21 N.Y.S. 896 | N.Y. Sup. Ct. | 1893
This action was brought to foreclose a mortgage dated on the 18th day of December, 1883, given to the plaintiff’s testator by the defendant Mary A. Chase and her husband, to secure the payment of $600 two years from its date. The defendant Mary A. Chase inter
“Know all men by these presents, that I, Eliza A. Evans, of Salamanca, IT. Y., in consideration of the assigning to me this day of a certain lease of premises in said town, now occupied by me, by Mary A. Chase, of the same place, I do hereby sell, assign, set over, and transfer to the said Mary A. Chase all of the right, title, and interest in and to said property thus so conveyed to me by the said Mary A. Chase that I may have at the time of my death, hereby reserving and retaining the use of the same for my benefit, use, and support during my lifetime, and retaining the right to rent the same, and, in .case of necessity, to sell and dispose of the same at my option, and, in that event, all of the avails of the said sale left at my death not necessary for my support during my life shall belong to the said Mary A. Chase, her heirs or assigns, after paying my necessary and proper funeral expenses, which funeral expenses shall be paid out of my general property first; I hereby agreeing that all of my general property shall be used for my support in common with the property hereby conveyed to the said Mary A. Chase, which support is to include all the debts that I am now or may become liable to pay, I hereby charging my separate estate. ”
Whether the $900 were realized from' the sale of that portion of the premises covered by the lease mentioned in the contract was left in much doubt. The evidence upon that question was very contradictory and uncertain. The plaintiff testified that soon after he qualified as executor he had a conversation with the defendant Mrs. Chase in reference to the mortgage, and requested her to pay it or pay the interest on it; that Mrs. Chase replied that she could not pay then; that they owned a laundry, and, if she could sell it,' she could pay up the mortgage and save the lot. He testified that he saw her two or three times, and that she stated that they were trying to sell, and that if they could sell they would have enough to pay up the mortgage; that just before the action was commenced he informed her that the year was pretty nearly up, and that he would have to commence a foreclosure if it was not paid, and that the defendant replied that they expected to settle up that week. The defendant was called as a witness in her own behalf