Real  Estate  Record





AND BUILDERS' GUIDE.





Vol. XX.





NEW YOEK, SATUEDAT, SEPTEMBEE 1, 1877.





No. 494.





Published Weekly by

TERMS.
OJTE YEAR, in advance....$10.00.
fOommunicafcions should be addressed to

C.  'W.   SWEET,
Nos. 345 AND 347 Broadway.





LEGAL DECISIONS.

In a recent bankruptcy case the Judge uses
these words : "As the law now stands we hold
that in the absence of consent by creditors in
voluntary cases, no matter when commenced,
nor v/hen debts were contracted, the assets must
pay thirty per cent., not Ufty per cent., or there
can be no discharge; whereas in compulsory case
or involuntary bankrnptcy, the bankrupt, if
otherwise entitled thereto is entitled to a dis¬
charge irrespective pf the assent of creditors or
the amount of his assets. It has also been decided
that where a creditor obtains an attachment upon
property of the banki-upt, and such attachment
has been dissolved by reason of the adjudication
in bankruptcy of the debtors a judgment creditor
who has made a levy subject to such attachment
is not entitled to pi-iorifty as against the assignee.
But where a creditor has obtained a valid Uen by
attachment, and has obtained judgment and
le-vied under an execution, his Uen under the levy
is to be considered as prior in time to that of
other creditors who have levied attachments in
the meantime, and is not affected by the dissolu¬
tion of the attachments.





By the foUowing decision it appears that where
one purchases goods under a contract to pay
cash on delivery, and upon deUvery ships them
beyond the control of the vendor, such conduct
raay be regarded as a fraud in the creation of the
debt and his discharge in bankruptcy wUl not re¬
lease him from the payment of the claim. It is
also decided that where a new promise to pay is
made after procuring a certiUcate of discharge,
such discharge wiU not preclude a recovery of
the debt.

The plaintiff sold goods to the bankrupt before
his known insolvency for cash. Upon obtaining
possession thereof the goods were iminediately
shipped beyond the control of the seUer. The
check given in payment was not paid. In an ac¬
tion subsequently brought to recover the amount
due, the discharge in banla-uptcy obtained by the
purchaser was pleaded. The Court held that the
debt was created by fraud, and consequently not
released. It further appeared that the bankrupt
after he obtained a discharge made a new promise
to paj the debt. In such a case a discharge wiU
not preclude a recovery.





A judgment having been obtained against one
Schoonmaker, in his lifetime, who had devised his
lands to his sons, an application was made to re¬
strain them from coihmitting waste upon such
lands by feUing and carrying away certain timber
thereon, by means of which the estate would suffer
injury and the only security thereby impaired
Upon which the creditor must rely for the pay¬
ment of his debt. In the opinion of the Judge up¬
holding the injunction he holds that waste, to the
injury of a judgment creditor, who has a lien on
land, is an abuse of right, and -wUl be prevented
because against equity and good conscience. A
lien obtained by judgment stands upon the same
footing as regards real estate, as a Uen obtained
by mortgage, when the creditor makes a case
showing that he m'ust look to such property alone
for satisfaction of his claim. PracticaUy, a judg¬
ment creditor is just Uke one to whom that piece
of real property has been speciflcaUy mortgaged
for a specific period. It is monstrous injustice to
permit the omy security a judgment creditor may





have from which to obtain satisfaction of his
claim to be destroyed and lost to him by the act
of a party without right, or whose rights, if he
have any, are entirely subordinate to fche judg¬
ment lien. In the judgment of the Court the
judgment creditor is entitled to have his lien pro¬
tected, and his sole protection is in the restraining
power by an injunction order.





An iinportant decision, recently made by Judge
G-. Gr. Reynolds, of the City Court of Brooklyn,
Ulustrates under what circumstances a mortgagor
will be reUeved from a judgment for deficiency
on the sale of premises under foreclosure. One
McCrum, after making a mortgage on certain
premises owned by him, conveyed the same to a
Mrs. Weinberg, who assumed the payment of the
mortgage. When the mortgage became due, Mc¬
Crum, having then become into the position of
surety, requested the owner and holder of the
mortgage to proceed immediately to foi-eclose
and coUect the debt, on the ground that the prem¬
ises, wMch were then sufficient to satisfy the
mortgage, might depreciate so as to become an
inadequate security. The plaintiff neglected for
a year to commence his suit, and the proof now
shows that although the premises were of suiH-
cient value to pay the mortgaged debt and cost of
foreclosure at the time the request was made,
they have since so far depreciated as tb make it
altogether probable that there wUl be a deficiency
after applying the proceeds of the sale. The ques¬
tion is whether the defendant McCrum should be
made Uable for such deficiency.

