73 N.Y.S. 332 | N.Y. Sup. Ct. | 1901
Although the pleadings in the present action differ somewhat from those in the former action of' the same title, in which an opinion has recently been handed down by the Appellate Division in* this department, that opinion is,, in effect, decisive of the issues raised by the demurrer to the present answer. The second and third separate defenses in the present action do not contain a repetition of the denials and allegations contained in the first defense, and the demurrer .is not,- therefore,
The paragraph in question does not allege as a fact that the defendant assumed the payment of the prior mortgage, except as a legal consequence of having bought the mortgaged premises subject to the debt secured by the prior mortgage. This result does not, however, flow from the facts set forth. To render the purchaser of land encumbered by a mortgage personally liable for the payment of the mortgage debt it must appear in the first place that the grantor himself was personally liable for the debt, and in the second place that the grantee expressly assumed or agreed to pay the debt. There is no allegation of such assumption or promise on the part of defendant. It is merely alleged that it bought the property “ subject ” to the debt secured by the mortgage, which implies only that it acquired the property burdened by a lien which might, in case of default, be enforced against the property. Matter of Simpson, 36 App. Div. 562, 158 N. Y. 720, does not help the plaintiff. The opinion in that case proceeds upon the assumption that the corporation did, as matter of fact, assume the payment of the mortgage when it took the conveyance of the property. So much being assumed, the result arrived at by the court followed inevitably. If, in the present case, the complaint properly alleged as a fact the assumption of the debt by the defendant when it purchased the property at the foreclosure sale a different question would be presented
Demurrer overruled, with costs.