17 Barb. 100 | N.Y. Sup. Ct. | 1853
If the mortgage included the land: in question, the grantor of the plaintiff, at the time of the sale, was the owner of the equity of redemption; and as he received no notice of the foreclosure, as to him and her it was a mere nullity. (Watson v. Spence, 20 Wend. 260. Van Slyke v. Shelden, 9 Barb. 278.) The defendant, however, being in possession and the assignee of the mortgage, cannot be dispossessed by ejectment. (Phyfe v. Riley, 15 Wend. 248. Van Duyne v. Thayre, 14 Id. 233.) In Watson v. Spence, (supra,) the defendant was neither mortgagee nor assignee of the mortgage, but entered under a void sale.
The plaintiff also claims, that if the four acres were included in the mortgage, the surplus on the sale was more, in proportion, than his part of the mortgaged premises) and, consequently, the mortgage is satisfied as to the four acres in question. That might have been the result if the 96 acres, or a larger portion of the premises had been' sold first, as it should have been if the mortgagor still owned it, or had sold it after he conveyed this parcel. But on the foreclosure, it Was all hold together, and it is not known how much that larger portion of the premises would have produced. The mortgage is'foreclosed as' to that part, and so far the equity of redemption is gone.
The plaintiff is not without remedy. She has a right to have the value of the largest part of the mortgaged premises, if these four acres were first conveyed, first applied. And if that equals the amount of the mortgage after applying the rents and profits, &c„- the mortgage will be deemed satisfied. (Patty v.Pease, 8 Paige, 277. Vanderkemp v. Shelton, 11 Id. 28. Guion v. Knapp, 6 Id. 35. Stuyvesant v. Hall, 2 Barb. Ch. 151.) And if not, the plaintiff can redeem by paying the deficiency. The court, in such a proceeding, may consider the defendant as having released the larger parcel ;• or the mortgage as merged or paid, to that extent; and in either case deduct the value of that part.
The payment of the surplus to John Jackson, with full knowledge of all the facts, did not affect the title of the real owner of the equity of redemption, who had no notice of the sale pursuant
Hand, Cady and C. L. Allen, Justices.]
I think with the learned justice who tried this cause, that the mortgage included the land in question. And there was no error in not submitting that question to the jury. (Levi v. Gadsby, 3 Cranch, 180.) Admitting the facts to be as the plaintiff claimed, still I think this property was included. True, the land now in controversy was bounded on the north by McKindley’s land, and not by that of Consalus ; but it was bounded on the east by the land of William Jackson, and these four acres made the complement of 100 acres, the quantity mentioned in the mortgage. If we may look at the intention of the parties, it will hardly be supposed that they intended to include the four acres which the mortgagor had conveyed to the mortgagee only a few days before. And if the mortgage was to include the whole of lot Ho. 12, and that only, they would probably have designated it by the number.
Hew trial denied.