Washington Life Ins. v. Marshall

Canty, J. This is an appeal from an order overruling a demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. The complaint alleges that one Frost conveyed to this plaintiff, by mortgage, certain real estate in New York city, to secure his bond to plaintiff in the sum of $15,000; that thereafter Frost, by his deed in writing, conveyed said mortgaged premises to the defendant Gilman, who, as a part of the consideration therefor, in and by said deed assumed and agreed to pay said mortgage; that thereafter Gilman, by his deed, conveyed the premises to the defendant Marshall, who, as a part of the consideration therefor, in and by said deed assumed and agreed to pay said mortgage; that thereafter this plaintiff commenced an action in the supreme court in the state of New York to foreclose said mortgage, and such proceedings were thereupon had that thereafter, on the 20th of June, 1890, the judgment of that court “was duly given against the defendants herein, and the hereinbefore described premises ordered sold;” that under said judgment the premises were sold for $14,000, and “out of the proceeds of said sale the sum of $13,210.96 was paid to the plaintiff on account of the principal and interest due on said mortgage and bond,” and a report of the sale, showing a deficiency amounting to $2,674.43, was made to said court, and by it duly approved and affirmed. [255] 1. The complaint does not allege that any amount was adjudged by said judgment to be due, or that any judgment was given for any deficiency, except as above stated. The defendants claim that this deprives the plaintiff of the right to proceed in a subsequent action to recover the deficiency from them. We are of the opinion that it does not. It is not necessary here to pass on what the effect of such a judgment would be on the personal liability of the mortgagor when proceeded against in a subsequent suit, or what effect the statute of New York would have on that question, or whether we should take judicial notice of those statutes. The obligation of these defendants is collateral to the original mortgage indebtedness; and the mortgagee need not accept the security of that liability, or sue upon the same, until he sees fit to do so. It is not merged in such a judgment of foreclosure. 2. The other point raised by the defendants is that, as the complaint does not allege that Frost was the owner of the mortgaged premises, it does not appear that anything was conveyed to the defendants by the deeds to them, and that, therefore, there is no consideration for the covenants on their part in those deeds to pay the mortgage indebtedness. This omission in the complaint is not to be commended; but a deed, even when without covenants of warranty, at least when no mistake or imposition appears, is sufficient consideration for a promise by the grantee to pay a consideration therefor, even though there may be no title in the grantor. We think the order appealed from should be affirmed. So ordered. (Opinion published 57 N. W. Rep. 658.) Application for reargument denied Jan. 29, 1894.