De Peyster v. Hasbrouck (11 N.Y. 582, 1854)

Denio, J.

I am prepared to concur with the supreme court in its conclusions upon the matters of fact, as they are stated in the opinion delivered by Mr. Justice Harris, before whom the action was tried. According to that opinion, which I think is sustained by the testimony, the defendant Joseph 0. Hasbrouck, in the spring of 1846, applied to the -complainant for a loan of $12,000, upon the security of certain real estate which Hasbrouck owned in the county of Ulster, and which he offered to mortgage to the plaintiff. It was understood between them that the real estate to be mortgaged was the same which had been conveyed to Hasbrouck by the Bank of Poughkeepsie, and during the negotiations for the loan Hasbrouck produced and delivered to the counsel for the plaintiff the conveyance executed by that bank to him, and the mortgage ultimately given to the plaintiff was copied, as to the description of the premises, from that deed. In this deed the premises are described in a manner which would convey no precise idea of their particular boundaries to a person not acquainted with the locality, nor even to such a person unless he had traced the lines on the spot with a chain and compass, or they had been pointed out to him. The description concluded with a statement that the land conveyed and described contained sixty-eight acres and sixty-nine hundredths of an acre, and there was excepted from this, two acres and five-tenths of an acre, stated to have formerly belonged to James McCullough. During the negotiations, and before the plaintiff had advanced to Hasbrouck any part of the money, the latter exhibited and delivered to the plaintiff, two several appraisements of the real estate proposed to be mortgaged, one signed by Samuel Johnson and Martinas Millspaugh, and the other by Willett Linderman. The first was headed, “ A statement of property owned by Joseph 0. Hasbrouck in the town of Hew Paltz,” and foots at $31,300; and the other was entitled, “ A statement of real estate owned by Joseph 0. Hasbrouek, in Tuthilltown, Ulster county, Hew-York,” and the aggregate of the items in this paper was §27,000. Each statement estimated the land separately, without the buildings, _ as being about seventy acres, and worth §7000. The remainder of each statement consists of a separate valuation of the various buildings on the land, consisting of manufactories, mills, hotel and dwellings of various kinds. The two statements are each designed to embrace the same property, some of the buildings being entered under different names. Tuthilltown is understood to be the name of a village which is situated in the town of Hew Paltz. Annexed to these appraisements were two other certificates, signed respectively by J. O. Linderman and E. P. Benjamin. In one there is an estimate of “ the real estate in land owned by the said Joseph O. Hasbrouek in Tuthilltown,” and the other speaks of the value of “ the property now owned by one Joseph 0. Hasbrouek in Tuthilltown.” A portion of the erections thus appraised, seven or more in number, and embracing a tannery, mill and yard, and valued together, according to the certificate of value which states the lowest prices, at §6500, did not in truth stand on the premises conveyed to Hasbrouek by the Bank of Poughkeepsie, but are two pieces of land immediately adjoining, one containing two and an half acres, and the other one acre of land; and consequently were not" embraced in the plaintiff’s mortgage. Prior to the payment to Hasbrouek of the whole amount loaned, and when §1336.83 remained to be advanced, Hasbrouek, at the instance of the plaintiff, signed a statement appended to the certificates of value, affirming in positive terms that all the property, mill privileges, buildings,