Campbell v. Smith

BARNARD, P. J.:

I do not think this case falls within the principle established in Garnsey v. Rogers (47 N. Y., 233). In that case no title passed to the defendant. The deed in which his covenant to pay incum-brances was contained, was, as between the parties to it, a mortgage only. The court held that a covenant by a mortgagee with the mortgagor to pay a prior mortgage was a promise for the benefit of the mortgagor only, and could not be made the basis of an action by the prior mortgagee. In this case Burtis agreed with the Hoods to pay a prior mortgage (the one held by plaintiff) as part of the purchase money. They had signed the bond and mortgage, and were personally liable upon it. They gave Burtis an absolute deed in blank, with leave to fill in the name of any grantee. He filled in defendant’s name as grantee with his assent.

The defendant as against the Hoods became the absolute owner in fee of the lands. As to them he is bound to pay the considera*9tion agreed upon for the' purchase. The rights of the parties are not to be determined by the facts existing at the execution of the blank deed, but by those existing when defendant consented to take the deed with a covenant to pay the plaintiff’s mortgage. By that deed defendant took Hood’s property and agreed to pay its purchase-price to plaintiff. The case thus comes, I think, within the principle of Lawrence v. Fox (20 N. Y., 268).

I think there should be a new trial, costs to abide event.

GilbbRT, J., concurred. Present — BarNArd, P. J., Gilbert and DyxmaN, JJ.

Judgment reversed and new trial granted, costs to abide event.