
    Jessie Haussauer, App’lt, v. Edward T. Young, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      'Filed October 21, 1892.)
    
    Appeal by the plaintiff, Jessie Haussauer, from a judgment entered in Steuben county on the report of a referee, May 12, 1891, dismissing her complaint upon the merits.
    
      Delworth M. Silver, for app’lt; Dolson & Orcutt (I. W. Near, of counsel), for resp’t.
   Macomber, J.

This action was brought to recover a balance •of the consideration price of one-fourth of the lands described in the complaint, being the plaintiff’s share coming to her under her father’s will, which she had conveyed to the defendant. The consideration which the defendant agreed to pay was twenty-five hundred dollars; fifteen hundred dollars thereof the plaintiff admitted had been paid to her. This case was tried at the same time with the case of Haussauer v. Terry, decided at the present term, and •does not differ from the latter in' any particular, except in the names of the parties and the description of the property, and the amount of the mortgage, which, in this instance, was $4,000, save that the deed appearing in this case, though containing a clause to the effect that the premises were conveyed subject to the mortgage executed by the executor of George W. Terry, deceased, of whom the plaintiff is a daughter and an heir-at-law, does not contain the affirmative personal assumption of the indebtedness by the defendant, as was done in the case of Hassauer v. Terry. But this is an unimportant distinction, because this defendant has actually caused to be discharged the entire mortgage lien, thereby discharging and paying a lien to the amount of fifteen hundred dollars resting upon the lands conveyed by the plaintiff to him. It therefore appears • clear in this case, as well as in the other, that the defendant had paid and discharged the entire consideration for the purchase of the plaintiff’s interest in the land; and hence it follows that this action, as well as the other, cannot be maintained.

Judgment appealed,from affirmed.

Dwight, P. J., and Lewis, J., concur.  