APPEAL by the defendants, John Offerman and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 24th day of May, 1910, upon the decision of the court, rendered after a trial at the Kings County Special Term, directing a sale in foreclosure.
Norman C. Conklin [William H. Hamilton with him on the brief], for the appellants.
George W. Harper, Jr. [ Theron A. Clements with him on the brief], for the respondent.
Judgment affirmed, with costs, on the opinion of Mr. Justice BLACKMAR at Special Term.
HIRSCHBERG, THOMAS, CARR, WOODWARD and RICH, JJ., concurred.
The following is the opinion delivered at Special Term:
On May 31, 1905, the mortgage in question was made by the Frederick W. Rowe Company, Incorporated, hereinafter called the Rowe Company, to Elijah T. Rowe, John H. Rowe and Frederick W. Rowe. Its amount was $3,800 and it was due in one year. The mortgage covered two gore-shaped parcels of real property both on Kingston avenue but on different sides of
Carroll street. For convenience we will call the one on the north side of Carroll street, which this action was brought to foreclose, parcel No. 1, and the one on the south side of Carroll street parcel No. 2. On November 8, 1906, the Rowe Company conveyed parcel No. 1 to the Kingston Realty Company by a deed containing a covenant that it was free from incumbrances, and at the same time the Kingston Realty Company conveyed other parcels to the Rowe Company by a deed containing a covenant that they were free from incumbrances. The transaction was an exchange in which no consideration but the mutual conveyance passed, and both parcels were to be and were in terms conveyed free and clear. The Rowe Company arranged for a release from the holders of the mortgage in question, and but for the absence of one of the parties would have delivered it at the time of passing title. When it transpired, however, that the parcel conveyed by the Kingston Company was subject in part to a mortgage for $19,000 covering also other property, the Rowe Company refused to deliver the release.
In April, 1907, the defendant John Offerman obtained a judgment against the Kingston Realty Company for $5,151.54, which was docketed and became a lien on parcel No. 1 on September 27, 1907. The defendants John Offerman, Lena M. Rasch and Anna C. Schmidt also obtained a judgment against the Kingston Realty Company, which was docketed and became a lien on parcel No. 1 on November 18, 1907. The Kingston Realty Company was insolvent on September 27, 1907, and on that day was adjudicated a bankrupt, although the adjudication was reversed on appeal on the ground that it was not a trading company.
Subsequently, pursuant to an arrangement made between the Rowe Company, the mortgagees, the plaintiff, and one William F. Collins its president, the Rowe Company conveyed parcel No. 2 to Collins by a deed stating that it was subject to the mortgage, and the mortgagees assigned the mortgage to the plaintiff. Collins, for the plaintiff, paid to F. W. Rowe, one of the mortgagees, the sum of $3,800 and procured the release of ...