'MUjiiinii Ji> 
 
 
 ^OfCAllFO/?;)^ ^OFCAllfOfi'^ ^^\^E■UNIVH?i/.^ 
 
 ^•lUSANGflfJ 
 
 o 
 
 i'/^aaMKnmv^ "^Mvaain^ >'<?Aavaan-3i^ <r:?i30Nvso)^'^ "^aMiNaart 
 
 ^liiBKAKrcz/r 
 
 ^JITVDJO^ 
 
 AV\tllNIVhK% 
 
 
 %a3AiNi]mv 
 
 ^5^t■llBKAHYd;/^ 
 
 >,^tlIBKAKY(; 
 
 ^<!/0JllVDJO'^ 
 
 \^myi^ 
 
 ;,OFCAirF0ff/i|A 
 
 >&AavHaiv# 
 
 i 
 
 o 
 
 vvWSANCFlfx* 
 
 
 .^OFCAIIFO/?^;, .^;0FCA1IF0/?, 
 
 
 
 
 ^\1t■UNlvtKVA 
 
 ^/sa3AiNn3WV^ '^^ojnvjjo'^ '^iJojiwdjo'^ <rii33NVsoi^'^ 
 
 
 "^/saaAiNn-avv 
 
 v>:lOSANCElfj;> 
 
 '^^mms:\% 
 
 .A;0FCAIIF0/?^ ^OFCALIF0% 
 
 ^'^omwr^ ^^omWi'^ 
 
 .^MEUNIVER5•//, 
 
 vjwlOSANCElfj 
 
 %a3AINa3\^ 
 
 ^UIBRAKYOr^ ^^V\t•l)NIVER% ^lOSANCElfJ> 
 
 ^OFCAIIFO^^ 
 
 
 -v^^lllBRARYQc. 
 
 ^ItlBKARYC 
 
 '>'<!/0JllY3JO'^ %133KVSO# "^/JaJAINfi 3ttV^ ^>'<!/0JnV3J0^ ^KSOJIIVJJG 
 
 .^WEUNIVERy/A 
 
 <fil3DNVS01^ 
 
 vj<lOSANCElfj> 
 o 
 
 
 .^0FCA1IF0% 
 
 .^OFCAIIFO/J! 
 
 >&■IJ^•^nJln•T^'^ 
 
 "^^■AMVMrnT 
 
 ^lusANauj-^ 
 
 -^lllBKARYi?/. ^VllBRAKYQr 
 
 iJJlTlilJlTI 

 
 f/iy ^urCAllhURijv ^A\UUNIVtKV>5|, ^•lUbAVGfUj'^ ^OhtAllhO/?^;, 
 
 Ns^ '^iiJAHViiHn^ '^J:?inr5;oi^ %«3AiNn-3ViV** "^(^AHvaaiH^ 
 
 
 >^l{fiANCnfjV 
 o " 
 
 == .< 
 
 A^ltlBKAKr(yyr^ 
 
 ^tllBKAKTC//: 
 § 1 ll-' ^ 
 
 
 "^/SijJAINfliWV^ 
 
 
 ^OJITVDJO-^ 
 
 ^0FCAIIF0% 
 o 
 
 
 x^U 
 
 %nviian# ^<?Aav«aii# ^^iijoNvsov'^'^ 
 
 M^L lu>n^^n \ i// 
 
 :s^ '^^ojiivjjo'^ 
 
 
 
 
 iH^ .S:V)FCAllFO% .^WEUNIVERJ//, 
 
 
 <ril33KVS01^ %a3AiNn-3\v^ 
 
 A^tllBKAKY(V 
 
 <rii33Nvso# '^Aa3AiNflmv> ^'^mmyi^ 
 
 ,^;OFCAIIFO% 
 
 >&AavMaiv# 
 
 ckOf 
 
 4? 
 
 ^>&A 
 
 ^lUbANLtltj^ 
 
 ^ "^aaAiNniwv' 
 
 ^^VLIBKAHY-Qr 
 
 
 ^tUBKARYCJr 
 
 § 1 ir^ ^ 
 
 ^tfOJIlVDJO'*^ 
 
 AWtUNIVtRy/A 
 
 <m23NVS01^ 
 
 •/A. Aj;lOSANCElfX;> 
 
 -Ti O A f^^^ El 
 
 =^ "^/^MAINfl-JWV 
 
 ^OFCAIIFO%, 
 
 ^<?AavHa!i-3i^ 
 
 "^clSvaan^ 
 
 .^WEUNIVEW/A 
 
 ^IC 
 
 j2 Z3 
 
 ^i^llONVSOV^ 
 
 
 ,^ -^l-UbKAKTy/^ 
 
 ;^^Vtt■l/NIVtW/^ ^lUiANlitltJi* 
 
 
 iiUITi il^iifrt:! lUlTlil
 
 A XREATISE^ 
 
 ON 
 
 THE LAW AND PRACTICE 
 
 OF 
 
 Foreclosing Mortgages 
 
 ON REAL PROPERTY, 
 
 AND OF 
 
 REMEDIES COLLATERAL THERETO, 
 WITH FORMS, 
 
 BY 
 
 CHARLES HASTINGS WILTSIE 
 
 OF THE ROCHESTER BAR. 
 
 A suppleme:nt 
 
 BRINGING THE WORK DOWN TO MARCH, 1 897, AND ADDITIONAL 
 
 CHAPTERS ON 
 
 Mortgage Redemptions 
 
 BY 
 
 JAMES M. KERR 
 
 OF THE NEW YORK BAR, 
 
 Author of "Kerr on Real Property;" "Kerr on Business Corporations;" "Kerr 
 
 on Homicide," etc., etc. 
 
 IN TWO VOLUMES, 
 
 VOL. I. 
 
 ROCHESTER, N. Y. 
 
 WILLIAMSON LAW BOOK COMPANY. 
 
 T897.
 
 ..1 
 
 T 
 
 COPYRIQUT 
 BY 
 
 CHARLES HARTINGS WILTSIE, 
 1889. 
 
 COPYRIGHT 
 
 BY 
 
 WILLIAMSON LAW BOOK COMPANY. 
 ^897.
 
 TO 
 
 FRANCIS A. MACOMBER, LL. tK 
 
 on OF THK JUSTICES OF THK SUPBEMB COURT OF THK STAT* 
 OF NEW YORK. 
 
 ®j)is iSook i« 3at8pKt£ullp 3n«rtbM 
 bt the AUTHOB- 
 
 ni! mr r^
 
 PREFACE. 
 
 The generous and appreciative reception given by the 
 legal profession to the author's original monograph on 
 Parties to Mortgage Foreclosures and Their Rights and 
 Liabilities, has been his chief encouragement during the 
 past two years in preparing this treatise, and he bespeaks 
 for this more elaborate endeavor the same kind treatment 
 that was given to his first work. In presenting this 
 treatise, it is desired to call the special attention of the 
 profession to the fact that the original monograph on 
 Parties has been included in, and superseded by this work. 
 The general plan and style of the monograph have been 
 followed in these pages. The same original and exhaustive 
 investigation which was given to that narrow part of the 
 general subject of the law and practice of foreclosing 
 mortgages, has here been devoted to every part of the 
 subject. 
 
 This work is not a second edition of the first one, but 
 is distinctively a new treatise — covering every part of the 
 law and practice of foreclosing mortgages, from the com- 
 plaint through the distribution of surplus moneys, and 
 including such collateral remedies as the appointment of 
 a receiver. 
 
 It is adapted to the practice of every state in the Union, 
 and especially of those states where foreclosures are con- 
 ducted by equitable actions and sales. Over eight thousand 
 cases have been cited ; about one-third of these have been 
 taken from the reports of the state of New York. Every
 
 VI PREFACK 
 
 case cited has been tested and examined three different 
 times, with a view to making the work accurate in details, 
 as well as exhaustive, and as far as possible original. 
 Digests and general text-books have been used very little. 
 The work has been written up from the decisions of the 
 courts as contained in the state reports; consequently, a 
 great amount of new matter has been obtained that can 
 be found in no other text-book. 
 
 In the foot-notes the limitations and modifications of 
 general principles, and the special and peculiar instances 
 are given in full. The practicing attorney — for whom 
 this book has been written — is familiar with general prin- 
 ciples ; what he wants are the peculiar and special cases. 
 The date of every case has been placed after its citation 
 at the suggestion of the publishers, a feature that it is 
 believed will add greatly to the convenient use of the 
 book. 
 
 The author desires to acknowledge his great indebted- 
 ness to James M. Kerr, Esq., for assistance in preparing 
 a large part of the work ; indeed, without his assistance 
 it would hardly have been possible for the author to 
 have found time from the duties of an active practice 
 to prepare the book with that exhaustiveness, completeness 
 and accuracy which he hopes the legal profession will find 
 to characterize it. FREDERICK B. Hall, Esq., also has 
 rendered valuable assistance in testing and verifying nearly 
 every citation in the book, and in preparing the appendix 
 of forms. 
 
 Rochester. N. Y.. May, 1889.
 
 TABLE OF CONTENTS, 
 
 CHAPTER I. 
 
 Page 
 NATURE AND OBJECT OF FORECLOSURE, 1 
 
 CHAPTER II. 
 COURTS, JURISDICTION AND VENUE, 14 
 
 CHAPTER III. 
 WHEN FORECLOSURE MAY BE COMMENCED, .... 28 
 
 CHAPTER IV. 
 WHEN RIGHT OF ACTION BARRED, 67 
 
 CHAPTER V. 
 PARTIES PLAINTIFF 80 
 
 CHAPTER VI. 
 PARTIES DEFENDANT— NECESSARY TO PERFECT THE TITLE 
 Owners of the Fee Title, 132 
 
 CHAPTER VII. 
 PARTIES DEFENDANT— NECESSARY TO PERFECT THE TITLE. 
 Subsequent Mortgagees and Lienors, 187 
 
 CHAPTER VIII. 
 PARTIES DEFENDANT— NECESSARY TO PERFECT THE TITLE. 
 
 Parties Holding Part or Equitable Interests in the Mort- 
 gage Under Foreclosure, or in Liens Contemporary there- 
 with, Not Joining as Plaintiffs, Necessary Defendants, 213
 
 Viii TABLE OF CONTENTS. 
 
 CHAPTER IX. 
 
 PARTIES DEFENDANT. 
 
 Page 
 
 Pbiob Moktgageks and Adverse Claimants, 225 
 
 CHAPTER X. 
 
 PARTIES DEFENDANT— LIABLE FOR THE MORTGAGE DEBT. 
 
 Genekal Principles— Points in Pbactice 235 
 
 Pabtieb Originally Liable, 249 
 
 CHAPTER XI. 
 PARTIES DEFENDANT— LIABLE FOR THE MORTGAGE DEBT. 
 Parties Subseqitentlv Llable, . * t . 265 
 
 CHAPTER XII. 
 COMMENCEMENT OF ACTION, 292 
 
 CHAPTER XIII. • 
 THE COMPLAINT, 326 
 
 CHAPTER XIV. 
 LIS PENDENS-NOTICE OF PENDENCY OF ACTION, . 859 
 
 CHAPTER XV. 
 ANSWERS AND DEFENCES. 
 
 Who mat Answer — Defect in Pabties — Action at Law on 
 Bond — Defective Execution of Mortgage — Infancy, 
 Insanity, Iokobance, Alteration, 880 
 
 CHAPTER XVI. 
 ANSWERS AND DEFENCES. 
 
 CONBIDHRATION — USDBY — DEFENCES AGAINST ASSIGNEE OF MOBT- 
 
 OAGB, AND Against Pobchaseb of Negotiable Papeb Secubed 
 
 BY Mortgage, 403
 
 TABLE OF CONTENTS. IX 
 
 CHAPTER XVII. 
 
 ANSWERS AND DEFENCES. 
 
 Page 
 
 Fraud, Misrepbesentation, Mistake and Duress, .... 428 
 
 CHAPTER XVIII. 
 
 ANSWERS AND DEFENCES. 
 
 Counter-claims and Estoppels, 450 
 
 CHAPTER XIX. 
 
 ANSWERS AND DEFENCES. 
 
 Right of Action Not Accrued — Mortgage Debt Not Due — 
 Payment and Discharge — Denial of Personal Liability 
 — Release of Part op Mortgaged Premises, 475 
 
 CHAPTER XX. 
 
 ANSWERS AND DEFENCES. 
 
 Adverse and Paramount Claims of Title — Defective Title 
 — Fixtures — Eviction — Outstanding Title — Want of 
 Title, 500 
 
 CHAPTER XXI. 
 
 PRACTICE ON FAILURE TO ANSWER— DEFAULT— PRACTICE 
 ON TRIAL AFTER ISSUE JOINED. 
 
 Reference to Compute Amount Due — Powers and Duties op 
 Referee — Report of Referee — Decree of Foreclosure 
 AND Sale— Proceedings on Trial, 528 
 
 CHAPTER XXII. 
 
 SALE OF MORTGAGED PREMISES. 
 
 Decree of Sale — Officer Making Sale — Notice op Sale — 
 Time op Sale— Place op Sale— Terms of Sale— Stay op 
 Sale, 563 
 
 CHAPTER XXIII. 
 
 SALE OF MORTGAGED PREMISES IN PARCELS. 
 
 Discretion op Court— When to be J^Lvde— Part Only Due — 
 Sale for an Installment — Stayed on Payment — Future 
 Defaults, 583
 
 Xll TABLE OF CONTENTS. 
 
 CHAPTER XXXVI. 
 
 FEES, COSTS AND DISBURSEMENTS. 
 
 Page 
 
 Fbe8 op Rbferek Selling — Costs in General — When Discre- 
 tionary — Who May Have — Prior and Junior Lienors — 
 Guardian ad Litem — Stipulation for Counsel Fee — 
 Statutory Foreclosure — Costs in Distrxbuteng Surplus, 935 
 
 APPENDIX OP FORMS, 967
 
 MORTGAGE FORECLOSURES. 
 
 CHAPTER I. 
 
 NATURE AND OBJECT OF FORECLOSURE. 
 
 g 1. Definition. 
 2. History. 
 
 8. Methods of foreclosure. 
 4. Foreclosure by entry and pos- 
 session. 
 6. Strict foreclosure. 
 
 6. Statutory foreclosure. 
 
 7. Action in equity. 
 
 8. Statutory regulations — terms of 
 
 mortgage contravening. 
 
 § 9. Early practice in Ne^v York. 
 
 10. Concurrent remedies. 
 
 11. Results of foreclosure. 
 
 12. Effects of foreclosure and sale 
 
 on title. 
 
 13. Who barred by foreclosure. 
 
 14. Subsequent incumbrancers. 
 
 15. Foreclosure as payment of 
 
 debt. 
 
 § I. Definition. — The foreclosure of a mortgage is one 
 of the remedies of the mortgagee, to enforce the payment of 
 his debt, and has been defined in general terms as "the 
 process by which the mortgagee acquires or transfers to a 
 purchaser an absolute title to the property of which he has 
 previously been only a conditional owner, or upon which he 
 has previously had a lien or incumbrance.*" 
 
 When it is familiarly said that a foreclosure invests the 
 mortgagee with the title and interest of the parties foreclosed, 
 a practical effect is described rather than a legal proposition 
 defined. As between the parties plaintiff and defendant an 
 action or proceeding for foreclosure passes the mortgagor's 
 title as effectually as a judicial sale, because it extinguishes 
 his entire title and interest. All that is formally accom- 
 plished however, is the extinction of a right and the interposi- 
 tion of a perpetual bar against the parties foreclosed ; the 
 
 ' 2 Hill. Mort. 1. See Packer v. 
 Rochester & S. R. R. Co., 17 N. Y. 
 283. 287 (1858) ; Goodman v. White, 
 26 Conn. 317, 322 (1857); McCormick 
 
 V. Wilcox, 25 HI. 274(1861); Weiner 
 V. Heintz,17 111. 259 (1855); CampbeU 
 V. Carter, 14 HI. 286 (1853). 
 
 (U
 
 2 DEFINITION AND HISTOEY. [§ 2. 
 
 decree only professes to close a door which equity had 
 before kept open, not to confer a right or to pass a title. It . 
 has been said for this reason that the foreclosing creditor by 
 his action succeeds to nothing, acquires no estate, and 
 purchases no right.* The decree merely extinguishes the 
 mortgagor's equity of redemption, and does not affect a 
 title superior to the mortgage.' But a statute giving perfect 
 titles to purchasers upon mortgage foreclosure sales does 
 no injustice to general creditors,* and is not necessarily con- 
 trary to the general principles of equity. 
 
 Every foreclosure has a point of time at which the title to 
 the mortgaged premises is transferred absolutely from the 
 mortgagor and his subsequent lienors to a purchaser or to 
 a party who sustains the relations of a purchaser to the 
 premises, whether the foreclosure be conducted by action 
 and judicial sale, entry and possession, advertisement or 
 otherwise. The principal object of a foreclosure is accom- 
 plished only when such a transfer has been effected. Other 
 ends may also be sought, as a personal judgment of defi- 
 ciency, but the extinguishment of the mortgage and the 
 production of a perfect title is the first purpose of every 
 method of foreclosure. 
 
 § 2. History. — ^The process of foreclosure has been co- 
 ordinate in development with the law of mortgages. Some 
 writers find traces of the principles of hypothecation, 
 redemption and foreclosure among the early Israelites. But 
 the civil law of the Roman lawyers is the earliest known 
 system of jurisprudence in which the rights connected with 
 pledges were fully and accurately defined. 
 
 Civil Law Doctrines. — Pignuswdcs the technical term for a 
 pledge which passed into the possession of the creditor, and 
 gradually came to be applied only to movables or chattels ; 
 while hypotheca referred to a pledge which continued to be 
 held by the debtor, and was applied only to immovables or 
 landed property. These were the two methods known to 
 
 > Goodman v. White, 26 Conn. 317, 322 (1857). 
 • McCormick v. Wilcox, 25 HI. 274, 276 (1861). 
 » Cook V. Detroit G. H. «fe M. Ry. Co., 48 Mich. 849 (1880).
 
 § 2.] HISTORY COM]VION LAW. 3 
 
 the Roman law for the transfer of property as collateral 
 security. No title to the property passed. Failure of 
 payment at the appointed time did not work a forfeiture. 
 Principles of equity favored the debtor so that his misfortune 
 should not become the fortune of his creditor. A well 
 regulated procedure or practice of foreclosure, founded upon 
 notice to parties interested, open decrees of court and pub- 
 licity of sale or entry, grew up with the law of pledges, so 
 that the loss to both debtor and creditor would be the 
 least possible'. The civil law of pignus and hypotheca is the 
 root of the law of mortgages and of the procedures for 
 foreclosure among all the Latin races of the present time. 
 
 Common Law Doctrines. — The ablest historians are at 
 variance as to whether the Anglo-Saxons recognized pledges 
 of real property. The law of feuds and tenures was decidedly 
 opposed to mortgages. The Norman conquest and the 
 apportionment of the kingdom of England by the Conqueror 
 rendered them practically impossible until the reign of 
 Edward I., when tenures and alienations of land were greatly 
 simplified. 
 
 With the later development of the common law and its 
 doctrines of landed estates, two kinds of realty pledges came 
 to be recognized. The vivum vadium contained a continuous 
 right of redemption, and permitted the creditor to enter into 
 immediate possession and to collect the rents and profits for 
 the reduction and payment of the debt ; the debtor could 
 re-enter at any time on liquidation of the debt. This form 
 of mortgage never came into general use. The mortuum 
 vadium was always made upon definite and exact terms of 
 forfeiture ; and if the conditions were not punctually kept, 
 the title passed absolutely and forever from the debtor 
 to the creditor. This form of landed security was extremely 
 severe and often grossly unjust to the debtor. The spirit 
 of the common law was inexorable, and allowed no redress 
 to the unfortunate debtor. It firmly held that contracts of 
 hypothecation with definite terms of forfeiture should be 
 enforced, and it allowed no remedy to restore the debtor to 
 
 Story's Eq. Jur. §§ 1005, 1009-1024.
 
 4 HISTORY GROWTH OF EQUITY. [% 3. 
 
 his estate or to have the estate sold at public vendue to the 
 highest bidder. But with the appearance of the courts of 
 of chancery these severe rules were greatly modified and 
 ultimately fell into entire disuse.' 
 
 Growth of Equity. — The mortuum vadium is doubtless 
 the root from which our modern mortgage has grown. Its 
 severity and unjustness, however, rendered it odious and 
 unpopular until the appearance of that new jurisdiction which 
 was exercised by the learned chancellors of England. These 
 jurists sought continually to engraft the enlightened and 
 equitable principles of the civil law of mortgages upon the 
 severe rules of the common law. It is believed that the first 
 encroachments by the courts of chancery were in the 
 reign of Queen Elizabeth ; but their powers were not fully 
 exercised until the time of James I. Great confusion 
 resulted from these concurrent jurisdictions for a number of 
 years, but the justness and equity of the decrees of the 
 chancellors gradually came to be recognized by the courts 
 of common law and were acquiesced in by them. The rule 
 came to be fixed and settled as part of the law of the 
 Kingdom, that " once a mortgage, always a mortgage," and 
 that no mortgage could be enforced without a decree of the 
 chancellors. The common law courts waived entirely their 
 former exclusive jurisdiction over mortgages, and the "equity 
 of redemption" became a fixed right in every mortgagor. To 
 foreclose or extinguish this right, the earliest method used 
 was entry and possession, and from it have been developed 
 the various procedures and practices used in the several 
 states.' 
 
 § 3. Methods of foreclosure. — There are four principal 
 methods by which mortgages may be foreclosed in the 
 United States, all depending upon equitable principles 
 in their origin and proceeding upon equitable principles in 
 their practice. i. Foreclosure by entry and possession 
 originally required the actual entry upon and possession of 
 the mortgaged premises ; this procedure has been greatly 
 
 • Coote on Mortgages, 4-32. 
 
 • Coote on Mortgages, 4-22 ; 4 Kent Com 158.
 
 § 4.] JIETHODS OF FORECLOSUTIE. 5 
 
 assisted by the writ of entry, which is much in the nature 
 of an equitable action, though nominally an action at law. 
 Foreclosure by entry, however, is mainly confined to the 
 New England and a few of the southern states. 2. Strict 
 foreclosure, or foreclosure without a sale, was a procedure 
 greatly used in England at one time, and its purpose was 
 to perfect in the mortgagee an absolute title, instead of to 
 obtain a decree of sale ; the courts in most states recognize 
 this method, but allow its use only in exceptional cases, 
 owing to its severity upon the rights of the owner of the 
 equity of redemption. 3. Statutory foreclosure, or foreclosure 
 by advertisement, is a procedure provided in nearly every 
 state by its legislature, all the steps in which are specifically 
 prescribed by statute. Owing to its extreme technicality 
 and insufficiency of remedy, it is seldom practiced where 
 an equitable action is allowed. 4. Ati equitable action is now 
 the almost universal procedure among the English-speak- 
 ing races, for the foreclosure of a mortgage. So broad and 
 comprehensive is the process of foreclosure by an equitable 
 action, that a consideration of foreclosures with reference to 
 that procedure, will also cover the subject where the 
 procedure is by entry and possession or by strict foreclosure, 
 so that attention need not be given separately to those two 
 methods ; while in statutory procedure special provisions are 
 made as to each step. Where no provisions are made, 
 equitable rules control. The subject of this work is thus 
 reduced substantially to mortgage foreclosures by equitable 
 action. Such variations as may exist in the other methods 
 will be noticed in their proper connections. 
 
