Bach v. Kidansky

Citations

• 106 A.D. 502
• 94 N.Y.S. 752
• 1905 N.Y. App. Div. LEXIS 2616

Syllabus

<p>yendor’s lien on real property — enforced where property contracted to be sold subject to a certain mortgage is conveyed subject to a mortgage for a less amount — subrogation.</p> <p>A contract for the sale of land fixed the purchase price at the sum of $101,000 to be paid as follows: $1,500 in cash upon the execution and delivery of the contract, $6,500 cash upon the delivery of the deed, the remaining $93,000 being represented by certain mortgages covering the premises contracted to be sold. One of such mortgages was a third mortgage of $18,000 which provided that $3,000 of the principal thereof should become due and payable upon a sale of the property. The indebtedness represented by such third mortgage was also secured by a collateral mortgage upon other premises. ■ This collateral mortgage contained a provision that when $4,000 should have been paid on account of the principal mortgage the collateral mortgage should be canceled,</p> <p>After the execution of the contract, but before the closing of the sale, the $13,000 mortgage was purchased by the wife of one of the vendees. In the meantime, the vendors had also contracted to sell the property incumbered by the collateral mortgage free and clear of such collateral mortgage. On the day fixed for closing the first-mentioned contract of sale, the vendee, whose wife had pur. chased the $13,000 mortgage, acting in the interest of such wife, refused to deliver a release of the collateral mortgage upon payment of the $3,000 from the vendees and the sum of $1,000 from the vendors, and to execute a writing subrogating the vendors to an interest of $1,000 in the $13,000 mortgage. Thereupon the vendors paid $1,000 to the owner of the $13,000 mortgage, and her husband then delivered a release of the collateral mortgage. The contract was then closed, with the result that the vendees only paid in cash and by the assumption of mortgages $100,000 instead of the $101,000 which they had agreed to pay.</p> <p>■Held, that the