Mack v. Austin
New York Supreme Court
Appeal from a judgment dismissing the plaintiff’s complaint, entered upon a decision made at the Cayuga Circuit. The action was brought to recover a deficiency arising upon the foreclosure of a mortgage upon certain real estate made by the defendant’s testatrix which had been assigned by the mortgagees to the plaintiff. The premises were sold in pursuance of a statutory foreclosure.
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Appeal from a judgment dismissing the plaintiff’s complaint, entered upon a decision made at the Cayuga Circuit. The action was brought to recover a deficiency arising upon the foreclosure of a mortgage upon certain real estate made by the defendant’s testatrix which had been assigned by the mortgagees to the plaintiff. The premises were sold in pursuance of a statutory foreclosure. The complaint alleges ‘ ‘ that before this action was commenced the said deficiency upon said mortgage * * * was duly demanded of said -defendant,” and then follows an ordinary prayer for a money judgment in the…
1Opinion of the Court
Hardin, J.:
No express covenant to pay the sum named in the condition of the mortgage was inserted and none can be implied. (1 R. S., 738. § 139; Hone v. Fisher, 2 Barb. Ch., 559; Severance v. Griffith, 2 Lans., 38; Culver v. Sisson, 3 N. Y., 264; Turk v. Ridge, 41 N. Y., 201; Gaylord v. Knapp, 15 Hun, 87; Coleman v. Van Rensselaer, 44 How., 368.)
The argument of the appellant, that the words of the mortgage *536import an intent on the part of the mortgagor to charge her estate generally with the debt, in this law action upon the terms of the mortgage, does not aid the appellant, as none of the…
2Cases cited7 opinions
- Stevens v. Mayor, Aldermen & Commonalty of New YorkNew York Court of Appeals · 1881
- Turk v. . RidgeNew York Court of Appeals · 1869
- Hyde v. . GoodnowNew York Court of Appeals · 1850
- Elder v. RouseNew York Supreme Court · 1836
- Culver v. . SissonNew York Court of Appeals · 1850
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