Summary
In Osborne v. Heyward (40 App. Div. 78) the Appellate Division of this department held: "It follows that the appellants, who had conveyed the property subject to the payment of this mortgage, occupied the position of sureties to the extent of the value of the land, and were entitled to the rights of sureties.
Summary of this case from Adler v. BerkowitzOpinion
April Term, 1899.
Charles E. Sentell for the appellants.
Gerrit Smit., for the respondents.
There is no decision in this case such as the Code requires upon the trial of issues of fact. The so-called decision, printed in the appeal book, is the copy of an indorsement on the cover of the summons and complaint, in these words: "Judgment of foreclosure and sale with deficiency judgment. W.D.D., J.S.C." This is neither a decision stating concisely the grounds upon which the issues have been decided and directing the judgment to be entered thereon as prescribed in section 1022 of the Code of Civil Procedure, nor is it a decision stating separately the facts found and the conclusions of law. Hence, it affords no basis for the judgment which was subsequently entered. It has repeatedly been adjudged by the Appellate Division that a final judgment determining issues cannot be upheld in the absence of the findings or formal decision required by section 1022 of the Code; and the omission is fatal to the judgment in the case at bar.
Under such circumstances it has been our practice merely to reverse the judgment and remit the case to the court below in order that the statutory findings or decision may be made and filed. ( Hall v. Beston, 13 App. Div. 116; followed in Shaffer v. Martin, 20 id. 304.) In the present case, however, we deem it best to order a new trial, inasmuch as we think a different conclusion was required as to the liability of the appellants if the learned trial judge believed the uncontradicted testimony in their behalf as to the depreciation in the value of the mortgaged property.
The appellants insist that they are relieved from liability for any deficiency which may arise upon the sale of the mortgaged premises by reason of the fact that when the mortgage became due and the property was worth enough to pay it in full the plaintiffs neglected to take any proceedings to collect it, although the appellants then expressly notified and requested them so to do.
The bond and mortgage for $2,500 were executed and delivered by the appellants to the plaintiffs' testator in 1868 and became due in 1893. The appellants conveyed the mortgaged premises in 1889 to one Matilda Sanders, subject to the mortgage, which, however, was not assumed by their grantee. In September, 1895, they notified the plaintiffs to collect the amount of the bond and mortgage. One of the appellants, who was a real estate broker, testified that the market value of the property in that year was from $3,200 to $3,500, while its value at the time of the trial was from $2,000 to $2,200. The plaintiffs introduced no evidence whatever upon the question of value.
If the opinion evidence in behalf of the appellants on this subject is correct, and their request to the plaintiffs in 1895 to proceed to collect the mortgage was clear and explicit, it would seem that they were relieved from any liability for the deficiency. By the conveyance subject to the mortgage, the land became the primary fund for the payment of the mortgage debt. The grantee of the land subject to the mortgage, although not in a strict sense the principal debtor, has been held to stand in that relation to the land to the extent of its value. ( Murray v. Marshall, 94 N.Y. 611.) The case cited overrules Penfield v. Goodrich (10 Hun, 41) so far as that decided that the mortgagor and grantor remained the principal debtor, and that the grantee became such only when he convenanted to pay the mortgage debt and assumed it as a personal liability.
It follows that the appellants, who had conveyed the property subject to the payment of this mortgage, occupied the position of sureties to the extent of the value of the land, and were entitled to the rights of sureties. ( Spencer v. Spencer, 95 N.Y. 353.) In this respect their legal status was no different from what it would have been if the grantee of the premises had personally assumed payment of the mortgage debt. In such cases the rule is settled that the neglect of the mortgagee to proceed to foreclose the mortgage and collect his debt when duly requested to do so, will relieve the mortgagor from liability for any subsequent deficiency, if it appears that the whole debt would have been collected out of the land by compliance with his request, but has become uncollectible therefrom on account of the delay. (Thomas Mort. [2d ed.] §§ 221-224; Remsen v. Beekman, 25 N.Y. 552; Russell v. Weinberg, 4 Abb. N.C. 139; and see Hunt v. Purdy, 82 N.Y. 486. )
The judgment should be reversed and a new trial granted, with costs to abide the final award of costs.
All concurred.
Judgment reversed and a new trial granted, costs to abide final award of costs.