Werner v. Tuch

• Decision Date: 02 June 1891
• Citation: 27 N.E. 845,127 N.Y. 217
• Parties: WERNER et al. v. TUCH et al.
• Court: New York Court of Appeals Court of Appeals

127 N.Y. 217

27 N.E. 845

WERNER et al.

v.TUCH et al.

Court of Appeals of New York, Second Division.

June 2, 1891.

Appeal from supreme court, general term, fourth department.

Action by Charles Werner and others against Minna C. Tuch and others, to foreclose a mortgage. Defendants appeal from a judgment of the general term affirming a judgment for plaintiffs.

Frederick Collin, for appellants.

A. J. Simpson, for respondents.

VANN, J.

The mortgage in question, dated April 9, 1881, was given to the plaintiffs by the defendants Tuch, to secure the payment of the sum of $5,260, being part of the purchase price of the premises therein described. The principal was payable May 1, 1891, and the interest semiannually at the rate of 5 per cent. per annum. There was an interest clause in the usual form, the period of grace being 60 days. The premises embraced three adjoining parcels of land in the city of Elmira, known as the ‘Eastern,’ the ‘Central,’ and the ‘Western,’ and also a house and lot in the village of Bloossburg, Pa. The mortgage provided that, if the mortgagors should sell either of the parcels, the mortgagees would release to the purchaser the portion so sold, free and discharged from the lien of the mortgage, upon receipt of the sum of $2,500 for the release of the Blossburg parcel, $1,750 for the eastern, and $850 each for the central and western parcels. It was further provided as follows: ‘The said sums, when paid, shall be credited on the gross amount due hereunder, and shall be in partial liquidation and exoneration hereof, but in no event shall the said mortgagees receive a greater sum than the said principal sum of $5,260, with the interest and accretions hereunder. In case the mortgagors shall exercise their privilege, as next hereinafter granted, of paying off any part of the principal at any time other than upon a sale of the premises herein described, then the amount to be paid to secure the release of any of the parcels upon a sale shall abate proportionately; and it is hereby further understood and agreed that the mortgagors have the privilege of paying off any part of the principal sum during the term hereof, (provided they shall not be otherwise in default,) all payments of principal and interest to be evidenced by indorsements on the bond, and not otherwise.’ The mortgage was collateral to a bond, which, in addition to the usual stipulations, contained a provision that all the agreements mentioned in the mortgage ‘in reference to releasing portions of the premises upon a sale of any of the parcels of land therein described, and also in reference to any and all payments to be made on account of the principal or interest of this bond or otherwise, shall be considered, and shall be a part of this bond or obligation, as if incorporated therein.’ June 11, 1883, the defendants Tuch paid to the plaintiffs the sum of $850, and thereupon the westerly parcel was duly released from the lien of the mortgage. No other part of the principal has been paid, and the interest due May 1, 1887, is still unpaid. July 11, 1887, or more than 60 days after said default, this action was commenced to foreclose said mortgage, and a lis pendens in the usual form was filed, the plaintiffs having elected to call the whole amount due. The defendants Tuch served an answer, and in November, 1887, an amended answer; and in December following Theresa L. Hoppe, their daughter, purchased the central and easterly parcels, and received separate conveyances of the same, recorded, respectively, December 3, 1887, and February 18, 1888. January 3, 1888, Mrs. Hoppe and the defendants Tuch tendered the plaintiffs the sum of $2,600 of principal, and $185 for interest and costs, and demanded the release of the central and easterly lots. Releases, proper in form, were at the same time presented, and a demand made that the plaintiffs execute the same as a condition of receiving the money. Notice was also given of the conveyances to Mrs. Hoppe. The plaintiffs refused to execute the releases, or to receive the money, upon the ground that they were entitled to the whole amount unpaid upon the mortgage. The money tendered was not subsequently kept good, nor paid into court, but the same was used, wholly or...