Smith v. Rice
New York Court of Common Pleas
Appeal from a judgment of this court entered upon the dismissal of a complaint. The action was brought by plaintiff, as executrix, to recover the sum of $2,000, part of the purchase money of land sold by her testatrix to defendant, to secure the payment of which sum defendant had executed and delivered to the testatrix a mortgage of the property so purchased by him.
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Appeal from a judgment of this court entered upon the dismissal of a complaint. The action was brought by plaintiff, as executrix, to recover the sum of $2,000, part of the purchase money of land sold by her testatrix to defendant, to secure the payment of which sum defendant had executed and delivered to the testatrix a mortgage of the property so purchased by him. The mortgage was in the form commonly known as “ mortgage without bond,’’ as follows: “ This indenture, made the thirty-first day of July, in the year one thousand eight hundred and seventy-one, between George Samuel Rice, of…
1Opinion of the CourtVan Hoesen, J.
The case of Elder v. Rouse (15 Wend. 218) has never been overruled, and it may be conceded to be a correct exposition of the statute (1 R. S. 738 § 139), which provides that “no mortgage shall be construed as implying a covenant for the payment of the sum intended to be secured; and where there shall be no express covenant for such payment contained in the mortgage, and no bond or other separate instrument to secure such payment shall be given, the remedies of the mortgagee shall be confined to the lands mentioned in the mortgage.” In Elder v. Rouse, Judge Nelson said that an unqualified…
2Cases cited4 opinions
- Elder v. RouseNew York Supreme Court · 1836
- Culver v. . SissonNew York Court of Appeals · 1850
- Coleman v. RensselaerNew York Supreme Court · 1873
- Brandreth v. SandfordThe Superior Court of New York City · 1853