evidence is inadmissible to contradict or vary a written instrument. (McCurtis v. Stevens, 13 Wend. 537.) If a consideration is expressed, no proof of its actual payment need be given, and it cannot be controverted by evidence, and it is sufficient, although the amount be only nominal. (Wood v. Chapin, 13 N. Y. 509-517; Calkins v. Long, 22 Barb. 99; Dunham v. Countryman, 66 id. 268.) The positive evidence, and all the circumstances and acts of the mortgagee corroborating, overcame the evidence of the recital in the mortgage. (Gaylord v. Knapp, 15 Hun, 87.) There being no covenant in the mortgage to pay, and no bond, no personal liability of the plaintiff can be implied. (1 R. S. 738, § 139; R. S. [Banks' 7th ed.] 2195, § 139; Howe v. Fisher, 2 Barb. Ch. 549.) RUGER, Ch. J. The referee has found as a fact, upon conflicting evidence, that no bond was given by the plaintiff to accompany the mortgage upon which the defendant's counterclaim in this proceeding is based. There was evidence to support this finding, and we are concluded by it as to the existence of the fact in dispute. (Gaylord v. Knapp, 15 Hun, 87.) He has also found that there was no evidence to establish the fact of a pre-existing debt from the plaintiff to the defendant for which the mortgage was given. Some evidence is produced to show that the defendant's intestate advanced money for the benefit of the plaintiff, at the time the mortgage was executed. In the absence of any evidence to the contrary, we must assume that it was advanced upon the terms and conditions specified in the written contract which was executed at the time of the advances. This contract did not contain any covenant or promise on the part of the mortgagor to repay the moneys advanced, but Opinion of the Court, per RUGER, Ch. J. provided in effect that the mortgagee should look to the premises mortgaged, alone, for the reimbursement of his advances. (1 R. S. 2195, § 139.) The evidence of one witness who testified to the effect that the mortgage was given for an amount due the mortgagee does not specify who it was due from, or the consideration of the indebtedness. Such evidence is properly construed as meaning that it is due and payable according to the terms then provided for its payment. There is no other evidence in the case which is sufficient in law to establish the pre-existence of a debt due to the defendant by plaintiff, when the mortgage was given. We are, therefore, of the opinion that the defendant's counter-claim was properly rejected by the referee. We are further of the opinion that if it be conceded that the plaintiff was personally liable either upon a bond or pre-existing indebtedness, for any deficiency, arising upon a sale of the mortgaged premises, that the agreement of October 18, 1878, between the defendant and Morgan, the owner of the equity of redemption, being founded upon a good consideration, and providing for an extension of the time of payment of the mortgage debt, beyond the period fixed therefor by the mortgage, deprived the plaintiff of the privilege, to which she would otherwise be entitled, of paying the debt when it became due, and using the mortgage to reimburse herself to the extent of the value of the land mortgaged for the moneys she had thus paid. This agreement was a valid contract and would preclude the holder of the mortgage from enforcing it against the land until after the expiration of the extended time. The defendant's intestate being present and participating in the negotiations which preceded the execution of the contract, whereby Livermore, the plaintiff's grantee, assumed the payment of the mortgage in question, and taking the entire consideration paid by Livermore upon such purchase, in the absence of any request by the defendant for a finding to the Opinion of the Court, per RUGER, Ch. J. contrary, may be assumed to have taken cognizance of the terms and conditions of the contract, and had notice of the fact that the plaintiff thereby became a mere surety for the payment of the mortgage debt. However this may be, he certainly had notice from the relation of the parties and the nature of a mortgage security, that the land was the primary fund for the payment of the mortgage debt, and to the extent of the value of such land the plaintiff occupied the position of a surety and was entitled upon payment of the mortgage debt to be substituted to the mortgage security as it originally existed, with the right to proceed immediately against the lands for her indemnity. We recently decided in the case of Murray v. Marshall,* that the grantor of real estate who had conveyed the same subject to the payment of a mortgage, occupied to the extent of the value of the land the position of, and was entitled to the same rights as a surety, and when the holder of the mortgage had by a valid contract with the owner of the equity of redemption postponed the time