Coffin v. Parker — 17 N.Y. St. Rep. 733

Majority

p. 733

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

(Supreme Court, General Term, Second Department,

Filed June 25, 1888.)

Headnote

Mortgage—Blanket mortgage on several pieces of property—When BURDEN APPORTIONED.

Where a blanket mortgage had been placed upon a piece of property-consisting of fourteen separate houses and lots owned by different persons, part of which had been sold subject to said mortgage, in proceedings to foreclose said blanket mortgage, Held that the equitable principle is that

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the burden which rests upon the whole property shall he apportioned among the various parcels in proportion to their value. The right of the mortgagee is to have his money; the right of the various owners is that each may have his property discharged, upon paying his proportionate part of the burden, so far as may be without endangering the mortgagee’s complete security.

Appeal from a judgment in favor of the plaintiff, entered upon a decision rendered at the Kings county special term.

This action was brought to judicially determine the amount due on a general or blanket mortgage covering fourteen separate houses and lots owned by different persons, to apportion the same upon the said several lots according to their value, and to allow the plaintiffs, who are owners of one lot, and such defendants, owners of other lots, who desire to do so, either to pay their share and be released, or to redeem and pay the whole and then collect the share of the lots not paying from the lots or owners thereof.

One Lincoln, now deceased, owned, in the city of Brooklyn, fourteen lots of ground extending on Sixth avenue and Thirteenth and Fourteenth streets, and numbered on the avenue 1-12; on the streets 13 and 14 respectively. Upon each lot he built a house, and made a separate mortgage, dated 23d December, 1884, to the general synod of the Dutch church upon the twelve houses on Sixth avenue and to the board of education of the Dutch church upon the two on Thirteenth and Fourteenth streets. The next day, December twenty-fourth, Lincoln made upon all the fourteen houses and lots a blanket mortgage for $14,000 to Asa W. Parker, payable on demand. Afterwards, in February, Lincoln made upon all the fourteen houses a second blanket mortgage for $6,000, also payable on demand, to one John Hart, who assigned it to Sophie G. Parker, wife of Asa W. Parker. Two months afterwards, in April, Lincoln made, on the same fourteen houses and lots, a third blanket mortgage for $5,000, also payable to said Asa W. Parker on demand.

Sophie G. Parker, assignee of John Hart, foreclosed the second blanket mortgage ($6,000), and at the sale plaintiff in this action bought one house, No. 12, Mr. Pundt, defendant, bought one, No. 10, and Mrs. Mabee, bought one, No. 3, afterwards conveyed to defendant Brown, and Asa W. Parker bought eight others, Nos. 5, 6, 7, 8, 9, 11, 13 and 14. The amount due on said decree was paid without selling the other houses (Nos. 1, 2 and 4).

Asa W. Parker brought foreclosure of his mortgage for $5,000, the third blanket mortgage, and at the sale under the decree he sold the three houses and lots (Nos. 1, 2 and 4) not sold under his wife’s former decree, and they were bought by her. Meanwhile Asa W. Parker, as owner of the third blanket mortgage, had redeemed from the first mortgages

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and paid the amount to the general synod and the board of education of the Dutch church, and taken assignments of the mortgages and of the fourteen foreclosure suits then pending in the name of Ralph G. Packard, a defendant herein, as his appointee.

Ralph G. Packard, his appointee, discontinued the suits against the two houses and lots (Ros. 13 and 14) on Thirteenth and Fourteenth streets, and assigned the two first mortgages to one Mrs. Mary E. Sweezy, a client of Parker, and she immediately brought foreclosure, making the Packards, owners of the $14,000 mortgage, parties, and recorded judgment of foreclosure thereunder, and the houses were sold to one Daniel Doody.

All this was done while the suit at bar was pending, and without notice to any of the other owners of the rest of the lots. This was a scheme to release the two houses and lots, 13 and 14, from the $14,000 mortgage, and to load the remaining twelve houses and lots with the whole amount of the mortgage.

W. S. Logan, for pl’ffs: E. G. Nelson, for def’t, Packard; A. W. Parker, for def’t, Parker; Bristow, Peet & Opdyke, for def’ts, Mabee and Brown; M. H. Topping, for def’t, Pundt.

The findings of fact are fully sustained by the evidence. Upon those facts the right of the plaintiff to relief is unquestionable. The equitable principle is that the burden which rests upon the whole property shall be apportioned among the various parcels in proportion to their value. The doctrine is ancient and well established, and is so familiar as not to require the citation of authorities, which are abundant.

The right of the mortgagee is to have his money; the - right of the various owners is that each may have his property discharged, upon paying his proportionate part of the burden, so far as may be without endangering the mortgagee’s complete security.

The judgment below is in the main correct, but a slight modification should tie made which will more fully-protect the rights of the appellants, Pundt and Brown.

The decree below puts upon the plaintiff the duty to pay the whole mortgage debt within thirty days.

Suppose he fails to do that, where will the other owners be left. The judgment should be modified by directing that each house be decreed to be liable for the amount found chargeable upon it; that each owner be at liberty to pay such amount to the referee, and that in case any owner neglects so to pay, his house be sold. In other respects the judgment is affirmed.

Barnard, P. J., and Dykman, J., concur.