44 N.Y.S. 426 | N.Y. App. Div. | 1897
In 1873 one John Balken and Frederick C. Koke became owners .-as tenants in common of the mortgaged premises. They erected thereon a live-story building. Mr. Koke died in 1876, intestate, leaving him surviving eight children, his heirs at law, then infants, And all now living and, since 1893, of full age, and a widow, the plaintiff, who was appointed his administratrix and who still remains such administratrix. The property was subject to a purchase-money mortgage for $10,000, and Mr. Koke had mortgaged his one-lialf share by a second mortgage for $1,500, which fell due in March, 1878. Mrs. Koke was unable to pay it, and on the 21st of February, 1878, she executed a contract as administratrix to sell said one-half belonging to the estate of the intestate to John Balken for the sum of $9,175, to be paid as follows: The sum of $6,500 by the Assumption of mortgages; the sum of $2,500 by Balken’s bond secured by a mortgage on the premises, and the sum of $175 in
On the 18th of March, 1891, seven of the Koke children having become of age, and one being still a minor, they commenced an action to recover title and possession of their half of the property, with the rents, etc., against the heirs of Balken, on the ground of fraud in the contract. This action was tried at the Special Term and judgment was entered in favor of the defendants. Upon appeal it was affirmed at the General Term, and upon further appeal to the Court of Appeals it was again affirmed.
No interest having been paid upon the mortgage, this action was commenced to foreclose the same. The defendants contended that the plaintiff was barred in this action because in 1891 the plaintiff’s children, as heirs of their father, sued the defendants to recover back the land on the ground of fraud, and because the plaintiff, and those whom she represents, had, with full knowledge of all the facts, elected to treat the contract and conveyance to Balken as void, and that the plaintiff could not now enforce a mortgage given in pursuance of such contract.
The judgment should he affirmed, with costs.
Rumsey, Patterson, O’Brien and Ingraham, JJ., concurred.
Judgment affirmed, with costs.