Ex parte Merrian, 4 Denio 254

Ex parte Merrian

4 Denio 254

| N.Y. Sup. Ct. | 1847

By the Court, Jewett, J.

The relator claims an absolute right under the provisions of the revised statutes, (1 R. S. 175, § 33 et seq.) to have his part of the mortgaged premises discharged upon payment by him of the amount of the mortgage *256debt charged thereon, in the separate account.- These provi sions, in terms, direct the giving of such discharge upon payment of the debt charged upon a separate parcel of the premises mortgaged, in respect to which a separate account has been opened. (§ 37.) Before a new account is opened the comptroller is to be satisfied that the residue of the lot is of sufficient value to satisfy the remainder of the debt. (§ 40.) This, it is presumed, was done in this case.

But by an act passed in 1839, (Stat. p. 347,) the grantees of a mortgagor in a state mortgage, may, pending the proceedings to foreclose, make affidavits of their respective titles, and indicate with certainty the parcels of the premises owned by them, upon which it is made the duty of the attorney general, in the first place to sell any portion of the mortgaged premises not alienated by the mortgagor, and if that does not produce sufficient to pay the mortgage, then to sell the residue in the reverse order of its alienation—thus preserving the rights of the parties according to principles well established in courts of equity. Under this statute the duties of the public officers would be entirely plain were it not, for the separate account opened at the instance of the relator and his claims to an advantage over the prior grantees arising out of the provisions of the revised statutes relating to separate accounts. But for this feature of the case, the attorney general would be bound, in the first instance, to sell the 15| acres unconveyed; then the relator’s land, then Downing’s, and lastly that owned by the grantee of Gere—ceasing to sell, of course, when the proceeds of the sale should be sufficient to pay the mortgage debt and costs.

The principle adopted at the comptroller’s office upon an application for a separate account, is to charge the land of the applicant with such a proportion of the debt as the quantity and value of his land, exclusive of buildings, bear to the whole lot mortgaged. This would doubtless be correct in relation to land purchased from the state and held under contract, and also in a case where land had been mortgaged to the state, and the mortgagor had conveyed different parcels to several individuals at the same time, and it would be well enough where *257only one conveyance had been made by the mortgagor, and the grantee in that conveyance should apply for a separate account. He might however, where he had not assumed the payment of any part of the mortgage debt, safely rely upon having the part unsold first subjected to sale on the state mortgage, before the part purchased by him was interfered with. But in a case circumstanced as this is—of several grantees under conveyances of different date—it is manifest that an apportionment, on the application of a junior grantee, made after the passage of the act of 1839, which should limit the burden upon his parcel to stich an amount as to leave the premises of prior alienees exposed to sale, before the parts held under the subsequent alienation should be exhausted, though such prior alienee had made the prescribed affidavit, would be illegal. Under the circumstances of this case, the relator cannot claim to have his parcel discharged until he shall have paid the balance due on the mortgage, after first applying the proceeds of the sale of the 15| acres unconveyed. There is an apparent conflict between the general provisions of the revised statutes and the act of 1839; but taken together, I do not see that they will admit of any other construction than the one which I have given them. Upon the construction insisted on by the counsel for Merrian, the state would lose the whole mortgage debt beyond what may be realized from the sale of the 15-i acres and the amount charged upon Merrian’s parcel in the separate account ; for by the positive terms of the act of 1839, the requisite affidavits having been made, the premises conveyed to Downing and Gere cannot be sold, until after that of the relator shall have been sold. It does not appear that either Gere or Downing have opened a separate account, and it is not pretended that either of them agreed with their grantors to assume any portion of the mortgage debt. They purchased without any reference to the lien, and looked to their grantors to relieve the premises from that debt. The motion must be denied.(a)

Motion denied.

Decided in December, 1846.