Citation Numbers: 57 Misc. 466, 108 N.Y.S. 444
Judges: Wheeler
Filed Date: 1/15/1908
Status: Precedential
Modified Date: 1/13/2023
This is a motion on behalf of the infant defendants for a new trial on the ground of newly discovered evidence. Upon the decision of'this action, when tried before me upon the main issues in the case, I had occasion to hand down an opinion, in which the essential facts as they were developed on the trial were carefully stated. The court then held that the plaintiff was entitled to a foreclosure of what was designated the dark mortgage, because although in the deed from the plaintiff to her son Charles Wiehorst the grantee in form assumed and agreed to pay that mortgage, nevertheless such assumption imposed no legal liability upon the grantee, because his grantor the plaintiff in this action was under no personal obligation to pay that mortgage and consequently the mortgage held by dark was not a “ lawful debt " of Charles Wiehorst and the plaintiff therefore in turn was under no obligation to'pay it. In this decision the counsel for all parties to the action apparently acquiesced as no appeal was taken. The affidavits now presented to the court disclose that after the decision of the case and the entry of judgment the following document was discovered, the genuineness of which is not disputed. The paper in question reads .as follows:
“ Wheeeas, Charles Wiehorst has this day assumed the payment of two thousand one hundred and fifty dollars of the principal of a certain mortgage dated March 17, 1863, (erroneously, as the year should be 1873), and recorded July 3, 1873, in Liber 53 of Mortgages at page 69, in the Cattaraugus County Clerk’s Office, executed to me by Dora and Henry Wiehorst, and has assumed the same as aforesaid and has purchased one hundred acres of the mortgaged premises this day on condition that I the undersigned shall and will extend the payment of said sum and interest as hereinafter stated. How therefore know all men by these presents that I the undersigned Frederick dark for the consideration of one dollar and his assuming to pay said sum and interest, do hereby agree to extend the payment thereof as follows: the interest at the rate of six per cent, per annum on said sum of $2,150 or so much thereof as shall from time to time
“ Witness my hand and seal this 26th day of November, 1881.
“ P. F. Jark, [seal]
“ In presence of
“ E. D. Northrup.”
It will be observed that this paper purports to have been executed on the same day the plaintiff conveyed the premises covered by the J ark mortgage to her son Charles Wiehorst, and was found among his papers after his death.
It is claimed by the defendants that the legal effect of this instrument was to make the J ark mortgage the personal debt of Charles Wiehorst, and that therefore the plaintiff obligated herself to pay and discharge this mortgage by the provisions of the deed given her by the widow of Charles Wiehorst shortly after his death, in which the plaintiff agreed to pay the lawful debts of her son Charles.
It therefore becomes important for the court upon this motion to determine the legal force and effect of the newly discovered document, with the view of ascertaining whether, had the paper in question been proven and introduced in evidence on the trial of this action, it would have caused a different result of this litigation. If it would have done so then it is the duty of this court to set aside the judgment and grant a new trial. If on the other hand with the paper in evidence the result would have been the same a new trial should be denied.
It is to be noted in the first place that by the document in question Charles Wiehorst is not made in form to assume
In Keller v. Lee, 66 App. Div. 184, the court held that where a conveyance was made by which the grantee assumed and agreed to pay a mortgage, subject to which the conveyance was made, the land was the primary fund for the payment of the mortgage debt, and as between the grantor and the grantee the liability of the latter is that of indemnitor or surety only, and that where the grantor paid the mortgage debt and procured the mortgage to be discharged of record without first requiring the mortgagee to resort to the laird he could not maintain an action against the grantee to recover the amount expended by him.
In Huntley v. Re Voir, 66 Hun, 291, it was held that the grantee taking a deed, in which he assumed and" agreed to pay a mortgage not being bound to pay the mortgage in exoneration of the land which was the primary fund for its payment, might pay the mortgage debt and by taking an assignment thereof to his wife still enforce it as a lien and cut off the lien of a judgment subsequent to the mortgage.
Dora Wiehorst Bonhoff, the plaintiff in this action, by accepting the deed from the widow of Charles Wiehorst containing a covenant to pay and discharge the lawful debts of Charles, at most only agreed to save the estate and heirs
The plaintiff might not have any right to demand a personal judgment against the estate of Charles by reason of the premises; but that she never has sought or demanded, and the judgment of foreclosure heretofore granted contained no provision for any personal judgment against any one.
It must be manifest, too, from what has been said that the clause in the deed to the plaintiff in which she agreed to pay the “ lawful debts ” of her son Charles cannot be said to include or comprehend the mortgage debt in question. If we hold the effect of the extension agreement was to make Charles assume the Jark mortgage the legal „effect was to make him simply an indemnitor to the plaintiff, or a surety for the payment of the mortgage. The debt still remains the debt of Henry Wiehorst, who borrowed the money and gave the original bond. And although Charles may have subsequently in effect become surety for its .payment, nevertheless we think it cannot be said the debt was his debt. We therefore conclude that the newly discovered document on which .a new trial is asked, if introduced in evidence, could not possibly change the result of the litigation or defeat a foreclosure.
The fact that the interest actually conveyed by the widow of Charles to this plaintiff- was of very little value also has an important bearing on the actual intent of the parties. It can hardly be supposed that the plaintiff ever really intended to obligate herself to pay off an existing mortgage of $2,150 for the benefit not of herself but of remaindermen to whom
The motion to set aside the judgment and to grant a nexy trial is, therefore, denied.
Motion denied.