135 N.Y.S. 100 | New York County Courts | 1912
The defendant Frank Boehanski, on March 17, 1900, applied to plaintiff for membership in its association and subscribed for thirty installment shares of class E of its stock, .of the maturity value of $100' each, agreeing among other things to pay or 'cause to be paid thereon monthly dues of $7.50 and to abide by its articles of association and by-laws or any amendments thereto. Flis application was granted, and a certificate for the said shares was issued to him upon the agreement stated in the application. At the same time he applied for a loan of $3,000. This was made and accepted upon the divided mortgage plan. As security, he assigned the said shares of stock to plaintiff and gave the two mortgages herein sought to be foreclosed, aggregating $3,000, upon the property described in the complaint. The former of these was given to one Andrew Linn, who afterward assigned it to secure the payment of the sum of $2,400 in five years from its date, with interest at the rate of six per cent, per annum, payable semi-annually. The latter, for $600, 'was given to plaintiff, subject, however, to the former one of $2,400, which plaintiff, among other things, agreed to pay and have canceled of record upon the maturity of said shares of stock and upon the surrender of same by said mortgagor to said mortgagee. This mortgage, in terms, made the hond. accompanying it a part of it as effectually as if set forth therein at length. It contained a proviso that, if the mortgagor should pay the sums
The bond accompanying it provided for the payment of thirty dollars monthly, consisting of fifteen dollars interest, seven dollars and fifty cents premium and seven dollars and fifty cents dues upon the said shares of stock and, among other things, contained an agreement on the part of plaintiff to pay when due the interest on the prior mortgage and to pay off and cancel the same of record upon the maturity of said shares. Both mortgages were duly recorded May 11, 1900, the former a short time.in advance of the latter. The defendant Frank Boehanski made the monthly payments of thirty dollars, required by the bond, until March 10, 1903. - They were entered, when made, in a pass-book, which was issued to him by plaintiff and which remained in his possession. On March 10, 1903, he conveyed the property described in the said mortgages of the defendant Anna Boehanski by a quitclaim deed which was duly recorded March 11, 1903. The mortgages were not referred to in the deed. From this time on and until October 11, 1909, defendant Anna Boehanski made the monthly payments to plaintiff; and they were likewise entered in the said pass-book, which came into and remained in her possession from the time of the conveyance to her. She was not a member of plaintiff’s association and did not give any direction as to how the payments should be applied. Plaintiff applied seven dollars and fifty cents of each monthly payment to “ Monthly Installments ” and twenty-two dollars and fifty cents to “Interest and Premium” and made entries to that effect in the pass-book, which was returned
The mortgage to plaintiff was subject to a prior one of $2,400, which plaintiff agreed to pay and have canceled of record upon the maturity of the shares of stock which the mortgagor had in plaintiff’s association and upon the surrender of same. It did not in terms specify how the payments or what payments were to .be made, but showed on its face that it was a building mutual loan and accumulating fund association mortgage and that such payments consisted or were to consist of interest, premiums and dues and were to be made as required by the accompanying bond, which was made a part of the mortgage as effectually as if set forth therein at length. Although the deed to Anna Boehanski did not refer to plaintiff’s bond and mortgage in any way, yet the mortgage- was duly recorded 'at the time of the delivery of the deed, so that the .said grantee is chargeable with and must be deemed to have had notice or knowledge of its terms and conditions, as well as of those of the accompanying bond, which was a part of it. Beal Prop. Law (Consol. Laws, chap. 50), § 291; Tiedeman Real Prop., § 338; Peck v. Mallams, 10 N. Y. 507, 518. And the payments made by her after the transfer, together with her acts and the acts of plaintiff in connection with such payments, warrant the conclusion that she had actual knowledge of such terms and conditions. The conveyance was by quitclaim deed and, although it did not refer to the incumbrances on the property in any way, the grantee took it subject to such incumbrances. Frank Boehanski could not convey and Anna Boehanski could not acquire any greater estate than the former had at the time of the transfer. He was the vendor and she was the purchaser of and has acquired nothing more than a mere equity of redemption. Real Prop. Law (Cons. Laws, chap. 50), § 245; Sage v. Cortwright, 9 N. Y. 49; Peck v. Mallams, 10 id. 507, 519; Sparrow v. Kingsman, 1 id. 242, 247; Kritz v. Peck, 113 id. 222, 229. The conveyance did not in any way
Judgment accordingly.
