Campbell v. . Smith, 71 N.Y. 26

Campbell v. . Smith

71 N.Y. 26 | NY | 1877

We concur with the General Term that the case of Garnsey v.Rogers (47 N.Y., 233), is not controlling in favor of the defendant. In that case a debtor conveyed to his creditor certain premises by deed as security for his debt, and it was held that an agreement in the deed that the creditor would pay a prior incumbrance was for the benefit and protection of the debtor, and did not enure to the benefit of the holder of the incumbrance, within Lawrence v. Fox (20 N.Y., 268), and kindred cases; and that upon the payment of the debt, and a reconveyance of the premises to the debtor, with the assumption upon the part of the latter of the incumbrance, the creditor was released from all obligation upon his covenant in the deed. Here no such relation existed between Hood, the grantor, and the defendant. The former conveyed absolutely all her interest in the premises, and the defendant, by consenting to the insertion of his name as grantee and accepting the conveyance, occupied the position of purchaser. As between them the relation of grantor and grantee existed, with all the rights and obligations incident to that position. The covenant to pay the mortgage was absolute, and the mortgagee had the right to enforce it. The principle that when A., for a valuable consideration, agrees with B. to pay his debt to C., the latter can enforce the contract against A., has been repeatedly adjudicated, and is applicable to the transaction developed in this case. (20 N.Y., 268; 24 id., 178; 41 id., 179; 48 id., 253.)

The transaction with Burtis did not impair the right of Hood, nor the plaintiff as assignee of the mortgagee. That was an arrangement collateral to the deed, and affected only the parties to it. The relative rights of Burtis and the defendant are not involved in this action. The defendant consented to occupy the position of grantee in the deed, *29 under an agreement with Burtis, which cannot affect the plaintiff.

It is unnecessary to consider whether the defendant is entitled in equity to the right of redemption.

The point that the consent of the Supreme Court was necessary to authorize the commencement of this action, under 2 Revised Statutes, 191, is not tenable, as we have decided in a similar case argued at this term.^*

The judgment must be affirmed.

All concur.

Judgment affirmed.

^* Comstock v. Drohan (ante p. 9).