Kipp v. Brandt

Hon. Joseph F. Barnard, Justice. This action was brought for the foreclosure of. a mortgage. The mortgagor and all subsequent grantees of the mortgaged premises whose conveyances were of record, and all persons having liens or incumbrances upon said premises by virtue of mortgages executed by such grantees, or of judgments obtained against them, were made parties defendant to the action. Judgment of foreclosure was regularly obtained and entered, and the mortgaged premises sold. The purchaser paid down the usual percentage on the' sale, but before the day fixed for completing the sale and delivery of the referee’s deed he discovered that a mortgage executed by a grantee of the mortgaged premises whose deed was not recorded, and an assignment of said mortgage to a person who was not made a party defendant to the foreclosure, had been recorded before the [359] filing of the notice of pendency of the action. Upon this ground the purchaser moved to be relieved from his purchase; and that the decree in the foreclosure action be opened, and the said mortgagee and assignee made parties defendant thereto. C. B. Herrick, for motion. Gaul & Esselstyn, opposed. It appeared that neither the plaintiff nor his attorneys had actual notice of this mortgage or assignment. Plaintiff claimed that the deed to the mortgagor in this mortgage not being recorded, he was not bound in his foreclosure to take notice of any incumbrances against said mortgagor, of which he had not actual notice; and that all such incumbrancers were foreclosed by the judgment.in the action, notwithstanding they were not made parties thereto. The court denied the motion.