Hyperlawhypertext legal databasebeta Kmetz v. De Ronde 231 N.Y. 641

← Cases

Kmetz v. De Ronde

231 N.Y. 641 Court N.Y. Decision date 1921-07-14 English

Contents

Majority

p. 641
John Kmetz, as General Guardian of Joseph Kmetz, an Infant, Appellant, v. Henry De Ronde et al., Respondents.

Headnote

Mortgage — mortgagee may sue upon purchaser’s covenant of assumption without resort to security.
As between grantor and grantee, the land is generally, if not always, the primary fund for the satisfaction of a mortgage which one of them has agreed to pay. As between mortgagee and grantee, there is no such restriction. The mortgagee may sue upon the purchaser’s covenant of assumption without resort to the security.
(Submitted July 13, 1921;
decided July 14, 1921.)
Motion for re-argument. (See 231 N. Y. 255 ).
Howard R. Bayne for motion.
John V. Bouvier, Jr., opposed.

The sureties were rightly charged with the payment of the mortgages which their principal had covenanted to assume.

As between grantor and grantee, the land is generally, if not always, the primary fund for the satisfaction of a mortgage which one of them has agreed to pay (Slauson v. Watkins, 86 N. Y. 597 ; Matter of Wilbur v. Warren, 104 N. Y. 192 ).- As between mortgagee and grantee, there is no such restriction. The mortgagee ,may sue upon the purchaser’s covenant of assumption without resort to the security (Burr v. Beers, 24 N. Y. 178 ; Thorp v. Keokuk Coal Co., 48 N. Y. 253 ). Here the vendor of the land was also the holder of the mortgages. As between him and the defendants, the covenant to assume was a covenant to pay (Burr v. Beers, supra; Thorp v. Keokuk Coal Co., supra).

The motion should be denied, with ten dollars costs and necessary printing disbursements.

All concur.

Motion denied.

Cases cited