People ex rel. Brooklyn Union Elevated Railroad v. Morgan

83 N.Y.S. 86 | N.Y. App. Div. | 1903

Chester, J.:

It is conceded that the time for redemption from this tax sale had not expired when the application to redeem and the tender of the full amount of money required for such redemption were made • to the Comptroller. The law in force at the time authorized such, redemption to be made by “ the holder of any mortgage which is duly recorded at the time of the sale.” (Tax Law [Laws of 1896, chap. 908], § 139, as amd. by Laws of 1897, chap. 373.)

It is, therefore, entirely clear that if the mortgage had not been foreclosed, and the holder of the mortgage, the Central Trust Company, had made the application to redeem, such redemption would have been authorized and would have been within the express letter of the statute. Or if this mortgage had been assigned to Flower, who afterwards became the purchaser on the foreclosure sale, he1 would have been the holder of the mortgage, and entitled under the law to redeem. While under the letter of the law, and by a strict construction of it, he is not, after a purchase at a sale under a foreclosure of the mortgage, a holder of the mortgage, yet by virtue of such sale he becomes possessed of all of the rights, title and ■ interest of the mortgagee in the premises. He even gets more than1 this. . Section 1632 of the Code of Civil Procedure provides that “ a conveyance upon a sale made pursuant to a final judgment in an action to foreclose a mortgage upon real property * * * is as valid as if it was executed by the mortgagor and mortgagee, and. is. an entire bar against each of them.” The effect of a foreclosure deed is to vest in the purchaser the entire estate of the mortgagor and mortgagee as of the date of the mortgage. . (Rector, etc., Christ P. E. Church v. Mack, 93 N. Y. 488.)

The equities in this ease, it seems to me, are all with the relators. It has been held that a purchaser at a mortgage foreclosure sale, void as against the owner of .the equity of redemption, becomes in, legal effect assignee of the mortgage. (Townshend v. Thomson, 139 N. Y. 161. See also Green v. Mussey, 76 App. Div. 174.) But; assuming that the foreclosure here was complete as to the persons entitled to be made parties to the foreclosure action, I think the purchaser at the sale should be deemed in equity to be the holder of the mortgage for the purposes at least of permitting him as such holder to have the benefit of the right to redeem from this tax sale • under the circumstances presented here. This is simply giving to him the right which the mortgagee clearly had before the sale. . The mortgagee has. joined with him in this application, and I think the statute should not be construed to prevent the purchaser from hav- ■ ing this right after the interests of the mortgagee in the mortgaged property have passed to the purchaser.

I cannot bring myself to believe that the purpose of putting the words “ holder of any mortgage ” in the statute was intended by the Legislature to work such an injustice as would be accomplished here if after a foreclosure, when the right to redeem has not expired, the purchaser could not do what the mortgagee could have done in. this respect before the foreclosure. -

The determination of the Comptroller should be reversed, and the Comptroller directed to grant the application of the relators to redeem. from, the tax sale, with fifty dollars costs and disbursements.

All concurred.

Determination of the Comptroller reversed, with fifty dollars costs, and disbursements, and the Comptroller directed to grant the application of the relators.