18 N.Y.S. 38 | N.Y. Sup. Ct. | 1892
This action is the ordinary one for the foreclosure of a mortgage and for the sale of the mortgaged premises. The mortgage was executed by Letitia G. Durand to the plaintiff to secure the payment of the sum of $1,060, with interest, on the 12th day of April, 1888. ' The land consists of 33 acres situate in the town of Canandaigua, N. Y. The execution of the mortgage and the non-payment of the same being undisputed, the plaintiff clearly made & prima facie case for a judgment of foreclosure and sale of the mortgaged premises, in pursuance of s.ection 1626 of the Code of Civil Procedure. But the defendant the Ontario County National Bank, which is the only party defending, sets forth in its answer certain allegations, which have been supplemented by evidence, from which the learned trial justice has denied to the plaintiff the right to foreclose the mortgage, and to have a sale of the mortgaged premises, but has granted to him the privilege of redeeming the land covered by the mortgage upon terms which hereinafter appear. The defendant’s rights depend upon the ownership of these 33 acres, and of another tract of 175 acres, and upon the rights growing out of the incumbrances thereon-under the title of one Luman M. Durand, as it existed on the 1st day of May,. 1886. On the last-named day, Durand and his wife executed to H. L. Lansing, as trustee, two mortgages, covering the entire lands, consisting of 208 acres, one in the sum of $6,000, and the other in the sum of $2,000, and these mortgages were made equal liens upon the lands. A previous mortgage of-$5,000 had been given upon the 175 acres alone, which bore date the 11th day of April, 1878, and which was subsequently assigned to the defendant the Ontario County National Bank. The lien of this mortgage, however, was postponed to that of the $6,000 and the $2,000 mortgages by agreement executed by the bank after the assignment. The $5,000 mortgage was subsequently foreclosed by this bank, and the land covered by it, namely, the 175 acres, was conveyed to it March 3,1888, by the referee appointed to make the sale in the foreclosure. Luman M. Durand conveyed the 33 acres of land to
The terms, however, upon which such redemption may be made, must be such as would have been, mutatis mutandis, available to the plaintiff, had he actually been made a party to the foreclosure of the $2,000 Lansing mortgage. While the plaintiff’s rights were not enhanced by the omission to make him a party to that suit, they cannot, in any sense, be deemed to have been impaired thereby. For the purposes of this action they must be deemed to be wholly unaffected by the former action. The relief, therefore, actually to be administered in this case, must be adapted to the changed situation of affairs, caused without the fault of the plaintiff. The referee reported that the whole of the principal sum of the $2,000 Lansing mortgage, together with the $391 interest, amounting in all to $2,391, should be paid by the plaintiff upon such redemption, less $158.50, deducted for the value of the use of the land by the defendant since its purchase at the foreclosure sale. He further finds that the 33 acres are worth only $35 per acre, aggregating in all $1,155. So that the privilege of redeeming in this case is not one which the plaintiff will be swift to avail himself of, if the principle upon which the judgment proceeds can be maintained. We should, as it seems to us, administer the relief, as nearly as we can, so as to secure the plaintiff in the rights which he might have asserted in- the Lansing foreclosure had he been made a party defendant therein. The deed to Letitia G. Durand of the 33 acres was made and recorded prior to the purchase by the defendant the Ontario County National Bank of the 175 acres at the foreclosure sale of the $5,000 mortgage, but not before the assign