Baucher v. Stewart

Woodward, J.: On or about the 31st day of March, 1909, the defendants, as owners in fee of certain real property, entered into a written contract with one Peter Corigliano, in which the defendants agreed to sell the premises to the latter for a consideration of $9,250. Five hundred dollars of. the amount was paid upon the signing of the contract, and Corigliano was to take the premises subject to a' mortgage for $5,000, “ due August, 1911, with interest at the rate of five and one-lialf per cent per annum, payable semi-annually.” Fifteen hundred dollars was to be paid in cash on the delivery of the deed; The defendants further agreed to take a mortgage for the balance, the sum of $2,250, by the purchaser or his assigns executing and delivering a bond, secured by a purchase-money mortgage for the amount, due on or before three years, interest at six per cent per annum, payable semi-annually. The plaintiff came into possession of this contract by virtue of an'assignment of the same by Corigliano, and this action is brought to recover the original payment of $500, the plaintiff having refused to take title on the ground that the title offered was not merchantable. ■ While the learned court before whom the case was tried refused to find certain facts, the evidence is wholly undisputed that at the time the contract above referred to was entered into there was a mortgage for $5,000 upon the premises involved payable August, 1911, at five and one-half per cent interest, this mortgage having been recorded on the 12th day of August, 1908, and that the .plaintiff and her assignor had been told of this particular mortgage at the time the bargain was made and again at the time the contract was drawn up and signed, and that there was no other mortgage [846] on the premises. It would be absurd, .therefore, to hol'd. thát the mortgage referred to in the contract was any other mortgage than the one which was on record at the time the contract was entered into. The case is thus brought within the rule laid down .in. Feist v. Block (115 App. Div. 211, 213) that, as- to incumbrances of record, specified in the contract, the vendee is chargeable with notice of all- that the record shows, and may only rely upon the contract,. therefore, to the extent that it contained express representations concerning the provisions of the incumbrances. (Schnitzer v. Bernstein, 119 App. Div. 47, 48, and authorities there cited.) In' the case now under consideration, the plaintiff refused to accept title because, of some unusual covenants contained in the recorded mortgage, and the case of Elterman v. Hyman (192 N. Y. 113) is cited as authority sustaining the conclusion of the court at Special Term that the recorded mortgage was not such a mortgage as was referred to in the contract, and that the plaintiff was entitled to recover in this action. We do not .so understand, the cáse ; it merely distinguishes the facts in that case, showing that it is governed by the'gerieral rule. The court distinctly points out that, “According to the contract, the existing mortgages, whiéh were to remain upon the premises, contained the ‘ usual clauses,’ and this specific mention impliedly excludes unusual clauses.” That is, the contract having, under the maxim that the express mention of one thing excludes those not mentioned (Aultman & Taylor Co. v. Syme, 163 N. Y. 54, 57), stated that there were no unusual clauses in the mortgage, the purchaser had a'right to rely upon this expressed condition of the contract without looking to - the recorded instrument. But.no such condition exists here. The mortgage was correctly described for identification; the'attention of the' plaintiff and her assignor was called to the particular mortgage, with no assurances that it contained the usual or :any other particular clauses, except'those which were mentioned in the contract, and as to these there is no question.. . They knew that- the purchase was made subject to a mortgage then on record, and if .they were not -familiar-with the terms of the mortgage it was their own. fault; they were given notice of-the particular mortgage, and it was as much their duty to know the contents of such mortgage as. it was -for them to know the condition of the property they were buying. In the -absence of [847] fraud the purchaser takes the property at his own risk, and this applies as much to the mortgage which he agreed to assume as to any other condition of the sale. The judgment appealed from should be reversed. Hirschberg, P. J., Jenks, Burr and Thomas, JJ., concurred. Judgment reversed and new trial granted, costs to abide the final award of costs.