#### Jannette Carlin, Appellant, *v.*Henry E. Frey and Others, Respondents.

Third Department,

May 7, 1913.

Mortgage — foreclosure — authority of mortgagee to transfer insurance money to purchaser to enable him to rebuild — contract.

The owner of building lots sold them under a written contract with the purchaser, whereby he agreed to take back a purchase-money mortgage on each lot and to permit the purchaser to give a mortgage on each lot for a certain sum to a lumber company, which mortgages should have *85priority over the purchase-money mortgage. The purchaser agreed to complete a house worth a certain sum on or before a certain date on each lot, to pay all taxes on the property and interest on each mortgage, and to have the buildings insured, the loss, in case of fire, payable first on the lumber company mortgage, and second on the owner’s mortgage. The purchaser defaulted in the payment in taxes and interest and in completing the house on or before the date specified, and thereafter a house, in the process of construction, was burned, and the insurance money paid to the assignee of the mortgage given to the lumber company. In a suit of foreclosure brought by the assignee, *held,*that she should have applied the insurance money first upon her mortgage and then upon the owner’s mortgage;

That with full knowledge of the contract between the parties and the default by the purchaser, she had no right, as between herself and the owner, to give the insurance money to the purchaser to enable him to rebuild.

Appeal by the plaintiff, Jannette Carlin, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Broome on the 13th day of December, 1912, upon the decision of the court, rendered after a trial at the Broome Special Term, in an action to foreclose a mortgage.

*Fremont F. Williams,*for the appellant.

*William J. Welsh,*for the respondents.

Howard, J.:

The defendant Orton owned certain vacant lots in Binghamton. On April 8, 1910, he entered into a written contract with the defendant Frey, whereby Orton agreed to sell nine lots to Frey at certain fixed prices (the prices being different on the different lots); to take back a purchase-money mortgage on each lot; to permit Frey to give a mortgage on each lot for $2,500 to the defendant Lestershire Lumber and Box Company, Orton’s mortgage to be second to the lumber company mortgage. Frey agreed to purchase the lots on these conditions; to erect a double dwelling house worth at least $2,900 on each lot; to have each house completed on or before October 1,1910; to pay all taxes on the property; to pay the interest as it became due on each mortgage; to have the buildings insured, the loss in case of fire payable first to the lumber company mortgage, second to the Orton mortgage.

*86Orton did deed one of the lots, the one in question, to Frey on April 8, 1910; Frey gave the purchase-money mortgage to Orton; he also gave a $2,500 mortgage to the lumber company; the lumber company assigned it to the plaintiff; Frey partly erected a house upon the lot; he caused it to be insured; May 31, 1911, the house burned; September 1, 1911, the loss was adjusted at $2,530.06 and that amount of money paid to the plaintiff, of which she paid $30 to Orton; she tried to get Orton to permit her to give the $2,500 to Frey with which to rebuild, but Orton refused, and then without his consent, and knowing the contents of the agreement between Orton and Frey, she did give Frey $2,500 and he used it in rebuilding.

A judgment of foreclosure has been entered, the property has been sold and, in distributing the money, the question arises here — Did the plaintiff have a right, as between herself and Orton, to give the $2,500 insurance money to Frey to enable him to rebuild or should she have applied it in reducing the amount of her mortgage ?

I concur in the conclusion reached by the trial judge and in the process of reasoning by which he reached it; a few additional observations, however, may not he out of place.

In a contract, wherein there are mutual promises, dependent the one upon the performance of the other, the violation by one party of the terms of the contract on his part releases the other party from the conditions to which he is bound. That is, one party cannot fail or refuse to perform the substantial promises in such a contract on his part and then hold the other party to his promises. Orton agreed to sell his lots to Frey upon the supposition and upon the arrangement that Frey by building upon them would make them more valuable. He consented to take a second mortgage on the lot in question upon the understanding and agreement that Frey should have a building erected and completed on the lot by October 1, 1910; that he should keep the taxes and interest fully paid up — the interest on Orton’s mortgage as well as upon the first mortgage; that Frey should build houses upon each, of the nine lots, it being the thought, undoubtedly, that each building would in some degree enhance the value of the others. On September 1, 1911, at the time the insurance money was paid, nearly a *87year beyond the time when the house was to have been completed, there was no house completed, either upon the lot in ■ question or upon any of the other lots. No taxes at all had been paid, but they were accumulating against the property. No interest on the first mortgage since November 1, 1910, had been paid, the accumulation of such interest amounting to $125. No interest on Orton’s mortgage had been paid. The first mortgage was rapidly growing larger and Orton’s mortgage rapidly growing correspondingly smaller and less secure. It was only a matter of two or three years, at this rate of deterioration, when Orton’s mortgage would be extinct. In short it was perfectly apparent to Orton on September 1, 1911, and it must have been likewise perfectly apparent to the plaintiff, that Frey had made a total failure of his venture. Under these circumstances, Frey’s failure to perform the conditions of the contract on his part working such swift and substantial harm to Orton’s rights, Orton was absolutely released from all his obligations under the contract. Not even in the contract did Orton bind himself to permit successive houses to be rebuilt in case of fire, but even if such construction could fairly be placed upon the contract, Orton was fully released from it by the conditions presenting themselves September 1, 1911. It was his right and his duty to protect his second" mortgage by insisting upon a distribution of the insurance money according to the conditions of the policy. To have done otherwise would have been to permit the first mortgage to swallow up the second.

No written condition of any contract gave the plaintiff the right to turn the insurance money over to Frey; on the contrary, the insurance policy forbade her to' do so and commanded her to apply it first upon her mortgage and then upon Orton’s mortgage. With her eyes wide open, knowing of Orton’s equities and of Frey’s failures, she deliberately violated the conditions of the policy and took her chances in defiance of Orton’s refusal and heedless of Orton’s rights. There is no excuse for her position; no equity in her contention.

The judgment should be affirmed, with costs.

Judgment unanimously affirmed, with costs.