Garfinkel v. Vinik

• Decision Date: 21 December 1933
• Citation: 169 A. 527
• Parties: GARFINKEL et ux. v. VINIK et al.
• Court: New Jersey Court of Chancery

169 A. 527

GARFINKEL et ux.

v. VINIK et al.

Court of Chancery of New Jersey.

Dec. 21, 1933.

Syllabus by the Court.

Where there have been successive conveyances of mortgaged premises, in order to hold a final grantee liable on his assumption of the mortgage, there must be a complete chain of assumptions from the first to the final grantee.

From the facts shown, held, the grantee of mortgaged premises did not assume the mortgage.

Suit by Saul Garfinkel and wife against Julius Vinik and others.

Bill dismissed.

Benjamin E. Gordon, of Jersey City (John W. Ockford, of Union City, of counsel), for complainants.

Edward Schwartz, of Jersey City, for defendants Vinik.

Eisenstein & Eisenstein, of West New York (Howard R. Cruse, of Jersey City, of counsel), for defendants Landau and Davidson.

LEWIS, Vice Chancellor.

This suit is brought to recover a deficiency arising from a foreclosure sale. The bond and mortgage were given by the defendants Vinik to complainants. The Viniks subsequently conveyed the mortgaged premises to one Ratner. He in turn conveyed them to defendants Landau and Davidson, who expressly assumed the mortgage on the conveyance from Ratner. Ratner executed no express written assumption of the mortgage.

The theory of the complainant is that the defendants Landau and Davidson are liable because Ratner assumed the mortgage. It is only by such a chain of assumption that they could be held liable. Eakin v. Shultz, 61 N. J. Eq. 156, 47 A. 274.

Complainants attempt to spell out an assumption by Ratner from the documents executed in connection with the conveyance of the premises by complainants to him and the facts and circumstances surrounding such conveyance. Such an assumption can be proven by parole. Dieckman v. Walser, 114 N. J. Eq. 382, 168 A. 582. However, I do not find that there was any such assumption. It has been held that, where the amount of an existing mortgage has been deducted from a fixed purchase price, an agreement to assume the mortgage will be implied. Such does not appear to be the situation here. The conveyance was made pursuant to a contract for exchange of premises between Ratner and the Viniks. The printed form used by them is so entitled. It contains a covenant that the Viniks "in consideration of $1.00 * * * and also in consideration of the conveyance by the party of the first part (Ratner) of the real property herein before mentioned agrees to grant and convey to the party of the first part, at a valuation for the purpose of this contract of $32,000.00," the premises in...