Judges： McLaughlin
Filed Date： 7/13/1909
Status： Precedential
Modified Date： 10/26/2024
This action was brought for the foreclosure of a mortgage upon certain real estate in the city of New York known as Nos. 232-234 West .Eighteenth street. The mortgage was given in 1882 to the Emigrant Industrial Savings Bank and subsequently assigned to the plaintiff. Upon the sale of the premises a surplus of nearly $13,500 was realized. Several parties claimed to have liens on such sum and a referee was appointed to ascertain the amounts and priority thereof. He reported that after the payment of certain expenses three-fourths of the balance should be paid to the respondent Morton Trust Company, as trustee, and one-fourth to the plaintiff, $353.18 with interest from July 25, 1902, to be first paid from the plaintiff’s share to,R. <fe A. C. Weil, attorneys, whose right thereto
It appears that subsequent to the giving of the mortgage foreclosed the ■ premises were devised to the four children of one Sommer. On the 12th of March, ■ 1889,-two of these children, Emma J. and Sebastian, conveyed their respective undivided one-fourth interests therein to the same grantees, Moser & Heidenheimer, who- gave back to each of them a. purchaserinoney mortgage for $20,000, Covering all the right, title and interest' of the grantees in the premises, conveyed. Both deeds and both mortgages were dated the same. day and all four were subsequently recorded at the same time, 'Moser & Heidenheimer, prior to such conveyances, had no interest in the property, but they thereafter acquired an additional one-fourth interest.- The mortgage given to Emma J. was subsequently paid, but the one given tó Sebastian was not paid and was foreclosed by his executrix in 1898, as appears later, and one of the principal questions presented on the appeal is whát interest in the property was covered by this mortgage.
In February, 1894, title to the entire premises had become vested in the Bavarian-Star Brewing Company and to secure an. issue of its bonds it mortgaged all its-property, including-the premises in' question, to the State Trust Company, now the respondent Morton Trust Company, as trustee, for $900,000. The brewing company was -thereafter dissolved, and its property sold pursuant t'O-an order of the court. The premises in. question, together with other property, were conveyed to the purchaser, plaintiff’s husband, by deed dated March 27^ 1897, and he immediately 'con veyed the same to the Colonial Brewing Company. . In May, 1897, the action to foreclose the mortgage given by-Moser ■& Heidenheimer to Sebastian Sommer was commenced. :The lien of this mortgage w,as superior to the lien of the trust company mortgage and the trust company was made a party defendant to the action. The action resulted in a judgment of foreclosure and sale and the- decree directed the sale, notóf the mortgagors’ interest, but of the entire premises. The salé took place on the 15th of July, 1898, and-,the premises were purchased by the plaintiff, who received a deed which purported to. convey the entire premises to her. She immediately conveyed the samé to the Colonial Brewing Company, taking back- a purchase-money
It must be conceded that whatever interest the plaintiff purchased on the foreclosure of the Sommer mortgage, she conveyed to the Colonial Brewing Company and the purchase-money mortgage which the Colonial Brewing Company gave to her was free from any lien of the trust company’s mortgage, and to that extent she has a right superior to it to the surplus in question. This interest the learned referee found to be an undivided one-fourth, but I am of the opinion that he erred in reaching that conclusion. The mortgage contained no covenants of title or warranty and consequently covered only the interest which Moser & Heidenheimer had when it was given. (Jackson v. Littell, 56 N. Y. 108; Nat. Fire Ins. Co. v. McKay, 5 Abb. Pr. [N. S.] 445; Donovan v. Twist, 85 App. Div. 130.) Moser & Heidenheimer acquired from Emma J. and Sebastian Sommer an undivided one-half interest in the property The deeds and mortgages were given at the same time and constituted a single transaction. It must be assumed that title was conveyed to them before the mortgages were given and there being no priority between the deeds, it follows that the right, title and interest covered by the mortgages was an undivided half. It is true they were purchase-money mortgages and that each grantor had conveyed only a one-fourth interest, but unless one deed was given prior to the other — which plainly was not the case — the mortgages were each a lien upon an undivided half. The mortgage to Emma J., as we have seen, was paid. The one to Sebastian was not and I am of the opinion that it clearly attached to the half. The mortgage contains the statements, that the mortgaged premises were “ part of the same property this day conveyed ” by Sommer to Moser & Heidenheimer, and “ this mortgage being given to secure a part of the purchase price thereof.” These statements, as appears from the referee’s opinion, seem to have influenced him in reaching the conclusion that the mortgage covered only one-fourth, but he overlooked the fact that Sommer,\ by the same deed, conveyed not only his interest in the two lots in
The appellant further claims that since the judgment directed the sale- of the entire premises and the trust company was a party to the action, the lien of its mortgage upon the remaining one-half was . thereby foreclosed. It is true it had notice -of the terms of sale, and it is also claimed that by its failure to protest or take measures to have the same corrected, it is now estopped from asserting its lien. This conclusion, however, does not follow. The mortgage covered only a half interest in the property, and as to sitch interest, concededly it was. superior to the lien of the trust company mortgage. The trust company had no defense to the-action to foreclose the mortgage on that interest and I do not think it was. under any obligation to protest because the judgment directed a sale of moré than the mortgagors’ interest. It has been held that a prior incumbrancer’s lien is not cut off by such a judgment. (Emigrant Industrial Savings Bank v. Goldman, 75 N. Y. 127; Smith v. Roberts, 91 id. 470; Jacobie v. Mickle, 144 id. 237; Stillwell v. Hart, 40 App. Div. 112.)
It is further claimed' on the part of the appellant that the lien acquired by the trust company mortgage was destroyed by the sale made to the plaintiff’s husband by the receivers in the dissolution ■ proceedings of the Bavarian-Star Brewing Company. He conveyed ' whatever interest he acquired at that sale to the Colonial Brewing Company prior to the purchase-money mortgage .given by it to the plaintiff and the contention is that by reason of that fact the purchase-money mortgage given by the Colonial Brewing Company covered the entire premises and, therefore, entitles the plaintiff to the entire . surplus. The claim thus made is principally based -upon the fact that the property of the Bavarian-Star Brewing Company, which W&s sold upon its voluntary dissolution, included the premises in question and that such property was sold free and clear from the fien of the trust company mortgage and-, it was thereby deprived of any interest which it. theretofore had. There is,-in fact, no
If the foregoing views be correct, then it follows the order appealed from should be modified so as to direct that after the expenses of the proceeding are paid, one-half of the balance should be paid to the Morton Trust Company as trustee, and the other half—after the payment to R. & A. C. Weil of the amount due them — paid to the plaintiff, and as thus modified the same is affirmed, without costs to either party.
Ik-graham, Laughlih, Clarke and Houghtoh, JJ., concurred.
Order, modified as directed in opinion and as modified affirmed, without costs. Settle order on .notice.