236 A.D. 686 | N.Y. App. Div. | 1931
Order striking out defense and counterclaim affirmed, with ten dollars costs and disbursements. The conveyance by defendant realty corporation, the mortgagor, to defendant Louis Summers made subsequently to the mortgage under foreclosure did not create an easement or way by necessity over the mortgaged premises. While title to mortgaged premises remains in the mortgagor, a foreclosure and sale in practical effect operate to extinguish the defeasance, and the purchaser takes title as of the time the mortgage lien was created. (Batterman v. Albright, 122 N. Y. 484; Rector, etc., Christ P. E. Church v. Mack, 93 id. 488.) At that time no such easement existed. Defendant Louis Summers and his grantor, Hildansid Realty Corporation, have defaulted under the mortgage. They may protect the full value of the parcel remaining by offering to bid the full amount of the mortgage debt subject to the easement, and have the judgment modified so as to protect such a sale. (Rector, etc., Christ P. E. Church v. Mack, supra.) Lazansky, P. J., Young, Kapper, Hagarty and Tompkins, JJ:, concur.