The rule seems to be, that if the creditor omits
to do an act, on the requirement of the surety,
which equity and his duty to the sm-ety enjoins
on him to do, and the surety is injured by the
omission, the latter ought not to be held. That
duty enjoins upon the creditor to enforce payment
from the party primarUy Uable, and if, being re¬
quested by the surety to coUect the debt when
it is collectible from such parties by measures of
active diUgence, the creditor refuses or neglects
to do it until it becomes uncoUectible from the
principal, such conduct ought to be a defense in
eq-dity to any suit brought against the surety to
charge him with the payment of the debt. But
failure on the part of the creditor to comply with
the request of the surety to enforce paffment of
the debt wiU not exonerate the surety unless it re¬
sult in actual injury to him, and then only to the
extent of such injury. The solvency of the
debtor or the sufficiency of the fund at the time
when the request to collect was made, and subse¬
quent insolvency or insufficiency, are essential
parts of the defense of the suretyi^ and must be
aUeged and proven by him (Thomas on Mortgages,
70, 71; Remsen v. Beekman, 25 N. Y., 5.52).

Plaintiff claims, however, thafc defendant Mc¬
Crum has not brought himself within the rule
releasing sureties, he not having shown that the
defendant Weinberg is insolvent; and that as it
does not appear but that plaintiff may be able to
coUect any deficiency out of her, defendant Mc¬
Crum is not shown to have sustained any injury
from the plaintiff's delay.

The answer to this is, that if it turns out that
the deficiency can be collected from Weinberg, it
will be the duty of the plaintiff to so coUect it, and
iu that case there is no occasion for a decree
holding the defendant McCi-um; but if it cannot
be coUected from Weinberg, and the defendant
McCrum should be made Uable, he wotdd be
thereby damnified through the plaintiff's neglect
to the precise extent of the payment which he
would thus be compelled to make. The mortgage
having been coUectible out of the property when
the surety requested its coUection, he ought not
now to be caUeduponto make up for the subse¬
quent depreciation of the property, and thei-e-
fore there should not be any such direction
against him in the judgment. Such du-ection, if
effectual, would compel him to meet a deficiency
which would not have existed if the creditor,
the plaintiff, had compUed -with his reasonable
request.   ,

There must be judgmenffor a sale of the prem¬





ises, and making the defendant Weinberg liable
for any deficiency.

By an agreement made before marriage one
Pierce agreed to pay to his intended wife if she
survived him $500 for her sole and separate use,
in consideration of which she agreed that the
money so assigned to her should be in fuU satis¬
faction of her dower in his real estate, and that
she would not claim any share in his personal es¬
tate. Pierce died without making a wUl; never
paid his wife the 6500 and made no settlement of
the same upon her. Held—^That when a man in
contemplation of marriage, agrees to make a set¬
tlement upon his wife in consideration of which
she agrees to reUnquish her rights in his property
at his decease, and he fails to make the settle¬
ment, the -widow is not barred of any right which
she might have asserted, if no such agreement
had been executed, and that she is entitled to
such dower and her distributive share of his per¬
sonal estate. It appearing in the same case that
the widow claimed for board, clothing, medical
attendance and other necessaries furnished for
herself during eight years, when she was living
sepai-ate from her husband, caused by his iU-
treatment, it was further held that she was not
entitled to such claim. No case shows that a
married woman, U-ving separate from her hus¬
band, may sue him or his estate for her board
and necessaries. If she has been Ul-treated she
has other remedies. She may obtain a Umited
separation by an action in the com-ts and an al¬
lowance for her support. She may pui-chase
necessaries on her hurband's credit, if he has
turned her out of doors, oi- the like. If she takes
neither of these courses, but prefers to support
herself while living separate from him, she has
no claim against him for the money thus expend¬
ed. It is in that case reasonable to infer that she
acquiesced in the separation, and that it was not
altogether owing to his fault. It would be a dan¬
gerous principle to hold a man Uable to his -wife
for money expended on her support, when she
had been Uving separate from him for eight
years, without taking legal proceedings for a
separation, and without making purchases on his
credit.





LIABILITY OF SELLER OF USURIOUS NOTE.

Littauer sold to Goldman a promissory note
which was void for usury in its inception, and
which, in an action brought by Goldman against
the maker to recover the amount due thereon,
had been adjudged void, and Goldman thi-own in
costs. The note was sold to Goldman without
any express representation or guarantee; and
Littauer is not aUeged to have been connected
with the usm-ious origin of the note. The Judge
holds, that an action can be mauitataed for the
recovery of the money paid by Goldman to Lit¬
tauer for the note, with interest and the costs of
the suits, Littauer having been notified of the
pendency of the suit against the maker and of
the defence of usm-y interposed. Although there
was no express representation made that the note
was a legal, vaUd instrument, there is an impUed
warranty that the note is such. An article of
apparent value was sold to Goldman which has
turned out, by the test of judicial proceedings of
which Littauer had notice, to have been at the
time of the sale of no value whatever. He,
therefore, received nothing from the defendant
for his money; and, upon such, total faUure of
consideration the law impUes a promise to return
the money.

DISTRIBUTION OF SURPLUS MOIfEyS.

Upon an appUcation for the distribution of tha
surplus moneys arising upon the sale under a fore¬
closure of mortgage, an order having been made
directing the payment of the siun of $150 as an
aUowance out of such surplus to the holder of a
second mortgage, the Coui-t, at General Term,
held, that the allowance -was Ulegal, and that
only the fees of referee and $10 costs of motion
to confirm the report and $10 costs of order
appointing referee could be allowed.