Coffin v. Parker — 15 N.Y. St. Rep. 887

Majority

p. 887

Edward H. Coffin et al., Resp’ts, v. Asa W. Parker et al., App’lts.

(Supreme Court, General Term, Second Department,

Filed May 14, 1888.)

Headnote

Mortgage—Separate mortgage on several lots—General lien of subsequent MORTGAGE—HOW DISTRIBUTED.

Fourteen lots, each subject to a separate lien by mortgage, were made subject to a general lien by mortgages of $14,000 subsequent thereto. The title to the lots passed from the mortgagor and the title to one passed to the plaintiff, that of others to the defendants. The plaintiff applied to the owner of the second mortgage, who held title to a number of the lots, to unite in paying off the mortgage, and upon his refusal so to do, brought this action to compel its payment in that way. By a decree rendered therein, all the lots were made equally subject to the payment of the mortgage, and it was provided that the plaintiff might pay the $14,000 and the holder of the mortgage assign it to him, that each lot then pay its proportion in common with the plaintiff’s lot, and that the lot of a defaulting owner he sold to pay its part proportion, Held, that the burden of the mortgage was equitably distributed and that the decree furnished no grounds for complaint.

Appeal from an interlocutory and a final judgment rendered at a special term in Kings county.

W. S. Logan, for resp’ts; Bristoer, Peet & Opdyke, for app’lts Warden and Brown; M. Id. Topping, for app’lt, Pundt; E. G. Nelson, for app’lt Packard; Asa W. Parker, for app’lt Parker.

—It is difficult to see what grievance the appellants have against this judgment. Fourteen lots of land each subject to a separate lien by mortgage were made subject to a general lien by mortgages of $14,000 subsequent thereto. The lots had passed away from the mortgagor and a title to one was held by plaintiff and of three others to the defendant appellants. The plaintiff applied to the defendant, Parker, who held the $14,000 mortgage, and who also held the title to eight of the lots by title acquired subsequent thereto and which were really subject to its payment with the other lots to unite with the then owner in its payment. Parker refused, and this action is brought to compel its payment in that way. The decree provided that the lots shall each bear a definite burden, found by the decree.

p. 888

That there is no priority as to the $14,000 mortgage as between the lots and that all are equally subject to its payment. There is no point made that the values are incorrect or that the equality of lien is not just, but the decree provides that the plaintiff may pay the $14,000 and that the holder assign to him. That each lot then pay its proportion in common with plaintiff’s lot and that the lot of a defaulting owner may be sold to pay its proportion. The appellants, seem to urge as an injustice and an inequality in the decree that the plaintiffs are compelled to pay out a large sum of money, to take up a mortgage which covers other property than his own lot.

The plaintiff does not complain, and if there is any risk of loss, the plaintiff assumes it. The appellants are required to pay only their fair proportion and if they do that, it is immaterial to them, whether the other lot owners pay or not. These lots are not to be sold, except for the amount, properly charged upon them, seveverally. It is not a good ground for reversal that the plaintiffs may not take up the mortgage. They have asked to do so and the right has been accorded to them. The protection of their interests demands that they do so. There is no reason to doubt their good faith. There is no suggestion of such an intent, and if such a result happens the remedy is not by alleging error, but for application to be made to the court in view of the fact of such refusal.

The judgment should be affirmed, with costs.

Dykman and PraTt, JJ., concur.