Halpern v. Fisch , 101 N.Y.S. 1019 ( 1906 )

Ingraham, J.:

The plaintiff brought this action to recover the amount paid on a contract to purchase real property and the expense of examining the title. By the contract $18,000 of the consideration was to be paid by plaintiff taking the premises “ subject to a mortgage now a lien thereon to secure said sum, payable in about five (5) years, interest at 5^>.” When the parties met to complete this contract it was found that there was a mortgage upon the property made by the defendant to the Lawyers’ Title Insurance and Trust Company, dated June 27,. 1905, and recorded on June twenty-eighth, which recited that “ Whereas, the said mortgagor-is'justly indebted to mortgagee in the sum of Eighteen Thousand ($18,000) dollars, lawful money of the United States of America, secured to be paid, together with interest thereon, by her certain bond or obligation, bearing even date herewith at the time and in the manner expressed in the said bond or obligation.” The mortgage itself, therefore, did not state when the mortgage was due nor the rate of interest. This mortgage had been assigned by the mortgagee to the Lawyers’ Mortgage Company, and then by the latter to one Fannie A. Park. Upon the record there was nothing to show when this mortgage was due and what was the rate of interest. With a deed of the property there was presented, to the. vendee a letter from the Lawyers’ Mortgage Company to her attorney, which stated that the mortgage was for $18,000, covering.the premises described in the complaint, and became due on June 28,1910 ; that the interest runs from June 28, 1905, and is payable on June first'and December first.

On the trial it was conceded that at the time of the closing of-the title the plaintiff demanded from the defendant a certificate in form, • which was to be recorded, showing that the first mortgage of $18,000 was due in about, five years from that time, and that the interest on said mortgage was five per cent. This demand not having been complied with, the plaintiff rejected the title. ■ The plaintiff having'rested, the defendant offered in evidence the bond to secure whicli this $18,000 mortgage was given. That, bond was dated June 28, 1905, and was to secure payment of the sum of $18,000 on the 28th of June, 191Ó, with interest at five per cent per annum, to be paid semi-annually on the first of December and June, in each"year. ■ It was then proved .that defendant’s representatives offered to furnish the plaintiff with “ an affidavit of anything that is reasonable.” The" attorney for the plaintiff replied: “ I do not want that, I want something that I can record, something that I can put on record.” . This contract required tlie vendor to convey the property subject to a mortgage for $18,000 payable in five years at five per cent interest. The only objection to the title upon this ground would be that the mortgage was not payable in five years at five per cent interest. If the "vendee rejected title and it subsequently appeared that .the mortgage was as described in'the contract, the objection would be untenable. The vendor did not agree to convey subject to a mortgage" the record of which showed that it was payable in five years at five per cent interest, but agreed to convey subject to a mortgage which, as matter of fact, was payable in five years at five per cent interest.

The case of Oppenheimer v. Humphreys (9 N. Y. Supp. 840) is not an authority in favor of the plaintiff, for there the mortgage on record showed that the mortgage was a lien for $22,000 with interest at seven per cent. The record, therefore, showed an incumbrance for that amount. The contract provided that the property was to be sold subject to a mortgage of $16,000 at five per cent interest, and as the record showed that the mortgage was for $22,000 at seven per cent, the conveyance was not subject to the mortgage stipulated for. ' And the court when holding that the vendee was not bound tp accept a letter stating that they were the agents of the mortgagee and that the mortgage had been reduced to $16,000 with interest at five per cent, was speaking of a recorded obligation which, upon its face, imposed a greater incumbrance upon the property than that which the vendee had agreed to assume. But in this case the record imposed no greater liability than the vendee agreed to assume and, therefore, the tender of the deed was good. „

I do not think that the letters from the Lawyers’ Mortgage Company were at all material. There was nothing inconsistent in the recorded mortgage and the mortgage to which the property was to be subject, and as matter of fact the mortgage was for just the amount payable at the time and for the rate of interest stipulated for. It is also quite evident that the bond was properly introduced in evidence as establishing the fact that the mortgage was that stated in the contract.

I think, therefore, that the judgment was right and should be affirmed, with costs.

Patterson, P. J., McLaughlin, Laughlin and Houghton, JJ., concurred. ' .

Judgment affirmed, with costs. Order filed.