 §4. Foreclosure by entry and possession. — The 
 
 earliest procedure under this form of foreclosure required 
 an open and visible entry and possession by the mortgagee 
 or his agent, upon the premises in the presence of witnesses, 
 but the present practice requires only a constructive entry. 
 The purpose of the entry, whether actual or constructive, is 
 to give notice to the mortgagor, and others interested, that 
 the equity of redemption will be extinguished unless the debt 
 secured is paid and the terms of the mortgage are fulfilled. 
 Constructive entry is now generally made by recording
 
 6 METHODS STRICT STATUTORY. [§§ 5-6. 
 
 a certificate or declaration of entry in the proper public 
 office and by publishing notice of the same in a newspaper. 
 At the expiration of from one to three years of undisputed 
 peaceable possession, the title of the mortgagee becomes an 
 absolute fee. 
 
 In form this procedure is a suit at law, though controlled 
 by equitable rules, except where statutory provisions have 
 prescribed an exact practice. The various details of practice in 
 the several states will be noticed in their proper connections. 
 
 § 5. Strict foreclosure. — This is a practice of estoppel 
 upon the mortgagor. It is technically and literally a 
 foreclosure or extinguishment. It permits neither a sale 
 nor redemption ; it requires payment of the debt within a 
 certain time after notice or the absolute and final forfeiture 
 of the title. It is the severest of all processes upon the 
 mortgagor; strictly legal, rather than equitable principles, 
 control the practice. It is rarely used in those states where 
 courts of equity have a strong influence. Indeed, it is a 
 serious question in New York whether strict foreclosures 
 have not been abolished by the Code of Civil Procedure.* 
 
 In most states, where allowed at all, the practice is used 
 only to remedy defective foreclosures, as where necessary 
 parties have been omitted in an equitable action. The 
 decree is generally to the effect that the defendants shall 
 redeem within a certain time fixed by the court, or be 
 absolutely barred of every interest in the property and of 
 all right to redeem. 
 
 § 6. Statutory foreclosure. — Nearly every state pre- 
 scribes in its statutes a method of foreclosure by advertisement 
 and sale, pursuant to the power of sale contained in nearly all 
 mortgages. This is in addition to the procedure by an 
 equitable action which is practiced in nearly every state. 
 
 In colonial times sale under power contained in the 
 mortgage was the only practice employed, and so deeply 
 rooted did it become in the real estate law and titles of that 
 period that it has ever remained as a method of foreclosure. 
 The statutes regulating the practice have varied greatly at 
 
 > N. Y. Code Civ. Proc. § 1626.
 
 §§ 7-8.] METHODS ^EQUITABLE ACTION. 7 
 
 different times and are alike in no two of the states. The 
 procedure is generally simple and cheap, but not so quick 
 and certain in results as an equitable action. Being statutory 
 it is extremely technical and liable to produce defective 
 titles. It is employed most frequently in pioneer sections 
 and in localities where real estate has but little value and is 
 of slow sale. 
 
 § 7. Action in equity. — An equitable action is now the 
 almost universal procedure in the United States for the 
 foreclosure of a mortgage. It is the most direct and certain 
 practice, affords the largest opportunities for the adjustment 
 and enforcement of the rights of all parties interested, is 
 the quickest in final results, produces the strongest and 
 firmest titles, and does the greatest justice to both mortgagor 
 and mortgagee. The law of mortgages and of equitable 
 foreclosures is, indeed, as has been remarked by Chancellor 
 Kent, " one of the most splendid instances in the history of 
 our jurisprudence of the triumph of equitable principles over 
 technical rules, and the homage which those principles have 
 received by their adoption in the courts of law." * The 
 history of equitable foreclosures is the history of mortgages. 
 Every development and advancement in the principles of 
 equity law and practice have resulted in corresponding 
 improvements in equitable foreclosures. 
 
 It is to this method of foreclosure that this work will be 
 principally devoted. 
 
 § 8. Statutory regulations — Terms of mortgage con- 
 travening. — All of the above methods of foreclosure are 
 greatly modified in the different states by statutory provisions. 
 Where such provisions are in force, a power of sale or other 
 agreement in the mortgage, that it shall be foreclosed in any 
 other manner than that prescribed by the statute, will be 
 void ;" the statute in such cases must be strictly followed.* 
 
 » 4 Kent Com. 158. Blackf. (Ind.) 13 (1843) ; Pease v. 
 
 » Chase v. McLellan, 49 Me. 375, Benson, 28 Me. 386 (1848) ; Robbing 
 
 378(1861). V. Rice, 73 Mass. (7 Gray) 303 
 
 » Sherwood v. Reed, 7 Hill, (N. (1856). 
 Y.) 481 (1844) ; Williamson v. Doe, 7
 
 8 CONCTJEEENT EEJIEDIES. [§§ 9-10. 
 
 § 9. Early practice in New York. — In New York it 
 was formerly the rule that a mortgagee had three remedies, 
 all or either of which he could pursue until his debt was 
 satisfied. He could (i) maintain an action at law on the bond ; 
 (2) obtain possession of the rents and profits of the mortgaged 
 lands by ejectment ; or, (3) file a bill in chancery to foreclose 
 the mortgagor's equity of redemption and sell the lands to pay 
 the debt.' He could even pursue all these remedies at the same 
 time. But these remedies have been greatly modified by 
 statute ; and the action of ejectment can no longer be 
 maintained by the mortgagee for the recovery of the 
 mortgaged premises." 
 
 From the notes of the revisors we learn that the object of 
 this statute was to compel the mortgagee to resort to equity 
 to enforce his security, and to prevent the unnecessary 
 multiplicity of suits.* 
 
 He may still, however, bring a personal action to recover 
 the amount of the mortgage debt, but on judgment in such 
 suit he will not be permitted to sell the equity of redemption 
 of the mortgagor,* 
 
 § ID. Concurrent remedies. — In addition to the remedy 
 by an action to foreclose his mortgage, the mortgagee may 
 bring a suit on the bond, which the mortgage was given to 
 secure and which is the primary instrument of indebtedness. 
 He may, at his option, proceed by suit on the bond, or by 
 an action to foreclose the nriortgage, but he can not avail 
 himself of both remedies at the same time ; and the 
 commencement of an action of foreclosure prevents a 
 subsequent suit on the bond, except in extraordinary cases, 
 and by express permission of the court.' But an action of 
 
 ' Jackson v. Hull, 10 Jolins.(N.Y,) Fiedler v, Darrin, 50 N, Y. 437, 
 
 481 (1813); Jones v. Conde, 6 Johns, 444 (1872). 
 
 Ch. (N. Y.) 77 (1823) ; Dunkley v. a 3 N. Y. Rev. Stat. 673. 
 
 VanBuren, 3 Johns. Ch. (N. Y.) 330 * 2 N. Y. Rev. Stat, 868. §31. 
 
 (1818); Hughes V. Edwards, 22 U.S. See also Tice v. Annin, 2 Johns. 
 
 (9 Wheat.) 489 (1824); bk. 6 L. ed. Ch. (N. Y.) 125 (1816). 
 
 142. '- 2 N. Y. Rev. Stat, 191, 199, §153; 
 
 2 See 2 N. Y. Rev. Stat. 312, 321, N. Y. Code Civ. Proc. §g 1628-1630. 
 
 § 57 ; Hubbell v. Moulson, 53 N. Y. See Nichols v. Smith, 42 Barb. (N. 
 
 225 (1873) ; 6. c. 13 Am. Rep. 519 ; Y.) 381 (1864) ; Suydam v. BarUe,
 
 § 11.] EESTTLTS OF FOEECLOSTJEB. 9 
 
 foreclosure may be commenced after a suit on the bond, 
 provided it is brought before judgment in such suit. The 
 consequences of bringing a suit to foreclose while one is 
 pending on the note or bond, will be to stay all proceedings 
 in the former suit, unless special permission of the court, 
 to proceed, is obtained.' Thus where an action was 
 commenced in the Superior Court of New York City to 
 recover the amount of interest coupons upon bonds secured 
 by a trust mortgage, and afterwards, but before the 
 determination of the suit, the trustee commenced an action 
 in the Supreme Court to foreclose the mortgage for the 
 benefit of all the bond-holders, who, including the plaintifl 
 in the former action, were made parties, it was held that 
 the Supreme Court had power, in its discretion, to stay the 
 proceedings in the Superior Court suit until the determina- 
 tion of the foreclosure suit.* 
 
 § II. Results of foreclosure. — Two purposes are now 
 generally sought to be accomplished in foreclosures ; first, 
 the extinguishment of the title in the mortgagee and the 
 mortgagor, and those claiming under them, so as to offer a 
 perfect title at the sale, or such a title as a court will compel 
 a bidder to accept ; this purpose aims at exhausting every 
 remedy against the land for collecting the mortgage debt, 
 and when foreclosures were merely actions in rem, as origin- 
 ally, they had no other purpose or result ; second, the 
 recovery of a personal judgment, for any deficiency that may 
 remain after the proceeds of a sale are applied to the pay- 
 ment of the mortgage debt, against all who have in any way 
 become liable for the money secured by the mortgage, — a 
 purpose accomplished originally only in actions in personam. 
 The union of these two results in one judgment is quite 
 
 9 Paige Ch. ( N. T. ) 294 (1841) ; 137 (1841) ; s. c. 37 Am. Dec. 881 ; 
 
 Williamson v. Champlin, 8 Paige Williamson v. Champlin, 8 Paige 
 
 Ch. (N. Y.) 70 (1839) ; s. c. 1 Clarke Ch. (N. Y.) 70 (1839) ; s. c. 1 Clarke 
 
 Ch. (N. Y.) 9 ; Marx v. Davis, 56 Ch. (N. Y.) 9 (1839) ; Pattison v. 
 
 Miss. 745 (1879). Powers, 4 Paige Ch. (N. Y.) 549 
 
 1 See Engle v. Underhill, 3 Edw. (1834). 
 
 Ch. 249 (1838); Suydam v. Bartle, 9 * Cushman v. Leland, 93 N. T. 
 
 Paige Ch. (N. Y.) 294 (1841) ; Shu- 652 (1883). 
 felt V. Shufelt, 9 Paige Ch. (N. Y.)
 
 10 EFFECTS OF FORECLOSURE ON TITLE. [§ 12. 
 
 recent, and is allowed only by special statute. The effect ol 
 the first purpose is declared in most states by statute. In 
 New York it is provided that " a conveyance upon a sale, made 
 pursuant to a final judgment, in an action to foreclose a 
 mortgage upon real property, vests in the purchaser the same 
 estate only, that would have vested in the mortgagee, if the 
 equity of redemption had been foreclosed. Such a conveyance 
 is as valid as if it was executed by the mortgagor and mort- 
 gagee, and is an entire bar against each of them, and against 
 each party to the action who was duly summoned, and every 
 person claiming from, through or under a party, by title 
 accruing after the filing of the notice of the pendency of the 
 action, as prescribed in the last section." ' 
 
 The title and possession remain in the mortgagor until 
 such conveyance upon sale ; the interest of the mortgagee 
 remains until then that of a mere lienor. The commence- 
 ment of a foreclosure gives him no title, as his mortgage is 
 only a security for a debt ; the title and seizure remain in the 
 mortgagor until the referee's deed upon sale is actually 
 delivered to the purchaser.' 
 
 § 12. Effects of foreclosure and sale on title. — The 
 effect of a foreclosure by an equitable action and the sale of 
 the premises is to bar the equity of redemption.* The deed 
 passes to and vests in the purchaser the estate which would 
 have passed to and vested in the mortgagee if there had 
 been a strict foreclosure, no more and no less ;* and a sale 
 made pursuant to a decree or judgment of a competent court 
 having jurisdiction of the subject-matter and of the parties, 
 passes title to the purchaser even though the judgment 
 should afterwards, on appeal, be set aside for error or 
 irregularity.* The deed of the officer of the court conveying 
 
 » N. Y. Code Civ. Proc. § 1633. » See Palmer v. Mead, 7 Conn. 149 
 
 » Gardner v. Ileartt, 3 Den. (N. (1828); Broome v. Beers, 6 Conn. 198 
 
 T.) 232 (1846) ; Hubbell v. Moulson, (1826) ; Anonymous, 2 Cas. in Ch. 24 
 
 53 N. Y. 225 (1873) ; s. C. 18 Am. (1679). 
 
 Rep. 519 ; Bryan v. Butts, 27 Barb. * Lawrence v. Delano, 3 Sandf. 
 
 (N. Y.) 503 (1857) ; National Fire (N. Y.) 333 (1849). 
 
 Ins. Co. V. McKay, 5 Abb. (N. Y.) " See Blakeley v. Calder, 16 N. Y. 
 
 Pr. N. S. 445 (18G7). 617 (1857) ; Holden v. Sackett, IS
 
 § 13. J WHO BAREED BY FOEEOLOSUBE. 11 
 
 the property will be as valid as if it had been executed by 
 the mortgagor and mortgagee, and will be an entire bar 
 against each of them, and against all parties to the suit in 
 which the decree for such sale was made, and against their 
 heirs and representatives, and all parties claiming under them 
 or their heirs,* as well as against an assignee in bankruptcy," 
 who has notice of a suit pending against the bankrupt to 
 foreclose the mortgage, although he was not made a party 
 to the action ;* and such a deed will be a complete bar to 
 the equity of redemption where the mortgagee becomes the 
 purchaser the same as where the property is purchased by a 
 stranger.* 
 
 § 13. Who barred by foreclosure.— The forclosure and 
 sale will be a bar under the statute against those persons 
 who were properly made parties to the action, that is, the 
 mortgagor and the mortgagee, and all subsequent incumbran- 
 cers, and against such rights as were properly the subject of 
 litigation in the action. It will not bar the rights of persons 
 who were not properly made parties to the litigation, and 
 whose rights are paramount to those of the mortgagor 
 and mortgagee.* Thus a claim of dower in the premises was 
 not barred by a foreclosure and sale under a mortgage executed 
 by the husband alone during coveture, although the widow 
 was made a party to the foreclosure suit, and the bill, which 
 was taken as confessed against her, alleged that she claimed 
 
 Abb. (N. T.) Pr. 473 (1861); Lewis v. (1854) ; Wood v. Jackson, 8 Wend. 
 
 Smith, 11 Barb. (N. Y.) 152 (1851) ; (N. Y.) 9 (1831) ; s. c. 23 Am. Dec. 
 
 LeGuen v. Gouverneur, 1 Johns. 603 ; Buckmaster v. Carlin, 4 OL 
 
 Cas. (N. Y.) 436 (1800) ; Breese v. (3 Scam.) 104 (1841); Bank of United 
 
 Bangs, 2 E. D. Smith (isT. Y.) 474 States v. Voorhees, 1 McL. C. 0., 
 
 (1854); Wood v. Jackson, 8 Wend. 221 (1834); 3 N. Y. Rev. Stat. 193, 
 
 (N. Y.) 9 (1831) ; a c. 22 Am. Dec. § 158. 
 
 603 ; Buckmaster v. Carlin, 4 HI. » Under Acts of Congress, 1841 ; 9 
 
 (8 Scam.) 104 (1841); Bank of United Stat, at Large, 446. 
 
 States V. Voorhees, 1 McL. C. C, * Cleveland v. Boerum, 24 N. T. 
 
 221 (1834). 613 (1862). 
 
 ' Blakeley v. Calder, 15 N. Y. 617 * Lansing v. Goelet, 9 Cow. (N. 
 
 (1857) ; Holden v. Sackett, 12 Abb. Y.) 346 (1827). 
 
 (N. Y.) Pr. 473 (1861) ; Breese v. » Lewis v. Smith, 9 N. Y. 609 
 
 Bangs, 2 E. D. Smith (N. Y.) 474 (1854) ; s. c. 41 Am. Dec. 706.
 
 12 FOEECLOSUEE AS PAYIMEIST OF DEBT. [§§ 14-15. 
 
 some interest in the premises " as subsequent purchaser, or 
 incumbrancer, or otherwise." * 
 
 § 14. Subsequent incumbrancers. — The decree of fore- 
 closure and the sale thereunder, are a bar only against 
 persons who were made parties to the action, their heirs and 
 assigns, and those claiming under them ;" consequently 
 where the mortgage is foreclosed without joining the holder 
 of a subsequent incumbrance upon or interest in the premises, 
 whose title appears of record, the decree will not be binding 
 upon such incumbrancer.* 
 
 § 15. Foreclosure as payment of debt. — The principle 
 is well settled that the foreclosure of a mortgage, by what- 
 ever method, operates as a payment of the mortgage debt, 
 to the extent of the value of the property ;* and this is true 
 even though the foreclosure is brought by an assignee, hold- 
 ing only a part of the mortgage debt ;* therefore, where a 
 mortgagee forecloses his mortgage his debt becomes by that 
 act extinguished to the extent of the value of the land at the 
 time of the foreclosure, and whatever he may hold as collat- 
 eral security for the debt in addition to the mortgage on the 
 land, will thereby become discharged to the same extent.* 
 Where the property is not sufficient to discharge the mort- 
 gage debt, the mortgagee may maintain an action at law 
 
 > Lewis V. Smith, 9 N. T. 502 309 (1856) ; Hurd v. Coleman, 43 
 
 (1854) ; 8. c. 41 Am. Dec. 706. See Me. 182 (1856) ; Southard v. Wilson, 
 
 Banks v. Walker, 3 Barb. Ch. (N. 29 Me. 56 (1848) ; Briggs v. Rich- 
 
 T.) 438 (1848); Hallett v. Hallett, 2 mond, 27 Mass. (10 Pick.) 391 (1830); 
 
 Paige Ch. (N. Y.) 15(1829); Devon- 8. c. 20 Am. Dec. 526 ; Hunt v. 
 
 sher V. Newenham, 2 Schoales & Stiles, 10 N. H. 466 (1839) ; Paris v. 
 
 Lef . 199 (1804). Hulett, 26 Vt. 308 (1854) ; Lovell v. 
 
 « 2 N. Y. Rev. Stat. 192, § 138 ; Leland, 3 Vt. 581 (1831). Contra 
 
 N. Y. Code Civ. Proc. § 1632 Strong v. Strong, 2 Aik. (Vt.) 373 
 
 » Walsh V. Rutgers Fire Ins. Co., (1827). 
 13 Abb. (N. Y.) Pr. 33 (1861). See » Johnson v. Candage, 31 Me. 28 
 
 Vandcrkemp v. Shelton, 11 Paige (1849). See Brown v. Tyler, 74 Mass. 
 
 Ch. (N. Y.) 28 (1844) ; Slee v. Man- (8 Gray) 135 (1857) ; s. c. 69 Am. 
 
 hattan Co., 1 Paige Ch. (N. Y.) 48 Dec. 239. 
 (1828). " Smith v. Packard, 19 N. H. 675 
 
 * See Vansant v. Allmon, 23 111. (1849). 
 80 (1859), Wilson v. Wilson, 4 Iowa
 
 §15.] 
 
 FOEECLOSURE AS PAYMEISTT OF DEBT. 
 
 13 
 
 for the debt after deducting the value of the premises 
 or the amount for which they were sold ;' because in such a 
 case the foreclosure only extinguishes the debt to the extent 
 of the money produced by the sale.* The reason is said to 
 be the fact that the mortgage is but a mere security for the 
 debt and collateral to it ; that the debt has an independent 
 existence and remains with all its original validity, notwith- 
 standing a release of the mortgage ; that the former is the 
 principal and the latter an incident, though not an indispens- 
 able incident.* But where the value of the property mort- 
 gaged exceeds the amount of the debt, foreclosure will 
 operate as full payment even at law.* 
 
 ' Globe Ins. Co. v. Lansing, 5 Cow. 
 (N. T.) 880 (1826) ; s. o. 15 Am, 
 Dec. 474 ; Porter v. Pillsbury, 36 
 Me. 278 (1853) ; Andrews v. Scotton, 
 2 Bland. Cli.(Md.) 629 (1830); Amoiy 
 V. Fairbanks, 3 Mass. 562 (1793) ; 
 Hatch V. White, 2 Gall. C. C. 154 
 (1814) ; Omaly v. Swan, 3 Mason C. 
 C. 474 (1824) ; Briggs v. Richmond, 
 27 Mass. (10 Pick.) 391, 396 (1830) ; 
 West V. Chamberlin, 25 Mass. (8 
 Pick.) 836(1829) ; Lansing v. Goelet, 
 « Cow. (N. Y.) 346 (1827) ; Case v. 
 Boughton, 11 Wend. (N. Y.) 106, 
 109 (1833); Morgan v. Plumb. 9 
 Wend. (N. Y.) 287, 292 (1832); 
 Spencer v. Hartford, 4 Wend. (N. 
 Y.) 884, 886 (1830); Hughes v. 
 
 Edwards, 22 U. S. (9 Wheat.) 489 
 (1824) ; bk. 6 L. ed. 142 ; Aylet T. 
 HiU, 2 Dick. 551 (1779) ; Took r. 
 
 , 2 Dick. 785 (1784) ; 8. o. ««4 
 
 nom. Tooke v. Hartley, 2 Bro. 0. 0. 
 125 (1786) ; Perry v. Barker, 13 Ves. 
 198, 204 (1806) ; Dashwood v. Blyth- 
 way, 1 Eq. Cas. Ab. 317 (1729); 
 4 Kent Com. 183. 
 
 • Globe Ins. Co. r. Lansing, 6 
 Cow. (N. Y.) 380 (1826) ; s. o. 15 
 Am. Dec. 474; Dunkley v. Van 
 Buren, 8 Johns. Ch. 831 (1818). 
 
 » Hatch V. White, 2 Gall. 0. 0. 
 152, 154 (1814). 
 
 * Bassett y. Mason, 18 Ccmn. 181 
 (1846).
 
 t 
 
 CHAPTER IL 
 
 COURTS. JURISDICTION AND VENUE. 
 
 16. In General — Courts of equity. 
 
 17. Foreclosure — Trial by jury. 
 
 18. Decree in chancery — Fraudu- 
 
 lent. 
 
 19. Jurisdiction of State Courts- 
 
 Supreme Court. 
 
 20. County Courts. 
 
 21. City Courts. 
 
 22. Terms of New York City 
 
 Courts. 
 
 23. In Missouri. 
 
 24. Jurisdiction of Federal Courts. 
 
 § 25. Venue — Provisions of the New 
 York Code where the land 
 lies within the state. 
 
 26. Debt payable in one coimty; 
 
 land in another. 
 87. Action brought in improper 
 
 county. 
 
 28. Motion for change of venue. 
 
 29. Where property situated in 
 
 two states. 
 
 80. Where the land lies out of the 
 
 state. 
 
 81. Where the parties reside ta 
 
 another state. 
 
 82. Transitory action. 
 
 § i6. In General. — Courts of Equity. — Courts of equity 
 have inherent original jurisdiction of actions to foreclose 
 mortgages, and authority to render such judgment or 
 decree as substantial justice between the parties may require. 
 And although this power is conferred by statute upon courts 
 of law in several states,* yet courts of equity, where they 
 have not been suspended by codes of practice, doing away 
 with all distinctions between actions at law and actions in 
 equity, still have concurrent jurisdiction of the foreclosure of 
 mortgages and are frequently resorted to in particular cases 
 because, it is said, they afford a more complete and certain 
 remedy.* 
 
 ' Statutes regulating mortgage 
 foreclosures have been enacted in 
 California, Florida, Indiana, Iowa, 
 Kansas, Kentucky, Minnesota, Mis- 
 souri, Nebraska, Nevada, North 
 Carolina, Ohio, Oregon, South Caro- 
 hna and Wisconsin. And see State 
 Bank of Illinois v. Wilson, 9 111. 57 
 (1847); Warehime v. Carroll Co. 
 
