#### Eliza W. Parkhurst, as Executrix, etc., Resp’t, *v.*Robert H. Berdell. Impleaded, etc., *et al.,*App’lts. Same *v.*Same.

*(Supreme Court, General Term, Second Department,*

*Filed May 13, 1889.)*

1. Mortgages—What constitutes delivery. A notification by a mortgagor to a mortgagee, that he has placed the mortgages on record, not only constitutes 3. delivery of the instruments in law, but is also an acknowledgment of their validity.

2. Same—Action to foreclose—Failure to produce bonds—Defense. A failure to produce the bonds which ordinarily accompany mortgages-constitutes no defense to an action to foreclose, where the mortgages do not recite the bonds. The failure of the mortgagor to produce them, although he says he has them in his possession, will justify the finding that no bonds were given.

3. Same—Evidence—Wrongful possession. The plaintiff testified that the defendant told her that he had caused the. *431mortgages in question to be recorded; another witness testified that he took the mortgages to the recording office, at the request oí defendant, another witness that, upon the trial of another action, the defendant swore the mortgages were valid instruments. The testimony of defendant himself is that he procured the mortgages from the office after their record, and had kept them in his possession from that time down to the trial. Plaintiff testified that at no time did defendant ever complain to her that the mortgages had ever been wrongfully taken from his possession, and he at no time requested her to surrender or satisfy them. *Held,*that the defense that the mortgages were wrongfully taken from the possession of defendant and placed on record, and that they had no validity and no inception as valid instruments, is not sustained.

Appeal from a judgment in favor of plaintiff, entered at special term in Kings county.

*Bartlett, Wilson & Hayden (Philip L. Wilson,*of counsel), for app’lts; *Fullerton & Bushmore (8. W. Fullerton,*of counsel), for resp’t.

Dykman, J.

These two actions were brought to foreclose two mortgages given by Robert H. Berdell and his wife, to Sylvester 0. Parkhurst. The actions were both tried at special term, and judgment rendered in both respectively in favor of the plaintiff. An appeal has now been taken from the judgment in both actions.

On the 25th day of May, 1864, Robert H. Berdell executed, with his wife, to Sylvester Parkhurst, the plaintiff’s testator, three mortgages, on three different parcels of real estate in the city of Brooklyn, one on what was called Dean street property, one on Hudson avenue property, and one on property designated as Twenty lots.

Three actions were brought to foreclose these three respective mortgages, all of which were tried, and in each of which the plaintiff recovered the usual judgment of foreclosure and sale. An appeal was taken from the judgment in the Hudson avenue case, and was heard at a general term of this court, and the judgment was affirmed, and now these appeals are brought from the judgment in the other two cases.

The defenses set up in the actions were as follows: substantially, that both the mortgages were duly executed and acknowledged, no consideration was ever received therefor, and that they were never delivered to the mortgagee in his life-time, and that after the death of the mortgagee, these mortgages were wrongfully placed upon record, without the knowledge of the mortgagor.

The finding of the trial judge was in favor of the plaintiff, and all the facts were found which authorized the judgments appealed from.

The finding in favor of the delivery of the mortgage by the mortgagor was sustained by the evidence on the part of the plaintiff. Upon that subject it appeared that after the death of the mortgagee, in May, 1874, the mortgagor became possessed of the mortgages, and caused them to be placed *432upon record, and notified- the plaintiff who was then the executor of the mortgagee, of such 'fact.

Such notification of the recording of the mortgages, not only constituted a ’delivery of the instruments in law, but it constituted also an acknowledgment by the mortgagor of the validity of the mortgages which he so voluntarily placed upon the record.

In the Hudson avenue case, previously decided by this court, the testimony was deemed sufficient to establish the consideration for the mortgages, and a delivery of those instruments by the mortgagor, and in these two‘cases such evidence is strengthened by the testimony of two additional witnesses.

The contention of the mortgagor respecting the payment of these mortgages, which might otherwise arise from his’ possession of the instruments, requires no consideration, because the defense of payment is not set up in the answer.

The possession of the instruments after they were recorded, is fully accounted for, because the mortgagor himself testifies that he went to the office and procured them after they were recorded, and that he had retained them in his possession since that time.

Neither does the failure to produce the bonds which ordinarily accompany mortgages, constitute any defense in these cases. It is true Mr. Berdell testified that there was a bond given to accompany each mortgage, but the_ trial judge found that fact against him, and his finding is justified from the testimony.

The mortgages do not recite the bonds, and the failure of the mortgagor to produce them, although, as he says, he had them in his possession, was a circumstance which alone would justify the finding of the trial judge upon that point.

It is claimed also that the mortgages were wrongfully taken from the possession of the mortgagor and placed upon record, arid that they had no validity and no inception as valid instruments; but the testimony of the plaintiff on that subject was, that the mortgagor told her immediately after the mortgages were recorded that he had caused them to be placed on record, and the witness Sage, testified that he took the mortgages to the recording office and left them there to be recorded, at the request of the mortgagor, and the witness, Van Bokelin, testified that upon the trial of another action, the mortgagor himself swore that these mortgages were valid instruments. The testimony of the mortgagor himself was, that he procured the mortgages from the recording offices not long after they were recorded, and that he kept them in his possession from that time down to the time of the trial. The plaintiff testified that at no time did the mortgagor ever complain to her that the *433mortgages had been wrongfully taken from his possession, and that he at no time requested her to surrender them or satisfy them.

We find no errors in the reception or rejection of testimony; that the finding of the trial judge, both of law and fact are entirely justified, and that the judgments in both cases should be affirmed, with costs.

All concur.