
    Home Trust Company of New York, Respondent, v. Rose A. Bauchens, Defendant, Impleaded with Yonkers-Garden City Realty Company, Appellant.
    Second Department,
    June 7, 1912.
    Mortgage—-foreclosure — sale of lands to corporation negotiated by " persons representing vendor and vendee—facts not showing fraud — when new trial necessary.
    A realty company agreed to sell certain lands to another realty company for $183,360, payable by assuming a mortgage of $93,360 and by paying-earnest money of $45,000 and $45,000 upon the closing day. Thereafter the owner of the lands agreed to convey them to the vendee for $136,770 and through an intermediary conveyed said lands, subject to two mortgages, one to itself for $51,818 and one to the Vendor realty company for $40,541, thus giving to the vendor realty company an apparent profit of $45,590. A suit to foreclose the mortgage given to the vendor by the grantee was defended upon the ground that said company had made secret profits in' fraud of the grantee. It appeared that the vendor was controlled by the same persons who organized and controlled the grantee; that they acted for both companies in effecting the sale, and brought in new stockholders without advising them that the sale was profitable to them.
    
      Held, that there was no fraud vitiating the mortgage.
    Although a finding in the court below that the mortgage was fraudulent was not supported by the evidence, a new trial should be granted where the court holds that the defendant is not estopped by representations made by its officers.
    Appeal by the defendant, the Yonkers-Garden City Realty Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 26th day of Hay, 1911, upon the decision of the court rendered after a trial at the Nassau Special Term.
    
      John T. Delaney [Harry Wilber with him on the brief], for the appellant.
    
      John H. Corwin, for the respondent.
   Thomas, J.:

The Jackson Brothers Realty Company, by instrument dated January 5, 1909, agreed to sell certain land to the Yonkers-Garden City Realty Company for $182,360, payable by assuming the mortgage of $92,360 and by paying $46,000, whereof receipt is acknowledged, and $45,000 upon closing on May tenth. On February 4, 1909, the Canadian Realty Company agreed to convey the land to the Jackson Realty Company for $136,770. By deed dated May tenth and acknowledged July twentieth and recorded August 6, 1909, the Canadian Realty Company, for an expressed consideration of $100, conveyed the land to one Rose A. Bauchens, and the latter by deed dated and acknowledged December 7, 1909, and recorded December 27, 1909, conveyed the land to the Yonkers-G arden City Realty Company, subject to two mortgages, one to the Canadian Realty Company for $51,818.90, and one to the Jackson Brothers Realty Company for $40,541.10. As the actual consideration paid by the Jackson Company was $136,770, it made an apparent profit of $45,590. On January 24, 1910, the Jackson Brothers Realty Company assigned the bond and mortgage to the plaintiff, who, in this action to foreclose, was met by the defense that the mortgage represented a secret profit to the Jackson Company in fraud of the Yonkers Company, and the trial justice so found. But the further finding is that the plaintiff, who bought the mortgage at a discount of twenty-five per cent, did so in good faith, relying on a written representation that the bond and mortgage were a valid and existing lien for the sum of $40,541.10, and that there was no defense thereto. The representation is in the form of an affidavit made by Clark and Gregg, severally the treasurer and secretary of the appellant, and signed by such persons with the name of their office added, and sealed with the defendant’s corporate seal. The facts as found are that the Jackson Company was controlled by persons who organized and controlled the appellant, and that such persons, acting for both companies, effected the sale of the land to the appellant, and, therefore, brought in new stockholders without advising them of such sale with such secret profit to themselves. The subscription to the stock which, brought in new stockholders states that the Yonkers Company shall purchase of Jackson Brothers Realty Company the land for the price and upon the very terms for which it was bought. There is no evidence that the land was bought by the Jackson Company for the Yonkers Company, that the latter was cheated by any representation as to its value, nor is it proven that it was sold at an unfair price. As the appellant bought of the Jackson Company and persons subscribed for the stock to do that very thing, they cannot complain that their vendor made a profit. There is evidence that all the subscribers knew that it was a sale from one company to another, except one Lathrop seems to deny doubtfully such knowledge. At least there is no other denying knowledge. The plain facts are that the Jackson Company bought the land, procured a conveyance to Bauchens, who executed the mortgage in question to the Jackson Company, and then the Jackson Company organized a company to buy the land for $182,360; but paid a part thereof by taking title subject to two mortgages, including the one in question. If there was any fraud, the conveyance to, and by,- Bauchens does not eliminate it, as she was a mere instrumentality used by the Jackson Company. But there was no fraud, for the agreement was to buy openly for terms that included the amount of the mortgage, and the subscription to the stock was for the very purpose of purchasing of the Jackson Brothers Realty Company the land for $182,360, or $4,000 per acre. Now, the defendant, moved by some of its stockholders, would change the contract and subscription by decreasing the purchase price by the amount of the mortgage. Assume that there had been no mortgage, and in lieu thereof money had been paid or the appellant had given back a mortgage for such portion of the purchase price, the purchaser could not recover back the payment or defeat its mortgage upon the theory that it did not purchase' of the Jackson Company and that the latter could make no profit. The appellant bought of the Jackson Company for a price; it deducted this and the other mortgage from the purchase price; it put on the public records its deed showing what it had done, which recited that it took title subject to the mortgages, a statement that harmonizes with the whole history of the transaction. It should' not be allowed to dispute its plain contract, or the lien of the mortgage subject to which it purchased. (Jones Mort. § 744; Freeman v. Auld, 44 N. Y. 50; Bennett v. Bates, 94 id. 354; Purdy v. Coar, 109 id. 448; Howard v. Robbins, 170 id. 498.) The two mortgages amount to $92,360, which is the exact amount of mortgages for which the subscription agreement and the agreement to purchase provide. The whole transaction is a written one that advised any person interesting himself what relation the Jackson Company bore to the transaction, what was to be paid, and how it was to be paid. In such regard it differs from Midwood Park Co. v. Baker (128 N. Y. Supp. 954; affd., 144 App. Div. 939) in the essential fact that the persons who obtained the secret profit in the form of a mortgage did not, in procuring the money with which the purchases of land were made, hold themselves out as vendors, for in such case, as the learned trial justice said, “they had a right to make as much profit as they could.” They, ór those who represented them, apparently went into the adventure on equal terms with the contributors of the money. It is not so here. The Jackson Company was the stipulated vendor and the purchase price was fixed. Under these circumstances plaintiff was entitled to recover, but inasmuch as there is a finding that the mortgage was fraudulent, although such finding is not supported by the evidence, it seems necessary to reverse the judgment and grant a new trial, inasmuch as a majority of the court considers that the defendant appellant is not estopped by the representation made by its secretary and treasurer.

Jenks, P. J., Burr, Carr and Woodward, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the final award of costs.  