Williams v. Giebelhausen

Headnote

Williams v. Giebelhausen, 163 App. Div. 891 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 27, 1914, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term in an action to foreclose a mortgage. The answer denied the allegations of nonpayment of the money due and the prior lien of the mort • gage, and set up as affirmative defenses: First. That a subsequent mortgage was given in payment of the mortgage sought to be foreclosed and that said subsequent mortgage was thereafter satisfied. Second. That the said Arthur E. Sumner, assignee, claimed to have acquired title in fee to premises by deed from Auguste Sommerkorn, April, 1907, free from incumbrances. Third. That if Arthur E. Sumner ever .acquired any right or interest in or to said mortgage that the mortgage became merged in the fee of the said premises. Fourth. That a judgment was rendered on the 27th day of May,

1908, whereby the said Arthur E. Sumner was forever barred from any and all claim, right, title or interest of every nature and description whatever in or to said premises. Fifth. That they are holders for valuable consideration without notice of the assignment of mortgage.