Von Bernuth v. Sutton

6 N.Y.S. 377, 25 N.Y. St. Rep. 508, 53 Hun 632, 1889 N.Y. Misc. LEXIS 587

Opinion

Barnard, P. J.

Kitchen was the principal debtor. He had bought the land covered by the defendant’s mortgage, and agreed to pay the mortgage as part of the purchase price. The defendant required payment of Kitchen. When the payment was made, the defendant, at Kitchen’s request, executed an assignment in blank, with power to fill up the blank, accompanied with a certification of the amount due. The name of the plaintiff was subsequently filled in as the plaintiff or purchaser. As between Kitchen and Sutton, the transaction was a payment, and the defendant was not a vendor of a mortgage on Kitchen’s property. If Kitchen chose to take an assignment in blank, either to protect his title or to put the mortgage again in circulation, he had the right to do so. Champney v. Coope, 32 N. Y. 543. Sutton, the defendant, by assenting to this form of business, was not bound to make good the mortgage to plaintiff, because it was a second mortgage, and both Kitchen- and Sutton believed it to be a first mortgage. Ho representation was made-in respect to the order of lien., The judgment should therefore be affirmed,, with costs. All concur.