Smith v. Shay

Day, Ch. J. I. The plaintiffs hold and claim under the junior mortgage. They were not made parties to the foreclosure suit of the Shay or senior mortgage. It is conceded by the defendants that their right of redemption was not barred by the decree and sale under the senior-mortgage. It is claimed, however, that their right to redeem is not an absolute one, and that defendants can prevent the exercise of that right by themselves redeeming from plaintiffs. This view was adopted by the court below, and it is, we think, correct. In 2d Jones on Mortgages, 2d Ed., section 1075, it is Sftid: “A junior incumbrancer, who, not having been made a party to a foreclosure of a prior mortgage, afterwards redeems, redeems not the-premises, strictly speaking, but the prior in-cumbrance, and he is entitled, not to a conveyance of the premises, but to an assignment of the security. Therefore, if the' prior mortgagee in such case has become the purchaser at the foreclosure sale, and has thus acquired the equity of redemption of the mortgaged premises, the junior mortgagee upon redeeming is not entitled to a conveyance of the estate, but to an assignment of the prior mortgage; whereupon the prior mortgagee, as owner of the equity of redemption, may, if he [122] cboose, pay tbe amount due upon tbe junior mortgage, redeeming that.” See also Pardee v. Van Anken, 3 Barb., 534; Renard v. Brown, 7 Neb., 449. In our opinion tbe court did not err in giving tbe defendants tbe paramount right of redemption. II. Tbe court fixed tbe amount wbicb tbe plaintiffs should pay to redeem at $1,125. Of this both parties complain. The plaintiffs insist that tbe amount is too large, and tbe defendants that it is too small. From a careful review of tbe whole case, we find that tbe amount wbicb plaintiffs should pay is $1,350.97, with interest from August 22, 1882, on all of this sum, except $334.39, at ten per cent, apd upon $334.39 at tbe rate of six per cent. Tbe defendants complain of tbe amount wbicb tbe court required them to pay in order to effect redemption. They insist that they should pay only tbe amount for wbicb tbe land sold. We think that the court correctly required them to pay tbe amount of tbe judgment against Burns. Tbe defendants will be allowed to redeem by paying into tbe bands of tbe clerk of this court, for tbe use of plaintiffs, tbe sum $1,131.10, with interest from August 22, 1882, at ten per cent, within sixty days from tbe entering of decree in this court. If tbe defendants fail to make such redemption, tbe plaintiffs may redeem by paying to tbe clerk for tbe use^of defendants the sum of $1,350.97, with interest as above indicated, within ninety days from tbe rendition of decree. * Tbe plaintiffs will pay tbe costs of appeal. With tbe modification above indicated, tbe judgment is Affirmed.