Matter of Wilbur v. Warren

27 Citing cases

  1. Rochford v. Murphy

    291 N.W. 192 (Mich. 1940)

    14 Am. Jur. p. 485. See, also, 2 Tiffany on Real Property (2d Ed.), p. 1624; Fischer v. Union Trust Co., 138 Mich. 612 (68 L.R.A. 987, 110 Am. St. Rep. 329); Wilbur v. Warren, 104 N.Y. 192 ( 10 N.E. 263); Calcote v. Elkin (Tenn. Sup.), 15 S.W. 85; Ex parte Hardin, 34 S.C. 377 ( 13 S.E. 615., 13 L.R.A. 723, 27 Am. St. Rep. 820). In passing it may be noted that since the description in the levy made upon the land was the same as the description contained in Murphy's first deed to plaintiffs, if it were to be found that this description in the deed was inadequate to pass title, then since the levy contained the same description it too was invalid and ineffective. Under such circumstances plaintiffs would not be entitled to recover against defendant on the theory of breach of covenant in consequence of their having paid the claim of his judgment creditor.

  2. Peterson v. Herington

    210 N.W. 617 (Minn. 1926)   Cited 12 times

    Comstock v. Drohan, 71 N.Y. 9. As between these parties the land was the primary fund for the payment of the first mortgage. 27 Cyc. 1352 (b). This is so even though the grantee has assumed the mortgage. Matter of Wilbur v. Warren, 104 N.Y. 192, 10 N.E. 263. Plaintiff does not claim to have made any payment of taxes or interest by virtue of G.S. 1923, § 2209 or § 9648. She stands exclusively on her contract as evidenced by the assumption clause.

  3. Central Hanover Bank T. Co. v. Roslyn Estates

    266 App. Div. 244 (N.Y. App. Div. 1943)   Cited 14 times
    In Central Hanover, which was an action upon a bond and foreclosure of an accompanying mortgage, the mortgagor sold the premises to purchasers, who subsequently defaulted. During the pendency of the ensuing mortgage foreclosure action, said purchasers executed and delivered their deed conveying the property to the plaintiff mortgagee with a provision in the deed that the mortgage would survive.

    If merger at law be not deemed to have been effected, circuitous litigation would result by reason of the payment of the debt by the mortgagor, with resultant subrogation to it of the mortgage and foreclosure thereof by the mortgagor ( Calvo v. Davies, 73 N.Y. 211, 215) against the mortgagee as owner of the fee. ( Matter of Wilbur v. Warren, 104 N.Y. 192, 197.) Even where the mortgagor expressly agreed with the mortgagee that a mortgage was not to merge in the fee, creating a situation where there was a direct agreement between the parties against merger, an action on the bond was held properly dismissed on the ground that foreclosure, at least in the first instance, was the only available remedy.

  4. Bonhoff v. Wiehorst

    57 Misc. 466 (N.Y. Misc. 1908)

    In numerous cases the courts of this State have had occasion to discuss and construe the legal and equitable force and effect of agreements by grantees to assume the payment of mortgages covering property conveyed to them, and have uniformly held that by such agreements the grantee simply covenanted to save harmless his grantor from any deficiency judgment which might arise upon the foreclosure of the mortgage assumed. Matter of Wilbur v. Warren, 104 N.Y. 197; Slauson v. Watkins, 86 id. 597; Keller v. Lee, 66 A.D. 184; Osborne v. Hayward, 40 id. 78; Cumberland v. Codrington, 3 Johns. Ch. 229; Halsey v. Reed, 9 Paige, 446; Coffin v. Lockhart, 60 Hun, 178; Huntley v. Re Voir, 66 id. 291. As was said in Matter of Wilbur v. Warren, 104 N.Y. 194: "On a conveyance by the mortgagor subject to the mortgage, the plain meaning of the transaction between the parties is that the land shall pay the mortgage debt in exoneration of the personal liability of the mortgagor on his bond, and in equity on such a conveyance, the land is treated as the principal debtor and the mortgagor as surety for the mortgage debt. If the deed in addition contain a covenant on the part of the grantee to pay the mortgage, the land still remains the primary fund for the payment of the mortgage. * * * The essential purpose of such a covenant is to indemnify the mortgagor against the contingency that the land may not bring enough to pay the mortgage debt and thereby leave him

  5. In re Stamford Road Const. Co.

    5 F. Supp. 650 (D. Conn. 1933)

    In the absence of proof of a valid consideration for the assignment and the evidence to the contrary, it was of no force and effect. Wilbur v. Warren, 104 N.Y. 192, 196, 10 N.E. 263; Alger v. Scott, 54 N.Y. 14, 15; Shaw v. Tonns, 20 App. Div. 39, 46 N.Y.S. 545. This assignee presumes to attack assignments in favor of other creditors.

  6. In re Diamond Reo Trucks, Inc.

    1 B.R. 57 (Bankr. W.D. Mich. 1979)   Cited 1 times

    The trustee has cited numerous cases in other states which provide that in mortgage assumption situations the promissor is not liable to a third party beneficiary where the primary obligator (promisee) is no longer liable on the obligation. See Wood v. Johnson, 117 Minn. 267, 135 N.W. 746 (1912), Brown v. Stillman, 43 Minn. 126, 45 N.W. 2 (1890), Wilbur v. Warren, 104 N.Y. 192, 10 N.E. 263 (1887), Williams v. Van Gieson, 76 App. Div. 592, 79 N.Y.S. 95 (1902). As indicated above in Michigan there is no personal liability for taxes, the bankrupt was not assessed, the value of its interest in the lease is zero, and, finally and most importantly, the taxes were cancelled by sale to the state and expiration of the redemption period.

