Root v. Wheeler

Balcom, J. —After examining the statutes, “ Of the foreclosure of mortgages by advertisement” (2 Rev. Stat., 545), the acts amending the same (Laws of 1844, p. 529; Laws of 1847, p. 667; 3 Rev. Stat., 5 ed., 859), the decisions cited by counsel, and others, I have come to the following conclusions:—1. The foreclosure of the mortgage and the purchase of the-premises by the plaintiff barred all claim or equity of redemption of the mortgagors, and of all persons who had liens upon the premises subsequent to the mortgage, that were duly served with notice of the sale as required by law. (Laws of 1844, p. 530, § 8.) 2. The defendant, who was not dnly served with such notice, is-not foreclosed or barred of his equity of redemption or claim upon the premises by his judgment against the mortgagor, Bixby. (See the cases of King a. Duntz, 11 Barb., 191; Wet-more a. Roberts, 10 How. Pr., 51; Vanslyke a. Sheldon, 9 Barb., 278 ; St. John a. Bumpstead, 17 Ib., 100; Winslow a. McCall; 32 Ib., 241; Post a. Arnot, 2 Ben., 344.) 3. The purchase of the premises by the plaintiff, under the foreclosure, did not destroy or affect the lien of the defendant’s judgment. 4. The defendant’s judgment, before the sale, was subject to all prior liens on the premises, including the plaintiff’s mortgage, and it still remains subject to the same. 5. The defendant cannot claim that the purchase of the premises by the plaintiff destroyed on removed the liens thereon older than his, without admitting the validity of the foreclosure of the mortgage as against himself. 6. The plaintiff, by. purchasing the premises, acquired all the interest the mortgagors had therein, and also all the rights thereto that the owners of liens thereon subsequent to the mortgage, and older than the defendant’s judgment, had, who were duly served with notice of the sale. 7. The plaintiff has title [299] to the premises, free and clear of all claims or liens thereon, except the lien the defendant has by his judgment. 8. The defendant had the legal right to issue execution on his judgment, and sell the premises, subject to the plaintiff’s mortgage and all other liens thereon older than his judgment. 9. The plaintiff, by reason of the foreclosure of his mortgage (which was regular as against all persons interésted, except the defendant), and his purchase of the premises, can maintain this equitable action, and ascertain the value of the defendant’s lien on the premises, and on paying him such value, restrain him from ever selling the premises; (Benedict a. Gilman, 4 Paige, 58; Vroom a. Ditmas, Ib., 526; Post a. Arnot, 2 Den., 344.) 10. As the premises, at the time the plaintiff purchased them, were not worth as much as the amount then due on the mortgage and the other liens that were older than the defendant’s judgment, his lien by that judgment was of no value, and so remains. 11. The defendant’s lien being of no value, by reason of the amount of the older ones and the plaintiff’s mortgage, he has no equitable right to sell the premises in virtue of his judgment on the execution already issued, or any other he may issue thereon, and thus put a cloud upon the plaintiff’s title; and he should be restrained from ever exercising his legal right to do so. 12. The injunction-order, heretofore granted in the action, should be made perpetual, and the defendant’s lien on the premises declared of no value, foreclosed, and barred; and the plaintiff should be adjudged the' owner in fee of the premises, free from any lien thereon by the defendant’s judgment. 13. Neither party should recover costs of the other. (2 Barb. Ch., 199; Oode, § 306.) I am aware there is no adjudged case to support some of the foregoing conclusions, and that some of them, at first blush, may seem to be in conflict with well-considered decisions. But I think they are not in conflict with any such decision, and are in harmony with settled principles of equity jurisprudence. They take nothing valuable from the defendant without assuming to compensate him fully therefor;—they only require him to desist, upon equitable principles, from exercising a legal right, when its exercise would work great injustice to the plaintiff ; and were such right valuable, he would be fully paid therefor. This is equity; and equity will control strictly legal [300] rights for the promotion of equal and exact justice between parties. (Briggs a. Davis, 20 N. Y., 15.) The case of Post a. Arnot (2 Den., 344), and others in Paige’s Reports, arose prior to the passage of the statute requiring notice, on foreclosing a mortgage by advertisement, to be served on the mortgagor and all persons having liens subsequent to the mortgage, and when a foreclosure by advertisement did not bar the right of any junior incumbrancer to redeem, whose lien accrued intermediate the execution of the mortgage and the sale; and the facts in each case in Barbour and Howard’s Reports, are different from those in this. Hence the necessity of determining this case more upon principle than authority. I will only add, that I have been unable to see how I could dispose of this case, except in the manner above stated, and do justice to both parties.