Smith v. Townsend

5 Citing cases

  1. Warner v. Connecticut Mut. Life Ins. Co.

    109 U.S. 357 (1883)   Cited 16 times

    I. Mary Beers occupied the position of surety. The appellants, as her privies in estate, are entitled to every defence which could have availed to her. Bank of Albion v. Burns, 46 N.Y. 170; Smith v. Townsend, 25 N.Y. 479; Gahn v. Niemcewicz, 11 Wend. 312; S.C. 3 Paige, 614; Johns v. Reardon, 11 Md. 465; Purvis v. Carstaphan, 73 N.C. 575; Aguilar v. Aguilar, 5 Madd. 414; Stanford, c., Banking Co. v. Ball, 4 De G., F. J. 310; Earl v. Countess of Huntingdon, 2 Bro. P.C., case 1. II. By the extension of the time of payment, the mortgaged estate was released. Bank of Albion v. Burns, 46 N.Y. 170; Smith v. Townsend, 25 N.Y. 479. III. The will devised a life estate to Cyrenius, and remainder to the children.

  2. Hyde v. Mangan

    88 Cal. 319 (Cal. 1891)   Cited 13 times

    re the payment of money, was in fact a mortgage, and did not convey the legal title, or give to the assignee or his successors in interest any right to secure the title to themselves; and if such attempt were made, they did not thereby acquire the legal title. (Civ. Code, secs. 2924- 2927; Cunningham v. Hawkins , 27 Cal. 603; Montgomery v. Spect , 55 Cal. 352; Taylor v. McLain , 64 Cal. 513; Healy v. O'Brien , 66 Cal. 519; Raynor v. Drew , 72 Cal. 307; Booth v. Hoskins , 75 Cal. 271; Smith v. Smith , 80 Cal. 323; Hall v. Arnott , 80 Cal. 348.) Mary Mangan's contract of mortgage was as a mere surety for her husband, and when Schwartz & Brownstone delivered to her husband the note she had secured, and took from him another note covering the debt, it released her as such surety, and also released her property. (Spear v. Ward , 20 Cal. 659; Hassey v. Wilke , 55 Cal. 525; Smith v. Townsend , 25 N.Y. 479; 1 Jones on Mortgages, secs. 114-116; Loomer v. Weelwright, 3 Sand. Ch. 135.) When a person pledges his property as security for the performance of the contract of a third party, the property stands in the position of a surety, and any change in the contract which would discharge a surety will discharge the property pledged as such.

  3. Lowman v. Yates

    37 N.Y. 601 (N.Y. 1868)   Cited 15 times

    MILLER, J. The principle is well settled that where a creditor, by a valid and binding agreement between himself and the principal debtor, without the consent of the surety, extends the time of payment, and thus ties up the hands of the creditor, that the surety is thereby discharged. ( Gahn v. Niemcewiez, 11 Wend. 312; Colemard v. Lamb, 15 id. 329; Miller v. McCan, 7 Paige, 457; Bangs v. Strong, 7 Hill, 250; Dorlon v. Christie, 39 Barb. 610; Fox v. Parker, 44 id. 541; Smith v. Townsend, 25 N.Y. 479; Billington v. Wagner, 33 id. 32.) The agreement must be one which can be enforced, and of such a character as will prevent the collection, of the original demand, to secure which a new obligation was taken. It must also have a sufficient consideration, so as to prevent the prosecution of the debt by the owner, and to prevent the surety from compelling him to enforce it. In the case at bar, it was claimed upon the trial, and evidence was introduced to prove that the plaintiff was induced to enter into the agreement, and to take notes extending the time of payment, by the fraudulent representations made by the principal debtor as to his pecuniary circumstances and responsibility.

  4. Dibble v. Richardson

    64 App. Div. 520 (N.Y. App. Div. 1901)

    The court found that the note was the debt of the husband; that the testator had pledged her stock to secure it; that the bank demanded a settlement and the testator gave to Richardson three drafts aggregating $6,000 with which to pay the note, and that he paid the note with the proceeds thereof and returned the stock to her. I think that the suretyship of the wife follows as a legal presumption from these facts, it appearing that the testator had knowledge by actual information that the debt was the debt of her husband and the property pledged for its payment belonged to his wife. It is well settled that where a wife joins with her husband in a mortgage of her land to secure his debt or the payment of money loaned to him, she is the surety of her husband. ( Vartie v. Underwood, 18 Barb. 561; Smith v. Townsend, 25 N.Y. 479; Bank of Albion v. Burns, 46 id. 170.) This rule is not peculiar to the marital relation.

  5. Cusick v. Ifshin

    70 Misc. 2d 564 (N.Y. Civ. Ct. 1972)   Cited 12 times
    In Cusick v. Ifshin (1972), 334 N.Y.S.2d 106, the court considered whether the phrase "personally guarantee the obligation" meant that the guarantors were guaranteeing payment or collection.

    It has also been held that where there are two sureties for the same debt, the consent of one surety to an extension of time to the principal does not waive the right of the other to be released, unless the consenting surety had authority to bind his cosurety. ( Smith v. Townsend, 25 N.Y. 479; 57 N.Y. Jur., Suretyship and Guaranty, § 179; see, also, 500 Fifth Ave. v. Nielsen, 56 Misc.2d 392; General Obligations Law, §§ 15-101, 15-104.)