KMETZ v. DE RONDE, 231 N.Y. 641 (1921)

132 N.E. 921

JOHN KMETZ, as General Guardian of JOSEPH KMETZ, an Infant, Appellant, v. HENRY DE RONDE et al., Respondents.

Court of Appeals of the State of New York.Submitted July 13, 1921
Decided July 14, 1921

Howard R. Bayne for motion.

John V. Bouvier, Jr., opposed.

Per Curiam.

The sureties were rightly charged with the payment of the mortgages which their principal had covenanted to assume.

As between grantor and grantee, the land is generally, if not always, the primary fund for the satisfaction of a mortgage which one of them has agreed to pay (Slauson v. Watkins, 86 N.Y. 597 Matter of Wilbur v. Warren, 104 N.Y. 192). As between mortgagee and grantee, there is no such restriction. The mortgagee may sue upon the purchaser’s covenant of assumption without resort to the security (Burr v. Beers, 24 N.Y. 178 Thorp v. Keokuk Coal Co., 48 N.Y. 253). Here the vendor of the land was also the holder of the mortgages. As between him and the defendants, the covenant to assume was a covenant to pay (Burr v. Beers, supra; Thorp v. Keokuk Coal Co., supra).

The motion should be denied, with ten dollars costs and necessary printing disbursements.

All concur.

Motion denied.

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