Eagan v. Engeman

Laughlin, J.: -This is an action upon a bond given for money loaned which was secured by a mortgage on real estate in the county of Kings. The [744] bond and mortgage w.ere executed by the defendant’s testator to plaintiff on the 2d day of December, 1892. On the 21st day of March, 1898, the obligor and mortgagor, who was then the owner of the equity of redemption in the mortgaged premises, conveyed the same to plaintiff who then owned the bond and mortgage. The consideration recited in the deed was “ One dollar and other good and valuable considerations.” The conveyance was made subject to the mortgage and also subject to a mortgage for $9,000, which? although subsequent in date, became by virtue of an agreement between the parties, subordinating the lien of plaintiff’s mortgage thereto, a prior mortgage. The plaintiff, as grantee, did not assume or agree to pay the mortgages, but the conveyance contained a clause designed to prevent the merger of the mortgage held by the plaintiff as follows: “ It is expressly understood and agreed that said mortgage made to the party hereto of the second part is not to merge in the fee of said premises but is to remain and continue as an existing and enforceable lien for the amount thereof and the interest thereon and for the amount j>aid by said party of the second part for taxes on said property and for interest and foreclosure costs paid by him on said prior mortgage.” The rule is well settled that the effect of this clause was to constitute the mortgaged premises as between the parties the primary fund for the payment of the debt. The conveyance having been made to the obligor and mortgagor who still holds the title and also the bond and mortgage, it is manifest that the rule will be violated if the plaintiff be permitted to recover in the first instance the entire amount of the liability on the bond, even though the defendant would then, as is conceded by the learned counsel for the-appellant, be entitled to an assignment of the, bond and'mortgage and might foreclose the mortgage and reimburse herself as executrix to the extent of the amount realized on á sale of the interest conveyed, which was the equity of redemption. This action is "between the parties. It would, therefore, seem that the plaintiff must first apply his interest in the premises to the payment of the debt secured by the mortgage by foreclosing the mortgage. The fact that the plaintiff holds the title to the premises is not an insuperable obstacle to his foreclosing the mortgage. The objection that he would thereby be suing himself would not be fatal to such an action. He [745] would not, by foreclosing the mortgage, be demanding any relief against himself. He would merely be proceeding against the property and selling his own interest therein. It would probably be unnecessary to even, in form, make himself a defendant, for if the fact that he was the holder of the record title and the party to whom the conveyance was made were alleged and proved, the record would show that his rights in the premises were cut off by the judgment. The answer interposes the further defense that the effect of the conveyance was to discharge the debt. It appears to have been the intention of the parties, by the clause in the conveyance, to preserve the debt. It follows that the judgment should be affirmed, with costs. Clabke, Houghton and Scott. JJ., concurred.