Albany Insurance v. Lansing — 7 Johns. Ch. 142

Majority

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The Albany Insurance Company against Lansing and others.

Headnote

A mortgage, after describing the premises, contained an exception of such village lots as have been, or may be, laid out by the mortgagor within certain limits, so that the whole of the said lots do not exceed 50 acres. The mortgage was recorded the 18th of October, 1817; and on the 29th of April, 1820, the mortgagor released to the mortgagees his right under the exception, beyond ten acres in extent, or any buildings erected on the same, foe. On a bill for a foreclosure, a creditor, having a judgment against the mortgagor, of the 25th of April, 1820, claimed the whole 50 acres, as not included in the mortgage: Held, that the 50 acres were included in the mortgage, subject to the election and appropriation of the mortgagor, who was bound to make his election in a reasonable time; and if his power was not exercised before the commencement of the suit, he must be deemed to have waived the exception. And the Master was directed to ascertain what village lots had been laid out by the mortgagor before the suit, and to exempt them from the sale, provided they did not include more than ten acres in quantity, nor include any buildings, foe:

BILL to foreclose a mortgage upon two separate parcels of land in Scoharie county. Each parcel was described by metes and bounds, and then followed this exception : “ Excepting out of the said parcels such village lots as have been, or may be, laid out by the said mortgagor within half a mile of his toll bridge on the said premises across the Scoharie creek, so that the whole of the said lots shall not exceed 50 acres.” The mortgage was registered the 13th of October, 1817. On the 29th of April, 1820, the mortgagor released to the plaintiifs his right and interest under the exception, so far as the same exceeded ten acres in extent, or any buildings erected on the same, with the garden grounds appurtenant thereto.

P. P. Goelet, one of the defendants, was a judgment

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creditor of the mortgagor, and his judgment was docketted on the 25th of April, 1820; and he claimed the whole of the 50 acres, as not covered by the mortgage, and as subject to his lieti.

Parker, for the plaintiffs.

Henry, for the defendant Goelet.

The 50 acres were included in the mortgage, and made subject to the election and appropriation of the mortgagor, and the grant of them was liable to be defeated by matter subsequent. Unless the lots were actually laid out, the exception did not operate to defeat or impair the grant of the entire parcel, as the whole was conveyed subject to such election and power. The election ought to be made in a reasonable time; and if not made, the exception had no operation, except as to lots then actually laid out. If the mortgagor did not avail himself of this power by the time of the commencement of the suit, he must be deemed to have waived it; for the exception extended only to such parts of the premises, not exceeding 50 acres, as had been, or should be, laid out into lots. This power was likewise reduced to the limits of 10 acres by the subsequent release, and the subsequent judgment creditor can have no right equal to that of the mortgagee, except as to the lots so laid out.

The following direction was inserted in the usual decree for the sale of the mortgaged premises :

“ That the master, previous to the sale, inquire and ascertain whether any, and if any, how many village lots, within the limits and extent prescribed in the mortgage, had been laid out by the mortgagor before the . commencement of the suit; and that he ascertain and describe those lots, which may have been so laid out, by metes and bounds; provided always, that the same, when so as

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eertamed, shall not include more than ten acres of land in quantity, nor include any buildings erected thereon, or any gardep grounds appurtenant thereto, and that, at the sale, the lots, if any, so ascertained and described under the above limitations, be exempted from the sale, as not covered by the mortgage, and that the Master make report of the lots he shall so describe.”