28 N.J. Eq. 161 | New York Court of Chancery | 1877
The complainant, on the 1st of October, 1872, by written contract between him and the defendant, Kupfrian, agreed to sell and convey to the latter his unexpired term and lease and privileges in and to certain leasehold premises in Market street, in the city of Newark, in this state, for the consideration of $16,000, of which $1,000 were to be payable on the 1st of November, 1872, $2,000 on the 1st of April, 1873, when the deed was to be delivered, and of the balance $2,000 were to be paid on the 1st of April, annually, for five consecutive years thereafter, and $3,000 on the 1st of April of the sixth year, with interest on so much of the purchase money as from time to time should remain unpaid. The agreement made no provision for securing the payment of the purchase money. It was duly acknowledged by the
Early in November, 1874, Ledos, having discovered that he had no security upon the premises for the unpaid purchase money, consulted counsel on the subject, and soon thereafter instituted suit in this court to declare and enforce his lien for it. The subpoena to answer in that action was issued on the 14th of January, 1874, and due and legal service thereof was acknowledged on the next day. On the 23d of December, 1873, Kupfrian mortgaged the premises to the defendant, Catharine Franz, to secure the' payment of $1,800 and interest. On the 26th of January, 1874, he executed and delivered to the complainant, in settlement of the suit above mentioned, a mortgage upon the premises to secure the payment of the unpaid balance of $13,000 of the purchase money and interest.
The bill claims priority for the complainant’s mortgage, on the ground of notice to Catharine Franz, at the time of taking her mortgage, that a part of the purchase money agreed to be paid by Kupfrian to Ledos was unpaid. This she, by her answer, denies, alleging that she was then assured that there was no encumbrance on the property, and that all the purchase money had been paid.
The counsel of Catharine Franz insists that she had no notice that any part of the purchase money was unpaid. The notice of Us pendens was on file when she took her mortgage, but it was not notice to her, for the subpoena had not been served. Haughwout v. Murphy, 7 C. E. Gr. 581. But she had constructive notice in the record of the agreement between Ledos and Kupfrian, and in the record of the deed from Ledos to Kupfrian, which latter expressly stated that part of the consideration money was unpaid, and in what instalments it was to be paid, and shoAved that of the purchase money, $13,000 were not yet due when she took her mortgage. It is not necessary that there should be notice that the indebtedness is a lien on the land. It is enough that there is notice that the money is not paid. Brinkerhoff v. Van Sciven, 3 Gr. Ch. 251; Armstrong v. Ross,
There will be a decree for the complainant, establishing the priority of his mortgage over that of Catharine Franz.