Henry H. Jackson and Others, as Executors, etc., of Peter A. H. Jackson, Deceased, Respondents, v. Ann Nicol and Herbert H. Muxlow, Appellants

Henry H. Jackson and Others, as Executors, etc., of Peter A. H. Jackson, Deceased, Respondents, v. Ann Nicol and Herbert H. Muxlow, Appellants. Agreement to postpone the lien of a mortgage—no consideration required after an instrument has been executed postponing the lien — estoppel. Where a husband agrees to give priority to a third mortgage, given to secure rent owing by his wife, over the lien of a second mortgage held by him on the same premises, and executes an instrument in performance of such agreement, the former third mortgage forthwith obtains priority of lien" over the second mortgage; the question of consideration in such a case is immaterial. The wife’s debt, however, furnishes a sufficient consideration, and where the landlord acts in reliance upon such agreement an estoppel is created. Appeal by the defendants, Ann Nicol and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Westchester on the 19th day of April, 1897, upon the report of a referee. This action was brought to foreclose a mortgage upon premises situated in the village of Peekskill, Westchester county, New York, given by the defendant Ann Nicol to the plaintiffs’ testator, to secure rent due said testator from the defendant Muxlow’s wife. At the time of the execution of the mortgage in suit there were two mortgages upon the premises, the second of which was held by the defendant Muxlow. Subsequently the defendant Muxlow entered into a written agreement with the executors of the third mortgagee, whereby he agreed with them that the lien of his mortgage should be subject to that of the mortgage held by them. The defendants answered separately, and alleged, among other things, that said bond and mortgage were entirely without consideration received by or moving to the said Ann Nieol or the said Herbert H. Muxlow, or to any other person, at their request or knowledge or otherwise, and that the same were null and void and not enforcible. William H. Newman, for the appellants. Edward W. S. Johnston, for the respondents. [MAJORITY — Hatch, J.:] Hatch, J.: When the Nieol mortgage, which is the subject of foreclosure, was given, it was promised by the defendant Muxlow that it should be a second lien upon the premises made subject thereto. He was conversant with the business carried on by his wife and paid the rent for the property occupied by her to the landlord. He knew that the consideration for the Nieol mortgage was the past-due rents, the payment of which was essential to prevent dispossession proceedings threatened by the landlord, and' it was his proposition to procure the Nieol mortgage to be executed. We think this state of facts sufficient to call for the application of two principles of law, either of which is sufficient in answer to the appellants’ contention. The promise of Muxlow was to make the Nieol mortgage a second lien upon the property. This he could only do by a discharge of his mortgage or by subordinating the lien thereof to the Nieol mortgage. The latter was the course he chose to adopt, and when he executed the instrument which accomplished that purpose he simply executed the agreement which he had made. Nothing more remained to be done, and from that instant the defendant Muxlow’s mortgage became subordinated to the lien of the Nieol mortgage. The question of a consideration was, therefore, immaterial. (O. P. R. R. Co. v. Forrest, 128 N. Y. 83; Bunn v. Winthrop, 1 Johns. Ch. 329.) The debt of Muxlow’s wife furnished a sufficient consideration for the Nicol mortgage. (Demarest v. Wynkoop, 3 Johns. Ch. 129; Grocers' Bank v. Penfield, 69 N. Y. 502.) As .we have seen, Muxlow had full knowledge of the matters, agreed that the mortgage should he a second lien, and thereby secured the continued possession of the premises occupied by his wife, and led the plaintiffs to rely upon the security they obtained as a second mortgage. This condition presents all the elements upon which to base an estoppel, and if a consideration for the defendant Muxlow’s agreement was an essential element, he should be held estopped from denying that he had received the same. (Trenton Banking Co. v. Duncan, 86 N. Y. 221; Conrow v. Little, 115 id. 387.) No other question is presented for our consideration. The judgment should be affirmed, with costs. All concurred. Judgment affirmed, with costs.