6 N.Y.S. 494 | N.Y. Sup. Ct. | 1889
The defendant, Sarah J. Van Arsdall, became a purchaser of the mortgaged premises October 23, 1872, and by the terms of the deed to her she agreed to pay the incumbrances then existing thereon, which consisted of a $1,000 mortgage, executed by one Kellogg and wife to Bronson, and a mortgage dated October 27, 1859, (the one involved in this action,) executed by one Dewey and wife to Birch to secure the payment of $2,000. The Birch mortgage was assigned to the plaintiff January 15, 1877. On the 13th day of March, 1873, the defendant and her husband executed a bond and mortgage to one Runyan in the sum of $1,000, which are now held by the plaintiff. On the 28th day of April, 1875, the defendant executed to the plaintiff a mortgage in the sum of $1,500. Both of the last-named mortgages contained provisions for insurance for the benefit of the mortgagees. In the month of May, 1876, the property, which consisted of a grist-mill, was leased by the defendant to Powell & Youngs, who paid their rent thereafter to the plaintiff under general directions from the defendant. On the 6th day of February, 1877, the lease to Powell & Youngs was assigned by the defendant in writing to the
Are the lands now remaining unconveyed and in possession of the defend-' ant liable for the whole of the unpaid mortgage debt represented by the bond and mortgage in this action? In the deed to the defendant of the whole of these mortgaged premises the grantee assumed the payment of this mortgage debt, together with that owing to Bronson. There is not- made, however, in this action, any personal claim against her for any deficiency which may arise upon the sale of the mortgaged premises. Her personal obligations, therefore, as contained in the deed to her, can properly be left out of consideration. In the deed of the undivided half of the mortgaged premises to Emlen A. Van Arsdall there was inserted a covenant “that the premises thus conveyed in the ^uiet and peaceable possession of the said party of the second part, his heirs and assigns, will forever warrant<and defend against any person whomsoever lawfully claiming the same, or any part thereof excepting a mortgage by the parties of the first part, of April 28,1875, to Amos C. Sanford, administrator, for fifteen hundred dollars; another, of the same parties, of March 13, 1873, .to Vincent L. Bunyan, given for one thousand dollars; another, of Edmond B. Dewey and wife, October 27, 1859, to Eraneis Birch, and another held by Alexander Howell,—the one-half of all of which mortgages, of the principal .and interest now unpaid thereon, the said party of the second part agrees to pay. ” The case mainly relied upon to support this decision is that of Smith v. Roberts, 91 N. Y. 470. It is broadly stated in that case that a purchase by and conveyance to a mortgagee of an undivided part of the mortgaged premises, where it does not appear that there is a payment or merger of a mortgage, or any portion thereof, operates as a release of the portion conveyed from the lien of the mortgage, leaving it to rest solely upon the portion unconveyed. In that case, however, the conveyance was made directly by the mortgagor to the mortgagee. There still remained the mortgagor’s obligation, and there was no agreement or understanding that the indebtedness should be reduced by the value of the premises conveyed. On the contrary, it was shown, and was a matter of strong comment by the learned judge writing the opinion, that there
But there remains another important element contained in the decision which it is incumbent upon us to decide lest upon the new trial the same error might be committed. After the assignment of the Birch mortgage to the plaintiff, which was on January 15, 1877, and for eight months prior thereto, the grist-mill was leased to sundry tenants who, either by the terms of the leases, or by a verbal arrangement, were permitted to pay the rent' thereof to the plaintiff who held the several mortgages already mentioned. Only one of such installments of rent was paid before the assignment of the mortgage in suit was made to the plaintiff. After such assignment payments were made from time to time by the tenants directly to the plaintiff, and they were credited apparently to the defendant, but not upon any particular indebtedness. These payments, after the assignment of the mortgage in question, (the Birch mortgage,) came to more in amount than the sum total remaining unpaid upon such mortgage at the time of the assignment thereof to