 Building Assoc, 44 Md. 612 (1876) ; 
 Chouteau v. Allen, 70 Mo. 290 
 (1879); Byron v. May, 2 Chand. 
 (Wis.) 103 (1850). 
 
 « Shaw v. Norfolk Co. R. R. Co., 71 
 Mass. (5 Gray) 162 (1855) ; McEh-ath 
 V. Pittsburgh & S. R. R.0o., 66 Pa. 
 St 189 (1867). 
 
 U
 
 § 17. J TRIAL BT JUBT. 15 
 
 Where a mortgage contains a power of sale, such power 
 will not deprive courts of equity of their jurisdiction to 
 foreclose.' It is said that the reason for retaining jurisdic- 
 tion in a court of equity is, that the mortgagee is incapable 
 of purchasing at his own sale under a power in the mortgage," 
 but that at a sale made by an officer under a decree of 
 foreclosure the mortgagee may become a purchaser." 
 
 § 17. Foreclosure — Trial by jury. — In an action to fore- 
 close a mortgage brought under a statute providing for such 
 proceedings, the court may, in its discretion, direct a refer- 
 ence, or ask the aid of a jury to inform its conscience, or it 
 may decide the case without such aid; but the defendant 
 can not ask as a matter of right to have the issues framed 
 and tried at law.* And a jury trial can not be demanded as 
 a matter of right in an action to recover upon a promissory 
 note, and to foreclose a mortgage executed to secure the 
 same, where the pleadings admit the right to recover the 
 amount due upon the note, and nothing is left in controversy 
 but the right to foreclose the mortgage, and to subject the 
 property mortgaged to the payment of the amount admitted 
 to be due.* 
 
 The fact that in an action to foreclose a mortgage, the sale 
 of the mortgaged premises may result in a deficiency, for 
 which a money judgment may be docketed against the 
 defendant liable for such deficiency, does not entitle him, as 
 a matter of right, to a jury trial ; the action is in equity and 
 is triable by the court.' 
 
 Should the court in such a case direct any matter of fact to 
 be tried by a jury as authorized by the New York Code 
 
 * Alabama Life Ins. & T. Co. v. • Benjamin v. Cavaroc, 3 Wood, 
 
 Pettway. 24 Ala. 544 (1854) ; Carra- C. C. 168 (1875). 
 
 dine V. O'Connor, 21 Ala. 573 (1852) ; * Knickerbocker Life Ins. Co. ▼. 
 
 "Warehime v. Carroll Co. Building Nelson, 8 Hun (N. Y.) 31 (1876) ; 
 
 Assoc, 44 Md. 512(1876); Morrisson Carmichael v. Adams, 91 Ind. 526 
 
 T. Bean, 15 Tex. 267 (1855) ; Walton (1883) ; N. Y. Code Civ. Proc. §§ 968, 
 
 ▼. Cody, 1 Wis. 420 (1853) ; Byron 969. 
 
 V. May, 2 Chand. (Wis.) 103 (1850). » Morgan v. Field, 35 Kan. 163 
 
 » Marriott v. Givens, 8 Ala. 694 (1886). 
 
 (1845) ; McGowan v. Branch Bank • Carroll v. Delmel, 95 N. Y. 363 
 
 of MobUe, 7 Ala. 823 (1845). (1884).
 
 16 JUEISDICTIOIS" OF SUPEEIME COUET. [§§ 18-19. 
 
 of Civil Procedure/ and after such trial disregard the verdict 
 and make its own findings, the case may be reviewed on 
 appeal, on the findings and decisions of the court, the same 
 as if there had been no submission of any fact to the jury.* 
 
 But it seems that where a mortgagee brings an action under 
 theNew York Code of Civil Procedure upon a covenant in a 
 deed against the grantees of the mortgagor to recover the defi- 
 ciency arising on the foreclosure of the mortgage, which they 
 had in their deed covenanted to repay as a part of the 
 purchase price, and demands a money judgment against 
 them, the action is triable by a jury.* 
 
 § i8. Decree in Chancery. — Fraudulent. — Where a 
 mortgage is foreclosed in a court of equity the decree should 
 determine the rights and liabilities of all the parties to the 
 action.* And where a decree in chancery foreclosing a 
 mortgage is obtained by fraud, it is void and will be so 
 declared on a bill filed by the party whose rights are injur- 
 iously affected by it ; a title founded upon such sale is also 
 void.* 
 
 § 19. Jurisdiction of State Courts. — Supreme Court. — 
 
 The New York Constitution as amended in 1869,* vests the 
 supreme court with general jurisdiction both in law and in 
 equity ; and this court thereby succeeded to the old chancery 
 powers and therefore has jurisdiction in all actions for the 
 foreclosure of mortgages. The Code of Civil Procedure' 
 provides that the general jurisdiction in law and in equity 
 which the supreme court possessed under the provisions of 
 
 > §§ 823, 971, 1003, * Thus where a bill was filed to 
 
 ' Carroll v. Deimel, 95 N. Y. 252 foreclose a mortgage executed by A. 
 
 (1884). Where, therefore, in such and wife and B. and wife, all of 
 
 a case, upon the trial before the jury whom were made parties' defendant, 
 
 on which trial the pame judge who a decree directing the sale of the 
 
 made the findings presided, improper interest of A. alone was held erron- 
 
 evidence was received under objec- eous. Hurtt v. Crane, 36 Md. 29 
 
 tion and exception, the appellant will (1873). See Contee v. Dawson, 3 
 
 be entitled to the benefit of the excep- Bland. Ch (Md.) 264, 292 (1832). 
 
 tion. Id. » Eslava v. Eslava, 50 Ala. 81, 83 
 
 « Hand v. Kennedy, 83 N. T. 149 (1873). 
 
 (1880) ; aff'g s. c. 45 N. Y. Super. « Article 6, § 6. 
 
 Ct. (13 J. & S.) 385 (1879). ' § 217.
 
 § 20.] SUPEEME AND COUNTY COUUTS. 17 
 
 the constitution, including all the jurisdiction which was 
 possessed and exercised by the supreme court of the colony 
 of New York at any time, and by the court of chancery in 
 England on the 4th day of July, 1776, with the exceptions, 
 additions, and limitations, created and imposed by the 
 constitution and laws of the state shall be possessed and 
 exercised by that court under the Code. 
 
 It was recently held by the supreme court of New York, 
 as regards mortgaged property situated within the state and 
 subject to the jurisdiction of its courts, that the parties to 
 the mortgage can not, by their agreement, deprive the courts 
 of the jurisdiction, which they would otherwise have, to 
 enforce the rights acquired under the mortgage ; but that 
 they can by such agreement provide the method for the 
 enforcement of their rights in those cases where the property 
 mortgaged is situated out of the state and beyond the 
 jurisdiction of its courts, unless such agreement is contrary 
 to some statutory regulation upon the subject.* 
 
 § 20. County Courts. — By the provisions of the New York 
 Code of Civil Procedure," the county courts are given juris- 
 diction of actions for the foreclosure of mortgages, and for 
 the collection of any deficiency on the mortgage which may 
 remain unpaid after the sale of the premises has been made, 
 where such mortgaged premises are situated in the county. 
 County courts are not courts of general jurisdiction, but of 
 limited statutory jurisdiction, and it must appear upon the 
 face of the pleadings that the action is within their jurisdic- 
 tion.* 
 
 But it has been held that where by mistake the land 
 intended to be covered by the mortgage, is described so 
 vaguely and uncertainly as to render it impossible to identify 
 and locate it, a county court will not have jurisdiction of an 
 
 > Farmers' Loan & Trust Co. v. ruling Hall v. Nelson, 23 Barb. 
 
 Bankers' & M. Telegraph Co., 44 (N. Y.) 88 (1856). 
 
 HunCN". Y.) 400 (1887). « Kundolf v. Thalheimer, 13 N. 
 
 « § 340. See also Code Proc. § 30 ; Y. 593 (1855) ; aff'g s. 0. 17 Barb. 
 
 Code of Rum. Just. ^ 340. See (N. Y.) 506 ; Frees v. Ford. 6 N. 
 
 Arnold v. Reese, 18 N. Y. 57 (1858) ; Y. 176 (1852). See VanDeusen v. 
 
 B. c. 17 How. (N. Y.) Pr. 35 ; over- Sweet, 51 N. Y. 378 (1873). 
 
 (2)
 
 18 JTJRISDICTIOT^^ OF CITY COURTS. [§§ 21-23. 
 
 action to reform the mortgage by correcting the error in the 
 description and to foreclose the mortgage as thus reformed, 
 because such court has no jurisdiction of an action to reform 
 a mortgage.* 
 
 § 21. City Courts. — The Code also provides for the 
 foreclosure of mortgages on real property situated within 
 their respective jurisdictions by the Court of Common Pleas of 
 the City and County of New York," the Superior Court of the 
 City of New York," the Superior Court of Buffalo,* the City 
 Court of Brooklyn,' the Mayor's Court of the City of Hudson 
 and the Recorder's Courts of Utica and Oswego.* 
 
 § 22. Terms of New York City Courts. — It is provided 
 by the rules of the Superior Court of New York City that 
 there shall be a special term of that court for the trial of 
 issues of law and of issues of fact without a jury, in actions 
 for the foreclosure of mortgages, and for the hearing of 
 motions and the granting of ex parte orders, held during each 
 month of the year, commencing on the first Monday of 
 each month and terminating on the Saturday immediately 
 preceding the first Monday of the succeeding month. 
 During the months of July, August and September, no trial 
 shall be had unless ordered by the presiding judge.' And a 
 similar rule of the Court of Common Pleas of the City of New 
 York provides that there shall be a special term of that court 
 for the trial of actions for the foreclosure of mortgages and for 
 the hearing of motions and the granting of ex parte orders, 
 held during each month, commencing on the first Monday of 
 
 > Avery v. Willis, 24 Hun (N. T.) » Code Civ. Proc. § 263 ; Code of 
 
 548 (1881) ; Thomas v. Harmon, 46 Rem. Just. § 263. 
 
 Hun (N. Y.) 75 (1887). See Crosby « Code Civ. Proc. § 263 ; Code of 
 
 v. Dowd, 61 Cal. 603 (1882). Rem. Just. § 263. 
 
 County courts have original ju- * Laws of 1873, Ch. 239 ; Code of 
 
 risdiction only in certain specified Rem. Just. § 263. 
 
 cases. Constitution, article 6, § 15 ; » Laws of 1873, Ch. 239 ; Code of 
 
 Code Civ. Proc. ^ 340. An action Rem. Just. § 263. 
 
 or proceeding to obtain the reforma- • Code Civ. Proc. § 263 ; Code of 
 
 tion of a defective deed, mortgage. Rem. Just. § 263. 
 
 or other instrument, is not among ' Rule 12, New York Sux>erior 
 
 these specified cases, and the Code Court, 
 of Civ. Proc. § 348 d-es not cover it
 
 §§ 23-24.] JXJEISDICTIOTT OF FEDERAL COUBTS. 19 
 
 each month and terminating on the Saturday immediately 
 preceding the first Monday of the succeeding month.* 
 
 § 23. In Missouri. — In Missouri the circuit court has 
 general jurisdiction over the foreclosure of mortgages, and 
 objection to the jurisdiction of the court in any given action, 
 based upon the fact that the mortgaged premises are not 
 situated in the county where the suit is brought, must be 
 taken by the proper plea, and will be waived by pleading to 
 the merits.' 
 
 §24. Jurisdiction of Federal Courts — The circuit 
 courts of the United States have concurrent jurisdiction 
 with the state courts over all suits of a civil nature in law or 
 in equity where the United States is a party and the matter 
 in dispute, exclusive of costs, exceeds the sum of $500, or 
 where the parties to the suit are citizens of different states ; 
 and over all actions where an officer of the United States 
 brings suit under an act of Congress. They have jurisdiction 
 of all suits in equity to enforce a mortgage or other equitable 
 lien or claim against real or personal property within the 
 district where the suit is brought when any defendant is 
 not a resident of or found within such district.* And circuit 
 courts of the United States have jurisdiction to foreclose 
 mortgages where the mortgaged premises lie within the 
 jurisdiction of the court and one of the parties to the action 
 does not reside in the state.* This equity jurisdiction of the 
 circuit courts of the United States to foreclose mortgages on 
 lands lying within the district where the suit is brought will 
 not be affected by the fact that the state legislature has 
 conferred upon the courts of law of the state authority 
 to enforce equitable rights by statutory proceedings, because 
 the federal courts can not be interfered with in any degree 
 by state legislation.' The constitution of the United States 
 
 » Rule 31. N. T. Common Pleas. mb nam. Kelly v. McGlynn, bk. 
 
 • Chouteau v. AUen, 70 Mo. 290 22 L. ed. 599 ; Thompson v. Central 
 (1879). Ohio R. R. Co., 73 U. S. (6 Wall.) 
 
 » 17 U. 8. Stat. 193. 134, 137 (1867) ; bk. 1 L. ed. 765 ; 
 
 • Benjamin v. Caveroc, 2 Woods Bennett v. Butterworth, 52 U. S. 
 0. C. 168 (1875). (11 How.) 669, 674, 675 (1850) ; bk. 
 
 • Case of Broderick's Will, 88 U. 13 L. ed. 859; Benjamin v. Cavaroc, 
 & (21 Wall.) 503, 530 (1874) ; a a 2 Woods C. C. 168 (1875).
 
 20 JURISDICTION OF FEDERAL COURTS. [§ 24. 
 
 and the acts of Congress recognize and establish the dis- 
 tinction between law and equity ; and the remedies in the 
 United States courts are at law or in equity in accordance 
 with the practice of the state courts and according to the prin- 
 ciples of common law and equity as distinguished and defined 
 in the country from which we derive our knowledge of these 
 principles.* And although the state forms of practice may- 
 have been adopted in the circuit courts of the United States 
 for the jurisdiction in which the states lie, yet this adoption 
 of the state practice does not confound the principles of law 
 and equity as established in such courts." The equity 
 jurisdiction of the federal courts is the same in all states and 
 the rule of decision is the same in all ; their remedies are not 
 regulated by the state practice, for they are independent of 
 the local law of any state.' 
 
 After the commencement of an action in a United States 
 court to foreclose a mortgage, and the acquiring of 
 jurisdiction by that court of the subject and parties, an 
 action can not subsequently be commenced in a state court 
 to foreclose the same mortgage.* The attachment of a bond 
 and mortgage, assigned during the pendency of an action 
 in the United States court from which the warrant of 
 
 » Thompson v. Central Ohio R. R. mortgage, has gone into the United 
 
 Co.,73U.S. (6 Wall.) 134, 137(1867); States district court as a court of 
 
 bk. 18 L. ed. 765 ; Robinson v. bankruptcy, proved his claim and 
 
 Campbell, 16 U. S. (3 Wheat.) 213 subjected it to the jurisdiction of 
 
 (1818) ; bk. 4 L. ed. 372. that court ; and the bankruptcy 
 
 * Bennett v. Butterworth, 52 U. S. court has, by an order to which the 
 (11 How.) 669, 674 (1850) ; bk. 13 L. creditor was a party, made on appli- 
 ed. 859. cation of another creditor having a 
 
 2 Barber v. Barber, 62 U. S, (21 prior lien on the mortgaged prem- 
 
 How.) 582 (1858) ; bk. 16 L. ed. 226; ises, directed a sale of the premises. 
 
 Dodge V. Woolsey, 59 U. S. (18 the proceeds thereof, beyond the 
 
 How.) 331, 347 (1855) ; bk. 15 L. ed. sum admitted to be secured by the 
 
 401 ; United States v. Rowland, 17 prior lien, " to abide a further hear- 
 
 U. S. (4 Wheat.) 108 (1819) ; bk. 4 ing" between the two claimants ; the 
 
 L. ed. 526 ; Cropper v. Coburn, 3 mortgagee can not, after the sale. 
 
 Curt. C. C. 465 (1855) ; Gordon v. foreclose his mortgage in a district 
 
 Hobart, 2 Sumn. C. C. 401 (1825). court of the state, while the pro- 
 
 * Levy V. Haake,53 Cal. 267 (1878). ceedings in respect to the disposition 
 Thus where a creditor of a bank- of the proceeds of the sale are still 
 
 rupt, whose claim is secured by a pending in the bankruptcy court.
 
 § 25.] VENTJE OF ACTION. 21 
 
 attachment was issued, will not prevent the foreclosure 
 of the mortgage by the assignee thereof in a state 
 court.* Thus after the commencement of an action by 
 the United States in a United States circuit court, the 
 defendant therein executed an assignment of a bond 
 and mortgage which was recorded ; an attachment was there- 
 after levied on the mortgage debt, plaintiff claiming that the 
 assignment was fraudulent and void. An action was then 
 brought by the assignee to foreclose the mortgage. Upon 
 application of the owners of the equity of redemption the 
 United States circuit court directed the levy to be 
 discharged, unless the United States consented to appear 
 and submit to the jurisdiction of the state court. Upon 
 motion thereupon made in the foreclosure suit an order was 
 granted substituting the United States as defendant, dis- 
 charging the original defendant from liability, and directing 
 the plaintiff to satisfy the mortgage, upon payment into 
 court of the amount due with costs^ with provision for 
 the appearance of the United States, its submission to the 
 jurisdiction of the court, and consent that the title to the mort- 
 gage debt be determined in the action ; on default of 
 such appearance and submission, the money so paid in was 
 directed to be paid to the plaintiff. The court held that the 
 order was proper because the United States had no judgment 
 against the defendant, and might never have.' 
 
 § 25. Venue. — Provisions of the New York Code 
 where the land lies within the state. — Under the 
 provisions of the New York Code of Civil Procedure, where 
 the land lies within the state, an action to foreclose a 
 mortgage on real property must be brought and tried 
 in the county in which the land is situated,* subject 
 to the power of the court to change the place of trialin 
 the cases provided for in the Code.* And this is true although 
 
 'SeeJohnsonv. Stimmel, 89N.Y. » N. Y. Code Civ. Proc. §983. 
 
 117 (1882) ; Thurber v. Blanck, 50 See also Gould v. Bennett, 59 N. Y. 
 
 N. Y. 80 (1872). 124 (1874) ; 8. c. -49 How. (N. Y.) 
 
 ^ Johnson v. Stimmel, 89 N. Y. Pr. 57, 
 
 117 (1882). See Thurber v. Blanck, * N. Y. Code Civ. Vroc. § 987. 
 60 N. Y. 80 (1872).
 
 22 VENTIE LOCATIOIT OF LAND. [§ 26. 
 
 the money may have been loaned and the mortgage executed 
 in a county other than that in which the mortgaged premises 
 are situated.' The appointment of a referee residing in a 
 difTerent county from that in which the venue is laid, will 
 rot necessarily change the place of trial; but the referee 
 can not, without the consent of the parties, try the case 
 elsewhere than in the county where the mortgaged premises 
 are situated.' 
 
 § 26. Debt payable in one county ; land in another. — In 
 Iowa where a note made payable in one county is secured 
 by a mortgage on land located in another county, the court 
 of the county where the note is payable has no jurisdiction of 
 an action to foreclose a mortgage where the notice to the 
 m aker is served by publication only. The action in such a case 
 is strictly in rem and must be brought in the county where 
 the land lies ; but if such service is had upon the maker of the 
 rote and the action is so brought, as to enable the court of 
 the county where the note is payable, to render a personal 
 judgment against the maker thereof, under the Code,* then 
 that court may also render a decree foreclosing the mort- 
 gage, although the land lies in another county.* This right, 
 however, depends upon the particular provisions of the Code, 
 and until its passage a different rule prevailed.* 
 
 ' Miller v. Hull, 3 How. (N. Y.) foreclosure of a mortgage upon real 
 
 Pr. 325 (1848) ; s. c. 1 Code Rep. estate, situated in that county was 
 
 113; Vallejo V. Randall, 5 Cal. 461 upon the calendar, adjourned the 
 
 (1 855) ; HackenhuU v. Westbrook, term to his chambers in the county 
 
 53 Ga. 285 (1876) ; Owings v. Beall, of Kings, and proceeded to try the 
 
 8 Litt. (Ky.) 103 (1823), Compare action at the adjourned term against 
 
 Broome V. Beers, Conn. 198(1836) ; the objections of the defendant, 
 
 f'aufman v. Sayre, 3 B. Mon. (Ky.) This was held to be error. 
 
 202 (1841). 3 lo^a Code, § 2581. 
 
 * Brush V. Mullany, 12 Abb. (N. •• Iowa L.)an & Trust Co. v. Day, 
 
 Y.) Pr. 344 (1861) ; Wheeler v. IMait- 63 Iowa, 459 (1884) ; Equitable Life 
 
 land, 12 How. (N.Y.")Pr. 35(1855); Ins. Co. v. Gleason, 56 Iowa, 47 
 
 Gould V. Bennett, 59 N. Y. 124 (1881). 
 
 (1874) ; s. c. 49 How. (N. Y.) Pr. 57. ^ i^^a Loan & Trust Co. v. Day, 
 
 In this case, a justice holding a 63 Iowa, 459 (1884); Chadboume T. 
 
 special term in the county of West- Oilman, 29 Iowa, 181 (1870). 
 Chester, at which an action for the
 
 §§ 27-28.] OHAFGIN-G VENTTE. 23 
 
 § 27. Action brought in improper county. — Placfng the 
 venue and having the trial in a county different from that in 
 which the property is situated, is not an irregularity/ because 
 where the county designated in the complaint as the place 
 of trial is not the proper county, the action may, not- 
 withstanding, be tried therein unless the place of trial is 
 changed to the proper county, upon the demand of the 
 defendant, followed by the consent of the plaintiff or by 
 the order of the court.' But where the county designated 
 in the complaint as the place of trial is not the proper county, 
 the defendant may demand, as a matter of right, that the 
 trial be had in the proper county.* 
 
 Where the defendant demands that the action be tried in 
 the proper county, his attorney must serve upon the plain- 
 tiff's attorney, with the answer, or before service of the 
 answer, a written demand accordingly, which must 
 specify the county where the defendant requires the action 
 to be tried. If the plaintiff's attorney does not serve his 
 written consent to the change, as requested by the defendant, 
 within five days after service of demand, the defendant's 
 attorney may, within ten days thereafter, serve notice of a 
 motion to change the place of trial.* 
 
 § 28. Motion for change of venue. — Before a motion 
 can be made for changing the place of trial, on the 
 ground that neither the plaintiff nor the defendant resides in 
 the county where the venue is laid, a demand must be made 
 therefor upon the attorney who has appeared in the action 
 as provided for by the Code.* Where the plaintiff's attorney 
 fails to consent to the change demanded, an application to 
 the court by motion must be made by the defendant within 
 
 » Brush V. MuUany, 13 Abb. (N. Abb. (N. T.) Pr. IT. S. 27 (1871) : 
 
 T.) Pr. 344 (1861) ; Marsh v. Lowry, Stark v. Bates, 13 How. (N. Y.) Pr. 
 
 36 Barb. (N. Y.) 197 (1857); s. c. sub 465 (1854) ; K Y. Code Civ Proa 
 
 nom. March v. Lowiy, 16 How. (N. g 986. 
 
