Weis v. Levy

Citations

• 106 A.D. 496
• 94 N.Y.S. 857
• 1905 N.Y. App. Div. LEXIS 2615

Syllabus

<p>Mortgage foreclosure — the amount paid for an assignment of a mortgage and the motive inducing its purchase — when material—merger at law and in equity — con• veyance to defeat an action for specific performance and a foreclosure under an assignment of a mortgage taken for the same purpose.</p> <p>In an action to foreclose a mortgage brought by a person holding, under a duly executed assignment, the legal title thereto, the question whether the plaintiff paid value for the assignment and as to the motive which actuated the making of the assignment or the motive which actuated the commencement of the foreclosure action is, as against the mortgagor, a matter of no consequence, for the reason that he is obliged to pay the mortgage, and that payment to the plaintiff will discharge such obligation.</p> <p>The rule, however, is different where the rights of creditors or those of persons having legitimate claims against the property which would be injuriously affected by the mortgage intervene, particularly where a person who has been guilty of fraud would profit by the enforcement of the mortgage.</p> <p>At law it is the rule, to which there are no exceptions, that where the lesser and larger titles unite in the same owner, the former is swallowed up in the latter.</p> <p>In equity, however, if it was the intention of the owner to keep the lesser title alive, and this will result in the promotion of justice and will not prejudice the rights of third parties, the merger will be deemed not to have taken place.</p> <p>In an action brought to foreclose a mortgage it appeared that the mortgage was for $1,000, and that prior to the plaintiff’s connection therewith parties named Schoenfeld had a $500 interest therein, and a party named Fuchs the remaining $500 interest therein; that the owner of the equity of redemption, for the purpose of defeating the claim of a contract vendee of the premises who had brought an action to compel specific performance of the contract, conveye