Reichert v. Stilwell

Spbíng-,"J. : The' assignments of the two bonds and - mortgages carried also, whatever rights to a deficiency judgment Mrs. Sanford"acquired in the foreclosure .action which she had prosecuted to judgment. So far as the bond and mortgage then foreclosed bore any relation to the two mortgages in suit they were collateral to them and the judgment consequently passed with, the transfer of the principal debts. (Freeman v. Auld, 44 N. Y. 50, 57; Bolen v. Crosby, 49 id. 183, 187; Cobbey Chat. Mort. §§ 650, 651.) If it did not pass with the assignments then it was extinguished-thereby, for Mrs. Sanford could not retain the collateral judgment as a subsisting demand after she had parted with the considerations themselves. (Langdon v. Buel, 9 Wend. 80, 84.) The deficiency judgment was a mere incident to the mortgage, and though based upon the bond it could not be obtained in the foreclosure action except for the mortgage. As was said by Judge O’Brien in Dudley v. Congregation, etc., of St. Francis (138 N. Y. 451, 458): “ In an action to foreclose a mortgage a judgment for deficiency is authorized and may be rendered as incidental to the principal relief demanded, but it cannot be rendered in an action where the plaintiff fails to establish the mortgage.” Mrs. Sanford possesses no rights in this deficiency judgment and ■ cannot issue an execution thereon. If any one has any such right it is the plaintiff in this action- who is her successor in title and we will act on that assumption in. the consideration .of the questions involved. [483] It is urged by the appellant that it is necessary for the plaintiff before commencing this action to obtain leave of the court so to do pursuant to section 1628 of the Code of Civil Procedure, and also that an execution should have been issued on the deficiency judgment and returned unsatisfied as required by section 1630 of said Code. The philosophy of the requirements of these sections is obviously to prevent an action on the bond and a foreclosure suit to collect the same debt pending at the same time. (Dudley v. Congregation, etc., of St. Francis, 138 N. Y. 451, 457.) This is made clear by section 1630, which is to be construed in connection with the two preceding sections, which reads: “ Where final judgment for the plaintiff has been rendered, in an action to recover any part of the mortgage debt, an action shall not be commenced or maintained to foreclose the mortgage unless an execution ” has been issued and returned unsatisfied. That is, if an action has been brought on the bond and judgment rendered, execution must issue before the foreclosure suit can be commenced on the mortgage which is collateral to the bond. Section 1628 is of like import, except, that if the foreclosure action is pending or final judgment has been rendered therein, an action at law to recover the mortgage debt cannot be commenced without leave of the court. These sections are, therefore, designed to meet a specific purpose. When a bond and mortgage have been given evidencing the -same indebtedness, one of which is enforcible in an action at law and the other by a suit in equity, that one remedy must be exhausted before resort can be had to the correlative relief. That is the extent of their application. Section 1629, which like the other sections has been long in vogue, and which is a part of the plan intended by them, requires the complaint in the foreclosure action to state whether any other action has been brought to recover any other part of the mortgage debt, and if so what has been collected. That requirement has been complied with in this case, for the complaint sets forth fully the facts pertaining to the preceding suit brought primarily to foreclose the mortgage of $720. And it further alleges that the surplus remaining after paying this mortgage was applied on the debts represented by the two mortgages in suit. The truth of these allegations is not assailed and the defendant has received the benefit of every [484] cent to which he is entitled. These sections are not jurisdictional, but relate to the practice, and the court can even grant the ordernuno pro tuno.for leave to sue while the action for which leave is. necessary is pending. (Earle v. David, 86 N. Y. 634.) It is ■ obvious that these defenses are entirely technical and that the omissions referred to cannot jirejudice the defendant. His testimony tends, to show whatever property is in his possession is heavily incumbered^ and that his title, if any, is shadowy and uncertain and tl|e issuing of an execution against his pi’operty would have been a-' fruitless ceremony. iphe judgment should be affirmed, with costs to the respondent. ■ 4-11 concurred, except McLennan, J., who dissents upon the ground that it was necessary for the plaintiff to comply with the requirements of sections 1628 and 1630 of the Code of Civil Procedure. ’ ' Judgment affirmed, with costs.