Levine v. Title Guarantee & Trust Co. , 243 A.D. 711 ( 1935 )

Action to recover the purchase price of a guaranteed first mortgage certificate on the ground that the purchase was induced by false and fraudulent representations. The allegation of fraud was that defendant, the seller, represented to the plaintiff, the buyer, that the certificate was a first claim against the mortgaged premises when in fact there was a superior lien against the property, to wit, a prior judgment amounting to $379.95. Appeal by defendant from amended judgment entered nunc pro tunc in favor of plaintiff. Amended judgment reversed on the law and the facts, with costs, and complaint dismissed, w th costs. Assuming the statement by defendant’s saleswoman on which the plaintiff predicates fraud to have been made, as we must in view of the jury’s findings, the finding that such statement was fraudulent is contrary to the evidence, in view of the fact that the defendant searched the title, overlooked a small judgment of $379.95 against one of the owners of the fee, and guaranteed the title in the plaintiff at the time she purchased the certificate. Particularly is this so, in light of the fact that the plaintiff has never been disturbed in any of her rights by the judgment creditor of 1926. In any event, the defendant, which, under the law of the case, has it within its power to wipe out the lien of the judgment, either by foreclosing its second mortgage or under the doctrine of subrogation, since the fund was used to pay off the mortgage of 1923, has guaranteed the title to the plaintiff. Further, it is the fact and the law of the case, as charged by the court, “ that this judgment of $379.95 is inferior to the second mortgage made originally to the George Adams Lumber Company and now held by the defendant, and could be wiped out on foreclosure of that mortgage.” Lazansky, P. J., Young, Hagarty, Carswell and Tompkins, JJ., concur.