9 Wend. 287 | N.Y. Sup. Ct. | 1832
The questions arising in tjjjs case are? j. Whether the foreclosure of the mortgage paid the debt secured by it; 2. Whether the plaintiff’s claim is barred by the statute of limitations ; and 3. Whether the record of the former judgment is a bar.
Upon the first question, it has been decided in this state that upon foreclosure of mortgaged premises, if they are of sufficient value, the debt is paid. If the premises are of less value, they extinguish so much of the debt as is equal to their value. This must be understood of a foreclosure, properly so called. In the ordinary mode of foreclosing a mortgage, the premises are sold, and then so much is paid as the premises produce upon a sale. 4 Wendell, 384, 5, and cases their cited. In Massachusetts no sale is made; after forfeiture the creditor enters into possession under legal proceedings, and unless the mortgagor redeems in three years, the property becomes absolute in the mortgagee. If the property is insufficient to pay the debt, the creditor may prosecute upon his attendant obligation, and recover the difference between the amount of the debt and the value of the property. 3 Mass. R. 562, 154. 2 Gallison, 152, 161. Of course, if the mortgaged premises are equal in value at the time of foreclosure to the debt, the debt is paid. When the defendants in this case took possession under the mortgage, the property was worth the debt, and according to the decisions referred to in Massachusetts and in this state, the debt was paid. It was decided at the circuit, at the former trial in 1820, that the money had not been collected within the meaning of the note; and that decision was submitted tof but that decision was not in accordance with the law as then settled in Massachusetts and since in this state. If the money must be actually received to subject the defendants to liability on this note, then it was in their power to prevent such liability from attaching by holding the property.
If I am right in the opinion that the debt was paid when possession was taken under the mortgage, or when the title became absolute, then the plaintiff’s claim is barred by the statute of limitations. If the plaintiff’s present action is based upon the negligence of the defendants in neglecting to col
The former suit was brought upon the same note and the evidence was the same. The verdict was, that the defendants did not undertake and promise in manner and form as the plaintiff had declared. This is conclusive, unless the insertion of the second count in the declaration prevents this bar. It must at all events be conclusive as to the note, for the record finds that no such note was executed. The plaintiff’s claim, therefore, can only rest upon the defendant’s neglect, and in that point of view it seems to me she must fail upon the statute of limitations.
I place my opinion, however, upon the ground that the mortgage was paid, at the latest, in 1819. The note was then collected, and the statute has attached.
New trial denied.