Dinniny v. Gavin

4 A.D. 298, 39 N.Y.S. 485

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 15, 1896
• Status: Published

Opinion

Landon, J.:

We think the mortgage, which, is under seal, contains a covenant by the deféndants to pay the amount for which the mortgage was given. The defendants thereby agree, under seal, to pay it, and that is enough. (Booth v. Cleveland Mill Co., 74 N. Y. 15.)

The fact that the Statute of Limitations bars recovery upon the notes does not bar it upon the covenant in the mortgage. The notes are not paid; the remedy upon them is barred, but it is not barred upon the covenant in the sealed instrument, and the plaintiff is at liberty to resort to that covenant to secure payment of the debt due him. (Hulbert v. Clark, 128 N. Y. 295.)

The defendants urge that because the mortgagees did not fore-' close the mortgage until more than, a year after they took possession , of the mortgaged property they should be held to have taken pos-" session of it in. full satisfaction of the mortgage, or should credit upon it the full value of the property at the time they took possession of it. The delay in the foreclosure was acquiesced in by the defendants, by their hiring and using the property as tenants of the mortgagees. The trial court credited them upon the mortgage debt with the rent which they paid. Thus the defendants had the benefit of the delay, and of the wear and tear of the property and of its depreciation -in value. The sale upon the foreclosure fixed the value of the property, its fairness not being impeached. (Casserly v. Witherbee, 119 N. Y. 522.)

The judgment should he affirmed, with costs.

All concurred.

Judgment appealed from affirmed, with costs.