FLEISHHAUER v. DOELLNER

FLEISHHAUER v. DOELLNER. N. Y. Supreme Court, First District ; Special Term, January, 1881. Motion to set aside Fobeclosube Sale fob Ebboneous Dibection in Judgment.—Allowing Pubchaseb to Deduct Amount of Unpaid Taxes fbom ms Bid.—Liability of One Assuming Payment of Mobtgage. A motion, by one who has assumed the payment of a mortgage, to have the judgment against him reduced by the amount of taxes which were deducted from the amount of ■ the purchaser's bid, pursuant to the directions of the judgment of sale, will be denied as being too late, if made after the sale has taken place. One who covenants to pay a mortgage becomes the principal debtor, and if he convey subject to the mortgage, but without exacting a similar covenant, he continues personally liable, and it is his duty to see that the taxes are paid. It is not error therefore to allow the purchaser on foreclosure to deduct unpaid taxes from the bid, and to hold him liable for the deficiency. Marcus Fleishhauer brought this action against John F. Doellner and others to foreclose a mortgage. The mortgage, which contained no covenant to pay-taxes, was executed by defendant Doellner in 1872. He sold the premises in 1873 to defendant Guggenheimer, who assumed payment of the mortgage. In 1874 Guggenheimer sold the property subject to the mortgage, the grantee, however, not assuming its payment. The judgment of foreclosure permitted the purchaser to retain out of the purchase-money the amount of all taxes and assessments which at the time of the sale were a lien on the premises, and $578 were deducted to discharge taxes due upon the premises for 1877 and 1878. Guggenheimer now moved to deduct the $578 from the judgment against him for deficiency. Roudolph Guggenheimer, for motion. John 8. Ray, for plaintiff, opposed. [MAJORITY — Van Vorst, J.] Van Vorst, J. I am of opinion that the motion comes too late. The mortgaged premises have been sold under the decree and in pursuance ef its directions, and the moneys applied according to its terms. The taxes were deducted from the bid of the purchaser as the judgment directed. If there was anything wrong in the judgment relief should have been asked before the sale was made following its terms. But were it otherwise, I think the defendant Guggenheimer was legally and equitably liable for the deficiency after deducting the taxes from the purchaser’s bid. Guggenheimer, by assuming the payment of the bond and mortgage,, became the principal debtor, and it was his business to see that the taxes were paid. The mortgagee is entitled to the amount of his mortgage, and he cannot be injured through the accumulation of taxes growing out of the default of those whose duty it was to see that they were paid. While Guggenheimer covenanted to pay the bond and mortgage, and thereby became the principal debtor, he conveyed the premises without exacting a similar covenant from his grantee, so he continued to remain personally chargeable for the payment of the bond and mortgage. Mutual Life Ins. Co. v. Davis (44 Super. Ct. 173) and Marshall v. Davis (78 N. Y. 414), are adverse to the contention of the defendant, and his motion is denied, with $10 costs.