Freeman v. Auld

44 Barb. 14, 1865 N.Y. App. Div. LEXIS 62

• Court: New York Supreme Court
• Decided: May 2, 1865
• Status: Published

Opinion

By the Court, Clerke, J.

However members of this general term may be disposed to question the decision in this case at a previous general term, unless this appeal presents facts different from those on which the former decision was founded, the judgment must be affirmed.

That decision was founded on the fact that only $2000 were advanced by the mortgagee to the mortgagor, and that, although $4000 were set forth as the sum loaned, in the bond and mortgage, and although when the defendant Auld purchased the mortgaged premises, the whole amount of $4000 was deducted from the purchase money, and accordingly allowed or credited, by his gkantor to him, yet, as the lien attached only for the $2000, the judgment in this foreclosure suit could only be for that sum. The decision being placed on this ground, it would have made no difference, if it had been proved, at the first trial, as it has been at the second, that the defendant Auld was informed before his purchase of the mortgaged premises, that the mortgage was claimed as a lien for the whole amount, and that, after making the contract of purchase from Coyle, and before he received his deed, he paid to Allen & Stevens $93.33 for the interest upon said mortgage, for four months, on the sum of $4000. This could not affect the principle- that a lien can not attach under a mortgage for a larger sum than that actually loaned, and that payment of the whole sum could not be enforced by the mortgagees or their assignees, even as trustees for the original mortgagors, for the amount not advanced, although the latter had credited their grantees with the whole amount on the purchase money.

[New York General Term, May 2, 1865.

In accordance with the former decision, the judgment must be affirmed, with costs.

Ingraham, ClerJce and Geo. G. Barnard, Justices.]