 Y.) Pr. 41 (1857). * N. Y. Code Civ. Proc. § 986. 
 
 » N. Y. Code Civ. Proc. § 985. » VanDyck v. McQuade, 18 Hut 
 
 » Leland v. Hathorne, 42 N. Y. (N. Y.) 376 (1879) ; N. Y. Code Oir 
 
 547 (1870) ; s. 0. 9 Abb. (N. Y.) Pr. Proc. § 421. 
 
 N. S. 97; Bush v. TreadweU, 11
 
 24 MOTION TO CHANGE VENUE. [§28. 
 
 ten days after the expiration of the five days given to the 
 plaintiff to consent to the change, or within fifteen days 
 after the demand has been made by the defendant ; other- 
 wise the right to the change will be waived.* But it seems 
 that under the Code,' the court has power to change the place 
 of trial, on the ground that the county where the venue is laid 
 is not the proper county, to the proper county upon applica- 
 tion of the defendant, although he may have lost the right 
 bv laches.* 
 
 A motion for a change of the place of trial to the proper 
 county made by the defendant before answer, can not be 
 opposed by the plaintiff on the ground that he has witnesses 
 in the county named in the complaint and that a change of 
 the place of trial will greatly inconvenience them,* because 
 the place of trial must be located in the proper county 
 irrespective of the convenience of witnesses,' and where it 
 is not so laid the right of the defendant to have the place of 
 trial changed to the proper county is an absolute one.* 
 Where the convenience of witnesses requires a change of the 
 place of trial, the proper practice is first to order a change to 
 the proper county upon the defendant's motion, and then if 
 the plaintiff desires a change to any other county on the 
 
 » Duche V. Buffalo Grape Sugar « N. T. Code Civ. Proc. § 987. 
 
 Co., 63 How. (N. Y.) Pr. 516 (1882). » Clark v. Campbell, 54 How. (IT. 
 
 Under the Code, (§ 126 of the orig- Y.) Pr. 166 (1877). 
 
 inal Code), there was no limitation * Veeder v. Baker, 83 N. Y. 156 
 
 of the time in which the motion to (1880) ;Giffordv, Town of Gravesend, 
 
 Change the place of trial to the 8 Abb. (N. Y.) N. C. 246 (1879); 
 
 proper county could be made, and Wood v. Hollister, 3 Abb. (N. Y.) 
 
 accordingly it was held under that Pr. 14 (1856) ; Starks v. Bates, 13 
 
 statute that such a motion could be How. (N. Y. ) Pr. 465 (1854); 
 
 made at any time before trial. Hubbard v. National Protection Ins. 
 
 Hubbard v. National Protection Co., 11 How. (N. Y.) Pr. 149 (1855); 
 
 Ins. Co., 11 How. (N. Y.) Pr. 149 Moore v. Gardner. 5 How. (N. Y.) 
 
 (1855); (Monroe v. National Protec- Pr. 243(1851). See Supreme Court 
 
 tion Ids. Co., 10 How. (N. Y.) Pr. Rule 48. 
 
 403 (1855). But a change was made ' Gifford v. Town of Gravesend, 
 
 by the new section (986) requiring 8 Abb. (N. Y.) N. C. 246 (1879) ; 
 
 the service of notice of motion to Moore v. Gardner, 5 How. (N. Y.) 
 
 compel the change to be made with- Pr. 243 (1851). 
 
 in ten days after the expiration of ^ Veeder v. Baker, 83 N. Y. 156, 
 
 the five days. 162 (1880).
 
 §§ 29-30.] PEOPERTT OR PAETTES OUT OF STATE. 25 
 
 grounds stated in the Code/ he must make his motion upon 
 affidavits, which the defendant may prepare to oppose.* 
 The motion for a change of venue on the ground that the 
 plaintiff laid his action originally in the wrong county 
 should be made before issue is joined ;* but a motion for a 
 change of venue based on the convenience of the witnesses 
 should not be made before issue has been joined.* 
 
 § 29. Where property situated in two states. — It has 
 been said that where mortgaged property is situated partly 
 in one state and partly in another, that a court possessing 
 equity jurisdiction may entertain a suit to foreclose the 
 mortgage as to the whole of the property.' It seems, 
 however, that the better practice is to bring a separate suit 
 in each state for the foreclosure of the mortgage on the 
 portion of the property located in that state.* 
 
 § 30. Where the land lies out of the state. — Where all 
 the real property to which an action relates is situated 
 without the state the action must be tried in the county in 
 which one of the parties resides at the commencement 
 thereof. If none of the parties reside in the state it may 
 be tried in any county which the plaintiff designates for 
 that purpose in the title of the complaint.' 
 
 » N. T. Code Civ. Proc. § 987. (1852) ; Lynch v. Mosher, 4 How. 
 
 « Veeder v. Baker, 83 N. Y. 156 (N. Y.) Pr. 86 (1849). See also 
 (1880). See also International Life Hartman v. Spencer, 5 How. (N. 
 Assurance Co. v. Sweetland, 14 Abb. Y.) Pr. 135 (1850) ; Mixer v. Kuhn, 
 (N. Y.) Pr. 240 (1862) ; Hubbard v. 4 How. (N.Y.) Pr. 409 (1850); Beards- 
 National Protection Ins. Co., 11 ley V. Dickerson, 4How. (N. Y.)Pr. 
 How. (N. Y.) Pr. 149 (1855) ; Park 81 (1848). 
 
 V. Camley, 7 How. (N. Y.) Pr. 355 » Mead v. New York H. & N. R. 
 
 (1852). R. Co., 45 Conn. 199, 223 (1877). 
 
 « See Wood v. HoUister, 3 Abb. See Toller v. Carteret, 2 Vern. 494 
 
 (N. Y.) Pr. 14 (1856); Toll v. (1705); Penn v. Baltimore, 1 Ves. 
 
 Cromwell, 12 How. (N. Y.) Pr. 79 Sr. 444 (1750). 
 
 (1855) ; Hubbard v. National Pro- « In re U. S. Rolling Stock Co., 55 
 
 tection Ins. Co., 11 How. (N. Y.)Pi. How. (N. Y.) Pr. 886 (1878). See 
 
 149 (1855) ; Schenck v. McKie, 4 Farmers' L. & T. Co. v. B. & M. T. 
 
 How. (N. Y.) Pr. 245 (1849). Co. 44 Hun (N. Y.) 400 (1887). 
 
 * Merrill v. Grinnell, 10 How. (N. ' N. Y. Code Civ. Proc. §§ 982, 
 
 Y.) Pr. 32 (1854) ; Hinchman v. 984. See House v. Lockwood, 40 
 
 Butler, 7 How. (N Y.) Pr. 463 Hun (N. Y.) 532 (1886).
 
 26 FORECLOSURES TRAlSrSITOEY. [§§31-32. 
 
 § 31. Where the parties reside in another state, — 
 
 Some courts have held that equity acts only in personam and 
 not ill rem, and that if a bill to foreclose be filed in the state 
 and county where the mortgaged lands are situated, all 
 the parties being citizens of another state, jurisdiction of 
 the action can be acquired by proper personal service of the 
 process ;' but the better doctrine would seem to be that an 
 action to foreclose is an action purely in rem and not in 
 personam, and that the mortgage may be foreclosed and the 
 property sold to satisfy the mortgage debt without personal 
 service of process on the defendant or his appearance in 
 court regardless of the residence of the parties. If, however, 
 there has been no personal service within the jurisdiction of 
 the court and no appearance, the court will have no jurisdic- 
 tion over the person of the defendant, and a judgment for 
 deficiency can not, for that reason, be entered," 
 
 § 32. Transitory action. — Aside from statutory require- 
 ments an action to foreclose a mortgage is not a local but a 
 transitory action, and a bill may be brought or a complaint 
 filed wherever jurisdiction of the parties can be acquired.' And 
 it has been said that a complaint for foreclosure of the equity 
 of redemption in mortgaged lands, is transitory and that any 
 court where a necessary defendant is served with process, 
 has jurisdiction ;* but that if a decree for sale only is asked 
 
 « Grace v. Hunt, Cooke (Tenn.) 4 Duer (N. Y.) 682 (1856) ; Variaa 
 
 841(1813). V. Stevens, 3 Duer (N. Y.) 635 
 
 « Ewer V. Coffin, 55 Mass. (1 (1853). Sec Broome v. Beers, 6 Conn. 
 
 Cush.) 23 (1848) ; Phelps v. Holker, 198 (1826) ; Finneganv. Manchester, 
 
 1 U. S. (1 Ball.) 261 (1788) ; bk. 1 12 Iowa, 521 (1861) ; Cole v. Connor, 
 
 L. ed. 128 ; Kilburn v. Woodworth, 10 Iowa, 299 (1860) ; Caufman v. 
 
 5 Johns. (N. Y.) 37 (1809); Robinson Sayre, 2 B. Mon. (Ky.) 202 (1841) ; 
 
 V. Exrs. of Ward, 8 Johns. (N. Y.) Newman v. Stuart, Cooke (Tenn.) 
 
 86(1811); Bisscll V. Briggs, 9 Mass. 339 (1813); Kinney v. McLeod, 8 
 
 461, 468 (1813) ; Ocean Ins. Co. v. Tex. 78 (1852) ; Paget v. Ede. L, R. 
 
 Portsmouth Marine Ry. Co. 44 18 Eq. 118 (1874) ; Toller v. Carteret, 
 
 Mass. (3 Mete.) 420 (1841) ; Danforth 2 Vera. 494 (1705). 
 V. Penny, 44 Mass. (3 Mete.) 564 * Caufman v. Sayre, 2 B. Men. 
 
 (1842). (Ky.) 202 (1841). See also Paget v. 
 
 » Bates V. Reynolds, 7 Bosw. Ede, L, R, 18 Eq. 118 (1874). 
 (N. Y.) 685 (1860) ; Porter v. Lord,
 
 § 32.] FOREOLOSITEES TRANSTTOKT. 27 
 
 the court of the county where the land lies is the only court 
 that has jurisdiction.* Thus where six different mortgages 
 were given upon distinct parcels of land laying in six 
 different counties, to secure a distinct portion of a promissory 
 note therein described, and an action was brought in a 
 county where one of the mortgaged tracts was located to 
 forclose all six of the mortgages, it was held that as to the 
 five mortgages on the lands lying in the counties other than 
 that in which the action was commenced, the venue was 
 wrong and that the court had no jurisdiction to try the 
 issues arising thereon." But in those cases where the land 
 mortgaged consists of one tract laying in two or more 
 different counties, a suit may be brought to foreclose in 
 either of the counties in which the land is partly situated.* 
 It is held in Connecticut, however, that a bill to foreclose 
 a mortgage need not be brought in the county where the 
 land lies, the title of the mortgagee not being in question.* 
 
 * Chadboume v. Gilman, 29 Iowa, question under the plaintiff's bUl of 
 181 (1870) : Owings v. Beall, 8 Litt. foreclosure ; and such suits have 
 (Ky.) 104 (1823) ; Caufman v. Sayre, always been considered transitory, 
 2 B. Mon. (Ky.) 202 (1841). citing Austin v. Burbank, 3 Day 
 
 « Chadboume v. Gilman, 29 Iowa, (Conn.) 474, 477 (1807) ; s. c. 2 Am. 
 
 181 (1870). Dec. 119 ; Owen v. Walter, Superior 
 
 « Owings V. BeaU, 3 Litt (Ky.) 103 Court Hartford County (1816); Owen 
 
 (1823). T. Granger, Superior Court Hartford 
 
 * Broome v. Beers, 6 Conn. 198 County (1802) ; Anon. 2 Chan. Cao. 
 (1826). In this case the court say : 244 (1679) ; Pow. Mort. 1043 ; S 
 The title to the land was not in Swift's Dig. 197.
 
 CHAPTEK m. 
 
 WHEN FORECLOSURE MAY BE COMMENCED. 
 
 § 83. Right to foreclose. 
 
 84. When right to foreclose ac- 
 
 crues. 
 
 85. When previous demand not 
 
 necessary. 
 
 86. Interest clause — Breach mak- 
 
 ing mortgage due. 
 
 87. Effect of such a condition. 
 
 88. Stipulation against forfeiture. 
 
 89. Note payable on demand. 
 
 40. Where the time of payment is 
 
 not specified. 
 
 41. Mortgage payable in install- 
 
 ments. 
 
 42. Failure to pay interest. 
 
 43. Failure to pay taxes. 
 
 44. Election of mortgagee that 
 
 debt become due. 
 
 § 45. Notice of election. 
 
 46. Who may exercise option to 
 
 declare the debt due. 
 
 47. Power of court to relieve from 
 
 forfeitm-e. 
 
 48. Where mortgagee holds one 
 
 mortgage securing several 
 notes. 
 
 49. Where mortgagee holds more 
 
 than one mortgage on the 
 same property securing dif- 
 ferent debts. 
 
 60. Indemnity mortgage. 
 
 61. Parol agreement as to time of 
 
 payment. 
 63. Agreement not to enforce 
 mortgage. 
 
 63. Extension of time of payment, 
 
 64. Extension of time by parol. 
 
 § 33« Right to foreclose. — With every mortgage there 
 exists an inherent right of foreclosure, whether the fore- 
 closure results in vesting an absolute title to the property in 
 the mortgagee, as was formerly the case in England, or in a 
 judicial sale of the premises, as is now the case in most of 
 our states.' Such right of foreclosure is not an unrestrained 
 one, for as long as the mortgagor keeps his covenants, the 
 mortgagee can have no grievance to redress, and the mor^ 
 gagor will be entitled to the undisturbed possession of the 
 mortgaged premises ; the right to foreclose arises only where 
 the condition of the mortgage has been forfeited by failure 
 to pay the principal or interest when due, or by some 
 similar breach of contract.' The lapse of time, however, 
 
 > Koch V. Briggs, 14 Cal. 256, 262 78 ; James v. Fisk, 17 Miss. (9 Smed. 
 (1859) ; s. 0. 73 Am Dec. 651. & M.) 144, 150 (1847) ; s. c. 47 Am. 
 
 » Wilkinson v. Flowers, 37 Miss. Dec. Ill ; Gladwyn v. Hitchman, 9 
 679, 584 (1859) ; s. c. 75 Am. Dec. Vern. 135 (1689). 
 
 28
 
 § 34.] EIGHT TO FORECLOSE. 29 
 
 which usually determines the right to institute an action for 
 foreclosure, is not always the criterion by which the com- 
 plainant is to be governed, for that right may be made to 
 depend upon other events or contingencies. This is 
 especially the case where the mortgage declared upon is an 
 indemnity mortgage, conditioned to protect the mortgagee 
 against liability and to save him harmless from loss.* As a 
 rule, however, the right of action does not accrue upon an 
 indemnity mortgage until the mortgagee has paid the whole 
 or a part of the debt, or his principal has defaulted upon the 
 debt which the mortgage was given to secure.* This is 
 particularly true where the condition of the covenant is 
 simply to pay the obligation.' 
 
 The nature of the security may be such that an event not 
 contemplated by the parties, nor provided for in their 
 agreement, may render it impossible for the mortgagor to 
 comply with the conditions of his mortgage. In such an 
 event a right of action will accrue at once. Thus it has been 
 held that where a mortgage was given by a manufacturing 
 company to secure an executory contract running through a 
 term of years, and the company subsequently failed and 
 became wholly insolvent, a right of action accrued upon the 
 mortgage forthwith, because it was evident that it would be 
 impossible for the company to keep its engagements.* 
 
 § 34. When right to foreclose accrues. — ^An action to 
 foreclose a mortgage will not lie until the debt secured has 
 
 » Bee Ellis v. Martin, 7 Ind. 652 (1842) ; Pond v. Clarke, 14 Conn. 
 
 (1856) ; Francis v. Porter, 7 Ind. 213 834 (1841) ; Shepard v. Shepard, 6 
 
 (185£0 ; Lewis v. Richey, 5 Ind. 152 Conn. 37 (1825) ; Francis v. Porter, 
 
 (1854) ; Butler v. Ladue, 12 Mich. 7 Ind. 218 (1855) ; McLean v. Rags- 
 
 173 (1868) ; Dye v. Mann, 10 Mich, dale, 81 Miss. 701 (1856) ; Ohio Life 
 
 291 (1862) ; Thurston v. Prentiss, 1 Ins. «fe Trust Co. v. Reeder, 18 Ohio. 
 
 Mich. 193 (1849). 85 (1849) ; McConnell v. Scott, 15 
 
 » Piatt V. Smith, 14 Johns. (N. Y.) Ohio, 401 (1846) ; s. c. 45 Am. Dec. 
 868 (1817) ; Powell v. Smith, 8 683 ; Kramer v. Trustees of Farm- 
 Johns. (N. Y.) 249 (1811) ; Rodman ers' & Mechanics' Bank of Steuben- 
 ▼. Hedden, 10 Wend. (N. Y.) 500 ville, 15 Ohio, 254 (1846). 
 (1833) ; Ketchum v. Jauncey, 23 * See post % 50. 
 Conn. 126 (1854) ; Beckwith v. * Harding v. Mill River Woolen 
 Windsor Manuf. Co., 14 Conn. 594 Manuf. Co., 34 Conn. 458, 461(1867).
 
 30 PREVIOUS DEMAND NOT NECESSAEY. [§ 35. 
 
 matured,' or its conditions have in some way been broken, or 
 their performance by the mortgagor or other party liable 
 has been rendered impossible. Even where a mortgagee 
 whose debt is not due, is made a defendant in the foreclosure 
 of a subsequent mortgage securing a debt which is due, and 
 files a cross-complaint setting up such prior mortgage 
 and asking its foreclosure, the court will decree the fore- 
 closure of the subsequent mortgage alone, and order the 
 property to be sold subject to the lien of the prior mortgage ; 
 it seems that the court can not foreclose the prior mortgage 
 nor order a sale to satisfy it under such cross-complaint." 
 
 § 35' When previous demand not necessary. — In the 
 
 foreclosure of a mortgage given to secure a note payable on 
 demand and not at a particular time or place, a demand of 
 payment is not necessary before the commencement of the 
 action.* Nor is it necessary to make a demand before 
 bringing a suit to foreclose, where the note is payable on 
 demand at a particular place ; but if, in such a case, the 
 defendant shows that he was ready at the appointed place 
 to make payment, and brings the money into court, he will 
 be relieved from interest and costs.* Where a mortgage was 
 
 » KeUy V. Bogardus, 51 Mich. 623 67 Mass. (1 Gray) 496 (1854) ; Wat- 
 
 (1883). kins v. Crouch, 5 Leigh (Va.) 52» 
 
 » Trayser v. Trustees of Indiana (1834) ; Rumball v. Ball, 10 Mod- 
 
 Asbury University, 39 Ind. 556 38(1712). 
 
 (1872). * Green v. Goings, 7 Barb. (N. Y.) 
 
 ' Locklin v. Moore, 57 N. Y. 362 653, 655(1850) ; CaldweU v. Cassidy, 
 
 (1874) ; Hills v. Place, 48 N. Y. 520 8 Cow. (N. Y.) 271 (1828) ; Place v. 
 
 (1872); s. c. 8 Am. Rep. 568; 36 Union Express Co., 2 Hilt. (N. Y.) 
 
 How. (N. Y.) Pr. 26 ; Pusey v. New 19, 31 (1858) ; Gay v. Paine, 5 How. 
 
 Jersey & W. L. R. R. Co., 14 Abb. (N. Y.) Pr. 108 (1850) ; Wolcott v. 
 
 (N. Y.) Pr. N. S. 434, 439 (1873) ; VanSantvoord, 17 Johns. (N. Y.) 
 
 Hirst V. Brooks, 50 Barb. (N. Y.) 248 (1819) ; s. c. 8 Am. Dec. 396 ; 
 
 334(1867); Gillettv.Balcom, 6 Barb. Foden v. Sharp, 4 Johns. (N. Y.) 
 
 (N. Y.) 370 (1849) ; Caldwell v. 183 (1809) ; Locklin v. Moore, 5 
 
 Cassidy, 8 C(.w. (N. Y.) 271 (1828) ; Lans. (N. Y.) 308 (1871) ; Nazro v. 
 
 Nelson v. Bostwick, 5 Hill (N. Y.) Fuller. 24 Wend. (N. Y.) 376 (1840); 
 
 87 (1848) ; s. c. 40 Am. Dec. 310 ; Haxtun v. Bishop, 3 Wend. (N. Y.) 
 
 Wolcott V. VanSantvoord, 17 Johns. 13 (1829) ; Carley v. Vance, 17 Mass. 
 
 (N. Y.) 248 (1819) ; s. c. 8 Am. Dec. 389 (1821) ; Fullerton v. Bank of 
 
 396 ; Haxtun v. Bishop, 3 Wend. United States, 26 U. S. (1 Pet.) 604 
 
 (N. Y.) 13 (1829) ;Burnham V.Allen, (1828); bk. 7 L. ed. 28; Bank of
 
 § 3 6. J DEFAULT ON INTEEEST CLAUSE. 31 
 
 given as collateral security for a bond to the treasurer of a 
 state, payable on demand with annual interest at a specified 
 date, it was held that a failure to pay the interest as stipu- 
 lated was a breach of the bond, and that the mortgagee, 
 or his assignee, could maintain a suit for the foreclosure 
 thereof without pleading or proving a demand.* 
 
 § 36. Interest clause — Breach making mortgage due. 
 — In the form of mortgage generally used in the various 
 states, there are provisions under which the mortgage may 
 be foreclosed for the whole debt on the breach of a single 
 condition or covenant.' The parties to a mortgage can 
 lawfully agree to such conditions ; and when they do so the 
 conditions will be enforced by courts of equity.* The right 
 to foreclose, upon failure to perform any of the conditions 
 of a mortgage, need not be formally set forth in exact 
 words, but may be gathered from the intention of the 
 parties, as expressed in the instrument. Thus where it 
 appears from the mortgage, that it was the intention of the 
 parties that the mortgagee should have the right to foreclose 
 for the whole debt on failure to pay an installment thereof 
 or the interest when due, such intention will be upheld by 
 the courts.* But where a mortgage payable in installments 
 contained a power of sale conditioned that if any install- 
 ment of principal or interest should remain unpaid for thirty 
 days after it became due, the premises should be sold and 
 the surplus, if any, arising from such sale should be paid 
 to the mortgagor after deducting the interest and costs 
 and the whole debt secured by the mortgage, the court 
 held that such a condition was only intended to authorize a 
 
 United States v. Smith, 24 U. S. (11 Bushfleld v. Meyer, 10 Ohio St. 334 
 
 Wheat.) 171 (1826) ; bk. 6 L. ed. (1859) ; Hosie v. Gray, 71 Pa. St 
 
 443 ; Fenton v. Goundry, 13 East. 198 (1872). 
 
 459 (1811). » Richards v. Hohnes, 59 U. S. 
 
 > Austin V. Burbank, 2 Day (Conn.) (18 How.) 143 (1855) ; bk. 15 L. ed. 
 
 474 (1807) : s. c. 2 Am. Dec. 119. 304. 
 
 » See Holden v. Gilbert, 7 Paige * Holden v. Gilbert, 7 Paige Ch. 
 