  7. Copp v. Sands Point Marina, Inc.

    17 N.Y.2d 291 (N.Y. 1966)   Cited 57 times

    It is fundamental that the holder of a note (or bond) and mortgage has two remedies: one at law in a suit on the debt as evidenced by the note, the other in equity to foreclose the mortgage ( Seaman's Bank for Sav. v. Smadbeck, 293 N.Y. 91, 95; Dudley v. Congregation of St. Francis, 138 N.Y. 451, 457). The note represents the primary personal obligation of the mortgagor, and the mortgage is merely the security for such obligation (see Matter of Wilbur v. Warren, 104 N.Y. 192, 197). When the sovereign affects the relationship between the mortgagor and the mortgagee by means of condemnation proceedings, the law substitutes the condemnation award for the security previously provided by the mortgage ( Muldoon v. Mid-Bronx Holding Corp., 287 N.Y. 227, 231).

  8. Kellner v. Kellner

    129 So. 2d 391 (Miss. 1961)   Cited 2 times

    Roy D. Campbell, Jr., Greenville, for appellees. I. Cited and discussed the following authorities: Barnes v. Rogers, 206 Miss. 887, 41 So.2d 58; Campbell v. Cason, 206 Miss. 420, 40 So.2d 258; Chapman v. Sims, 53 Miss. 154; Corning v. Aldo, 185 Wn. 570, 55 P.2d 1093; Cribbs v. Walker, 74 Ark. 104, 85 S.W. 244; Duntz v. Ames Cemetery Assn., 192 Iowa 1341, 186 N.W. 443; In re claim of Wilbur v. Estate of Warren, 104 N.Y. 192, 10 N.E. 263; Khoury v. Saik, 203 Miss. 155, 33 So.2d 616; Liberty Mercantile Co. v. Allen, 134 Miss. 354, 98 So. 774; McCray v. McCray, 137 Miss. 160, 102 So. 174; McGee v. Swearengen, 194 Ark. 735, 109 S.W.2d 444; Maher v. Cleveland Union Stockyards Co., 55 Ohio App. 995, 9 N.E.2d 995; Mercantile Acceptance Corp. v. Hedgepeth, 147 Miss. 717, 112 So. 872; Moore v. Summerville, 80 Miss. 323, 32 So. 294; Reedy v. Alexander, 202 Miss. 80, 30 So.2d 599; Rice v. McMullen, 207 Miss. 706, 43 So.2d 195; Riegelhaupt v. Ostroffsky, 237 Miss. 521, 115 So.2d 331; Seale v. Easterling, 196 Miss. 496, 17 So.2d 324; Seamen's Bank for Savings, etc. v. Smadbeck, 293 N.Y. 91, 56 N.E.2d 46; Sellers v. Powell, 168 Miss. 682, 152 So. 492; Shelby v. White, 158 Miss. 880, 131 So. 343; Sledge v. Obenchain, 59 Miss. 616; Anno. 162 A.L.R. 556; Secs. 334, 845, 1583, 1852, Code 1942; Griffith's Mississippi Chancery Practice, Sec. 556. McELROY, J.

  9. Seamen's Bank for Savings v. Smadbeck

    293 N.Y. 91 (N.Y. 1944)   Cited 23 times

    ( Dudley v. Congregation, etc., of St. Francis, 138 N.Y. 451, 457.) As between the mortgagor and the mortgagee, the bond is the principal obligation and the mortgage is security for the personal indebtedness. ( Matter of Wilbur v. Warren, 104 N.Y. 192, 197.) It is true that upon the conveyance of the land to the Heckscher Foundation the mortgaged premises became the primary fund for the payment of the mortgage as between Heckscher and the Foundation, but the right of the creditor to resort to the bond for the collection of its debt was not affected by the conveyance. Heckscher could not, by any dealing or contract with another, impair the right of his creditor to proceed on the bond for the recovery of the debt.

  10. Lincoln Trust Co. v. Title Guaranty Trust Co.

    292 Mo. 1 (Mo. 1922)   Cited 3 times

    The land is the primary fund for the payment of taxes, and may be conveyed subject to a lien for taxes in like manner as a conveyance subject to a mortgage. Meriwether v. Overly, 228 Mo. 250; Gray v. Clement, 12 Mo. App. 579; Pomeroy's Equity Jurisprudence, sec. 1205; Drury v. Holden, 121 Ill. 130; Wilbur v. Warren, 104 N.Y. 192; Fuller v. DeVold, 144 Mo. App. 93. (2) The assignee of a leasehold estate who assums the payment of a lien on the property becomes the principal debtor and the assignor stands in the relation of a surety for the payment of the lien debt, and has the same rights and remedies against the assignee as any ordinary surety would have against his principal; and any impairment of that right, as a valid extension of the time of payment, without the consent of the surety, would operate to relieve the surety or assignor.