156 Misc. 805 | N.Y. Sur. Ct. | 1935
Decedent, Henry Harris, a resident of the town of West Turin, Lewis county, died on March 22, 1934, the owner of a small farm of about sixty acres of land in the town of West Turin, with a small amount of personal property thereon. Prior to his
The total assets of the estate of decedent, real and personal, amount to $665. After paying funeral expenses, taxes and expenses of administration, the balance of the estate amounts to the sum of $246.69, and it is this sum and its disposition with which we have to deal in this determination.
The law is well settled that mortgages for future advancements are valid, and where the obligation to advance exists, or where the right to decline depends upon facts dehors the instrument, and which may be the subject of dispute or contention, the holder of the mortgage is warranted in making the advances in reliance upon it. Where, however, it appears as a matter of law from an inspection of the instrument that the prior mortgagee may decline to make the advances at bis pleasure, without taldng the risk of subjecting himself to damages or loss, the lien of a mortgage will be postponed as to such advances made after knowledge of the existence of a subsequent lien. (Hyman v. Hauff, 138 N. Y. 48.)
' The filing and entry of the judgment in itself in the Lewis county clerk’s office was not sufficient notice to the mortgagee. (Ackerman v. Hunsicker, 85 N. Y. 43; Rochester Lumber Co. v. Dygert, 136 Misc. 292.)
Therefore, the restriction to the rule as determined in Hyman v. Hauff (supra), that where the prior mortgagee subjects himself to damages by declining to perform or make the advancements as called for in the prior mortgage, does not apply here, and the judgment with actual notice to the mortgagee takes preference over any advances made by the commissioner to the decedent after the time of actual notice. The sum of forty-five dollars having been advanced by the commissioner to the decedent at the time of actual notice to the mortgagee by the judgment creditor, the mortgagee is entitled, from the balance of the assets of said estate, to the sum of forty-five dollars, with interest at four per cent, and the remaining assets of said estate shall be paid over to the judgment creditor to be applied upon his judgment.
Let decree be entered accordingly.