Root v. . Wright
New York Court of Appeals
Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department,"entered upon an orde,r made June 26,1880, affirming a judgment in favor of plaintiff, entered upon the report of a referee. (Beported below, 21 Hun, 344.) This action, was brought to foreclose a mortgage executed by defendant George Foster, to plaintiffs testator.
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Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department,"entered upon an orde,r made June 26,1880, affirming a judgment in favor of plaintiff, entered upon the report of a referee. (Beported below, 21 Hun, 344.) This action, was brought to foreclose a mortgage executed by defendant George Foster, to plaintiffs testator. Subsequent to the execution of the mortgage Foster conveyed the premises to defendant Wright, by deed absolute on its face, containing a covenant by which Wright assumed and agreed to pay the mortgage. Plaintiff asked a personal…
1Opinion of the CourtAndrews, J.
The liability of the defendant for the deficiency arising on the sale of the mortgaged premises turned upon the question, whether the deed from Foster was intended as an absolute conveyance, or simply as a mortgage. If it was intended as a security merely, the covenant thereon to assume and pay the plaintiff’s mortgage was in effect an agreement between Foster and the defendant that the latter should advance the amount of the prior lien upon the security of the land, and gave no right of action to the plaintiff, who was neither a party to the contract nor the person for whose benefit it was…
2Cases cited5 opinions
- Garnsey v. . RogersNew York Court of Appeals · 1872
- Williams v. . FitchNew York Court of Appeals · 1859
- Britton v. . LorenzNew York Court of Appeals · 1871
- Whiting v. . BarneyNew York Court of Appeals · 1864
- Whiting v. BarneyNew York Supreme Court · 1862
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