209 A.D. 581 | N.Y. App. Div. | 1921
Plaintiff began the action to recover against her deceased husband’s estate the sum of $10,000, alleging an agreement between them during his lifetime that a mortgage for that amount on property held by them, as tenants by the entirety, should be entirely assumed by him; that he died without paying off the mortgage, and that she, after his death, was obliged to do so. She, therefore, filed a claim for that amount against his estate, and upon payment being refused by his executor, she brought the present action. The facts are as follows:
It is contended on this appeal that the $10,000 was primarily the debt of the husband, and that the obligation of Mrs. Geldart on the bond was secondary only; that she mortgaged her property to pay the debt of her husband, and he, having failed to pay the debt, and she, having now paid it, has a valid claim against her husband’s estate to recover the amount so paid.
, It is conceded that a wife who has mortgaged her separate estate
The question to be decided is whether the $10,000 represented by the bond and mortgage in question was solely the debt of the • husband and not her primary debt; whether she did in fact mortgage her property to secure the debt of her husband.
The difficulty with appellant’s entire argument is that it rests upon the erroneous assumption that the bond and mortgage represented solely the husband's debt. The presumption arising from the instruments themselves is of course quite the contrary, and in my opinion that presumption is not rebutted by the fact that, before the conveyance, he alone had been liable under the contract, nor by the fact that he paid the interest and expressed his intention of paying off the mortgage. Had it been his intention to exonerate her from liability for the debt, he alone would have executed the bond. This mortgage secured a part of the consideration paid for the property, and when plaintiff executed the bond she became indebted therefor to the same extent as her husband.
As tenants by the entirety, plaintiff and her husband were each seized of the whole estate, and the mortgage was an incumbrance thereon. It was, therefore, upon her estate in the land and was her debt as well as that of her husband. But upon his death, the mortgage was no longer upon his estate in the land, for there was none. It then continued as an incumbrance upon her estate. Assuming that during their joint lives a right to contribution existed in her favor upon her paying off the mortgage, that right must have ceased upon his death, because his estate then terminated, and could derive no benefit from the payment. Even the liability of his estate to the mortgagee, upon the bond, no longer exists, because by extending the time of payment by the purchaser without the consent of plaintiff or her husband’s estate, the mortgagee released such liability.
The right to contribution, exoneration or reimbursement rests on the liability of the person unjustly enriched to return or refund all or part of the enrichment. In the present case the personal estate of the testator has never been benefited or enriched by the loan represented by the bond and mortgage, and any liability on the bond on the part of his estate has admittedly been removed by the extension agreement with the new purchaser.
I advise that the judgment and order be affirmed, with costs.
Present — Kelly, P. J., Manning, Kelby, Young and Kapper, JJ.
Judgment and order unanimously affirmed, with costs.