Browne v. Perris

11 N.Y.S. 97, 63 N.Y. Sup. Ct. 601, 32 N.Y. St. Rep. 170, 56 Hun 601, 1890 N.Y. Misc. LEXIS 622

• Court: New York Supreme Court
• Decided: May 23, 1890
• Status: Published

Opinions

Van Brunt, P. J.

In the year 1878 one William G. Perris acquired, by purchase, a certain lot of land situate on Second avenue, near One Hundred and Twenty-Fourth street, in the city of New York. At the time of his acquiring the title to said land, the same was subject to the lien of a certain mortgage, made by one Hanson and wife to the Manhattan Savings Institution to secure the payment of the sum of $4,000, and interest, mentioned in a certain bond of said Hanson, bearing date August 31, 1870. In March, 1879, the Manhattan Savings Institution duly assigned the said bond and mortgage to the New York Life Insurance Company. In November, 1886, Perris, being still the owner of said premises, paid to the New York Life Insurance Company the sum of $4,116, and received from said company an assignment of said bond and mortgage, the habendum clause in which assignment is as follows: “To have and to hold the same unto the said party of the second part, his executors, administrators, and assigns, forever, as a muniment of title, and not to merge in the fee of the land covered thereby, which is now owned by the said party of the second part, subject only to the proviso in-thesaid indenture of mortgage mentioned.” The said instrument of assignment was a printed blank, and the words in italics were written into said instrument. Prior to the word “executors” was also printed the word “heirs, ” •and this word was erased. Mr. Perris died intestate, subsequent to the delivery to him of said assignment, and without having parted with-said mort-rgage, or the said real • property. The premises thereupon descended to his heirs, being his mother, the defendant, Jane B. Perris, for life, and his sister Frances M. Browne in fee, subject to the dower rights of his widow, who thereafter qualified as administratrix of the personalty of the deceased. Frances M. Browne conveyed and assigned to the plaintiff all her right, title, -and interest in and to said estate, real and personal. The administratrix -claiming the said bond and mortgage as part of the personal estate of said intestate, this action was brought, whereby the plaintiff prayed judgment that -the bond and mortgage be declared to be a muniment of title of William G. Perris and his heirs and their assigns, and that said mortgage ceased to be a lien upon said premises, except against such persons as might claim or assert ¡title thereto adverse to the title of said Perris and his heirs or assigns, and ¡that said plaintiff be adjudged to be entitled to the possession of said bond and mortgage, and of the assignment thereof. The defendants, by their answer, admitted the facts above stated, and prayed the judgment of the court ■that said bond and mortgage be declared to be a valid and existing lien upon *±he premises mentioned in the complaint. Upon the trial the court adjudged that said bond and mortgage were assigned to and vested in said Perris, as a ■muniment of his title, and for the purpose of protecting and defending the same; that upon his decease the said property descended to his heirs at law, -subject to the right of dower of the widow; and that said heirs at law to whom said fee descended thereupon became entitled to the custody of said bond and mortgage, together with the said assignment thereof; and that the •said administratrix had no right, title, or interest in the same; and that-the ■plaintiff was entitled to the possession and control of said bond and mortgage ¡for the purpose of use as a muniment of title. And from the judgment thereupon entered this appeal is taken.

It is urged upon this appeal that it appears distinctly that the deceased procured the assignment of this mortgage for the purpose of keeping it alive as ■a muniment of title, which it could not be if it was paid and canceled; but ■that there was nowhere shown any intention to deprive his personal representatives of its administration, or to prevent the parties entitled to receive •his estate according to the statutes of distribution, but that the contrary indent is plainly proved, because he struck out from the assignment the word "“heirs,” and made it read by an affirmative act “executors, administrators, -and assigns.!’ It must undoubtedly be conceded that, had this mortgage been ¡assigned simply to the owner of the fee at the time it was paid by him, it •¡would have merged, and thereby became extinct, and could not have been made ¡available for any purpose in connection with the title of the premises named ¡therein. The owner of the fee, evidently conscious of this fact at the time /he paid the mortgage, took an assignment, by the very terms of which the -ordinary legal result would not follow. It was expressly provided that, by ■the assignment of this bond and mortgage to the owner of the fee, it should -not merge in the fee of the land covered thereby, but that it should be held • by him as a muniment of title. The fact that the words “executors, administrators, and assigns” were left in the instrument, being a part of the printed portion of the instrument, does not overcome the express provision contained in the instrument that this bond and mortgage was to serve as a muniment of title. The fact that the word “heirs” was stricken out does mot seem to us to be so pregnant in import as is claimed by the appellant. It is evident that the draughtsman struck out the word “heirs” because, -¡under ordinary circumstances, a bond and mortgage which is assigned goes to the executors, administrators, and assigns of the assignee, and not to his heirs, in case of his decease while holding the same. But, in as forcible language as could be employed, the'assignee of the bond and mortgage, being the owner of the fee of the land covered thereby by the very instrument through wtiich he is clothed with the title, states that it is not to merge in the fee, because he desires to use it as a muniment of title. It is not that he desires to keep it outstanding for any other purpose, or that it should descend to his personal representatives, but that it should be a muniment of title; in other words, that it should go with the title to fortify it into whosesoever hands the title might fall through him. He thereby attached the bond and" mortgage to the title of these premises. He prevented its merging, because he expressed his intention that it should not merge. • He did not keep it alive generally in order that he might assign it to whom he might please, but be kept it alive for a specific purpose, and for none other, viz., for the purpose of fortifying his title. Under these circumstances it is difficult to see how Mis object and intention could be perverted by allowing the bond and mortgage to be separated from the title to the land as a muniment of title, to which it was expressly provided that it should be held. We think there was a clearly expressed intention in the form of the instrument itself that that bond and mortgage and the title to these premises should descend together, and that it should not be in any manner considered as a charge upon the land, except so far as it might be necessary to enforce the same to protect the fee of the land which'might be acquired through him.

The question as to whether it would be equitable or inequitable to take away all the property of the wife and mother for the benefit of the sister cannot enter into the consideration of this case. It is simply a question of intention, and that intention seems to us to be so absolutely clearly expressed upon the face of this assignment that no doubt can be entertained in respect thereto. The judgment should be affirmed, with costs.

Bartlett, J., concurs.