1. Mortgage was given to secure (1) part of purchase price of land and (2) moneys to be advanced for construction of building; due date of mortgage arrived before building completed; mortgagor's contractor had abandoned, and his surety had undertaken to complete, the contract; mortgagor had not paid part of the contract price; mortgagee's bill is to foreclose to recover moneys actually advanced; contractor's surety counter-claims to recover amount due from mortgagor to contractor, alleging fraud and conspiracy by mortgagee to obtain building without payment. Held, no conspiracy or fraud proven.
2. The mortgagee's obligation, under its contract with the mortgagor to make advances for construction payments, terminated with the maturity of the mortgage. The surety for the contractor of the mortgagor has no greater rights than the mortgagor, in the absence of fraud or special contract, and is not entitled to recover from the mortgagee the mortgagor's indebtedness to the contractor.
3. Where a building contract is filed, mechanics' lien can be acquired only by the contractor and is subject to existing mortgages. No right in the nature of such lien could be acquired by the contractor's surety, since he stands in the place of the contractor and the latter breached the contract without justification; and if it could be acquired it would be subordinate to the rights of the mortgagee.
PER CURIAM.
The decree appealed from will be affirmed, for the reasons stated by the opinion delivered by Vice-Chancellor Buchanan in the court of chancery.
For affirmance — THE CHIEF-JUSTICE, PARKER, LLOYD, CASE, BODINE, DONGES, HEHER, PERSKIE, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, JJ. 13.
For reversal — None.