Mead v. Spink

Barnard, P. J. The plaintiff, by his purchase of the mortgaged premises, became the principal debtor. The land was subject to a mortgage given by the Dunscombs, but the plaintiff agreed to pay it as part of the purchase money. Comstock v. Drohan, 71 N. Y. 9; Fairchild v. Lynch, 99 N. Y. 359, 2 N. E. Rep. 20. As a matter of course, when the plaintiff failed to perform his agreement, and the mortgage was foreclosed, the holder of the mortgage entered up a judgment for a deficiency against the mortgagor and the plaintiff. who was to pay it. There was no question of the regularity of the sale, and, if it did bring less than its value, no cause of action results therefrom to the owner of the fee. There is no standard of value, in the absence of fraud, other than that received by a public sale according to law. The poverty of the plaintiff, which prevented his paying his debt at or before the sale, was no defense to the action in foreclosure. No ground for equitable ruling is presented, unless an attempt is made to collect'of a principal debtor instead of a [392] surety. If the surety should pay it, the principal debtor would be responsible to repay it. The judgment should be affirmed, with costs. Dykmah, J., concurs.