Nelson v. Loder

• Decision Date: 25 March 1892
• Citation: 30 N.E. 369,132 N.Y. 288
• Parties: NELSON v. LODER.
• Court: New York Court of Appeals Court of Appeals

132 N.Y. 288

30 N.E. 369

NELSON

v.LODER.

Court of Appeals of New York, Second Division.

March 25, 1892.

Appeal from supreme court, general term, second department.

Action by Thomas Nelson against Sarah E. Loder to compel defendant to accept the amount due on a certain bond and mortgage. A judgment for plaintiff by the special term was modified by the general term. Plaintiff appeals. Affirmed.

Thomas Nelson, for appellant.

A. S. Cassedy, for respondent.

The other facts fully appear in the following statement by FOLLETT, C. J.:

April 3, 1876, Josiah G. Clark, being indebted to the Manhattan Life Insurance Company in the sum of $18,000, executed and delivered a bond to said corporation, whereby he bound himself to pay said sum, with interest, one year after date; and he and Esther, his wife, on the same day executed and delivered to said corporation a mortgage on the land described in the complaint, (which the mortgagor then owned in fee,) to secure the payment of said sum. The mortgage was duly recorded April 5, 1876. On the 27th of April, 1878, said Josiah G. Clark and Esther, his wife, conveyed the premises to Ada E. Briggs, subject to the amount then unpaid on the bond and mortgage, and she entered into possession of the land, and ever since has remained in possession thereof. September 18, 1878, said mortgagee sold and assigned the bond and mortgage to Charles F. Brown, who, June 3, 1879, sold and assigned them to Sarah E. Loder. Both assignments were duly recorded prior to September 25, 1880, on which day Sarah E. Loder began an action to foreclose the bond and mortgage, making Ada E. Briggs a party defendant. When the foreclosure action was begun there was due and unpaid on the bond and nortgage $3,808.11, with interest from July 1, 1880. On the 18th of October, 1880, said Ada E. Briggs executed and delivered to Thomas Nelson, the plaintiff in this action, a mortgage on said premises to secure the payment of $500, with interest, April 1, 1881, which mortgage was recorded June 12, 1888. On the 18th of October, 1880, Thomas Nelson called on Sarah E. Loder, exhibited to her his mortgage, and tendered to her a sum sufficient to pay the amount due on her mortgage, with costs of the foreclosure then accrued, and demanded that she assign her bond and mortgage to him, which she refused to do. The tender was not kept good, but the money was deposited by the plaintiff in his general account in a bank. October 23, 1880, this action was begun to compel the defendant to accept the amount due on her bond and mortgage, with the accrued costs of foreclosure, and to assign the securities to the plaintiff, and to restrain her from prosecuting her action to foreclose them. A temporary injunction was issued. The defendant answered that she had judgment which were liens on the premises subsequent to her and prior to the plaintiff's mortgage, and that she was willing to accept payment of the amount due on her mortgage, and cancel the same; and averred that she had offered so to do before this action was begun. The action was brought to trial December 8, 1888, before a special term, which held that the plaintiff was entitled to an assignment of the bond and mortgage on the payment by him of the amount due for principal, interest, and costs accrued on the 18th of October, 1888, the date of the tender, for which relief a judgment was entered, with $284.98 costs to the plaintiff. On appeal to the general term the judgment was modified so that...