28 N.Y.S. 293 | N.Y. Sup. Ct. | 1894
The action was to foreclose a mortgage of $1,000 on a parcel of 33 acres of a farm of 208 acres, title to which was in the defendant bank, as purchaser at the sales in foreclosure on two previous mortgages. No other defendant appeared in this action. The plaintiff’s alleged standing to assert the lien of his mortgage notwithstanding such previous foreclosures is based upon the facts that the first of the mortgages foreclosed covered only the other parcel, of 175 acres, of the farm, and that in the action to foreclose the other mortgage, which covered both parcels, the plaintiff was not made a party. The narrative of the case is, briefly, as follows: Previous to 1878 the farm was conveyed to one Luman M. Durand in the two parcels mentioned; and in that year he and his wife, Letitia, executed to one Gillett a mortgage of $5,000 on the 175 acres, which was afterwards assigned to the defendant bank, the respondent here. In 1886 Durand and wife executed to one Lansing two mortgages,—one for $6,000, and one for $2,000, each of them covering both parcels, of the same date, and simultaneous lien; and at the same time the holder of the
This case has been twice tried, and is now for the second time in this court. On the former appeal it was held—-affirming, so far, the decision of the court at special term-—-that upon the facts then appearing, which are included in those above stated, the plaintiff’s action could not be maintained for a foreclosure of his mortgage, but that, all the parties interested being before the court, it might be treated as an action to redeem, upon such terms, to be fixed, as should conserve the equities of all parties. See Denton v. Bank (Sup.) 18 N. Y. Supp. 38 (opinion by Macomber, J.). It was also held—still at special term—that the plaintiff, while he should not be a loser, neither could he be a gainer, by the omission to make him a party to the previous actions of foreclosure, but that he must be permitted to redeem on such terms as would have been available to him, had he been made a party to the previous action; and the case was sent back to the special term for further proofs and findings bearing upon the terms of redemption to be allowed
Principal of the two Lansing mortgages.......................$ 8,000
Interest paid by defendant on $6,000 mortgage................. 1.020
Interest accrued on $2,000 mortgage............................ 660
$10,280
Deduct rental value of premises............................... 1,872
.Net aggregate of liens........................................ $ 8,408
From which should be deducted value of equity of redemption.. 3,750
Which leaves the sum of................................. $ 4,658
—To be paid by the plaintiff in order to redeem the 33-acre parcel. The method here adopted, and its result, are, we believe, correct, and they are plainly in accordance with the doctrine of the previous adjudication of this court. It is true, no doubt, that, unless there has been, or shall be, a sudden and surprising advance in the value of the 33 acres, the terms imposed render the redemption of the property out of the question; but that only demonstrates that the plaintiff has no interest in the premises after satisfying the liens prior to his mortgage,—in other words, that this action was unwisely brought. This complaint was therefore properly dismissed, with costs, unless, indeed, he is prepared to accept the alternative of redeeming on the terms prescribed. We have examined the numerous exceptions taken by the plaintiff on the trial, and to the findings of the court, and find none which seem to vitiate the disposition made of the case. The judgment appealed from should be affirmed, with costs. All concur. So ordered.