for its payment beyond the time therein provided, he had so impaired the equitable rights of the mortgagor as to discharge him from liability to the extent. of the value of the land mortgaged. The undisputed evidence in the case shows that the land in question exceeded in value the amount of the mortgage when the agreement of extension was made. We, therefore, think that by treating with the principal debtor in the manner stated, and dealing with the land which constituted the primary fund for the payment of the mortgage debt in such manner as deprived the plaintiff of her right as a surety to resort to it for her indemnity, the defendant has released her from liability, if any existed, for the payment of the mortgage debt. (Calvo v. Davies, 73 N. Y. 211; Paine v. Jones, 76 id. 274.) There being, therefore, no view of the case under which the plaintiff was liable to the defendant in any sum of money which could be used as an offset in this proceeding, judgment was *94 N. Y. 611. Statement of case. properly rendered against her for the balance due on the loan of $708. The judgment should be affirmed. All concur. Judgment affirmed. HENRY HESS et al., Respondents, v. ROSALIE RAU, as Execu trix, etc., Appellant. Where a broker had sold stock short for a customer, and in accordance with the usual custom had borrowed the stock for delivery, becoming himself obligated to return the borrowed stock, and borrowing from time to time as required to replace the stock previously borrowed, and while the transaction was so kept alive the customer died, held, that the broker had authority, acting in good faith, to continue it in the same manner until the appointment and qualification of a legal representative of the estate of the deceased, upon whom the proper notice could be served in order to close it. The rule that the death of the principal revokes the authority of the agent does not apply in such case, as the agency is coupled with an interest. As to whether circumstances might not exist which would justify the broker in closing the transaction without awaiting the qualification of an executor or administrator, quære. (Argued March 7, 1884; decided March 21, 1884.) APPEAL from judgment of the General Term of the Superior Court of the city of New York, entered upon an order made November 16, 1883, which affirmed a judgment in favor of plaintiffs, entered upon a verdict and affirmed an order denying a motion for a new trial. (Reported below, 17 J. & S. 324.) This action was brought to recover a balance alleged to be due plaintiffs, a firm of stock brokers, on account of certain stock transactions carried on by them for defendant's testator. The facts so far as material are stated in the opinion. 95 359 113 605 95 309 118 605 95 359 131 530 Statement of case. Leopold Wallach for appellant. There is no presumption in favor of the account because it was kept some time without objection as defendant's testator was excused by reason of his illness. (Lockwood v. Thorne, 18 N. Y. 288, 289.) The relationship of the parties was that of principal and agent, and their rights so far as the short sales are concerned must be determined by the laws affecting that relation. (Story on Agency [9th ed.], 31, 23; Pott v. Turner, 6 Bing. 702-706; Dos Passos on Stock Brokers, etc., 180-182; Knowlton v. Fitch, 52 N. Y. 288; White v. Smith, 54 id. 525; Staples v. Gould, 9 id. 520; Bruce's Appeal, 5 Sm. [Penn.] 294; Baker v. Drake, 66 N. Y. 518; 53 id. 211; Markham v. Jaudon, 41 id. 235, 240, 241; White v. Smith, 54 id. 522.) Death of the principal is a revocation of the agent's authority. (Story on Agency [9th ed.], 579, §§ 462, 481; Motley v. Head, 43 Vt. 633; Davis v. Lane, 10 N. H. 156, 159; Oppenheim v. Wolf, 3 Sandf. 571; Helmer v. St. John, 8 Hun, 166; Watt v. Watt, 2 Barb. Ch. 371; Hunt v. Rousmanier, 8 Wheat. 174-217; Saltmarsh v. Smith, 32 Ala. 407; Gale v. Tappan, 12 N. H. 146-148; Coney v. Sanders, 28 Ga. 511; Lincoln v. Emerson, 108 Mass. 87; Lepard v. Vernon, 2 V. & B. 51; Houstoun v. Robertson, 6 Taunt. 448; Story on Agency, $$ 488, 885; Lacy v. Hill, L. R., 8 Ch. App. 921; Thacker v. Hardy, L. R., 4 Q. B. Div. 689; L. R., 18 Eq. Cases, 182.) The unexpected emergency, the death of Henry Rau, and the dangerous fluctuating character of the stocks dealt in, were a sufficient authority to plaintiffs to sell the stocks without notice. (Liotard v. Graves, 3 Caines, 226; Williams v. Shackelford, 16 Ala. 318; Greenleaf v. Moody, 13 Allen, 363; Lawlor v. Keoquick, 1 Johns. Cas. 175-179; Judson v. Sturges, 5 Day, 556, 560; Forrestier v. Boardman, 1 Story, 43; Story on Agency, 8 885, 483; Hunt v. Rousmanier, 8 Wheat. 174, 203.) D. M. Porter for respondents. Short sales are legal. (White v. Smith, 54 N. Y. 522; Knowlton v. Fitch, 52 id. 288; Cameron v. Durkheim, 55 id. 425.) As no person had qualified to administer Henry Rau's affairs up to a few days before |