Opinion
December, 1923. Received March, 1924.
Charles A. Tipling ( Ira G. Darrin, of counsel), for plaintiff.
Wood, Cooke Seitz ( Edward F. Quinn, of counsel), for defendants George M. Reischmann, Jr., and Anna M. Reischmann.
Elbridge F. Hills, guardian ad litem for infant defendants Frank W. Terwilliger and Gilbert S. Terwilliger.
The action is for the foreclosure of a mortgage on certain property in Hamilton county, dated September 23, 1915, and given by defendants Reischmann to defendant Elizabeth J. Mead, to secure the payment of the sum of $3,000 on September 23, 1918, with interest at five per cent, payable semi-annually, April first and October first each year. On September 25, 1915, defendants Reischmann conveyed the property to defendant Florence S. Rhoades. She did not assume the mortgage. On February 15, 1918, the mortgagee assigned the mortgage to plaintiff. The assignment was recorded April 17, 1918. On the date of the assignment, Gilbert H. Rhoades, husband of the owner, gave plaintiff his bond, conditioned for the payment of $3,000 on September 23, 1918, the date when the mortgage became due, with interest at the rate of five and one-half per cent, payable April first and October first each year. That bond contained a recital that it was given to secure the mortgage. It does not refer to any other bond. On October 15, 1920, the Rhoades, husband and wife, gave a mortgage for $15,000 on the property to the defendants Terwilliger, two of whom are infants. The husband, Rhoades, died on October 3, 1921. The principal remains unpaid. Interest has been paid to October 1, 1921. The action was commenced in June, 1922. The bond, if any, accompanying the mortgage has not been produced, but the mortgage contained a recital to the effect that the mortgagors were indebted to the mortgagee in the sum of $3,000, secured by a bond of even date, and it contained a covenant on the part of the mortgagors to the effect that they would pay the indebtedness, as therein provided. In the first place, although not conclusive, the recital in the mortgage is some evidence that a bond was given and the mortgagors, having signed it with such a recital, may not be heard to question it. Moreover, the covenant in the mortgage is sufficient to support a deficiency judgment against them. Real Property Law, § 249. In the second place, interest was paid to the mortgagee from the date of the mortgage to the time of its assignment, a period of about two and one-half years. And the assignment recited that it included the bond described in the mortgage, whereupon interest was paid to the assignee to the time of the default, a period of about three and one-half years. And the assignee owns the mortgage now. So that the evidence is sufficient to show, as against the infant defendants, that the bond has not been paid or assigned to another. Findings accordingly.
Judgment accordingly.