Hart v. . Wandle

*385 Grover, J. The case contains no findings of fact by the Special Term, and no exceptions to any legal conclusions. It shows that by the stipulation of the parties the testimony was taken- by a referee and reported to the co urt. Objections were taken before the referee to some of the testimony, but whether these were renewed before the court or any ruling thereon made, does not appear. Had the judgment of the Special Term been affirmed by the General Term, no question would have been raised for review by this court, as there was no exception taken to any ruling of the former. (Stratton v. Cornfield, 2 Keyes, 55.) But the judgment of the Special Term was modified adversely to the appellant by the General Term, and affirmed as so modified. To this modification the appellant has had no opportunity to except, and its correctness may therefore be reviewed upon this appeal. By that modification the lands of the respondent, Mrs. Slocum, were relieved from liability to pay the appellant that portion of the purchase-money paid by him upon the purchase made at the foreclosure sale upon the Quackenboss mortgage, which was applied to its payment. The question is whether her lands, from the facts appearing in the case, were shown to have been subject to this liability. This question does not concern the plaintiff, as her mortgage covered all the lands of Mrs. Slocum and the appellant, together with seventy-seven acres conveyed by Billings to Coman. Billings, while the owner of all the land subject to the plaintiff’s mortgage, first gave the mortgage to Quackenboss. He next gave a mortgage to the Troy City Bank, upon all the land except seventy-seven acres, which he afterward conveyed to Coman. After the conveyance to Coman he conveyed twenty acres to Mrs. Slocum, subject to the mortgage of the plaintiff and the Troy City Bank. Upon the same day he conveyed the residue of the land to Hiram Slocum, subject to the same mortgages which Slocum covenanted to pay, which covenant was inserted in the deed to him. This made this land, as to Mrs. Slocum and Coman, first liable for the payment of the plaintiff’s mortgage and that of the Troy City Bank, and this liability extended to his grantees. *386 (Russell v. Pistor, 7 N. Y., 171.) But this did not affect the liability of the land for the payment of the Quackenboss mortgage as to this land of Mrs. Slocum, continued equally liable with that conveyed to Mr. Slocum, both being liable prior to that of Coman, as his conveyance was prior to theirs. Hiram Slocum, upon the conveyance by Billings to him, gave Billings a mortgage upon the land for $3,500, containing the following clause: “ But that it is hereby expressly agreed and understood that no part of the said sum or interest shall become due or payable until all liens and incumbrances existing on said premises or any part thereof, excepting two mortgages amounting to $10,000, on which there is that amount due, held by Smith, of Nyack” (plaintiff’s mortgage meaning), “ and of the same amount, viz., $5,000, held by the Troy City Bank, are fully paid and satisfied and the said premises discharged therefrom, which said liens and incumbrances the said party of the second part hereby agrees to fully pay, satisfy and discharge,” and which mortgage shows that it was given for a part of the purchase-money of the land. It thus appeared that Slocum retained in his hands an amount of the purchase-money more than sufficient to pay the Quackenboss mortgage. Under this state of facts, payment by Slocum of the latter mortgage or its collection out of his land would have given him no right of contribution from the lands conveyed to Mrs. Slocum. It thus appears that, as to the latter, the land conveyed to Hiram Slocum was the primary fund for the payment of the plaintiff’s and Quackenboss’ mortgages. This was so held by both the Special and General Term, but the former held that the appellant acquired by his purchase at the foreclosure upon the Quackenboss mortgage the equity of the mortgagee, to be regarded as grantee of Billings, the- mortgagor pro tanto, as of the date of his mortgage, and entitled to enforce such right against the lands of Mrs. Slocum for the amount paid upon the mortgage. For the purpose of determining the equity between the respective owners of parcels of land subject to an encumbrance upon all, a mortgage is to be regarded as an alienation, fro tanto, at the time of its date. (Kellogg v. *387 Brand, 11 Paige, 60; La Farge Fire Ins. Co. v. Bell, 22 Barb., 67.) The purchaser at a foreclosure sale acquires the title which the mortgagee had at the date of the mortgage. (De Haven v. Landell, 31 Penn., 120; White v. Evans, 47 Barb., 180.) In addition to this, he acquires all the rights of the mortgagee given by the mortgage in respect to the land. We have seen that the mortgagee acquires, gyro tanto, the equity of a grantee, as of the date of his mortgage. It follows that a purchaser at a foreclosure sale acquires the same right. The payment of the mortgage given to the Troy City Bank by Mrs. Slocum cannot affect this equity, as that mortgage was given by Billings subsequent to the Quackenboss mortgage, and could not affect his rights as mortgagee. Prom these facts, the Special Term were clearly right in holding that in case the lands conveyed to Hiram" Slocum did not upon sale produce a sum sufficient to pay the sum due upon the plaintiff’s mortgage and the costs, and to the appellant the sum paid by him upon his purchase of these lands which was applied to the payment of the Quackenboss mortgage, the lands conveyed to Mrs. Slocum should be next sold, and from the proceeds the above payment should be made. But evidence was given that the premises were sold pursuant to written terms, by which it appears that they were sold subject to all incumbrances previous to the plaintiff’s (Quackenboss’) mortgage, and the deed given by the sheriff to the appellant recites that the premises were subject to the incumbrances prior to Quackenboss’ mortgage. The plaintiff in this action, not being a party to that foreclosure suit, the premises sold would have continued subject to her incumbrance in the absence of the terms of sale or the recital in the deed. There'was no proof of any incumbrance prior to the Quackenboss mortgage other than the mortgage of the plaintiff. The sheriff, in the absence of proof to the contrary, must be presumed to have conducted the sale in accordance with the judgment directing it. Upon this presumption, the lands conveyed to Hiram Slocum were directed-to be first sold to satisfy the Quackenboss mortgage. Wé have seen that they were in equity liable for *388 this purpose prior to the lands of Mrs. Slocum, for the reason that he had in his hands an amount of the purchase-money sufficient for this purpose. But they were 'also primarily liable for the payment of the plaintiffs mortgage. When they were adjudged to be sold subject to this encumbrance, the inference is reasonable that they were to be sold subject to the entire burden in that respect then resting upon them. Of this Quackenboss had no cause of complaint, because if, when so sold, enough was not produced to satisfy his mortgage, the land of Mrs. Slocum was to be sold for that purpose. In this view, the terms of sale and the recital in the deed were appropriate, In any other, they were entirely useless. This must have been the conclusion of the General Term upon which the modification of the judgment of the Special Term was based. There was some other testimony given bearing upon this question. As to its competency (no exception having been taken) or force, I shall not inquire; upon the ground that the land was so sold upon the Quackeñboss foreclosure. The judgment of the General Term should be affirmed, with costs. All concur. •Judgment affirmed.