Wager v. Link

• Decision Date: 31 May 1892
• Citation: 31 N.E. 213,134 N.Y. 122
• Parties: WAGER v. LINK et al.
• Court: New York Court of Appeals Court of Appeals

134 N.Y. 122

31 N.E. 213

WAGER

v.LINK et al.

Court of Appeals of New York, Second Division.

May 31, 1892.

Appeal from supreme court, general term, third department.

Action by M. Francis Wager against Thomas B. Link and others. From a judgment of the general term affirming a judgment entered on report of a referee, plaintiff appeals. Reversed.

E. R. Harder and Geo. R. Donnan, for appellant.

Charles E. Patterson, for respondent.

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

The action was brought against Jennie E. Sully, Edward P. Sully, the defendant Link, and others to foreclose a mortgage of date February 10, 1869, made by the defendants Sully to the plaintiff upon certain land to secure the payment of $5,750 in 15 years from April 1, 1869, and interest semiannually, according to the condition of a bond of the same date, made by those defendants. The bond and mortgage were made to secure the payment of that amount of the purchase money of the land then conveyed by the plaintiff to the defendant Jennie Sully by warranty deed; consideration, $8,750. On June 16, 1873, the defendants Sully conveyed the premises to Giles B. Kellogg by quitclaim deed; consideration, $2,500. And on February 17, 1874, Kellogg made and delivered to the plaintiff his bond, of which the following is a copy: ‘Know all men by these presents that I, Giles B. Kellogg, of the city of Troy, in the county of Rensselaer and state of New York, the obligor herein, am held and firmly bound unto M. Francis Wager of the same place, the said obligee herein, in the sum of $10,000, to be paid to the said obligee or to his certain attorney, executors, administrators, or assigns, for which payment, well and truly to be made, I bind myself and my heirs, executors, or administrators jointly and severally firmly by these presents. Sealed this 17 day of February, 1874. The condition of this obligation is such that if the above-bounden obligor, his heirs, executors, or administrators, shall and do well and truly pay or cause to be paid unto the above-named obligee, his certain attorney, executors, administrators, or assigns, the sum of $5,750 in 15 years from April 1, 1869, with interest, payable semiannually, from October 1, 1872, on each and every first day of April and October, with the privilege to the said obligor of paying not less than $500 nor more than $1,000 on any 1st day of October on giving three months' previous notice of his intention so to do, this bond being given as collateral to a bond and mortgage for $5,750, executed by Jennie E. Sully and Edward P. Sully, her husband, to said obligee, dated February 10, 1869, and the said obligor having become the owner of the mortgaged premises in case of default in the payment of said interest or principal, the said obligor or his assigns shall exhaust his remedy against the mortgaged premises before enforcing this bond without fraud or delay, then the preceding obligation to be void; otherwise to remain in full force and virtue. GILES B. KELLOGG. [L. S.]’ By warranty deed of date March 30, 1875, consideration, $10,000, Kellogg and his wife conveyed the premises to the defendant Link, ‘subject to the payment by the party of the second part of a mortgage on said premises held and owned by M. Francis Wager for $5,750, with interest from April 1, 1875, payable semiannually, which said mortgage, with interest as aforesaid, the said party of the second part hereby assumes and agrees to pay as a part of the purchase money of said premises, and the amount of which mortgage constitutes a part of the said sum of $10,000, the consideration named in this deed.’ As part of the relief sought by the plaintiff he demanded judgment against the defendant Link for any deficiency that might remain after application of the proceeds of sale to the payment of the amount due on the mortgage. Kellogg was not made a party. None of the defendants other than Link defended. The referee determined that the defendant Link was not chargeable for deficiency, and judgment was entered for foreclosure of the mortgage by sale of the premises, and in favor of the defendant Link upon the issue made by his answer.

BRADLEY, J., ( after stating the facts.)

The question here is whether or not the relation of the defendant Link to the obligation to pay the mortgage debt, or any deficiency which would remain after application to it of the proceeds of sale, was such as to support the charge of liability made and relief sought against him in this action. The conveyance of the premises by the Sullys to Kellogg was accompanied by no undertaking on his part to pay the mortgage made by them to the plaintiff. Afterwards, and while he held the title, his liability was created by his bond, given to the plaintiff, and by its terms the land was made the primary fund, and his personal liability was dependent upon and for such deficiency. It is for that reason urged that Kellogg never undertook to pay the mortgage debt, and, as the consequence, no such obligation was assumed by the defendant. So far as the obligation in such case is dependent upon the doctrine of equitable subrogation, the liability of the grantor is essential to the creation of that of the grantee by the terms of the assumption on his part in the granting instrument. Trotter v. Hughes, 12 N. Y. 74;Vrooman v. Turner, 69 N. Y. 280. And it is also essential that the deed be effectual to convey the title to the grantee, else it may be said that the relation of principal and surety between the parties to the deed does not arise, because the grantee takes nothing from his grantor in support of the assumption for that purpose, or which, as between them, places such parties in that relation to the debt. Garnsey v. Rogers, 47 N. Y. 233;Pardee v. Treat, 82 N. Y. 385;Root...