Grainger v. Engel ( 1934 )

Judgment reversed upon the law and the facts, with costs, and complaint dismissed. Whether the interest of the remaindermen named in the will is a vested or contingent interest does not affect the right of either of the remainder-men to make a valid mortgage of such interest as the remainderman has in the property. It is of no legal concern to the plaintiff that one of these remainder-men mortgaged “ all her right, title and interest ” in the premises. The mortgagee of such interest does not complain, nor do her successors in interest. This mortgage may not be destroyed upon the suit of the plaintiff trustee, and it does not constitute a cloud upon his title. Such a contingent interest is the subject of a valid mortgage. (Real Prop. Law, § 240, subd. 4; see, also, § 274; Wilson v. Wilson, 32 Barb, at p. 344; 1 Jones Mort. [8th ed.] § 191; 41 C. J. p. 374, § 159.) Findings of fact and conclusions of law inconsistent herewith are reversed, and new findings will be made accordingly, order to be settled on notice. Lazansky, P. J., Young, Kapper, Hagarty and Carswell, JJ., concur.