10 Paige Ch. 307 | New York Court of Chancery | 1843
As the property was bid off by Clark previous to April, 1819, for a mere nominal sum, and the premises have been held by W. Jaques and his son ever since, without any claim of title under the sheriff’s deed for more than twenty years, there can be very little doubt that the attempt to overreach the mortgage by purchasing in the title under the sheriff’s sale, is a fraud upon the purchaser under the master’s sale in this suit. The fact that the sons redeemed the premises when the same had been sold under a subsequent judgment against their father, is also inconsistent with the supposition that they believed he had no interest in the premises, either possessory or otherwise, in 1842. But as the father and sons all swear that the sons were in possession of the premises at the time of the commencement of the foreclosure suit, they cannot be
The power of this court to give possession to the purchaser at the master’s sale, by a summary proceeding, only extends to those persons who are parties to the foreclosure suit, or persons who have come into possession under or with the assent of those who are parties, subsequent to the commencement of the suit. It makes no difference, therefore, whether these two respondents were, at the commencement of the foreclosure suit, tenants of the premises under their father or under their grandfather. As to the 150 acres embraced in the deed which was altered in 1833, there can be no doubt that the mortgagees, and those claiming under them, would be entitled to the possession of that part of the premises, not only as against the mortgagor, but also as against the grantor in that deed and his grandsons, who swear they went into possession under him since the giving of that deed and the- execution of the mortgage. For if, as is alleged, the grantor in the deed of the 150 acres was entitled to the possession for life, under an agreement with the person who claimed title under the sheriff’s deed, he transferred his life interest to his son, in the 150 acres, by the alteration of the deed in 1833 • and he was merely tenant at will to the son subsequent to that time. And if he has put his grandsons in possession, with the permission of the mortgagor, either express or implied, subsequent to the mortgage, they cannot be permitted, in an ejectment suit brought by the purchaser at the master’s sale, to set up an adverse title acquired by them subsequent to the mortgage, to prevent his enjoying the possession of the premises at least during the lifetime of their grandfather. But to enable this court to divest them of that possession, by a writ of assistance in this suit, the complainant should have made them parties to the suit, as persons who had gone into possession under the mortgagor, or with his assent, subsequent to the mortgage. The vice chancellor was therefore right in refusing the writ of assistance as to
I am not satisfied, however, that the mortgagor was not in the actual possession, of some part of the house at least, at the time of the commencement of the foreclosure suit in February, 1839. It is not pretended that the mortgagor rented the whole house to them, so as to deprive him of the right to remain there with his family ; and as the house belonged to him, and not to his father, under the deed of the 150 acres, there does not appear to be any ground for supposing he would relinquish the possession in favor of his father or of those who were to work the land on shares. Indeed I can see no good reason for relinquishing the possession of any part of the 150 acres to the tenants of his father, unless his object was to defraud the mortgagees or some other creditors. And the mortgagor does not swear explicitly to the fact that he ever agreed, either with his father or with his sons, to relinquish the exclusive possession of any part of the premises to any of them.
The order appealed from, so for as relates to a writ of assistance against the mortgagor and to the costs of opposing the application, must be reversed, so as to enable the purchaser at the master’s sale to divest the mortgagor of his possession; if the purchaser does not wish to join him as a defendant in the ejectment suit which he may think proper to bring against his sons to recover the possession of the premises. The order must direct a writ of assistance to issue as to him, but not as to the sons, and neither party is to have costs as against the other, either upon the original application or upon this appeal.
Order accordingly.
