Sheehan v. Spring Valley Wood Products Corp.
Opinion
These forms authorized in the Real Property Law abridged covenants in deeds and mortgages. They read into such [122] insurance covenant the terms “ successors and assigns; ” also • “ personal representatives,” which are to be apphed both to covenantor and covenantee. This legislation was not intended to work a change in the substantive law, but to reduce and simplify verbiage.
The effect- of these enactments regarding mortgages is to include as parties in these covenants not only the mortgagor ,but- the representatives thereof, an implication which, besides the maker of the covenant, binds those who may thereafter assume its obligation. Here none of the grantees assumed the plaintiff’s mortgages, but all took title subject thereto. Such grantees are hot bound personally to -insure. The •clause, however, charges them with liability to have added to the mortgage debt an amount to reimburse the mortgagee for any insurance premium which she might properly incur for her security.
An examination of the original record in Dunlop v. Avery (89 N. Y. 593), tried by a referee, shows a finding by him (p. 23), “ That the said defendant, Chapman W. Avery, in said mortgage covenanted on his own behalf and in behalf of his legal representatives, to keep the property described in said mortgage insured for $2,000 and that the losses if any by fire should be paid to the said Dunlop (plaintiff), or a sufficient amount thereof to satisfy any balance unpaid on the said mortgage.” Yet that judgment held that such [123] covenant was “ entirely personal in its character, does not affect the land or run with it, and is collateral and incidental to the remaining covenants in the mortgage” (p. 599). Obviously the same effect must follow a rule of statutory construction which makes this short form equivalent to the longer form there considered.
That such affirmative covenants do not run with the land was mentioned in Miller v. Clary (210 N. Y. 127).
The large and increasing volume of mortgage. insurance forbids the idea that in a statute to abridge common forms it was intended to overturn and unsettle a rule of covenants accepted in New York since 1882 and reaffirmed in Reid v. McCrum (91 N. Y. 412) and now widely recognized. (Joyce Ins. [2d ed.] § 23, n. 8; 27 Cyc. 1259; Columbia Ins. Co. of Alexandria v. Lawrence, 10 Pet. 507, 513; Farmers’ Loan, etc., Co. v. Penn Plate Glass Co., 186 U. S. 434.)
I advise, therefore, to reverse the conclusions and judgment of the learned Special Term, and to dismiss the complaint, with costs in both courts.
Jenks, P. J., Mills, Rich and Kelly, JJ., concur.
Judgment reversed and complaint dismissed, with costs in both courts.
Footnotes
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194 A.D. 119 (Sheehan v. Spring Valley Wood Products Corp.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.