16 N.Y.S. 267 | N.Y. Sup. Ct. | 1891
1. We think.the defendant cannot successfully complain that the purchasers of the Klock and Bells farms were not made parties defendant in this action. He took no objection to the complaint on that ground by demurrer, and the relief sought in this action does not impair his liens as to those farms; and, besides, his answer does not set up that such purchasers are necessary parties to this action. Bank v. Farthing, 101 N. Y. 344, 4 N. E. Rep. 734.
2. From an early day in the court of chancery in England the payment or tender of money having been made, though after the day named in the mortgage, it has been held that the mortgage should be considered as redeemed in equity, the same as it would have been at law if the payment had been made before the day; and, following- that practice, bills were “filed by mortgagees for the extinction or foreclosure of this equity, unless payment were made by a short day to be named. The settled English practice is for the decree to order the amount due to be ascertained, and the costs to be taxed, and that, upon the payment of both within six months, the plaintiff shall reconvey to the defendant; but, in default of payment within the time limited, that the said defendant do stand absolutely debarred and foreclosed of and from all equity of redemption of and in said mortgaged premises.” Clark v. Reyburn, 8 Wall. 323. In Bolles v. Duff, 43 N. Y. 474, this practice was referred to in the following language: “Strict foreclosures are rarely pursued or allowed in this state, except in cases where a foreclosure has once been had and the premises sold; but some judgment creditor, or person similarly
3. We are of the opinion that the trial court fell into an error in requiring the defendant in the case of redemption to pay the costs of the former action in foreclosure. In volume 1, bk. 2, Bl. Comm. p. 158, it is said: “But here again the courts of equity interpose, aiid though a mortgage be thus for-
4. We think the requirement to furnish a guaranty was unusual, and was an exaction beyond any precedent we have discovered in the numerous cases pertaining to a redemption. The remedy is sufficiently severe and harsh, (Bolles v. Duff, supra,) without having attached to it any unusual exactions.
5. We think the plaintiff’s purchase of the Tavern farm was not subject to the mortgage of the defendant. The title and interest which she derived were as of the time of the date of her mortgage.
6. We recognize the rule that this court has the power to review the facts and consider the evidence, and to determine whether the findings accord with the weight of the evidence. Finch v. Parker, 49 N. Y. 1; Godfrey v. Mosher, 66 N. Y. 250. We have looked into the evidence, considered the same in connection with the findings, and we do not feel called upon to disturb the findings of fact made by the trial judge. The same are supported by the evidence, and are apparently in accord with the weight thereof.
7. It is found that at the sale on the 16th of March, 1889, and before the sale had been made, the referee publicly announced the conditions and terms of the sale; and, among the conditions, he stated that the property was sold free and clear of any and all right of dower, charge, or lien upon the same, “except that it is claimed by one FTehemiah FT. Cornish; that he is the owner by assignment of a mortgage made by Ichabod C. McIntosh to Miriam M. Kellogg, covering the premises, dated February 1, 1878, to secure the payment of $2,500, which mortgage was recorded in Oneida county clerk’s office, February 13, 1878, and is a record lien upon said mortgaged premises. Cornish has not been made a party defendant to this action.” It is also found “that after such public announcement of said condition and terms of sale, subject thereto, the plaintiff became the purchaser at the said sale of that portion of the mortgaged premises known as the ‘Tavern Farm,’ so called, for $6,095, particularly described in the complaint in this action.” It is also found “that the plaintiff so purchased the same at said sale, with the knowledge of the lien of defendant’s said mortgage, and the order aforesaid to make him a party defendant as aforesaid, and that he had not been made such party defendant.” By the decision made at the trial it was provided that “the value of any improvements made thereon by her in good faith” be ascertained, and the defendant be required to pay the same as one of the conditions of redemption. In Mickles v. Dillaye, 17 N. Y. 84, Judge Denio, in stating the rule applicable to the right of redemption, says; “The general rule is there