Opinion
11-23-1885
MUTUAL LIFE INS. CO. OF N. Y. v. DOWDEN and others.
F. G. Burnham, for complainant. M. J. De Witt, for defendant Van Rossum. Charles Glen, for defendant Dowden.
Suit to foreclose a mortgage.
F. G. Burnham, for complainant.
M. J. De Witt, for defendant Van Rossum.
Charles Glen, for defendant Dowden.
BIRD, V. C. Bill to foreclose. The complainant's mortgage was given the twenty-sixth of December, 1873, by Little and wife. December 1, 1874, Little and wife executed another mortgage, on a portion of the premises mortgaged to complainant, to the executors of Van Rossum. March 1, 1876, Little and wife conveyed a portion of said premises, included in the complainant's mortgage, to the defendant Margaret E. Dowden. August 18, 1884, Little and wife conveyed all the remainder of said mortgaged premises to the defendant George F. Woolston.
It will be perceived that no part of the title remains in the mortgagor. The last conveyance made by him was to Woolston. All that portion of the premises so conveyed to Woolston must be first sold, not including therein the portion mortgaged to Van Rossum. In case the sale of so much of the land does not produce enough to satisfy the complainant's claim, then, in the second place, all that portion of the land so mortgaged to Van Rossum must be sold. And in case the amount realized from that does not satisfy the complainant's claim in full, and also the claim of said Van Rossum, then, in the third place, all that portion of the said premises conveyed to said Dowden must be sold, to satisfy the claim of the said complainant.
Dowden alleges that since her purchase she has erected a barn, and placed stone steps upon the premises, and claims that she is entitled to remove them in case a sale of that portion of the land is made. This claim is based upon the allegation of good faith in the purchase, and the payment of full value. She cannot prevail in this. The mortgage of the complainant was recorded at the time she took her deed. The barn and the steps must be considered fixtures.
A roadway was laid out upon one side of the mortgage premises, includinga very small portion of the laud. There was an award in favor of the owner of $652.27, and an assessment against him of $624.65. According to this, the owner received $27.12. Both mortgagees released the portion covered by the roadway, and since these releases were executed without the consent of Mrs. Dowden the $27.12 will be charged against the amounts due them.
I will advise a decree in accordance with these views. I find that October 31st there was due the complainant $22,125.66, and the entire premises is liable therefor; and to the defendant Van Rossum $2,712.50, and that he is entitled to be paid secondly, though by so doing all the Dowden lot be exhausted. I will advise that the execution go to a master, with directions to offer the mortgaged premises for sale in parcels or lots; but, if it becomes necessary to sell the premises as a whole, in order to pay and satisfy the complainant's claim in full, in that event it is his right to have it so sold.