
    William Robinson, Ex’r, Resp’t, v. Dewitt C. Brower, App’lt.
    
      (Supreme Court, General Term, Fifth Department
    
    
      Filed June 19, 1890.)
    
    
      1. StOBTGAGE — COHBTBVCTIOÍT OE.
    A mortgage given by defendant and wife to plaintiff's testator, was conditioned for the payment of the sum secured in six instalments. It also provided that in case the mortgagee should die, the balance unpaid should fall due in one and two years after his death in equal shares, the first half to be paid to his son, and the other to his daughter, defendant’s wife. Held, that this clause of the mortgage was intended to provide for the death of the mortgagee at a time when some part of such balance had not fallen due according to the condition of the mortgage itself, and that the death of the mortgagee after all the instalments fell due did not divest his executor of interest in or right of action on the mortgage.
    2. Same — Foreclosure—Parties.
    The mortgagee died seven years after the last instalment fell due, and three years after his daughter. Held, that his executor was the only person who could maintain an action of foreclosure.
    Appeal from a judgment entered on the findings and decision of the court at special term.
    
      W. A. Sutherland, for app’lt; J. 2L Dinninny, for resp’t.
   Dwight, P. J.

The action was for the foreclosure of a mortgage executed in 1871 by the defendant and his wife, Catherine E. Brower, to the plaintiff’s testator, Aaron Bobinson, to secure a portion of the purchase money of a farm conveyed by the latter to the parties first mentioned, of- whom Mrs. Brower was his daughter.

It was conditioned for the payment of the sum secured, in six equal annual installments, the first of which was to fall due in six years from date. It was in the usual form, including a power of sale to the mortgagee, his executors, administrators and assigns, with the addition of the following clause:

“ But it is understood that in case said Aaron Bobinson should die, all unpaid balance of said amount to fall due one-half in one year and the other half in two years from the death of the said Aaron Bobinson, whatsoever written to the contrary notwithstanding, and the half first paid as last mentioned to be paid to William Bobinson, son of said Aaron Bobinson, and the balance to the said Catherine E. Brower.”

Aaron Bobinson, the mortgagee, died in 1889, nearly seven years after the last payment on the mortgage became due and three years after the death of Mrs. Brower.

The only objections to the judgment are that the plaintiff, under the clause of the mortgage above quoted, had no interest in or right of action upon the mortgage, but that, the mortgagee having died, the money remaining unpaid on the mortgage became payable to the son Willard and the executor of the deceased daughter, Mrs. Brower, and that they were the proper parties to maintain the action.

There seem to be two quite conclusive answers to these propositions. The first is, that they involve a manifestly erroneous construction of the clause in question. Its true construction apparently is that the death of the mortgagee, upon which event the falling due of any unpaid balance of the amount secured by the mortgage should depend, must be at a time when some part of such balance had not yet fallen due according to the condition of the mortgage itself.

The second answer is, that even if the construction contended for were correct, an action for the foreclosure of the mortgage could only be maintained by the plaintiff as executor of the mortgagee. The mortgage had never been assigned; it was the property of the mortgagee at the time of his death, and passed to his personal representative, to whom also in that event the power of sale was given by the terms of the mortgage, and he would be held to account to whatever parties might be entitled to the proceeds of the foreclosure. In that case, moreover, it seems quite clear that no part of those proceeds would be payable to the executor of Mrs. Brower, who had died before the event upon which, under the clause in question, a share of the money secured by the mortgage could, in any case, have been payable to her.

The findings and judgment of the court at special term were in accordance with these views, and the judgment must be affirmed.

Macomber and Corlett, JJ., concur.

Judgment appealed from affirmed, with costs.  