44 Barb. 336 | N.Y. Sup. Ct. | 1864
The provision in the plaintiff’s bond and mortgage to Hasbrouck, that if default should be made in the payment of interest on any day whereon the same was made payable, and the same should remain unpaid and in arrear for the space of ten days, the principal of $5000, with all arrearages of interest thereon, should at the option of Hasbrouck, become and be due and payable immediately thereafter, was legal and valid, and was doubtless made to secure punctuality in the payment of the interest. Similar covenants have been frequently recognized and enforced. by the courts. (Valentine v. Van Wagner and others, 37 Barb. 60. Noyes v. Clark ond others, 7 Paige, 179. Ferris v. Ferris and others, 28 Barb. 29.) The bond and mortgage were given on the 26th day of June, 1858. On the 7th day of. August of the same year the plaintiff sold and conveyed the mortgaged premises to the defendant Prindle,.subject to. the mortgage; the conveyance obtaining a covenant on the part of the latter to pay the money secured by the bond and mortgage as the same should become due and payable. Prindle accepted the deed with this covenant, and went into possession of- the mortgaged premises. He neglected to pay the installment of interest which became due by the terms of the, bond and mortgage on the 1st day of June, 186.1, and for more than ten days thereafter, and until after the commencement of this action. In consequence of this neglect, Hasbrouck, the obligee and mortgagee of the bond and mortgage, determined his option by electing to regard the whole principal of $5000, with all arrearages of interest, as immediately due and payable, and prior to the com
Prindle thus became liable to pay to Hasbrouck the whole of the principal with the interest accrued thereon, secured by the plaintiff’s bond and mortgage, and the plaintiff for the same reason became personally involved in the same liability. As between the plaintiff and the defendant Prindle, the latter became, by operation of the conveyance to him by the former owner of the mortgaged premises and the covenants therein, the principal debtor to Hasbrouck, and the former sxistained the relation of security to the latter; the land being the primary fund for the payment of the debt. (Russel v. Pistor, 3 Seld. 171, and authorities there cited.)
This action was therefore well brought, to compel Prindle to pay off the debt, or, in case of his default, to have the land sold to satisfy it. (Marsh v. Pike and others, 10 Paige, 595, and authorities there cited. Cornell v. Prescott and others, 2 Barb. S. C. R. 16.)
The payment of the interest due, and a part of the principal, with the costs of Hasbrouck’s foreclosure action, and the discontinuance of that action, did not operate to revive the credit or time of payment of the remainder of the pi’incipal according to the original provisions of the bond and mortgage. Hasbrouck was still at liberty to prosecute this plaintiff and Prindle the next day after those payments and the discontinuance of his action; and Eubens was not bound to wait and see whether Prindle would make the payment. The whole principal had become due, and Eubens was liable to be prosecuted again any day that Hasbrouck thought proper. It does not appear, and there was no evidence tending to show, that Hasbrouck agreed to a further or any extension of payment of the principal remaining unpaid, or any part of it. In the absence of any agreement to that
It was not necessary for the plaintiff, in order to sustain this action, to show that he had paid the whole or any part of the moneys secured by the bond and mortgage, or that he had yet sustained any actual pecuniary or other damage in consequence of the default of the defendant Prindle, who had expressly covenanted to pay all of such moneys according to the terms and conditions of the bond and mortgage. He has the right to demand of him to perform his covenant, and of the court, such relief in the premises as it is in its power to afford, which is that which the judgment provides. It is no answer to these views that the defendant is now able to pay, &c. If he is thus able^ he has the less excuse for not paying.
Nor is it any excuse for the defendant that the land is an ample security to Hasbrouck, who holds the plaintiff’s bond for the money and is at liberty, in the first instance, to proceed upon it to collect the amount unpaid.
The foregoing views lead to an affirmance of the judgment.
Judgment affirmed with costs.
Johnson, J. C. Smith and Welles, Justices.]