52 N.Y.S. 231 | N.Y. App. Div. | 1898
Lead Opinion
The action was brought to foreclose a mortgage. The complaint alleges the execution by the defendant Connor and wife to the plaintiff’s assignor of the mortgage sought to be foreclosed; that the mortgaged premises are subject to a certain- mortgage to secure the payment of the sum. of $2,000 and interest now held by the defendant, the Yellow Pine Company, which was a lien on said premises prior to the lien of the plaintiff’s mortgage, and that the amount of that mortgage should be allowed to the Yellow Pine Company out of the proceeds of the sale and the balance be applied in reduction of the amount which shall be due and owing to the plaintiff. The answer of the defendant Connor admits the execution of the mortgage sought to be foreclosed; alleges that the said bond and mortgage were given in pursuance of a scheme or plan for the purpose of building on the property mentioned in said mortgage; that the mortgagee agreed “ at the same time to do certain specific things, to give this defendant a free and marketable title, and also to free the property of liens of all kinds, all of which the said Fanning failed and neglected to do that the plaintiff was aware of the equities existing in the premises, and took the assignment of the said mortgage with full knowledge of all the facts, and that the defendant lias no knowledge or information sufficient to form a belief as to the other allegations in the complaint. A failure on the part of - the mortgagee to perform any agreement that he made subsequent to the execution and delivery of the mortgage was not a defense to the foreclosure of the mortgage. The failure of the mortgagee to perform his agreement might be, if properly pleaded, the basis of a counterclaim or set-off against the amount due under the mortgage, but the conveyance of the property by the mortgagee to the mortgagor was a good consideration for the mortgage, and upon the mortgage becoming due, the mortgagee was entitled to maintain his action to foreclose.
The allegations of the complaint having been admitted by the answer or proved upon the trial, and the answer having set up no affirmative defense, the plaintiff was clearly entitled to judgment; but even upon the facts proved there was no defense to the action. Whether or not the appellant would be entitled to recover any damages against Fanning upon the proof before the court, it is not necessary to determine. Ro offset or counterclaim was alleged in the answer, and there was no evidence to show that any damage was sustained by the appellant by reason of the breach of the contract alleged.
After the parties had failed to obtain a loan necessary to enable Connor to complete the buildings, the subsequent proceedings under the contract seem to have been abandoned, and Fanning having transferred the mortgage, there was no reason why the same should not be foreclosed. Connor had paid nothing for the property, and whatever relief he was entitled to as against Fanning must be determined in an action against Fanning to recover damages for a breach of his (Fanning’s) agreement.
We think the judgment was clearly right, and it is affirmed, with costs.
Barrett, Rumsey and McLaughlin, JJ., concurred.
Concurrence Opinion
I concur with Mr. Justice Ingraham for affirmance. Fanning’s breach of the building contract is not pleaded as a counterclaim, but solely as a defense. It may have furnished sufficient ground for a
The contention that the mortgage was delivered in escroto to Fanning’s attorney pending a settlement by the latter of the liens on the property, and that until this was done it acquired no validity, is met by the appellant’s express admission.that both deed and mortgage were recorded at his request.
Judgment affirmed, with costs.