Quittner v. Comstock

Shumway, J. This is an action to foreclose a mortgage. This case was tried with the case of Fosdick vs. Roberson et al., and by stipulation of the parties all the facts found in that case, so far as applicable to this, are to be considered as part of the record. The only additional fact found, is that the plaintiffs in this action are the bona fide holders and owners of the mortgage, and they acquired the same for a valuable consideration. The mortgage in question is the one given by Roberson to Fosdick as part of the consideration for the conveyance to Roberson by Fosdick of seven parcels of land, and these parcels are the same described in the deed and referred to in the first case. The plaintiffs hold the same by assignment. The mortgage was clearly given for the benefit of the purchaser of the land, and the assignee of the mortgage had a right to rely upon Roberson’s apparent title, and that title cannot be questioned by Roberson, Comstock, or any of the equitable owners of the land. The trial court gave judgment for the plaintiffs, foreclosing the defendants unless the mortgage ’ note was paid before February 1st, 1916, and absolute title to the premises will pass to the plaintiffs if the defendants fail to pay the amount due, freed of any trust and foreclosing the equitable interest of the persons for whom Comstock may be regarded as trustee, though they are not made parties to the action. There is no error. In this opinion the other judges concurred.