#### Henry De Forest Weeks, App’lt, *v.*John Garvey, Impl’d, etc., Resp’t.

*(New York Superior Court,*

*General Term,*

*Filed April 15, 1889.)*

Mortgage—Conveyance subject to—Effect of reconveyance—Subrogation. ,

The owner of mortgaged property conveyed it subject to the mortgage, *956and subsequently its grantee reconveyed it to him, with covenants against incumbrances, and without mention of the mortgage: *Held,*that he had no right of subrogation upon payment of the mortgage debt.

Appeal from a judgment at equity term dismissing plaintiff’s complaint.

*Frederick P. Foster,*for app’lt; *George O. Genet,*for resp’t.

Sedgwick, Ch. J.

The question made by appellant on this appeal arises from the following facts: The plaintiff was the administrator of James Garvey, who died intestate. The intestate, at the time of his death, was in actual possession of a house and lot, which were incumbered by a mortgage made by him to secure his bond. He appeared from the record to have title. The administrator paid the bond, and a satisfaction of the mortgage was made by the mortgagee. Afterwards the administrator ascertained that James Garvey had conveyed the property to Michael Morrison, subject, as expressed in the conveyance, to certain mortgages, of which the satisfied mortgage was one. After-wards Morrison reconveyed the premises to James Garvey, the conveyance not alluding to the mortgage.

Afterwards, according to the sixth finding, James Garvey, conveyed to John Garvey. Then James and John made a sealed contract, in which John reconveyed to James, and James covenanted to convey to the son of John upon the happening of certain events. For the purposes of this appeal, it is not necessary to give any further details, excepting that in a suit to which the plaintiff was not a party, the contract last referred to was enforced, so that conveyance was made to John Garvey, as the heir of his son, who had died. On these facts, the plaintiff claims that at the time he paid, in satisfaction of the mortgage, he was entitled to be subrogated to the rights of the mortgagee, as against the land, because he was a surety as to that land, the land having been conveyed by James Garvey, subject to the mortgage, and that he, having paid the mortgage, in ignorance of the unrecorded conveyance to Morrison, his right of subrogation still exists.

My opinion is that the claim cannot be sustained. Conceding that it was apparently the duty of the plaintiff, as administrator, to pay the bond and mortgage, if the intestate had not conveyed the land, yet the reconveyance to the intestate annulled the rights that might have existed in him had he not reconveyed it. A person buying, subject to a mortgage, buys an equity of redemption, and the purchaser of the equity of redemption pays less, by legal intendment, than the value of the property as it would be, if unincumbered by the amount of the incumbrance. The grantee then has value reserved in his hands, to be applied to the incumbrance. *Cox*v. *Wheeler,*7 Paige, 257; *Vanderkemp*v. *Shelton,*11 Paige, 34. Such was the state of matters when the conveyance to Morrison was made. If Morrison had. conveyed to another than James Garvey, the grantee would have held the land subject to the equitable right to have the *957land applied to the mortgage, although the conveyance did. not convey, in words, subject to the mortgage. *Jumel*v. *Jumel (7*Paige, 594). The grantee being James Garvey, the mortgagor, he became repossessed of the fund or value which his grantor had formerly held, and which was primarily to be applied to the mortgage. Moreover, he took a covenant against incumbrances from which the mortgage was not excepted. It was not mentioned in the deed to him, as it had been in the deed by him. The reconveyance put him in possession of the indemnity that was provided in the deed to him. The subsequent conveyances do not disclose any foundation for an equity like that claimed in the action.

Judgment affirmed, with costs.

All concur.