 Ch. (N. Y.) 208 (1838) ; McLean v. (N. Y.) 208 (1838) ; Pope v. Durant, 
 
 Pressley, Adm'rs, 56 Ala. 211 (1876); 26 Iowa, 233 (1868). 
 Pope V. Durant, 26 Iowa, 233 (1868);
 
 32 INTEEEST CLAUSE EFFECT OF. [§ 37. 
 
 foreclosure in case of the non-payment of the interest or 
 installment within the time prescribed, with the right to 
 retain the whole debt in case such interest or installment 
 and costs were not paid before the sale ; but that mere 
 failure to pay the interest or installment within the pre- 
 scribed time did not of itself make the whole mortgage debt 
 due and payable.* 
 
 § 37. Effect of such a condition. — Such a stipulation in 
 the mortgage is not regarded as a penalty, but as a provision 
 for the earlier maturing of the debt upon the happening of 
 certain contingencies.* If the mortgage does not contain 
 such a stipulation in the form of an interest clause, the decree 
 of foreclosure can direct the payment of such part of the 
 debt only as is due at the time of the commencement of 
 the action, or as may become due before the final hearing, and 
 to effect that purpose, direct the sale of such part only of the 
 mortgaged premises as may be necessary to pay that portion 
 of the debt which has matured.* The reason for this is that a 
 mortgage is merely a collateral security, and being, moreover, 
 entitled to no other effect in equity, should not, as a matter 
 of election by the mortgagee, be enforced by a court of 
 equity for any other purpose than that of paying the debt. 
 
 » Holden v. Gilbert, 7 Paige Ch. (1828) ; Magruder v. Eggleston, 41 
 
 (N. Y.) 208 (1838). Miss. 284 (1866) ; Goodman v. Cin- 
 
 • Stillwell V. Adams, 29 Ark. 346 cinnati & C. R. R. Co., 2 Disney 
 
 (1874) ; Grattan v. Wiggins, 23 Cal. (Ohio) 176 (1858) ; Baker v. Lehman, 
 
 16 (1863) ; Jones v. Lawrence, 18 Wright (Ohio) 522 (1834) ; Richards 
 
 Ga. 277 (1855) ; Morgenstern v. v. Holmes, 59 U. S. (18 How.) 14S 
 
 Klees, 30 111. 422 (1863) ; Taber v. (1855) ; bk. 15 L. ed. 304. 
 Cincinnati L. & C. R. Co., 15 Lid. * Suffern v. Johnson, 1 Paige Ch. 
 
 459 (1860) ; Hunt v. Harding, 11 Ind. (N. T.) 450 (1829) ; B. c. 19 Am. Dec. 
 
 245 (1858); Smart v. McKay, 16 Lid. 440 ; Mussina v. Bartlett, 8 Port. 
 
 45 (1861). See Cecil v. Dynes, 2 Lid. (Ala.) 277, 284 (1839) ; Greenman v. 
 
 266 (1850) ; Hough v. Doyle, 8 Pattison, 8 Blackf. (Ind.) 465 (1847); 
 
 Blackf. (Ind.) 300 (1846) ; Greenman Adams v. Essex, 1 Bibb. (Ky.) 149 
 
 V. Pattison, 8 Blackf. (Ind.) 465 (1808); 8. c. 4 Am. Dec. 623; 
 
 (1847) ; Andrews v. Jones, 3 Blackf. Caufman v. Sayre, 2 B. Mon. (Ky.) 
 
 (Ind.) 440 (1834) ; Mobray v. Leckie, 202 (1841) ; Magruder v. Eggleston, 
 
 42 Md. 474 (1875) ; Schooley v. 41 Miss. 284 (1866) ; James v. Fisk, 
 
 Remain, 31 Md. 575 (1869) ; Salmon 17 Miss. (9 Smed. & M.) 144, 153 
 
 T. Clagett, 3 Bland. Ch. (Md.) 125 (1847) ; 8. 0. 47 Am. Dec. 111.
 
 § 37.] DEFAULT CLAUSES — COKDITIONS. 33 
 
 or so much thereof only as may be due and unpaid at the 
 time of granting the decree, nor to any greater extent than 
 the default of the mortgagor may require. The process of 
 foreclosure being merely incidental to every mortgage, a 
 court of equity will not enforce a technical default or 
 forfeiture. It has been said that a court of equity, looking 
 to the object and purpose rather than to the letter of the 
 contract, treats a mortgage as collateral security merely, and 
 will aid the mortgagee no farther than may be necessary for 
 enforcing his debt upon equitable principles as it becomes 
 due. 
 
 Therefore, whatever the merely legal rights of a mort- 
 gagee may be, if instead of enforcing them, he elects to 
 resort to a court of equity for foreclosure, that court ought 
 not to permit the action, either before there is a right of 
 redemption of which the mortgagor could avail himself by 
 plea, or to any greater extent, finally, than that to which 
 the mortgagor has a right to redeem. A mortgagor has no 
 right of redemption before default ; and in a default that 
 results only from the non-payment of the first of several 
 installments his right of redemption would be limited to that 
 installment ; he could not anticipate nor be required to pay 
 the other installments before they became due.' Courts 
 of equity, without the aid of statutory provisions, but from 
 the liberality of the principles and rules which govern 
 them, have it in their power so to shape the terms of the 
 decree of foreclosure, either as to a part or the whole of 
 the demand, as to do complete justice to all parties interested, 
 and have power to retain jurisdiction of the action for the 
 purpose of making, from time to time, such further orders as 
 justice may require." This latitude of decision is indispen- 
 sably necessary in the foreclosure of mortgages to secure the 
 payment of annuities, jointures, money required to be raised 
 annually for the maintainance and education of children, and 
 in many other cases of a similar nature, in which, if it were 
 required by law, that no proceeding should be had upon 
 
 * Caufman v. Sayre, 2 B. Mon. ' Adams v. Essex, 1 Bibb. (Ky.) 
 
 (Ky.) 202, 205-6 (1841). 149 (1808) ; s. c. 4 Am. Dec. 623.
 
 34 DEFAULT CLAUSES CONDITIONS. [§ 37. 
 
 the mortgage to foreclose and enforce payment, until the 
 last installment became due, the very object of the contract 
 would be defeated.' 
 
 In those cases, however, where the good of all the parties 
 concerned requires it, the decree may direct a sale of the 
 whole mortgaged estate, though a sale of the entire estate 
 may not be required for the payment of .the installments 
 already due. This may be done particularly where the 
 mortgagor consents to the sale," or the property is indivisible," 
 or where the court is satisfied from the character of the 
 property, that it would sell to better advantage if sold in one 
 parcel at one time, than if sold in separate parcels at different 
 times.* Particularly is this the case where the property is of 
 such a nature, or the circumstances of the mortgagor are such, 
 that a single sale of the entire estate would either pay the 
 whole debt or approximate more nearly to it than several 
 sales of the premises in parcels at different times.* 
 
 But where the entire premises are sold on failure to pay an 
 installment of principal or interest, such sale exhausts the 
 mortgagee's remedy by foreclosure, and a second sale can not 
 be had upon the maturity of the whole principal," because 
 such first sale of the mortgaged premises in pursuance of a 
 decree of foreclosure, passes to the purchaser the entire title 
 and interest of both the mortgagor and the mortgagee in 
 the premises.* 
 
 » Adams v. Essex, 1 Bibb. (Ky.) 621 ; Buford v. Smitli, 7 Mo. 489 
 
 149 (1808) ; 8. c. 4 Am. Dec. 623. (1842). 
 
 ' Gregory v. Campbell, 16 How. ' Holden v. Sackett, 13 Abb. (N. 
 
 (N. T.)Pr. 417, 422 (1858); Caufman T.) Pr. 473 (1861); Lansing ▼. 
 
 V. Sayre, 2 B. Men. (Ky.) 202, 209 Goelet, 9 Cow. (N. T.) 346 (1827) ; 
 
 (1841). Bradford v. Harper, 25 Ala. 337 
 
 » Bank of Ogdcnsburg v. Arnold, (1854) ; Kelly v. Payne, 18 Ala. 371 
 
 5 Paige Ch. (N. Y.) 38 (1835); (1850); Hobby v. Pemberton, Dudley 
 
 Greenman v. Pattison, 8 Blackf. (Ga.) 212 (1837) ; Poweshiek Co. v. 
 
 (Ind.) 465 (1847) ; Caufman v. Sayre, Dennison, 36 Iowa, 244, 248 (1873) ; 
 
 2 B. Mon. (Ky.) 202, 209 (1841). B. o. 14 Am. Rep. 521 ; Marston v. 
 
 * Caufman v. Sayre, 2 B. Mon. Marston, 45 Me. 412 (1858) ; Haynes 
 (Ky.) 202, 209 (1841). v. Wellington, 25 Me. 458 ; Brown 
 
 * Caufman v. Sayre. 2 B. Mon. v. Tyler, 74 Mass. (8 Gray) 135 (1857); 
 (Ky.) 202, 209 (1841). b. c. 69 Am. Dec. 239 ; Ritger v. 
 
 * Poweshiek Co. v. Dennison, 36 Parker, 62 Mass. (8 Cush.) 145 (1851); 
 Iowa, 244 (1873) ; 8. c. 14 Am. Rep. s. o. 54 Am. Dec. 744 ; Clower y.
 
 § 38.] STIPULATION AGAINST FOEFEITirRE. 35 
 
 § 38. Stipulation against forfeiture. — It is competent 
 for the parties, at the time of executing a mortgage, to 
 stipulate against its forfeiture;' and where a mortgage 
 contains an absolute covenant, that the principal shall 
 not be called in during a speciiied period, or until the 
 happening of a certain event, a default in the payment of 
 the interest in the meantime will not enable the mortgagee to 
 foreclose. Thus where a mortgage provided that the princi- 
 pal should not be called in during the life-time of the 
 mortgagor, it was held that the failure to pay a yearly interest, 
 reserved during the life-time of the mortgagor, did not give 
 a right to foreclose '^ and where a mortgage, given to secure 
 several notes maturing at different times, provides that none 
 of them shall become payable and that the mortgage shall 
 not be foreclosed, until the maturity of the note last due, a 
 holder who purchases one or more of the notes with knowl- 
 edge of such stipulation in the mortgage can not recover 
 judgment thereon until the last note matures.* In such a 
 case the notes and the mortgage, having been contemporane- 
 ously executed and relating to the same subject matter, 
 are to be read together and considered as one instru- 
 ment.* 
 
 And where, at the time a mortgage was executed and as 
 a part of the consideration and agreement for the loan, the 
 
 Bawlings, 17 Miss. (9 Smed. & M.) 483 (1845). But see Burt v. Saxton, 
 
 122 (1847) ; s. c. 47 Am, Dec. 108 ; 1 Hun (N. Y.) 551 (1874). 
 
 Stark V. Mercer, 4 Miss. (3 How.) » Noell v. Gaines, 68 Mo. 649 
 
 877 (1839); Carter v. Walker, 2 (1878); s. C. 8 Cent. L. J. 353; 
 
 Ohio St. 339 (1853); West Branch Brownleev. Arnold,60Mo.79(1875). 
 
 Bank V. Chester, 11 Pa. St. 282 (1849); * See Church v. Brown, 21 N. Y. 
 
 McCaU V. Lenox, 9 Serg. & R. (Pa.) 315, 330 (1860) ; Hanford v. Rogers, 
 
 802, 312 (1823) ; Pierce v. Potter, 7 11 Barb. (N. Y.) 18 (1851) ; Gammoa 
 
 Watts (Pa.) 477 (1838) ; Berger v. v. Freeman, 31 Me. 243 (1850) ; 
 
 Heister, 6 Whart. (Pa.) 214 (1840) ; Hunt v. Frost, 58 Mass. (4Cush.) 54 
 
 Hodson V. Treat, 7 Wis. 263 (1858) ; (1849) ; Brownlee v. Arnold, 60 Mo. 
 
 TaJhnan v. Ely, 6 Wis. 244 (1857) ; 79 (1875) ; 2 Parsons on Contr. 553. 
 
 Hope V. Booth, 1 Barn. & Ad. 498 See Clark v. Munrne, 14 Mass. 351 
 
 (1830). (1817); Harrison v. Trustees of 
 
 > Brownlee v. Arnold, 60 Mo. 79 Phillips' Academy, 12 Mass, 456 
 
 (1875). (1815) ; Gilliam v. Moore, 4 Leigh 
 
 » Burrowes v. MoUoy, 2 Jones & (Va.) 30 (1832) ; s. c. 24 Am. Dec 
 
 LaT. 521 (1845) ; s. c. 8 Irish Eq. 704.
 
 36 MORTGAaE PAYABLE OlST DEMAISTB. [§ 39. 
 
 mortgagee indorsed upon the mortgage a stipulation on his 
 part that " the loan will not be called in so long as the 
 mortgagor continues punctually to pay the interest semi- 
 annually, and the value of the estate pledged shall be 
 double the amount of the debt, until the expiration of two 
 years after the service of a written notice, stating the time 
 when payment will be required," it was held that such 
 stipulation became a part of the mortgage contract and that 
 the mortgagee or his assignee could not maintain an action 
 for foreclosure until two years after the service of the 
 required notice.* 
 
 § 39. Note payable on demand. — Where a note, to 
 secure the payment of which a mortgage is given, is payable 
 on demand, it is due immediately,' and the mortgagee has a 
 right to foreclose at any time without making a previous 
 demand.' It is well settled that when a right of action 
 accrues upon the note, the mortgage securing it may be 
 foreclosed. And even if a note on demand is payable at a 
 particular place, no previous demand need be averred or 
 shown ; but if the defendant pleads that when the suit was 
 commenced he was ready at the place mentioned in the note 
 to make payment, and brings the money into court, he will 
 thereby discharge himself from interest and costs.* 
 
 But where the conditions in a mortgage, given to secure a 
 promissory note payable on demand, provide that if the note 
 should be paid " within sixty days after such demand " the 
 mortgage should be void, a demand of payment at least 
 sixty days prior to the commencement of a foreclosure 
 must be actually shown.* And where by the agreement of 
 
 1 Belmont County Branch Bank Ohio St. 343, 357 (1880) ; Hill v. 
 
 V. Price, 8 Ohio St. 299 (1858). Henry, 17 Ohio, 9 (1848) ; Darling 
 
 « Gillett V. Balcrm, 6 Barb. (N. Y.) v. Wooster, 9 Ohio St. 517 (1859) ; 
 
 370 (1849) ; Pullen v. Chase, 4 Ark. Rumball v. Ball, 10 Mod. 38, (1713) ; 
 
 210 (1842) ; Hill v. Henry, 17 Ohio, Bayley on Bills (5th ed.) 403 ; Chitt. 
 
 9 (1848). on Bills (8th ed.) 590, 608, 609. 
 
 3 Gillett V. Balcom, 6 Barb. (N.Y.) '» Haxtun v. Bishop, 3 Wend. 
 
 370 (1849); Haxtun v. Bishop, 3 (N. Y.) 13, 21 (1829). See ante %S5. 
 
 Wend. (N. Y.) 13, 21 (1829) ; Pullen » Union Central Life Ins. Co. v. 
 
 V. Chase, 4 Ark. 210 (1842) ; Union Curtis, 35 Ohio St. 343, 357 (1880). 
 Central Life Ins. Co. v. Curtis, 35
 
 §40.] 
 
 TIME OF PAYMENT NOT SPECIETED. 
 
 37 
 
 the parties at the time of the execution of a note payable 
 on demand, it was orally stipulated that it should not be 
 paid until a future specified time, the statute of limitations 
 against such note will begin to run from the time when it 
 was payable, according to the agreement, and not from the 
 date of its execution.' 
 
 § 40. Where the time of payment is not specified. — 
 
 Where a note or bond secured by mortgage, is given for the 
 payment of a specified sum of money, but no time is fixed 
 for such payment, the law supplies the omitted element 
 and makes the debt due immediately.' In a recent case,' 
 where the mortgage did not distinctly identify the date or 
 provide a time of payment, it was held to be due as soon 
 as given ; and in another case,* where the condition of a 
 
 »Hale V. Pack, 10 W. Va. 145 
 
 (1877). 
 
 « Gillett V. Balcom, 6 Barb. (N. Y.) 
 870 (1849). See also Purdy v. PhU- 
 ips, 11 N. Y. 406 (1854); affi'g 1 Duer. 
 (N. Y.) 369 ; People v. County of 
 Kew York, 5 Cow. (N. Y.) 331 
 (1826) ; Rensselaer Glass Factory v. 
 Reid, 5 Cow. (N. Y.) 587 (1825) ; 
 Reid V. Rensselaer Glass Factory, 
 8 Cow. (K Y.) 393 (1824) ; Clark v. 
 Barlow, 4 Johns. (N. Y.) 183 (1809) ; 
 Selleck v. French, 1 Conn. 32(1814); 
 8. c. 6 Am. Dec. 185 ; Brown v. 
 Brown, 103 Ind, 23 (1885) ; s. c. 1 
 West. Rep. 128; Green v. DrebU- 
 bis, 1 G. Greene (Iowa) 552 (1848) ; 
 Francis v. Castleman, 4 Bibb. (Ky.) 
 282 (1815) ; Taylor v. Knox. 1 Dana 
 (Ky.) 391 (1833) ; b. c. 5 Dana (Ky.) 
 466 ; Goodloe v. Clay, 6 B. Mon. 
 (Ky.) 236 (1845) ; Swett v. Hooper, 
 62 Me. 54 (1873) ; Jillson v. HUl, 70 
 Mass. (4 Gray) 316 (1855) ; Dodge 
 V. Perkins, 26 Mass. (9 Pick.) 369 
 (1830); Weeks v. Hasty, 13 Mass. 218 
 (1816) ; Eaton v. Truesdail, 40 Mich. 
 1, 6 (1879) ; Rhoads v. Reed, 89 Pa. 
 St. 436 (1879); Heath v. Page, 63 
 Pa. St. 108 (1869) ; s. c. 3 Am. Rep. 
 
 533 ; Northern Pennsylvania R. R. 
 Co. V. Adams, 54 Pa. St. 94 (1867) ; 
 Hummel v. Brown, 24 Pa. St. 313 
 (1855) ; Lessee of Dilworth v. Sinder- 
 ling,'l Binn. (Pa.) 488 (1808); s. c. 
 2 Am. Dec. 469 ; Cheesborough v. 
 Hunter, 1 Hill (S. C.) 400 (1833) ; 
 Smetz V. Kennedy, Riley (S. C.) 218 
 (1837); Aikin v. Peay, 5 Strobh. 
 (S. C.) 15 (1850) ; s. c. 53 Am. Dec. 
 684; Roberts v. Cocke, 28 Gratt. 
 (Va.) 207 (1877); Young v. Godbe, 
 82 U. S. (15 Wall.) 562 (1872) ; bk. 
 21 L. ed. 250 ; Brewster v. Wake- 
 field, 63 U. S. (22 How.) 118, 127 
 (1859) ; bk. 16 L. ed. 301 ; Sheehy 
 V. Mandeville, 11 U. S. (7 Cr.) 208, 
 217(1812) ; bk. 3L. ed. 317 ; United 
 States V. Gurney, 8 U. S. (4 Cr.) 333 
 (1808) ; bk. 2 L. ed. 638 ; Rapelie v. 
 Emoiy, 1 U. S. (1 Dall.) 349 (1788) ; 
 bk. 1 L. ed. 170 ; Farquhar v. Morris, 
 7 T. R. 124 (1797) ; Bayley on Bills 
 (5th ed.) § 14 p. 59 ; Thompson on 
 Bills, § 1, p. 32. 
 
 8 Eaton V. Truesdail, 40 Mich. 1 
 (1879). 
 
 * Union Central Life Insurance 
 Company v. Curtis, 35 Ohio St. 357 
 (1880).
 
 38 MOETGAGE PAYABLE IN" INSTALLMENTS. [§ 41. 
 
 mortgage, given to secure the payment of a promissory note 
 payable on demand, was that if the mortgagor should pay 
 such note or cause it to be paid, the mortgage deed should 
 be void, the court held in an action to foreclose such mort- 
 gage, that a demand of payment of the note, before suit, 
 was not a necessary condition precedent to a right of action 
 on the mortgage.' 
 
 § 41. Mortgage payable in installments. — It is a general 
 rule that a forfeiture takes place and a right of action accrues 
 when the principal of the debt or any part thereof or the 
 interest thereon is not paid at the time agreed upon for 
 the payment of the same," unless there has been a new 
 agreement upon a sufficient consideration for an extension 
 of the time of payment,' in which case the right to foreclose 
 will be suspended until the expiration of the extended time.* 
 It is lawful for the parties at the time of executing a mort- 
 gage to stipulate, that upon a failure to pay an installment 
 of the principal when the same becomes due, the whole 
 principal shall immediately become due and payable ; and 
 under such a stipulation a neglect to pay an installment of 
 the principal when it becomes due, will work a forfeiture 
 of the mortgage,* and an action for the foreclosure and sale 
 of the premises may be commenced forthwith.* 
 
 1 See also Darling v. "Wooster, 9 Saxton, 1 Hun (N. T.) 551 (1874) ; 
 
 Ohio St. 517 (1859) ; Hill v. Henry, but see Sharpe v. Arnott, 51 Cal. 188 
 
 17 Ohio 9 (1848) ; Norton v. Ellam, (1875) ; Pendleton v. Rowe. 34 Cal. 
 2 M. & W. 460 (1837). 149 (18G7) ; Maher v. Lamfrom, 86 
 
 « See Grntlan v. Wiggins, 23 Cal. 111. 513(1877); Flynnv. Mudd, 27 HI 
 
 16, 28 (1863) ; Jones v. Lawrence, 323 (1862) ; Redman v. Deputy, 26 
 
 18 Ga. 277 (1855) ; Adams v. Essex, Ind. 338 (1866); Lee v. West. Jersey 
 1 Bibb. (Ky.) 149 (1808); s. c. 4 Am. Land Co., 29 N. J. Eq. (2 Stew.) 377 
 Dec. 623 ; Caufman v. Sayre, 2 B. (1878) ; Tompkins v. Tompkins, 21 
 Mon. (Ky.) 202 (1841); West Branch N. J. Eq. (6 C. E. Gr.) 338 (1871); 
 Bankv. Chester, 11 Pa. St. 282(1849); Massaker v. Mackerley, 9 N. J. Eq, 
 Richards v. Holmes, 59 U. S. (18 (1 Stockt.) 440 (1853) ; Union Central 
 How.) 143 (1855) ; bk. 15 L. ed. Life Ins. Co. v. Bonnell, 35 Ohio 
 304 ; Stanhope v. Manners. 2 Eden. St. 365 (1880) ; Albert v. Grosvenor 
 197 (1763) ; Gladwyn v. Hitchman, Investment Co., L. R. 3 Q. B. 123 
 3Vern. 135 (1(]S9). (1867); 
 
 « See post %% 53, 54. * Whitcher v. Webb, 44 Cal. 127 
 
 * Reed v. Home Savings Bank, (1872) ; Ottawa Northern Plank R. 
 
