Kmetz v. . De Ronde

132 N.E. 921, 231 N.Y. 641, 1921 N.Y. LEXIS 814

Opinion

Per Curiam.

The sureties were rightly charged with the payment of the mortgages which their principal had covenanted to assume.

As between grantor and grantee, the land is generally, if not always, the primary fund for the satisfaction of a mortgage which one of them has agreed to pay (Slauson v. Watkins, 86 N. Y. 597; Matter of Wilbur v. Warren, 104 N. Y. 192).- As between mortgagee and grantee, there is no such restriction. The mortgagee ,may sue upon the purchaser’s covenant of assumption without resort to the security (Burr v. Beers, 24 N. Y. 178; Thorp v. Keokuk Coal Co., 48 N. Y. 253). Here the vendor of the land was also the holder of the mortgages. As between him and the defendants, the covenant to assume was a covenant to pay (Burr v. Beers, supra; Thorp v. Keokuk Coal Co., supra).

The motion should be denied, with ten dollars costs and necessary printing disbursements.

All concur.

Motion denied.