Quinlan v. Stratton

The plaintiff is the assignee of a second mortgage. It was given by Emily A. Stratton to her mother, Emily Stratton, and assigned by her to one Susan C. Currie, and by her to the plaintiff. There is no question made as to this mortgage, nor as to the amount due upon it. There was a first mortgage for $2,500 on the property, and the complaint averred that this mortgage was to have been paid by the loan procured on the second mortgage, by agreement between Emily A. Stratton and her mother; that it was only paid in part, and that the defendant Judson had taken an assignment of the first mortgage in concert with Emily A. Stratton, and claiming that the plaintiff’s mortgage should be deemed the first lien on the premises. The proof failed to show that the first mortgage was subject and inferior to the plaintiff’s mortgage in respect to the amount paid by Judson for the first mortgage, which was the actual amount left unpaid on it. The proof did show that some of the money obtained by the second loan actually went to extinguish the first mortgage, and that the agreement between Emily A. Stratton and her mother was that the loan was all to be used to pay the first mortgage. So far the equities seem to be plain. Judson can hold his claim for all he paid to get it; but the mortgage he holds after he is paid in full should be held for the money, which went to extinguish it, derived from the second loan. That was the agreement between the owner of the land and the person who loaned the money, and no reason is perceived why Judson can object. He is paid in full. Mrs. Stratton cannot object that her property be held as if the portion of the new loan had been used to purchase the first mortgage pro tanto, (Gans v. Thieme, 93 N. Y. 225. The evidence *154shows that one James T. Stratton gave a mortgage to Susan 0. Currie for $2,750 in April, 1865. The defendant claims that Emily Stratton, her mother, asked her to make the loan, and that she “reluctantly sold” the mortgage now owned by Judson, and had to covenant that the $2,750 mortgage was collectible, which realized a large loss. The proof fails to show that the defendant Emily A. Stratton had any claim against Emily Stratton or Susan C. Currie when they severally made the assignments of the mortgage now held and owned by the plaintiff. The first objection to the decree has no weight, if these conclusions are just. The case will then stand as if the plaintiff held a second mortgage, and the defendant Judson a first mortgage, and the decree provided that the first mortgagee should take his debt, interest, and costs, and assign to the second mortgagee. This is in accordance with settled law. Twombly v. Cassidy, 82 N. Y. 155. The judgment should therefore be affirmed, with costs. All concur.