Fleishhauer v. Doellner

60 How. Pr. 438, 9 Abb. N. Cas. 372

Opinion

Van Vorst, J.

I am of opinion that the motion comes too late. The mortgaged premises have been sold under the decree and in pursuance of its directions, and the moneys applied according to its terms. The taxes were deducted from the bid of the purchaser as the judgment directed.

If there was anything wrong in the judgment, relief should have been asked before the sale was made following its terms. But were it otherwise, I think the defendant Guggenheimer was legally and equitably liable for the deficiency after deducting the taxes from the purchaser’s bid. Gruggenheimer, by assuming the payment of the bond and mortgage, became the principal debtor, and it was- his business to see that- the taxes were paid.

The mortgagee is entitled'to the amount of his mortgage, and he cannot be injured through the accumulation of taxes growing out of the default of those whose duty it was to see that they were paid.

While Gruggenheimer covenanted to pay the bond and mortgage, and thereby became the principal debtor, he conveyed the premises without exacting a similar covenant from his grantee, so he continued to remain personally chargeable for the payment of the bond and mortgage.

The Mutual Life Insurance Co. agt. Davis (44 Superior Ct. R., 173) and Marshall agt. Davis (78 N. Y., 414) are adverse to the contention of the defendant, and his motion is denied, with ten dollars costs.