63 N.Y.S. 224 | N.Y. Sup. Ct. | 1900
The defendant Weiher executed a mortgage on certain real estate to Maud L. Hall and Edith L. Hall. Subsequently he conveyed the said premises to one Burgart. In the said deed, which was duly recorded, appears the following stipulation, viz.: “ Subject, however, to a certain mortgage for $13,000, made by Lorenz F. J. Weiher, Jr.,” etc. (the mortgage in question), * * * “ which mortgage the said party of the second part ” (said Burgart) “ hereby assumes and agrees to pay as part of the consideration of this grant.” Burgart conveyed the property in turn to one Bohlen, and the said premises passed through several grantees, in each case subject to the said mortgage, until they are now in the name of one Batton. Meanwhile, and after the transfer from Weiher to Burgart and from Burgart to Bohlen, the mortgage was assigned to the plaintiff herein. In said transfer of the mortgage appear the following words, viz.: “ which said mortgage ” (i. e., the one above referred to) “ is hereby extended to be paid on the 12th of March, A. D. 1899, together with the bond or obligation described in said mortgage, and the moneys due and to grow due thereon, with' the interest.” Thereafter and subsequent to said 12th of March, 1899, the mortgage was foreclosed. The said Weiher was duly served with process and appeared in the action, but allowed his default to be taken. The said Burgart was not made a party to the action.
Motion denied, with ten dollars costs.