 127 aiass. 295 (l^ld). See Burt v. Co. v. Murray, 15 111. 336 (1854) ;
 
 § 41.] MORTGAGE PAYABLE IN INSTALLMENTS. 39 
 
 Where a mortgage is given to secure a note payable in 
 installments and any of the installments are not paid when 
 they fall due, such non-payment will constitute a breach of 
 the mortgage, and an action for foreclosure may thereupon 
 be filed and a sale of the mortgaged premises had/ 
 
 If the mortgage contains a clause authorizing the mort- 
 gagee, upon the non-payment of interest for a specified 
 number of days after it becomes due, to elect that the whole 
 amount unpaid shall become due, he can not be compelled 
 to accept the interest and to waive the stipulation after the 
 default has occurred and he has exercised his option.* Nor 
 is the mortgagee estopped from asserting his right of election 
 by the commencement of an action to foreclose, prior to the 
 expiration of the time within which the money was to be 
 paid ; neither does he waive his right of election by accept- 
 ing the installment of principal due before filing an amended 
 or supplemental complaint and proceeding in the action for 
 the collection of the unpaid balance.* 
 
 Noell V. Gaines, 68 Mo. 649 (1878) ; (1854) ; Mobray v. Leckie, 42 Mi 
 
 Beisel v. Artman, 10 Neb. 181 (1880); 474 (1875). 
 
 Ackerson v. Lodi Branch R. R. Co., After a breach of the conditions 
 31 N. J. Eq. (4 Stew.) 42 (1879) ; of a mortgage or deed of trust, the 
 Voorhis v. Murphy, 26 N. J. Eq. cestui que trust may resort to a 
 (11 C. E. Gr.) 434 (1875) ; see, how- court of chancery for its enforce- 
 ever, McLean v. Presley, 56 Ala. ment, without alleging any other 
 211 (1876) ; Andrews v. Jones, 8 ground therefor than such breach. 
 Blackf. (Ind.) 440 (1834) ; Indiana McDonald v. Vinson, 56 Miss. 497 
 & I. C. R. Co. V. Sprague, 103 U. (1879). 
 
 S. (13 Otto) 756 (1880) ; bk. 26 L. i See Estabrook v. Moulton, 9 
 
 ed. 554. Mass. 258 (1812). 
 
 « See Rubens v. Prindle, 44 Barb. » Malcolm v. Allen, 49 N. T. 448 
 
 (N. Y.) 336 (1864) ; Dwight v. Web- (1872) ; Rubens v. Prindle, 44 Barb, 
 
 ster, 32 Barb. (N. Y.) 47 (1860) ; s. (N. Y.) 336 (1864) ; Ferris v. Ferris, 
 
 c. 19 How. (N. Y.) Pr. 349 ; 10 Abb. 28 Barb. (N. Y.) 29 (1858). 
 
 (N. Y.) Pr. 128 ; Ferris v. Ferris, » Malcolm v. Allen, 49 N. Y. 448 
 
 28 Barb. (N. Y.) 29 (1858) ; 8. c. 16 (1872) ; Lawson v. Barron, 18 Huu 
 
 How. (N. Y.) Pr. 102 (1858) ; Grat- (N. Y.) 414 (1879) ; Odell v. Hoyt, 
 
 tan V. Wiggins, 23 Cal. 16 (1863) ; 73 N. Y. 343 (1878). Respecting 
 
 Morgenstern v. Klees, 30 111. 422 waiver, see Wilson v. Bird, 28 N. J. 
 
 (1863) ; Ottawa Northern Plank Eq. (1 Stew.) 353 (1877). 
 Road Co. V. Murray, 15 111. 336
 
 40 FORFEITUEE ON FAILUEE TO PAT USTTEEEST. [§ 42. 
 
 Where a note and mortgage are given for the payment of 
 a sum of money in installments, with the stipulation that in 
 case of default in the payment of any installment the whole 
 principal sum shall become due and payable at the option of 
 the mortgagee, it is necessary for the mortgagee to take his 
 option and in some states to give notice thereof before an 
 action can be brought to recover the whole principal sum.' 
 
 § 42. Failure to pay interest. — It has been said that as a 
 rule the non-payment of the principal debt or interest at the 
 time agreed upon, works a forfeiture of the mortgage and 
 entitles the mortgagee to bring an action for foreclosure.' 
 The reason alleged by some of the cases for the rule as to 
 interest, is that the interest is a part of the substance of the 
 mortgage debt and belongs to it by tacking, and that it is 
 not simply an incident to the debt, but pro tanto is the 
 debt itself.* But it would seem that in the absence of a 
 stipulation giving the power, there can be no foreclosure of 
 a mortgage given as security for the payment of a promissory 
 note and the interest thereon until the principal sum becomes 
 due,* for the reason that the court can not shorten the 
 time stated in an express agreement between the parties, 
 as that would be altering the nature of the contract to the 
 injury of the maker of the note.* But the parties may 
 stipulate that upon failure to pay the interest promptly at 
 the time specified, the principal shall become due, in which 
 case, on non-payment of interest, a foreclosure may be filed 
 and the whole debt collected." In California, however, 
 
 ' Basse T. Callegger, 7 Wis. 442 (1881) ; Harshaw v. McKesson, 66 
 
 (1859) ; 8. c. 76 Am. Dec. 225. See N. C. 266 (1872). But see Estabrook 
 
 post §§44, 45. V. Moulton, 9 Mass. 258 (1812). 
 
 * West Branch Bank v. Chester, * Harshaw v. McKesson, 66 N. C. 
 11 Pa. St. 282 (1849) ; Richards v. 266 (1872). 
 
 Holmes, 57 U. S. (18 How.) 143 « See IMalcolm v. Allen, 49 N. Y. 
 
 (1855) ; bk. 15 L. ed. 304 ; Stanhope 448 (1872) ; Rubens v. Prindle, 44 
 
 V. Manners, 2 Eden. 197(1763); Barb. (N. Y. ) 336, 344 (1864); 
 
 Gladwyn v. Hitchman, 2 Vera. 135 Valentine v. Van Wagner, 37 Barb. 
 
 (1689). (N Y.) 60 (1862) ; Ferris v. Ferris, 
 
 2 West Branch Bank v. Chester, 28 Barb. (N. Y.) 29 (1858) ; Crane v. 
 
 11 Pa. St. 282 (1849). Ward, Clarke Ch. (N. Y.) 393 (1840); 
 
 * Brodribb v. Tibbets, 58 Cal. 6 Jester v. Sterling, 25 Hun (N. Y.)
 
 § 42.] FOErEnXTEE ON FAILUEE TO PAY INTEREST. 41 
 
 where a promissory note due to a corporation two years 
 after date was secured by a mortgage which provided that 
 " in case of default by the mortgagor in the payment of said 
 note or interest or in the performance of any of the conditions 
 hereof, then the mortgagee may at his option either commence 
 proceedings to foreclose this mortgage in the usual manner 
 or cause the said premises or any part thereof to be sold," it 
 was held that the failure to pay the interest as it became 
 due, authorized a foreclosure for such interest only, and not 
 for the principal.* 
 
 The better doctrine seems to be that the interest falling 
 due yearly, or at other stated periods, on a note secured by 
 mortgage, is an installment of the debt, and that the mort- 
 gage may be foreclosed to enforce its payment, because the 
 mortgage must have been given to secure the interest as well 
 as the principal, and the law will not withhold a remedy 
 until the period elapses for the maturity of the whole debt." 
 And where a condition is inserted in the mortgage which 
 authorizes a sale to be made upon the happening of any 
 default, the failure to pay interest when it is due is a default 
 within the meaning of such a clause and will entitle the 
 mortgagee to foreclose,' notwithstanding the fact that such 
 
 344 (1881) ; Noyes v. Clark, 7 Paige and contained a clause that in case 
 
 Ch. (N. Y.) 179 (1838) ; s. c. 32 Am. default was made in the payment of 
 
 Dec. 620 ; Mobray v. Leckie, 42 interest quarterly, the note should 
 
 Md. 474 (1875); Schooley v. Romain, immediately become due at the op- 
 
 31 Md. 574, 583 (1869) ; Chicago D. tion of the holder; and that the fail- 
 
 & V. R. R. Co. V. Fosdick, 106 U. ure to pay interest made the whole 
 
 S. (16 Otto) 47 (1882) ; bk. 27 L. ed. amount due absolutely at the option 
 
 47 ; James v. Thomas, 5 Barn. & of the holder, if he so elected. 
 
 Ad. 40 (1838) ; Gowlett v. Han forth, without any notice from the holder 
 
 2 W. Bl. 958 (1774); Steel v. to the maker. 
 
 Bradfield, 4 Taunt. 227 (1811); « Brinckerhofl v. Thallhimer, 2 
 
 Burrowes V. Molloy, 2 Jones & LaT. Johns. Ch. (N. Y.) 486 (1817); 
 
 521 (1845); 8. c. 8 Ir. Eq. 482 Morgenstern v. Klees, 30 111. 423 
 
 (1843). (1863). 
 
 ' Bank of San Louis Obispo v. ^ Goodman v. Cincinnati & C. R. 
 Johnson, 53 Cal. 99 (1878). But see R. Co., 2 Disney (Ohio) 176 (1858) • 
 Whitcherv. Webb, 44 Cal. 127(1872), West Branch Bank v. Chester, 11 
 in which case a promissory note Pa. St. 282 (1849) ; Stanhope v. Man- 
 payable at a future time provided ners, 2 Eden. 197 (1763). See Burt r. 
 for the payment of interest quarterly Saxton, 1 Him (N. Y.) 551 (1874).
 
 42 FOEFEITUEE ON FAILUEE TO PAY TAXE8. f§ 43. 
 
 failure to pay the interest was an over-sight on the part of 
 the mortgagor.' 
 
 § 43. Failure to pay taxes. — The parties to a mortgage 
 may not only stipulate for forfeiture in case of failure to 
 pay interest promptly at the times agreed upon, but they 
 may also, and in fact usually do, provide that in case the 
 mortgagor fails within a time designated to pay the taxes 
 and assessments levied against the property, the mortgagee 
 shall have the right to elect that the whole mortgage shall 
 be forfeited, so that he may proceed to foreclose and sell 
 the property to pay such taxes together with the mortgage 
 debt and interest. Such an agreement is not prohibited by 
 statute nor is it against public policy ; it is not a hard 
 contract which it would be unconscionable to enforce, because 
 an investor may very properly insist that his security shall 
 be kept intact, or that the loan shall mature. In fact such a 
 provision is very analogous to an agreement, that a failure to 
 pay the interest promptly shall render the whole principal 
 due. 
 
 Such stipulations have almost invariably been upheld 
 by the courts." In deciding an Iowa' case brought for the 
 foreclosure of a mortgage which contained such a tax clause 
 the court say: " The power of sale for the non-payment of 
 taxes was intended to cover more than accrued interest. 
 The parties made their own agreement, and while the power 
 to sell is derived from the instrument itself, it is equally true 
 
 > Voorhis v. Murphy, 26 N. J. Paige Ch. (K T.) 179 (1838); a. C. 
 
 Eq. (11 C. E. Gr.) 434 (1875). See 32 Am. Dec. 620 ; Ottawa Northern 
 
 Dillett V. Kemble, 25 N. J. Eq. (10 Plank Road Co. v. Murray, 15 111. 
 
 C. E. Gr.) 66 (1874); Haggerty v. 387(1854); Pope v. Durant, 26 Iowa, 
 
 McCanna, 25 N. J. Eq. (10 C. E. Gr.) 233, 240 (1868); Stanclift v. Norton, 
 
 48 (1874) ; Graham v. Berryman, 19 11 Kan. 218, 222 (1873); The Con- 
 
 N. J. Eq. (4 C. E. Gr.) 29 (1868). tributors v. Gibson, 2 Miles (Pa.) 
 
 « See Valentine v. VanWagner, 87 324 (1839); Richards v. Holmes, 59 
 
 Barb. (N. Y.) 60 (1862); Ferris v. U. S. (18 How.) 143 (1855); bk. 15 
 
 Ferris, 28 Barb. (N. Y.) 29 (1858); L. ed. 304 ; James v. Thomas, 5 
 
 Crane v. Ward, Clarke Ch. (N. Y.) Barn. & Ad. 40 (1833); Steel v. 
 
 393 (1840); Hale v. Gouverneur, 4 Bradfield, 4 Taunt. 227 (1811). 
 
 Edw. Ch. (N. Y.) 207(1843) ; O'Con- » Pope v. Duraut, 26 Iowa, 233, 
 
 nor V. Shipman, 48 How. (N. Y.) 240(1868). 
 Pr. 126 {ISTo); Noycs v. Clark 7
 
 § 43.] OPTION OF MORTGAGEE — ^WHOLE DEBT DUE. 43 
 
 that where it has been fairly made the courts have no right 
 to make another agreement for them — no power to say that 
 it would have been better if they had incorporated other 
 terms and conditions. And nothing is clearer than that the 
 object and design of the parties should be kept in view in 
 determining the nature and extent of the power conferred." 
 Where a mortgage provides that the mortgagor shall pay 
 all taxes and assessments levied upon the mortgaged premises, 
 and stipulates that in default thereof the mortgagee may 
 pay the same and collect the amount thus paid as a part 
 of the mortgage debt, the failure of the mortgagor to pay 
 the taxes and assessments is such a breach of the condi- 
 tion of the mortgage as to entitle the mortgagee to proceed 
 to foreclose.* The fact that the mortgagee has the 
 right to pay the taxes and to charge them to the 
 mortgagor, the same to become a part of the mortgage 
 lien, makes no difference, because the right to foreclose 
 is not waived or lost nor the default condoned by the 
 mortgagee on his paying the taxes or assessments, and 
 charging the amount thereof to the mortgagor.' The failure 
 of the mortgagor to pay such taxes or assessments, however, 
 is not such a breach of the condition of the mortgage as will 
 give the mortgagee a right to foreclose and collect the whole 
 amount secured, unless there is a clause in the mortgage 
 providing that the whole sum shall become due and payable 
 on failure to pay the taxes and assessments.* The right to 
 foreclose a mortgage, providing for the payment of taxes 
 and assessments, will not accrue upon the mere failure of 
 the mortgagor to pay them ; to acquire that right it is 
 essential that the holder of the mortgage shall have paid off 
 and discharged the assessments or taxes ; otherwise no debt 
 will have accrued and no money will have become due which 
 would entitle the mortgagee to proceed with an action.* 
 
 » Williams v. Townsend, 31 N. T. ' Williams v. Townsend, 81 N. T. 
 
 411 (1865); Brickell v. Batchelder, 411 (1865). 
 
 63 Cal. 623 (1882); EUwood v. Wol- •• Williams v. Townsend, 31 N. T. 
 
 cott, 32 Kan. 526 (1884). 411 (1865). 
 
 'Brickell v. Batchelder, 62 CaL 
 623 (1882).
 
 44 OPTIOlSr OF MORTGAGEE AND NOTICE. [§ 44. 
 
 § 44. Election of mortgagee that debt become due.— 
 "Where a mortgage is conditioned that upon the failure to 
 do certain things specified, as the payment of interest, taxes, 
 assessments and insurance, the mortgage shall be forfeited 
 at the option of the mortgagee, the mortgage debt does not 
 become due and the right to foreclose does not arise until 
 the mortgagee has exercised his option,' In exercising and 
 making known his option to consider the entire debt matured 
 on any default, however, it is not necessary that any par- 
 ticular form of words should be used. Thus where the 
 record recited among other things that "the mortgagee 
 having elected to declare said mortgage due and payable, 
 as he was authorized to do according to the terms and con- 
 ditions thereof, and having entered in and upon said premises 
 and taken possession thereof, the said premises were duly 
 advertised for public sale," etc., it was held to be suffi- 
 cient." 
 
 Where a mortgage contains a clause authorizing the mort- 
 gagee, upon non-payment of interest for thirty days after 
 it becomes due, to elect that the whole amount of unpaid 
 principal shall become due, he can not be compelled to accept 
 the interest and to waive the stipulation after a default 
 has occurred and he has made his election in accordance 
 with the stipulation, nor will he be estopped from asserting 
 his right of election, by the commencement of a foreclosure 
 prior to the expiration of the thirty days, the complaint 
 wherein simply sets up- a default in the payment of an 
 installment of principal and interest due. Nor will he 
 waive his right to elect by accepting the installment of 
 principal. He has the right to file an amended or sup- 
 plemental complaint, and to proceed in the action for the 
 collection of the balance unpaid.' And where in such a 
 case, after tender of the interest and costs, the mortgagee, 
 without amending his complaint obtains an order of sale for 
 the interest only and perfects judgment, from which order 
 and judgment no appeal is taken, the court will have power 
 
 > Randolph v. Middleton, 26 N. J. Eq. (110 C. E. Gr.) 543 (1875). 
 » Harper v. Ely, 56 111. 179, 189 (1870). 
 « Malcolm v. Allen, 49 N. Y. 448 (1872).
 
 § 45.] WHO MAY EXEECISE OPTION AND NOTICE. 45 
 
 upon motion and notice to the mortgagor to make a supple- 
 mental order directing a sale and payment out of the pro- 
 ceeds, of the balance of the mortgage debt, with judgment 
 against the mortgagor for any deficiency.* 
 
 § 45. Notice of election. — Where a mortgage contains 
 a provision that in case of failure to pay the installments of 
 principal and interest, or the taxes and assessments levied 
 against the property, for a certain number of days after they 
 become due and payable, the whole mortgage debt shall 
 become payable at the option of the holder of the mortgage, 
 it is an unsettled question in some states whether notice 
 of the exercise of such option must be given prior to the 
 commencement of an action, or whether the commencement 
 of a foreclosure is sufficient notice of the election. In 
 New York,' Illinois,' Indiana,* North Carolina* and perhaps 
 other states it is held that no notice of the mortgagee's elec- 
 tion to consider the whole debt due, is necessary, but that 
 his proceeding to enforce the mortgage sufificiently shows his 
 election.* The question of notice of election arose in 
 Michigan in the case of English v, Carney,* but was not 
 decided. In California* and Wisconsin' it is held that the 
 mortgagee must give notice of his election whether or not 
 the whole principal shall become due and payable on account 
 of a default made by the mortgagor, where the mortgage 
 provides for such default and election. 
 
 • Malcolm v. Allen, 49 N. T. 448, Co. v. Munson, 60 Dl. 871, 875 
 454 (1872). See also Livingston v. (1871) ; Heath v. Hall, 60 111. 844 
 Mndrum, 19 N. Y. 443 (1859). (1871) ; Harper v. Ely, 56 111. 179, 
 
 » Hunt V. Keech, 8 Abb. (N. T.) 189 (1870). 
 
 Pr. 204 (1856). See also Howard v. ' 25 Mich. 178, 184 (1872). 
 
 Farley, 3 Robt (N. Y.) 599, 602 « Dean v. Applegarth, 65 Cal. 891 
 
 (1866). (1884). 
 
 » Hoodless V. Reid, 112 111. 105, » Malcon v. Smith, 49 Wis. 200, 
 
 112 (1885) ; Marston v. Brittenham, 215-217 (1880) ; Marine Bank v. 
 
 76 m. 611 (1875). International Bank, 9 Wis. 57, 68 
 
 • Buchanan v. Berkshire Life Ins. (1859) ; Basse v. Gallegger, 7 Wis. 
 Co., 96 Ind. 510, 520 (1884). ' 442, 446 (1858) ; a. c. 76 Am. Dec. 
 
 » Young V. McLean, 63 N. C. 576 225. See also Hall v. Delaplaine, 
 
 (1869). 5 Wis. 206 (1856); s. c. 68 Am. 
 
 • See the Princeton Loan & Trust Dec. 57.
 
 46 WHO MAY EXERCISE OPTIOK AND NOTICE. [§§46-47. 
 
 A notice of election to consider the whole debt due by 
 reason of a default in the payment of one of the installments 
 of the principal or interest or of a failure to pay the taxes 
 and assessments within the time limited, given by an attorney 
 or other duly authorized agent in the name of the mort- 
 gagee or holder of the mortgage, will be sufficient.* 
 
 § 46. Who may exercise option to declare the debt 
 due. — The mortgagee has, of course, a right to exercise the 
 option of declaring the whole debt due ;" so also can any 
 person for whose benefit the provisions for the forfeiture of 
 credit are made, take advantage of them.* The assignee of the 
 mortgagee may exercise this option in the same manner as 
 the mortgagee himself.* But the right to exercise such 
 option is an indivisible condition, and for this reason can 
 not be exercised by an assignee of a part only of the notes, 
 secured by such a mortgage ; all the parties owning or hold- 
 ing such notes must unite in exercising the option.* It has 
 been held in one case' that such a stipulation in a mortgage 
 may be taken advantage of by the mortgagor, where he has 
 transferred the property mortgaged to a grantee who assumed 
 and agreed to pay the mortgage debt, according to the con- 
 ditions of the mortgage, as part of the consideration of the 
 conveyance. 
 
 § 47. Power of court to relieve from forfeiture. — Where 
 the mortgage contains a stipulation, providing that the whole 
 debt shall become due at the option of the mortgagee in case 
 of failure to make punctual payments, the court can not 
 relieve the mortgagor from his defaults even on the payment 
 of the installments due with costs, but is bound to give effect 
 to the bond and mortgage according to its provisions and 
 
 iRosseelv. Jarvis, 15 Wis. 571, Oilman, 4 Wend. (N. T.) 414 
 
 578 (1863). (1830). 
 
 « 8ee Princeton Loan and Trust * Heath v. Hall, 60 El. 344, 349 
 
 Co. V. Munson, 60 HI 371 (1871) ; (1871). 
 
 Heath v. Hall, 60 111. 344 (1871) ; " The Marine Bank of Buffalo v. 
 
 Harper v. Ely, 56 111. 179 (1870). International Bank, 9 Wis. 57 (1869). 
 
 « Mallory v. West Shore, H. R. * First National Bank v. Peck, 8 
 
 R. R. Co., 85 N. Y. Super. Ct. Kan. 660 (1871). 
 (3 J. & S.) 174 (1873) ; Fellows v.
 
 § 47.] WHEN" COUET MAT RELIEVE DEFAULT. 47 
 
 the election of the mortgagee.* In an old New York case,' 
 the court say : " The parties had an unquestionable right to 
 make the extension of credit dependent upon the punctual 
 payment of the interest at the times fixed for that purpose. 
 And if, from the mere negligence of the mortgagor in per- 
 forming his contract, he suffers the whole debt to become 
 due and payable, according to the terms of the mortgage, no 
 court will interfere to relieve him from the payment thereof, 
 according to the conditions of his own agreement." * 
 
 If, however, the mortgagee or party holding the mortgage 
 has been guilty of fraud, because of which the mortgagor 
 was unable to ascertain who was the owner of the mortgage, 
 or to find the mortgagee or such owner in order to make the 
 stipulated payment, the court will relieve him from his 
 default.* And it seems that such a foreclosure will not be 
 enforced against one, who denies in good faith and upon 
 reasonable grounds that he is liable to pay the interest in 
 arrear, or who claims that he has paid it, even when it 
 appears from the evidence that he is in error in regard to 
 such liability or payment.* But where the only questions 
 are as to the proper tender of the amount due, and whether 
 the tender was made at the prescribed time, they must be 
 determined upon the trial of the foreclosure action.* 
 
 * Sec Bennett v. Stevenson, 53 N. » See also Gowlett v. Hanforth, 3 
 Y. 508 (1873) ; Ferris v. Ferris, 28 W. Bl. 958 (1774) ; Steel v. Brad- 
 Barb. (N. Y.) 29, 33 (1858) ; Hale v. field, 4 Taunt. 227 (1812). 
 Gouvemeur, 4 Edw. Ch. (N. Y.) * See Noyes v, Clark, 7 Paige Ch. 
 207 (1843) ; O'Connor v. Shipman, (N. Y.) 179 (1838); s. o. 32 Am. Dea 
 48 How. (N. Y.) Pr. 126 (1873) ; 620. 
 
