Citation Numbers: 12 Abb. Pr. 335
Judges: Robinson
Filed Date: 3/15/1872
Status: Precedential
Modified Date: 2/3/2022
The complaint alleges the execution of a mortgage by plaintiff to defendant, dated November 11, 1869, on property in New York city, duly recorded, to secure their bond conditioned for the payment <of ninety-five hundred dollars and interest; to wit, forty-five hundred dollars on November 11, 1870, and five thousand dollars on November 11, 1871; that they paid forty-five hundred dollars on December 16, 1871, “ on accountand on November 11, 1871, tendered the defendant (the mortgagee) fifty-nine hundred dollars, as and for the whole balance due “ and costs and charges attaching thereto,” and requested a discharge of the record of said mortgage, which being refused, this suit is instituted to remove the cloud upon the title, created by the ostensible lien of the mortgage.
Upon the face of this complaint it appears, the bond was conditioned for the payment of ninety-five hundred dollars and interest from November 11, 1869,' by means of which there was due December 16, 1870 (although not yet wholly payable, according to the alleged terms of the bond), that principal sum, and seven hundred and twenty-nine dollars and sixty-five cents interest, making together ten thousand two hundred
The averment that fifty-nine hundred dollars “ was the whole sum secured to be paid by said mortgage,- and all interest thereon and costs and charges attaching thereto,” in the absence of any general or particular specification of any other payment of principal or interest, or of any other circumstance by which the apparent amount due had become reduced to the amount, is a mere statement of a legal conclusion, unwarranted by the premises stated. On the face of the complaint, no substantial reason is assigned for calling on the court to decree a satisfaction of the record of the mortgage without payment of the full amount payable according to the terms of the bond, nor does it present facts sufficient to constitute any cause of action. However defective may be any of the defenses, they are not liable to demurrer, while the pleading which they assume to answer is radically insufficient to call for any defense whatever. But second.
From the statements made in the third, fourth and sixth defenses, it is disclosed that these plaintiffs appeared in the action in the supreme court commenced by the present defendant to foreclose the mortgage in question, and made and appeared on repeated motions therein affecting the merits ; they first made a motion to vacate a judgment for foreclosure and sale,
That court had jurisdiction of the subject matter (foreclosure of a mortgage on real estate in the city of Hew York), and any defect in the proceeding, to bring the plaintiffs into court, was waived by their voluntary appearance in the action (Mahaney v. Penman, 1 Abb. Pr., 34; Higgins v. Rockwell, 2 Duer, 650; Ballard v.
As to the fifth defense, were it not that the complaint stated no facts sufficient to constitute a cause of action, it would constitute no defense to a proper action to remove a cloud upon the title, for the reason assigned, that after a tender by the mortgagor of the amount due and suit brought he had conveyed away the land with full covenants of warranty. The right of action in said case was complete when the action was commenced ; he remained after conveyance with such covenants the primary party in interest, in the removal of the cloud on the title. The objection, at most, was one referring to the necessity of bringing in the grantee as a party proper to a complete determination of the controversy rather than as a bar. or matter of complete defense, especially as- it occurred after suit brought and before answer. . .
Under these views I do not consider it necessary to discuss the question as to the sufficiency of the affidavit presented in the foreclosure suit, and upon which the order for publication as against these plaintiffs (defendants therein) was granted, or whether it contained sufficient proof to confer upon the court jurisdiction to grant that order.
Though it failed to state what ineffectual efforts had been made within this State to serve the summons, it
The several demurrers to the several defenses, however, for the reasons above stated, are overruled, and judgment ordered for the defendant.