| NY | Apr 14, 1914
The action is brought to foreclose two mortgages for the principal sums of $2,000 and $400 respectively on a farm in Suffolk county. The $2,000 mortgage was given by the defendant Deutsch to one Bennett on January 27th, 1892. The $400 mortgage was then on the premises. Bennett died. His widow as administratrix attempted to foreclose the $2,000 mortgage *87
by advertisement. One Marsh purchased at the foreclosure sale as agent for the widow and the heirs and deeded the property to them. They joined in a deed to a son of Bennett and he deeded to Nathaniel Ketcham. Ketcham paid off the $400 mortgage and deeded the property to the appellant Haab and brother for $2,300, taking back a purchase-money mortgage of $1,500. The brother conveyed his interest to the appellant. After the conveyance to them Ketcham loaned to the Haabs $800, taking back two mortgages for $500 and $300 respectively on the premises. Upon the conveyance to them the Haabs went into possession and remained in possession until the appellant was defeated in an ejectment suit brought by said Deutsch. (See Deutsch v. Haab,
We are unable to discover any logical ground to support the attempted division of the proceeds between the plaintiff and the appellant. The plaintiff in form obtained an assignment of the $2,000 mortgage from *88
Bennett's administratrix in 1908. But his learned counsel concedes that the plaintiff's and the appellant's interests are both derived from Nathaniel Ketcham. It is now settled law in this state that the purchaser at a mortgage sale under an attempted statutory foreclosure, void as against the mortgagor for want of notice, becomes assignee of the mortgage, and, of course, each subsequent grantee becomes in turn assignee thereof. (Jackson v. Bowen, 7 Cow. 13" court="N.Y. Sup. Ct." date_filed="1827-02-15" href="https://app.midpage.ai/document/jackson-ex-dem-merrit-v-bowen-5464827?utm_source=webapp" opinion_id="5464827">7 Cow. 13; Wing v. Field, 35 Hun, 617;Finn v. Lally,
The learned counsel for the respondent assumes the case of a bond and mortgage for a much larger sum than the sum bid at the sale and the consequent right of the mortgagee to recover the deficiency, from which he argues that the purchaser becomes only assignee pro tanto the sum bid at the foreclosure. While the purchaser becomes assignee of the mortgage, and, necessarily, therefore, of the debt, equity might protect the mortgagee's interest in any recovery for a deficiency arising on a subsequent foreclosure. It is sufficient to say, however, that no such question arises in this case. Both parties claim from Nathaniel Ketcham. The appellant obtained whatever interest the latter had, subject to his right to be paid the balance of the purchase price. He undertook to convey the premises, whereas he was at most the assignee of two mortgages, amounting with interest at the time of the judgment to $5,032.54. Had he conveyed the fee as he assumed to do, he would have been entitled at most to the payment of the balance of the purchase price, $1,500. The fact that his grant operated only to assign the mortgages does not entitle him to fifteen twenty-thirds of $5,032.54. The appellant, upon the issues as presented, was at least entitled to the balance of the proceeds of the sale after deducting the sum due on the $1,500 bond and mortgage.
It remains to consider what provision should be made, if any, with respect to the two bonds and mortgages of $500 and $300 respectively given by the appellant and his brother for borrowed money. While the mortgages were ineffectual to create a lien on the premises as the mortgagors had no title, they should in equity operate as an assignment pro tanto of whatever interest the mortgagors had. But it does not appear that those bonds and mortgages were assigned to the plaintiff and as administrator he is not a party to this action. Payment to him individually *90
would not protect the appellant from a claim in behalf of the estate of his intestate. The fact that the plaintiff is sole next of kin does not suffice, as it does not appear that the debts of his intestate have all been paid. (See Blood v. Kane,
The judgment should be reversed and a new trial granted, with costs to abide the final award of costs.
HISCOCK, CHASE, COLLIN, CUDDEBACK and CARDOZO, JJ., concur; WILLARD BARTLETT, Ch. J., absent.
Judgment reversed, etc.