 "Noyes v. Clark, 7 Paige Ch. (N.Y.) » Wilcox v. Allen, 86 Mich. 160 
 
 179 (1838) ; s. c. 32 Am. Dec. 620 ; (1877). 
 
 Savannah & M. R. R. Co. v. Lan- « Bennett v. Stevenson, 53 N. Y. 
 
 caster, 62 Ala. 555 (1878) ; Mobray 508, 610 (1873) ; Asendorf v. Meyer, 
 
 V. Leckio, 42 Md. 474 (1875); 8 Daly (N. Y.) 278 (1879) ; Lynch v. 
 
 Schooley v. Remain, 31 Md. 574 Cunningham, 6 Abb. (N.Y.) 94 
 
 (1869) ; Magruder v. Eggleston, 41 (1858) ; Thurston v. Marsh, 5 Abb. 
 
 Miss. 284 (1866). (N. Y.) 389 (1857) ; s. c. 14 How. 
 
 • Noyes v. Clark, 7 Paige Ch. (N. Y.) 573. See Spring v. Fisk, 21 
 (N Y.) 179 (1838); 8. c. 32 Am. Dec. N. J. Eq. 175 (1870). 
 
 620.
 
 48 KOTES SECURED BY ONE MORTGAGE. [§§ 48-49. 
 
 § 48. Where mortgagee holds one mortgage securing 
 several notes. — Where a mortgagee holds a mortgage secur- 
 ing several notes maturing at different times, conditioned 
 that the mortgagor shall pay the notes as they become due, 
 a failure to pay any note when it becomes due is a breach 
 of the condition and entitles the holder to foreclose.* But 
 where a mortgage has been given to secure several notes 
 maturing at different times, which provides that none of 
 them shall become payable and that the mortgage shall not 
 be foreclosed until the last note secured becomes due, and 
 some of the notes have been transferred with a knowledge of 
 such provisions in the mortgage, the holders of such trans- 
 ferred notes can not recover a judgment thereon until the 
 last note matures.* In such a suit the notes and the mort- 
 gage, having been contemporaneously executed and both 
 relating to the same subject matter, are to be considered 
 as one instrument.* 
 
 § 49. Where mortgagee holds more than one mortgage 
 on the same property securing different debts. — Where 
 the same mortgagor executes to the same mortgagee two or 
 more mortgages upon the same premises to secure different 
 debts, the mortgagee will not be permitted to commence 
 separate actions to foreclose each mortgage, but in his com- 
 plaint to foreclose the senior mortgage he must set forth all 
 his junior incumbrances and ask to have them also fore- 
 closed.* And it is said that if a second or subsequent 
 
 > McLean v. Presley, 56 Ala. 211 » Brownlee v. Arnold, 60 Mo. 79 
 
 (1876) ; Gibbons v. Hoag, 95 lU. 45, (1875). 
 
 63 (1880) ; Fisher v. Milmine, 94 111. * Brownlee v. Arnold, 60 Mo. 79 
 
 828 (1880) ; Hunt v. Harding, 11 (1875). See also Hanford v. Rogers, 
 
 Ind. 245 (1858) ; Lacoss v. Keegan, 11 Barb. (N. T.) 18 (1851) ; Gammon 
 
 2 Ind. 406 (1850) ; Cecil v. Dynes, 2 v. Freeman, 31 Me. 243 (1850) ; 
 
 Ind. 266 (1850); Greenman v. Hunt v. Frost, 58 Mass. (4 Cusb.) 54 
 
 Pattison, 8 Blackf. (Ind.) 465 (1847). (1849) ; 2 Pars. Cont. 553. 
 
 In Indiana, prior to tbe statute of * Roosevelt v. Ellitborp, 10 Paige 
 
 1831, a bill to foreclose where the Ch. (N. Y.) 415 (1843) ; Hawkins v. 
 
 debt was payable in installments, Hill, 15 Cal. 499 (1860) ; s. c. 76 Am. 
 
 would not lie until the day for the Dec 499. See Homoeopathic Mut. 
 
 payment of the last installment had L. Ins. Co. v. Sixbury, 17 Hun (N. 
 
 passed. See Hough v. Doyle, 8 T.) 424 (1879). 
 Blackf. (Ind.) 300 (1846).
 
 § 50.] INDEMNITY MORTGAGE. 49 
 
 mortgage becomes due before the decree is entered on the 
 senior mortgage, the defendant can not divide the action as to 
 such junior mortgage by tendering the amount due on the first 
 mortgage after the maturity of the second mortgage.* The 
 supreme court of Massachusetts have held that the assignee 
 of two mortgages on the same land, executed by the same 
 mortgagor at different times to different mortgagees, may 
 unite them in one action of foreclosure and recover thereon 
 a conditional judgment, specifying the amount due on each 
 and directing that unless both mortgages be paid within a 
 time to be named by the court, the plaintiff shall have 
 execution.' Yet it was held in an earlier case that where 
 the same person had two different mortgages to secure two 
 different debts against the same mortgagor, he could not 
 unite them in one suit under the Massachusetts revised 
 statutes, so as to recover one consolidated conditional judg- 
 ment.* 
 
 A single mortgage given to secure two debts may be 
 foreclosed in favor of both creditors at the same time, 
 because such a foreclosure does not unite distinct and sep- 
 arate claims in the same action.* 
 
 § 50. Indemnity mortgage. — Where a mortgage is given 
 as an indemnity, and contains an express agreement by 
 the mortgagor to pay the debt therein described, and to 
 save the mortgagee harmless from all liability, it seems that 
 there is a breach of such agreement when there is a failure 
 to make the payment at the appointed time, and that the 
 holder of such mortgage may at once, without having first 
 paid the debt or any part thereof, maintain an action for 
 the foreclosure of the mortgage and may recover judgment 
 therein for his total probable loss.' But where a mortgage 
 
 » Hawkins v. Hill, 15 Cal. 499 « Gilbert v. Wiman, 1 K T. 550 
 
 (1860); s. c. 76 Am. Dec. 499. (1848); s. c. 49 Am. Dec. 359; 
 
 » Pierce v. Balkam, 56 Mass. (2 Wright v. Whiting, 40 Barb. (N. T.) 
 
 Cush.) 374 (1848). 235 (1863); Thomas v. Allen, 1 Hill 
 
 » Peck V. Hapgood, 51 Mass. (10 (N. T.) 145 (1841), overruling Doug- 
 Mete.) 172 (1845). lass v. Clark, 14 Johns. (N. Y.) 177 
 
 * Chamberlin v. Beck, 68 Ga. 346 (1817); Port v. Jackson, 17 Johns. 
 
 (1883). (N. Y.) 239 (1819). In re Negua, 7
 
 50 
 
 rNDEJENTTY OE COLLATERAL MOETGAGE. 
 
 [§50. 
 
 is held as an indemnity simply, without such a clause stipu- 
 lating to save harmless from all liability the mortgagee or 
 his assignee will not be permitted to foreclose until he has 
 paid the obligation, or has otherwise been injured.* 
 
 Thus where a surety receives a mortgage indemnifying him 
 against all loss, cost, or damage, the condition of such mort- 
 gage will not be broken until after the surety has been obliged 
 to pay the debt' or some part of it ;' and an action can not be 
 maintained to foreclose the mortgage until such breach. But 
 where a surety has been obliged to pay the whole or a part 
 of the debt, he may bring an action to foreclose the mort- 
 gage before the amount of his damages has been ascertained 
 by a suit at law.* And where a mortgage is given to 
 indemnify one against damages occasioned by the neglect 
 or misconduct of the mortgagor or other person, the mort- 
 gagee can not maintain an action to foreclose such mortgage 
 until after a judgment has been recovered for such negli- 
 gence ;' but where a mortgage was given as an indemnity to 
 
 "Wend. (N. Y.) 499 (1832); Reynolds 
 V. Shirk, 98 Ind. 480 (1884). See 
 Malott V. Gofl, 96 Ind. 496 (1884); 
 Loehr v. Colbom, 92 Ind. 24 (1883); 
 Bodkin v. Merit, 86 Ind. 560 (1882); 
 Durham v. Craig, 79 Ind. 117 (1881); 
 Gunel V. Cue, 72 Ind. 34 (1880); 
 South Side P. M. Ass'n. v. Cutler & 
 S. Lumber Co., 64 Ind. 560 (1878); 
 Devol V. Mcintosh, 23 Ind. 529 
 (1864); Johnson v. Britton, 23 Ind. 
 105 (1865), overruling Tate v. Booe, 
 9 Ind. 13 (1857); Weddle v. Stone, 
 12 Ind. 625 (1859); Wilson v. Stil- 
 well, 9 Ohio St. 467 (1859); s. C. 75 
 Am. Dec. 477 ; Holmes v. Rhodes, 1 
 Bos. & P. 688 (1797); Loosemore v. 
 Radford, 9 Mees. & W. 657 (1842); 
 Hodgson V. BeU, 7 T. R. 97 (1780). 
 ' Ketchum v. Jauncey, 23 Conn. 
 126 (1854); Pond v. Clarke, 14 Conn. 
 334 (1841); Francis v. Porter, 7 Ind. 
 213 (1855); Lewis v. Richey, 5 Ind. 
 152(1854); Butler v. Ladue, 12 Mich. 
 178 (1863); National State Bank v. 
 Davis, 24 Ohio St. 190, 195 (1873); 
 
 Ohio Life Ins. & Trust Co. v. 
 Reeder, 18 Ohio, 35. 46 (1849); 
 McConnell v. Scott, 15 Ohio, 401 
 (1846); 8. o. 45 Am. Dec. 583; 
 Kramer v. Farmers' & Mechanics' 
 Bank of Steubenville, 15 Ohio, 253 
 (1846); Colvin v. Buckle, 8 Mees. & 
 W. 680 (1840). 
 
 * See Piatt v. Smith, 14 Johns. 
 (N. T.) 368 (1817); PoweU v. Smith, 
 8 Johns. (N. T.) 249 (1811); Rodman 
 V. Hedden, 10 Wend. (N. Y.) 500 
 (1833); Pond v. Clarke, 14 Conn. 
 334 (1841); Shepard v. Shepard, 6 
 Conn. 37 (1825); McLean v. Rags- 
 dale, 31 Miss. 701 (1856); Colvin v. 
 Buckle, 8 Mees. & W. 680 (1840). 
 
 ' Beckwith v. Windsor Manul 
 Co., 14 Conn. 594 (1842). 
 
 * Rodgers v. Jones, 1 McC. (S. 0.) 
 Eq. 221 (1826). 
 
 » Grant v. Ludlow, 8 Ohio St. 1 
 (1857). See Tilford v. James, 1 B. 
 Mon. (Ky.) 337 (1847); Planter's 
 Bank v. Douglass, 2 Head (Tenn.) 
 699 (1859).
 
 §§51-52.] AGEEmiENT CHAI^GmG MOETGAGE. ft] 
 
 secure the performance of an executory contract running 
 for a term of years, and the mortgagors became insolvent, 
 so that it appeared to the court that it was impossible for 
 them to fulfill their contract, it was held that the right to 
 foreclose accrued at once/ An indorser for accommodation, 
 who is secured upon his liability by a collateral mortgage, 
 will not be required to wait until after the notes indorsed 
 by him have been protested, before paying them and com- 
 mencing a foreclosure, where the makers have declined to 
 pay them and have informed the indorser of their inability 
 to pay." 
 
 Where the indemnifying mortgage deviates in the least 
 degree from a simple contract to indemnify against liability, 
 even when indemnity is the sole object of the contract, and 
 where, in consequence of the primary liability of other per- 
 sons, actual loss may not be sustained, the mortgage can not 
 be foreclosed for its face, but will be limited to actual com- 
 pensation for probable loss.* 
 
 § 51. Parol agreement as to time of payment. — While 
 as a rule the plain meaning of a bond, mortgage or other 
 written instrument can not be altered or varied by parol 
 proof,* yet it would seem that where it is made to appear 
 that it was the oral agreement of the parties at the time of 
 executing a note or bond payable on demand, which was 
 secured by mortgage, that the claim should not be sued nor 
 the mortgage foreclosed until a future specified time, the 
 statute of limitations will be considered as commencing to 
 run only from the time agreed upon for payment.* 
 
 § 52. Agreement not to enforce mortgage. — An agree- 
 ment between the mortgagee and the mortgagor upon a valid 
 consideration, that the mortgage shall not be enforced, will 
 
 » Harding V. Mill River Manuf. (N. T.)235(1863); Loehrv. Colborn, 
 
 Co., 34 Conn. 461 (1867.) 92 Ind. 24 (1883) ; Weddle v. Stone, 
 
 « National Bank of Newark v. 12 Ind. 625 (1859). 
 
 Davis, 24 Ohio St. 190, 196 (1873). ■• Watson v. Hurt, 6 Gratt. (Va.) 
 
 » Gunel V. Cue, 72 Ind. 34, 38, 39 633 (1850). See post § 54. 
 
 (1880). See Gilbert v. Wiman, 1 « Hale v. Anderson, 10 W. Va. 
 
 N. Y. 550 (1848) ; s. c. 49 Am. Dec. 145 (1877). 
 859 ; Wright v. Whiting, 40 Barb.
 
 52 AGKEEZylENT NOT TO EISTORCE MOETGAGE. [§ 52. 
 
 estop the mortgagee from foreclosing.' And the mortgagee 
 may be estopped from foreclosing even without a positive 
 agreement, if he intentionally leads the mortagagor or other 
 person similarly interested to do or to abstain from doing 
 anything involving labor or the expenditure of a consider- 
 able sum of money, by giving him to understand that he 
 would be relieved from the burden of the mortgage.' 
 
 Thus in Burt v. Saxton,' the defendants being desirous of 
 purchasing certain lands upon which the plaintiff held a 
 morto-age, but not being able to make the payments at the 
 time specified in such mortgage, applied to the mortgagee 
 who agreed by parol that if the defendant would purchase 
 the premises, pay a given amount the ensuing spring and the 
 interest on the sums remaining unpaid annually thereafter, 
 and would put upon the lands certain specified improve- 
 ments, he would extend the time of payment of the mortgage 
 for twenty years. Under this agreement the defendant 
 purchased the premises, assuming by his deed the payment 
 of the mortgage debt, paid the sum named and made the 
 specified improvements, but failed for two years to pay 
 the interest. In an action brought to foreclose the mort- 
 gage, the court held that the time of payment was extended 
 by the verbal contract, and that there was no default in the 
 payment of the principal ; that the payment of the interest 
 annually was a condition which the defendant must perform, 
 but that its non-payment was not such a breach of that 
 condition as rendered the whole principal due. 
 
 > Faxton v. Faxton, 28 Mich. 159 13 Wis, 389 (1861) ; Swain v. Sea- 
 
 (1873) ; Fausel v. Schabel, 22 N. J. mens, 76 U. S. (9 Wall.) 254 (1869) ; 
 
 Eq. (7 C. E. Gr.) 126 (1871). bk. 19 L. ed. 554 ; Gregg v. Voa 
 
 « See Faxton v. Faxton, 28 Mich. Phul, 68 U. S. (1 Wall.) 274 (1863) ; 
 
 159 (1873) ; Harkness v. Toulmin, bk. 17 L. ed. 536 ; Caimcross v. 
 
 25 ]\Iich. 80 (1872) ; Truesdail v. Lorimer, 7 Jur. N. S. 149 (1861) ; 
 
 Ward, 24 Mich. 117, 134 (1871). See Parrott v. Palmer, 3 Myl. & K. 633 
 
 also Thompson v. Blanchard, 4 N. Y. (1834) ; Nicholson v. Hooper, 4 Myl, 
 
 303 (1850) ; Skinner v. Dayton, 19 & C. 179 (1838) ; Duke of Leeds v. 
 
 Johns. (N. Y.) 513, 561 (1822) ; s. C. Earl of Amherst, 2 Phill. 117 (1846) ; 
 
 10 Am. Dec. 286 ; Shafer v. Niver, Raw v. Pote, 3 "Vern, 239 (1691). 
 9 Mich. 253 (1861) ; Calkins v. State, « 1 Hun (N. Y.) 551 (1874).
 
 § 53.] EXTEXSIOIT OF TIME OF PATJIENT. 53 
 
 § 53. Extension of time of payment. — An agreement 
 for the extension of the time for the payment of a mort- 
 gage, where it is based upon a valid consideration, suspends 
 the right to foreclose the mortgage until the expiration of the 
 time to which payment is extended.* If the agreement for 
 an extension of time is without consideration it will be void." 
 The court say in an Indiana case :* " We think that the facts 
 stated in the answer showed that there was a valid agree- 
 ment to extend the time of payment of the note, and that 
 this action was brought in violation of such agreement. 
 This is a chancery suit, and it is well settled that courts 
 of chancery will not enforce a contract in opposition to 
 an agreement, for a valuable consideration, to give an 
 extension of time ; to do so would be against conscience 
 and good faith, and in fraud of the rights of the appellants." 
 
 To constitute a valid extension of time, the agreement 
 must be based on a valid consideration, a mere naked 
 promise not being sufficient.* The payment of legal 
 interest upon a note in advance is a sufficient consideration 
 
 • See Newsam v. Finch, 25 Barb. saker v. Mackerley, 9 N. J. Eq. (1 
 
 (N. T.) 175 (1857) ; Fellows v. Pren- Stockt.) 440 (1853) ; Union Central 
 
 tiss, 3 Den. (N. Y.) 513 (1846) ; Burt Life Ins. Co. v. Bonnell, 35 Ohio 
 
 V. Saxton, 1 Hun (N. Y.) 551 (1874); St. 365(1880); McComb v. Kittridge, 
 
 Maher v. Lanfrom, 86 111. 513 (1877); 14 Ohio, 348 (1846) ; Austin v. Dor- 
 
 Flynn v. Mudd, 27 HI. 323 (1862) ; win, 21 Vt. 38 (1848) ; Creath'a 
 
 "Warner v. Campbell, 26 111. 283 Adm'r v. Sims, 46 U. S. (5 How.) 
 
 (1861); Trayser v. Trustees of Indi- 192 (1847) ; bk. 12 L. ed. 111. In re 
 
 ana Asbury University, 39 Ind. 556, Beits, 4 Dill. C. C. 93 (1877); Albert 
 
 567 (1872) ; Carlton v. Tardy, 28 v. Grosvenor Investment Co., L. R. 
 
 Ind. 453 (1867) ; Calvin v. Wiggam, 3 Q. B. 123 (1867). 
 
 27 Ind. 489 (1867) ; Redman v. » See Sharpe v. Amott, 51 Cal. 
 
 Deputy, 26 Ind. 338 (1866) ; Loomis 188 (1875) ; Pendleton v, Rowe, 34 
 
 V. Donovan, 17 Ind. 198 (1861); Cal. 149 (1867) ; Massaker v. Mack- 
 
 Dickcrson V. TheBoard, &c.,6Ind. erley, 9 N. J. Eq. (1 Stockt.) 440 
 
 128 (1855) ; 8. c. 63 Am. Dec. 373 ; (1853). 
 
 Harbert v. Dumont, 3 Ind. 346 * Trayser v. Trustees of Indiana 
 
 (1852) ; Reed v. Home Sav, Bank, Asbury University, 39 Ind. 556, 567 
 
 127 Mass. 295 (1879); Fowler v. (1872). 
 
 Brooks, 13 N. H. 240 (1842) ; Bailey * Gardner v. Watson, 13 III. 347 
 
 V. Adams, 10 N. H. 162 (1839) ; (1851) ; Massaker v. Mackerley, 9 
 
 Tompkins v. Tompkins, 21 N. J. N. J. Eq. (1 Stockt.) 440 (1853),' 
 Eq. (6 C. E. Gr.) 338 (1871) ; Mas-
 
 54 EXTElSrSIOlf OF TIME OF PAYMENT. [§ 53. 
 
 to support an agreement for the extension of the time of 
 payment,' but the prompt payment of the interest on 
 demand, when it falls due, will not prolong the term for the 
 payment of the principal beyond the time specified in the 
 note." The giving of additional security, by a person not 
 a party to a promissory note, is a valuable consideration for 
 an agreement by the payee to extend the time of payment 
 t)f such note, and is available as a defence to the maker;* 
 and a payment on a note before it becomes due is a sufficient 
 consideration to support an agreement between the holder 
 and the maker that the time for the payment of the balance 
 of the note shall be extended for a specified period.* 
 
 Where the holder of a mortgage agreed with a third person 
 that, if he would purchase the mortgagor's equity of redemp- 
 tion, and pay a specified sum on the mortgage indebtedness, 
 he would extend the time for the payment of the mortgage 
 debt for a specified term, and in accordance with this agree- 
 ment the equity of redemption was purchased and the 
 amount designated paid, it was held that this was a sufficient 
 consideration to support the contract for the agreement of 
 extension, and that the right to foreclose was suspended 
 until the expiration of the time for which it was agreed that 
 the mortgage should be extended.' In a recent case in 
 Massachusetts' the president of the defendant savings bank 
 executed a written agreement, by the terms of which the 
 
 >Maher v. Lanfrom, 86 111. 513, Charlton v. Tardy, 28 Ind. 453(1867); 
 
 617 (1877) ; Flynn v. Mudd, 27 111. Galvin v. Wiggan, 27 Ind. 489(1867); 
 
 323 (1862); Warner v. Campbell, Redman v. Deputy, 26 Ind. 338 
 
 26 m. 282 (1861); Redman v. (1866) ; Dickerson v. Board of Com. 
 
 Deputy, 26 Ind. 338 (1866). of Ripley Co., 6 Ind. 128(1855); 
 
 » Pendleton v. Rowe, 34 Cal. 149 s. c. 63 Am. Dec. 373 ; Harbert v. 
 
 (1867). Dumont, 3 Ind. 346 (1852) ; Fowler 
 
 'Trayser v. Trustees of Indiana v. Brooks, 13 N. H. 240 (1842); 
 
 Asbury University, 39 Ind. 556, 567 Bailey v. Adams, 10 K H. 163 
 
 (1872). (1839); McComb v. Kittridge, 14 
 
 * Newsam v. Finch, 25 Barb. (N. Ohio, 348 (1846) ; Austin v. Dorwin, 
 
 T.) 175 (1857). 21 Vt. 38 (1848) ; Creath's Adm'r v. 
 
 ' Loomia v. Donovan, 17 Ind. 198 Sims, 46 U. S. (5 How.) 192 (1847) 
 
 (1861). See to the same effect bk. 12 L. ed. 111. 
 Fellows V. Prentiss, 3 Den. (N. Y.) « Reed v. Home Savings Bank, 127 
 
 512 (1846) ; s. c. 45 Am. Dec. 484 ; Muss. 295 (1879).
 
 § 54.] EXTEITSIOH" OF TIME BY PAROL. 55 
 
 bank, in consideration of a certain sum paid by A, on 
 account of interest due from B on a mortgage loan upon an 
 estate of which B was the owner in fee, and of a promise 
 that the taxes for the previous year should be paid by either 
 A or B, agreed to extend at B's request for five months the 
 time of payment of the interest to become due on the loan. 
 Before the expiration of the five months, the bank foreclosed 
 the mortgage and took possession of the estate for breach 
 of its conditions. The taxes referred to in the agree- 
 ment were not paid by A or B. In an action subsequently 
 brought against the bank by A on the agreement, it 
 was held that whether the bank was bound by the agree- 
 ment or not, A was not a party to it, and that he could not 
 maintain an action upon it, nor recover back, under a count 
 for money had and received, the amount paid by him for 
 the extension, because, under the circumstances, the law 
 raised no implied promise to repay the money. In a New 
 Jersey case' it was held that a mortgagor was not entitled to 
 any benefit from an agreement between the mortgagee and 
 his assignee, extending the time of payment in consideration 
 of the mortgagee's guaranty of the prompt payment of the 
 interest. 
 
