Curtiss v. Bush

39 Barb. 661 | N.Y. Sup. Ct. | 1863

By the Court,

Johnson, J.

I am of the opinion that the referee was right in holding that the plaintiff's mortgage was not discharged, hut was still a subsisting lien and incumbrance upon the premises, as against the defendant. The general rule is that there must be an eviction of the mortgagor before he can be relieved from the mortgage on the ground of a failure of the consideration of the mortgage, or of the title conveyed by the mortgagee. (Bumpus v. Platner, 1 John. Ch. 213. Abbott v. Allen, 2 id. 519. Banks v. Walker, 2 Band. Ch. 344.)

But it has been repeatedly held that when the title under which 'the mortgagor held has been extinguished, so that' he may be legally evicted, he may then either attorn to the holder :of the paramount title or surrender possession to bini- on demand, and defend against his mortgage without actual eviction. (Simers v. Saltus, 3 Denio, 214. St. John v. Palmer, 5 Hill, 599. Leach v. Bailey, decided in court of appeals in 1857; opinion by Brown, J. not reported.) There are several cases on this subject; but I do not find one in which it has been held that there need not be an eviction, or something equivalent thereto, to enable the mortgagor to defend against the mortgage. In Leach v. Bailey, which seems to be very much relied upon by the defendant's Counsel, the prior mortgage had been foreclosed in equity, and a deed given to Minott the purchaser. Bailey had then attorned to Minott, and afterwards purchased and took a deed from him. The court held that Minott being entitled to the possession under his deed, and also under the decree of foreclosure, the eviction was complete by the attornment, or yielding possession to the purchaser.

But here, as the referee held, there has never been any one who could have rightfully evicted the defendant. Harris, the purchaser at the sheriff’s sale, although he took his certificate, never obtained his deed, and until he obtained his deed, the title remained in the defendant, as it was before the sale. The assignment of the certificate to the defendant’s agent, Ives, was an assignment, in effect, to the defendant himself, and the subsequent conveyance by the sheriff was of the same character. Ives could not dispossess the defendant, nor could there be any valid attornment to him. So that here was neither an eviction nor its equivalent.

It is strenuously urged by the defendant’s counsel that the time for redemption from the sale having expired, the sale had become absolute, and by its own force had extinguished the title derived by the defendant from Schermerhorn. But I think the extinguishment was not effected until the sale was completed by the conveyance. Before the assignment of the sheriff’s certificate the legal title might have been withdrawn from the defendant at any moment; but it was not. In short it never was withdrawn. Both titles met in the same person, and, legally speaking, there could be no extinguishment; at least, none in hostility to the defendant’s just title. If it was extinguished it was done by the defendant himself, and I know of no rule by which he would be entitled to defend on that ground. If Harris had taken a sheriff's deed, as the case now stands in other respects, his right would, as it seems to me, be entirely clear. But as he did not, but only assigned to the defendant the right to demand and take one, the case falls short of any adjudged case I have been able to find, in which relief has been granted. In order to give the defendant relief, as the case now stands, all idea of eviction, as in any way essential, must be extracted from the rule.

The defendant was under no obligation, by promise, or any legal duty, to pay off the judgment for the protection of his title, or of the mortgage in question. That duty rested upon the plaintiff, or those under whom he claims. And had the defendant paid any thing in the purchase of the certificate, such amount should have been deducted from the amount due on the mortgage. But as he paid nothing, there was nothing to be allowed. I do not think it in any way essential whether he had paid any thing or not, had the title vested in Harris before the purchase, because in that case there would have been a complete extinguishment of his title by the act or proceeding of another, which seems to me quite material, as the rule now stands. If the rule is to be modified, it is better that it should be done by the court of last resort.

[Monroe General Term, June 2, 1863.

E. Darwin Smith, Welles and Johnson, Justices.]

The judgment must therefore be affirmed.