Jones v. Merritt , 30 N.Y. Sup. Ct. 184 ( 1880 )

Dykman, J.:

This action, is for the foreclosure of a mortgage executed by the defendant, Merritt, and his wife, on two parcels of land, one of which belonged to Merritt, and one to his wife, as her separate property. On the husband’s lot there was a mortgage of $1,500, and on the wife’s lot there was a mortgage of $2,200, and the-money procured on the mortgage in foreclosure was used and appropriated to pay and discharge both of those mortgages. A judgment has been given in this action, to foreclose the mortgage, and for deficiency against the wife; to this latter direction the wife-objects, and whether a judgment can be entered against her individually is the question presented by this appeal.

The mortgage was made for the benefit of her separate estate, and she expressly charged its payment thereon by the execution thereof. $2,000 of the money was -applied to the payment of her debt charged on her land, and to .that extent her separate estate was benefited by the transaction. If. all the money procured on. this mortgage had been paid over to the husband, and appropriated by him for his own use and benefit, then her separate property-covered by the mortgage would have been bound, and no more, and there could have been no personal judgment permitted against her for deficiency. (Payne v. Burnham, 62 N. Y., 74.) As part of the money went for the benefit of her separate estate, a personal judgment for deficiency against her is proper.

The judgment must be affirmed, with costs.

Barnard, P. J., concurred ; Gilbert, J., not sitting.

Judgment affirmed, with costs.