MARIA A. FATTA, Respondent,
GEORGE B. EDGERTON, Appellant.
APPEAL by the defendant, George B. Edgerton, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 2d day of November, 1910, upon the decision of the court rendered after a trial at the Erie Special Term.
Thomas A. Sullivan, for the appellant.
Edward P. White, for the respondent.
The action is to cancel and annul a bond and mortgage given by the plaintiff to the defendant to secure the payment of the sum of $2,800.
In November, 1903, Antonio Battaglia and his wife, the plaintiff, acquired the title as tenants by the entirety of premises situate on Seventh street in the city of Buffalo, and which were held subject to two mortgages, on one of which known as the Utley mortgage there was unpaid about $1,900, and on the other, designated the Snyder mortgage, about the sum of $1,000. In November, 1908, the owner of the smaller mortgage demanded its payment. Domestic infelicities were disturbing the happiness of the Battaglia family, and one Fatta, now claimed to be the husband of the plaintiff, applied on her behalf to Moses Day for a loan of $3,000 for the purpose of paying the two outstanding mortgages, then amounting to about $2,750. Fatta was a contractor and builder and had previously obtained loans of money through Mr. Day, who was a real estate broker and lawyer, which had been secured by mortgages upon real
estate owned by Fatta. Day examined the property and advised Fatta that he could obtain the sum of $2,800, to be secured by first mortgage upon the premises referred to, and he was requested to procure that sum. The plaintiff agreed to pay him two and one-half per cent commissions for procuring the money, to pay the mortgage recording tax, the tax liens and the incidental expenses in clearing up the record from liens in order that the mortgage should be the first lien on the premises.
Day obtained the money of the defendant, for whom he had previously made loans on mortgage security. The defendant was apprised of the two existing mortgages and gave Day his check for the $2,800, payable to his order, expecting that these prior liens would be paid and his mortgage would be the first lien upon the premises, and that was also the expectation of the plaintiff. Day placed the money in the bank to his credit, advised Fatta that he had it and was ready to close up the transaction. The bond and mortgage to the defendant for the sum of $2,800 were executed on December 12, 1908, by the plaintiff and delivered to Day, who shortly thereafter delivered the same to the defendant, who believed the mortgage was the first lien upon the property.
It seems that the $2,800 were inadequate to pay the outstanding liens and to carry out the agreement which the plaintiff had made with Day. It will be necessary, in order to comprehend the condition of affairs, to present another series of facts.
Battaglia, the husband of the plaintiff, had been arrested for a felony and released on bail, which was furnished by one Bellanca. In order to indemnify Bellanca against loss on the bond, the Battaglias conveyed the premises to him by deed, absolute on its face, although only intended as security. The grand jury did not indict Battaglia and he was discharged and the bail bond was canceled. In the meantime Battaglia commenced an action for absolute divorce against the plaintiff, and the judgment in his favor was entered January 21, 1909.
Bellanca did not reconvey the premises, apparently because of the pending divorce action, and the plaintiff commenced an action against him and Battaglia to establish her title in the premises. The action was subsequently compromised upon the agreement that they would convey all their title and interest in the premises to the
plaintiff upon the receipt of $800. Philip Fennelly, an attorney, then practicing law in Buffalo, represented the plaintiff in the action by her and made the adjustment in her behalf, and the $800 were paid to him by the plaintiff in order to carry out the agreement. A deed was executed by Bellanca and wife and Battaglia in supposed conformity to this arrangement and delivered to Fennelly, who was named the sole grantee in it, and which was executed and delivered on the understanding on the part of the grantors that he would reconvey to the plaintiff, which he did, and the two deeds were recorded simultaneously. After a time Fennelly paid $400 to the attorney for Battaglia in part payment for ...