 § 54. Extension of time by parol. — The time specified for 
 the payment of a mortgage may be extended by parol,' when 
 the agreement is founded upon a sufficient consideration.* 
 
 ' Lee V. West Jersey Land & kins, 31 N. J. Eq, (6 C. E. Gr.) 338 
 
 Cranberry Co., 29 N. J. Eq. (3 (1871); Vanhouten v. McCarty, 4 N. 
 
 6tew.) 377 (1878). J. Eq. (3 H. W. Gr.) 141 (1842); 
 
 * Tompkins v. Tompkins, 21 K King v. Morford, 1 N. J. Eq. (1 
 
 J. Eq. (6 C. E. Gr.) 338 (1871). See Saxt.) 274, 280 (1831) ; Cox v. Ben- 
 
 also Flynn v. Mudd, 27 111. 323 net, 13 N. J. L. (1 J. S. Gr.) 165, 
 
 (1862). See Stevens v. Cooper, 1 171 (1832). In re Betts, 4 Dill. C. C. 
 
 Johns. Ch. (N. Y.) 429 (1815); 93(1877); s. c. 7 Rep. 225. 
 
 B. c. 7 Am. Dec. 499 ; Lattimore * Dodge v. Crandall, 30 N. T. 294 
 
 V. Harsen, 14 Johns. (N. Y.) 330 (1864); Dearborn v. Cross, 7 Cow. (N. 
 
 (1817) ; Fleming v. Gilbert, 3 Johns. Y.) 48 (1827) ; Townsend v. Empire 
 
 (N. Y.) 528 (1808) ; Covenhoven v. Stone Dress. Co., 6 Duer (N. Y.) 208 
 
 Seaman, 1 Johns. Cas. (N. Y.) 23 (1856) ; Fish v. Hayward, 28 Hun 
 
 (1799); Langworthy v. Smith, 2 (N. Y.) 456(1882); Lattimore v. 
 
 Wend. (N. Y.) 587 (1829) ; s. c. 20 Harsen, 14 Johns. (N. Y.) 330(1817); 
 
 Am. Dec. 652 ; Tompkins v Tomp- Fleming v. Gilbert, 3 Johns. (N. T.)
 
 56 
 
 EXTE:?rSION OF TEVIE BY PAROL. 
 
 [§54. 
 
 notwithstanding the fact that, as a general rule, parol 
 evidence is inadmissible to supply, vary, enlarge, or contra- 
 dict the terms of a written instrument,' especially one under 
 seal," and is inadmissible to support an agreement set up in 
 contradiction to a deed.* In Betts's case* the United States 
 circuit court for the eastern district of Missouri, held that a 
 mortgage deed or deed of trust is, in equity, only a lien on 
 the land, and that an agreement to extend the time of 
 payment of the debt thus secured, is not within the statute 
 of frauds and therefore need not be in writing. 
 
 528(1808); Keating v. Price, 1 Johns. 
 Cas. (N. Y.) 22 (1799) ; Delacroix v. 
 Bulkley, 13 Wend. (N. Y.) 71 (1834), 
 ' Stevens v. Cooper, 1 Johns. Ch. 
 (N. Y.) 425 (1815) ; s. c. 7 Am. Dec. 
 499. See also Hill v. Syracuse, B. 
 & N. Y. R. R. Co., 73 N. Y. 351 
 (1878) ; VanBokkelen v. Taylor, 63 
 N. Y. 105 (1875) ; Baker v. Higgins, 
 21 N. Y. 397 (1860) ; Brewster v. 
 Silence, 8 N. Y. 207, 213 (1853); 
 Cook V. Eaton. 16 Barb. (N. Y.) 439 
 (1853) ; Taylor v. Baldwin, 10 Barb. 
 (N. Y.) 586 (1850); Egleston v. 
 Knickerbacker, 6 Barb. (N. Y.) 464 
 (1849) ; Sayre v. Peck, 1 Barb. (N. 
 Y.) 464 (1847) ; Pattison v. Hull. 9 
 Cow. (N. Y.) 747, 754(1828) ; Austin 
 V. Sawyer, 9 Cow. (N. Y.) 41 (1828) ; 
 Wright V. Taylor, 1 Edw. Ch. (N. 
 Y.) 226 (1831) ; Webb v. Rice, 6 
 Hill (N. Y.) 219 (1843); Hull v. 
 Adams. 1 Hill (N. Y.) 601 (1841) ; 
 Meads v. Lan.singh, 1 Hopk. Ch, 
 (N. Y.) 124, 134 (1824) ; Bayard v. 
 :Malc<)lm, 1 Johns. (N. Y.) 453, 
 467 (1806) ; Mann v. Mann, 1 Johns. 
 Ch. (N. Y.) 231 (1814) ; Pjirkhurst 
 V. VanCortlandt, 1 Johns. Ch. (N. 
 Y.) 274 (1814) ; Crosier v. Acer. 7 
 Paige Ch. (N. Y.) 137 (1838) ; Jarvis 
 V. I'almer, 11 Paige Ch. (N. Y.) 650 
 
 (1845) ; Lowber v. LeRoy, 2 Sandf. 
 (N. Y.) 202 (1848) ; Russell v. Kin- 
 ney, 1 Sandf. Ch. (N. Y.) 38 (1843) ; 
 Evans v. Wells, 22 Wend. (N. Y.) 
 324, 337 (1839) ; Lee v. Evans, 8 Cal. 
 424, 432 (1857) ; Beckley v. Munson, 
 22 Conn. 299 (1853) ; Mann v. Smyser, 
 76 m. 365 (1875) ; Harlow v. Bos- 
 well. 15 Dl. 56 (1853) ; Cincinnati, 
 U. & Ft. W. R. R. Co. V. Pearce, 
 28 Ind. 502 (1867) ; Pilmer v. State 
 Bank, 16 Iowa, 321 (1864) ; Jack v. 
 Naber, 15 Iowa, 450 (1863) ; Peers v. 
 Davis, 29 Mo. 184 (1859) ; Reed v. 
 Jones, 8 Wis. 392 (1859). 
 
 * Stevens v. Cooper, 1 Johns. Ch. 
 (N. Y.) 425 (1815) ; s. c. 7 Am. Dec 
 499, See also Austin v. Sawyer, 9 
 Cow. (K Y.) 41 (1828) ; Webb v. 
 Rice, 6 Hill (K Y.) 219 (1843); 
 Evans v. Wells, 22 Wend (N. Y.) 
 324, 339 (1839) ; Powell v. Monson 
 & B. Manuf. Co., 8 Mason C. 358 
 (1824). 
 
 2 See Meads v. Lansingh, 1 Hopk. 
 Ch. (N. Y.) 124 (1824) ; Movan v. 
 Hays, 1 Johns. Ch. (N. T.) 339 
 (1815) ; Mann v. Mann, 1 Jo»ins. Ch, 
 (N. Y.) 231 (1814) ; Russell v. Kin- 
 ney, 1 Sandf. Ch. (N. Y.) ?'^ (1843). 
 
 * 4 Dill. C. C. 93 (1877) 8, c 7 
 Rep. 225.
 
 CHAPTER IV. 
 
 WHEN RIGHT OF ACTION BARRED. 
 
 % 66. Limitation of foreclosure ac- 
 tions. 
 
 66. Enforcing statutes of limita- 
 
 tion in equity. 
 
 67. Adverse possession by mort- 
 
 gagor. 
 
 68. Presumption arising from 
 
 mortgagor's possession. 
 
 69. Presumption as to payment — 
 
 How rebutted. 
 
 60. Adverse possession by several 
 
 successive owners. 
 
 61. When limitation begins to run 
 
 against a mortgage. 
 
 § 62. When foreclosure of mort- 
 gage barred. 
 
 63. Foreclosure of mortgage when 
 
 debt barred. 
 
 64. Removal of bar of the statute. 
 
 65. Rights and liabilities of 
 
 grantee of mortgagor. 
 
 66. Possession by mortgagee- 
 
 Presumption of foreclosure. 
 
 67. Decree for deficiency when 
 
 debt barred. 
 
 68. Right of mortgagee to re- 
 
 tain possession after remedy 
 barred. 
 
 § 55. Limitation of foreclosure actions. — Civil actions 
 
 can now be commenced only within the periods designated 
 by the Code/ which provides that all actions upon sealed 
 instruments must be commenced within twenty years after 
 the cause of action has accrued.' An action to foreclose a 
 mortgage is an action upon a sealed instrument within the 
 meaning of the Code, and will not be barred until twenty 
 years have elapsed from the time the mortgage became due 
 and payable, or from the date of the last payment made 
 upon it. Where the mortgagor has made payments upon 
 the mortgage within twenty years from the time it became 
 due, the presumption of payment declared by the statute to 
 arise after the lapse of twenty years from the date when the 
 right of action accrued, is not available as a defence in an 
 action of foreclosure.* 
 
 But independent of written law there is a period after 
 which, upon the common law principles from which the 
 
 ' N. T. Code Civ. Proc. § 380. 
 » N. Y. Code av. Proc. § 381. 
 • New York Life Ins. & Trust Co. 
 T. Covert, 3 Abb. Ct. App. Dec. 
 
 (N. Y.) 350 (1867) ; s. c. 3 Trans. 
 App. 24 ; 6 Abb. (N. Y.) Pr. N. 8. 
 154 ; reversing s. 0. 29 Barb. (N.Y.) 
 435. 
 
 m
 
 58 
 
 ETSTOECING STATUTE OF LIMITATIONS. 
 
 [§56. 
 
 statutes of limitation have been deduced, a demand founded 
 upon a note, bond or judgment becomes irrecoverable. It 
 is a general rule that forbearance for twenty years unex. 
 plained, unaccounted for and unrebutted will extinguish a 
 judgment as well as all other pecuniary demands.' 
 
 § 56. Enforcing statutes of limitation in equity. — While 
 statutes of limitation are as a general rule applicable as such 
 only in proceedings at law, yet courts of equity, acting by 
 analogy, will, in proceedings where they have concurrent 
 jurisdiction with courts of law, apply statutes of limitation 
 and refuse to grant relief where it appears that the statutory 
 period, within which an action might have been maintained 
 at law, has elapsed." This has been the settled rule of 
 decision in the English courts of chancery for the last 
 
 > Gulick V. Loder, 13 N. J. L. 
 (1 J. S. Gr.) 68 (1832) ; s C. 23 Am. 
 Dec. 711. See also Boardman v. 
 De Forest, 5 Conn. 1 (1823) ; Buchan- 
 nan v. Rowland, 5 N. J. L. (2 South.) 
 72 (1820); Cohen v. Thomson, 2 
 Mills, (S. C. Const.) 146 (1818) ; 
 "Wells V. Washington, 6 Munf . (Va.) 
 632 (1820) ; Ross v. Darby, 4 Munf. 
 (Va.) 428 (1815); Willaume v. 
 Gorges, 1 Campb. 217 (1808); 
 Flower v. Bolingbroke, 1 Str. 639 
 (1749). 
 
 ' See Kane v. Bloodgood, 7 Johns. 
 Ch. (N. Y.) 90 (1823) ; s. c. 11 Am. 
 Dec. 417 ; Livingston v. Livingston, 
 4 Johns. Ch. (N, Y.) 287 (1820)- 
 B. C. 8 Am. Dec. 562 ; Morgan v. 
 Morgan, 10 Ga. 297 (1851) ; Sloan v. 
 Graham, 85 III. 26 (1877); Castner 
 V. Walrod, 83 111. 171 (1876) ; Kane 
 ▼. Herricgton, 50 111. 233. 539 (1869); 
 Manning v. Warren, 17 111. 267 
 (1855) ; Clay v. Clay, 7 Bush. (Ky.) 
 95 (1870) ; Bank of United States v. 
 Dallam, 4 Dana (Ky.) 574 (1836) ; 
 Fenwick v. Macey, 1 Dana (Ky.) 
 876 (1833); Thomas v. White, 3 
 
 Litt. (Ky.) 177 (1823); Smith v. 
 Carney, 1 Litt. (Ky.) 295 (1822); 
 Ashley v. Denton, 1 Litt. (Ky.) 86 
 (1822) ; Frame v. Kenny, 3 A. K. 
 Marsh (Ky.) 145(1819) ; s. c. 12 Am. 
 Dec. 367 ; Breckenridge v. Churchill, 
 3 J. J. Marsh (Ky.) 12 (1829) ; Brunk 
 V. Means, 11 B. Mon. (Ky.) 214 
 (1850) ; Rogers v. Moore, 9 B. Mon. 
 (Ky.) 401 (1849) ; Ayres v. Waite, 
 64 Mass. (10 Cush.) 72 (1852) ; Ayer 
 V. Stewart, 14 Minn. 97 (1869) 
 McClane v. Shepherd, 21 N. J. Eq, 
 (6 C. E. Gr.) 76 (1870); Neely's 
 Appeal, 85 Pa. St. 387 (1877) 
 Shelby v. Shelby, Cooke (Tenn. 
 179 (1812) ; 8. c. 5 Am. Dec. 686 
 Cocke V. McGinnis, 1 Mart. & Yerg, 
 (Tenn.) 361 (1828); s. c. 17 Am, 
 Dec. 809 ; Pitzer v. Burns, 7 W. Va, 
 63, 69 (1873) ; Carroll v. Green, 93 
 U. S. (3 Otto) 509 (1875) ; bk. 23 L. 
 ed. 738 ; Wagner v. Baird, 48 U. S. 
 (7How.)234, 258(1849); bk. 12 L. ed. 
 681; Badger v. Badger, 2 Cliff. C. C. 
 137 (1862); Willis v. Robinson, 4 
 Bligh, 101, 119 (1830).
 
 §56.] 
 
 STATUTE OF LTMITATIOirS. 
 
 59 
 
 century and a half.* In some of the American states it Is 
 held that in equity the lapse of time operates only by way 
 of evidence as affording a presumption of payment," but 
 other states hold that courts of equity are bound by the 
 statutes of limitation as much as courts of law;* while in 
 California,* Missouri,* Nevada* and Oregon* the statutes of 
 limitation are expressly made applicable to all suits and 
 actions. 
 
 Thus, following the analogy of the statutes of limitation, a 
 debt is presumed to be paid after the lapse of twenty years.' 
 The lapse of this period of time is held to be prima facie 
 evidence of payment ; and it must, it seems, be so accepted 
 by a court and jury, unless there is other evidence to 
 explain the delay and to rebut the presumption.* It has 
 
 ' See Kane v. Bloodgood, 7 Johns. 
 Ch. (N. Y.) 90 (1823) ; s. c. 11 Am. 
 Dec. 417 ; Cocke v. McGinnis, 1 
 Mart. & Yerg. (Tenn.) 361 (1828) ; 
 B. c. 17 Am. Dec. 809; Sturt v. 
 Hellish, 2 Atk. 610 (1743) ; Lockey 
 V. Lockey, Prec. Ch. 518 (1719); 
 Hovenden v. Annesley, 2 Sch. & 
 Lef. 607 (1805), a leading case in 
 •which all the American and English 
 cases are distinguished ; overruling 
 Coster V. Murray, 5 Johns. Ch. 
 (N. Y.) 522 (1821) ; Love v. "Watkms, 
 40 Cal. 547 (1871). 
 
 * See Livingston v. Livingston, 4 
 Johns, Ch. (N. Y.) 287 (1820) ; 8. C. 
 8 Am. Dec. 562. 
 
 •See Shelby v. Shelby, Cooke 
 (Tenn.) 179 (1812) ; s. c. 5 Am. Dec. 
 686. 
 
 *Love V. Watkins, 40 Cal. 547 
 (1871) ; Boyd v. Blankman, 29 Cal. 
 19 (1865) ; Lord v. Morris, 18 Cal. 
 484 (1861). 
 
 6 Kelly V. Hurt, 61 Mo. 463 (1875). 
 
 •White V. Sheldon, 4 Nev. 280 
 (1868). 
 
 ' Anderson v. Baxter, 4 Oreg. 105 
 (1871); Oregon Code Civ. Proc. 
 §378. 
 
 • Bailey v. Jackson, 16 Johns. (N. 
 Y.) 210 (1819); 8. o. 8 Am. Dec. 809; 
 Livingston v. Livingston, 4 Johns. 
 Ch. (N. Y.) 287 (1820); 8. o. 8 Am. 
 Dec. 562; Swart v. Service, 21 
 Wend. (N. Y.) 36 (1839); 8. o. 84 
 Am. Dec. 211 ; Ludlow v. Van 
 Camp, 6 N. J. Eq. (2 Halst.) 118 
 (1823); 8. 0. 11 Am. Dec. 539; 
 Wanmaker v. VanBuskirk, 1 K. 
 J. Eq. (1 Saxt.) 685 (1832); 8. c. 38 
 Am. Dec. 748 ; Gulick v. Loder, 8 
 N. J. L. (1 J. S. Gr.) 68 (1833); s. a 
 23 Am. Dec. 711 ; Henderson v. 
 Lewis, 9 Serg. & R. (Pa.) 379 (1823); 
 8. 0. 11 Am. Dec. 733 ; Ordinary v. 
 Steedman, Harp. (S. C.) L. 287 
 (1834); s. c. 18 Am. Dec. 653 ; Yar- 
 nell V. Moore, 3 Coldw. (Tenn.) 176 
 (1866); Carter v. Wolfe, 1 Heisk. 
 (Tenn.) 700 (1870); Anderson v. 
 Settle, 5 Sneed. (Tenn.) 303 (1857); 
 Atkinson v. Dance, 9 Yerg. (Tenn.) 
 424 (1836); s. c. 30 Am. Dec. 433; 
 Rogers v. Judd, 5 Vt. 336 (1833); a 
 c. 26 Am. Dec. 301. 
 
 » Brock V. Savage, 31 Pa. St. 410, 
 422(1858); King's Ex'rs v. Coulder's 
 Ex'rs, 2 Grant Cas. (Pa.) 77 (1853); 
 Cope V. Humphreys, 14 Serg. <fc R.
 
 60 ADYEKSE POSSESSION BY MOETGAGOR. [§ 57. 
 
 been held that the lapse of even a less number of years than 
 twenty will be sufificient to raise a presumption of payment. 
 Thus, it was said in Henderson v. Lewis,* that a pre- 
 sumption of the payment of a bond may be raised by a lapse 
 of less than the statutory period of twenty years when taken 
 in connection with other evidence, but that in the absence of 
 other circumstances, the full statutory period must expire to 
 raise the presumption." And in another case,' the court say 
 that " as to what amount of time alone, divested of other 
 circumstances, shall be of weight sufificient to authorize a 
 jury to presume payment, unless the presumption be 
 rebutted, is necessarily arbitrary as a rule and based upon 
 grounds of public policy. Sixteen years having, in the case 
 referred to,* been adopted, and society having acted on it for 
 many years, it would be improper we think to question the 
 correctness of the rule."* 
 
 § 57. Adverse possession by mortgagor. — Uninterrupted 
 possession by a mortgagor for twenty years after con- 
 dition broken without entry or claim by the mortgagee, 
 raises the presumption that the mortgage has been paid, and 
 will bar the right of the mortgagee to foreclose.* The 
 
 (Pa.) 21 (1825); Lesley v. Nones, 7 (1870) ; Anderson v. Settle, 5 Sneed. 
 
 Berg. & R. (Pa.) 410 (1821); Tilgh- (Tenn.) 203 (1857). 
 
 man v. Fisher, 9 Walts (Pa.) 442 « Belmont v. O'Brien, 12 N. T, 
 
 (1840); Bellas v. Lavan, 4 Watts 394 (1855) ; Jackson v. Shauber, 7 
 
 (Pa.) 297 (1835). Cow. (N. Y.) 187, 198 (1827); Jackson 
 
 » 9 Serg. & R. (Pa.) 379 (1823); 8. v. Wood, 12 Johns. (N. Y.) 245 (1815); 
 
 C. 11 Am. Dec. 733. a c. 7 Am. Dec. 312 ; Jackson v. 
 
 2 See also Lesley v. Nones, 7 Serg. Pratt, 10 Johns. (N. Y.) 38 (1813) ; 
 
 & R. (Pa.) 410 (1821); Husky v. Collins v. Torry, 7 Johns. (N. Y.) 
 
 Maples, 2 Coldw. (Tenn.) 25 (1865); 278 (1810) ; s. c. 5 Am. Dec. 273 ; 
 
 Leiper v. Erwin, 5 Yerg. (Tenn.) 97 Giles v. Baremore, 5 Johns. Ch. (N. 
 
 (1833). Freeman on Judgments, Y.) 550 (1821) ; Haskell v. Bailey, 
 
 ||464, 465; 2 Greenl. Ev. §528. 22 Conn. 569 (1853); Elkins v. 
 
 « Atkins. V. Dance, 9 Yerg. (Tenn.) Edwards, 8 Ga. 326 (1850) ; Harris 
 
 424 (1836); 8. c. 30 Am. Dec. 422. v. Mills, 28 111. 46 (1862) ; Chick v. 
 
 * Blackburne v. Squib, Peck Rollins, 44 Me. 104 (1857) ; Blethen 
 
 (Tenn.) 64 (1823). v. Dwinal, 35 Me. 556 (1853) ; Boyd 
 
 'See also larneli v. Moore, 3 v. Harris, 2 Md. Ch. Dec. 210(1849); 
 
 Coldw. (Tenn.) 176 (1866); Carter v. Bacon v. Mclntire, 49 Mass. (8 Mete.) 
 
 Wolfe, 1 Hcisk. (Teuu.) 694, 700 87 (1844) ; Howland v. Shurtlefl, 43
 
 § 57.] ADVERSE POSSESSION". 61 
 
 general presumption, however, is that the mortgagor and his 
 grantees hold subordinate to the mortgagee unless there is 
 some act on the part of the mortgagor or his grantees showing 
 affirmatively that the possession is not held in subordination 
 to the mortgagee's title, and, consequently, until this is 
 shown the bar of the statute of limitations will not begin to 
 run in favor of the mortgagor or his grantees.' Recognition 
 by the mortgagor or his grantees during the time of the 
 existence of the mortgage, will rebut the presumption that 
 the mortgage is barred even as to subsequent purchasers.* 
 
 Possession by the mortgagor for more than twenty years 
 is, at best, but presumptive evidence that the debt has been 
 satisfied.* The possession of the mortgagor or his grantee, 
 in order to divest the mortgagee of his right to foreclose, 
 must be hostile in its inception and must continue to be 
 hostile, actual, visible and open ;* because so long as the 
 relation of mortgagor and mortgagee continues, the statute 
 can not commence to run in favor of the mortgagor, his heirs 
 or assigns.' The possession of the mortgagor, being consis- 
 tent with and subject to the rights of the mortgagee at the 
 inception of the mortgage, does not become antagonistic 
 
 Mass. (2 Mete.) 26 (1840) ; s. c. 35 Eckert, 45 U. S. (4 How.) 295 (1846); 
 
 Am. Dec. 384 ; Thayer v. Mann, 36 bk. 11 L. ed, 983 ; Hall v. Surtees, 
 
 Mass. (19 Pick.) 535 (1837) ; Inches 5 B. & Aid. 687 (1827). 
 
 ▼. Leonard, 12 Mass. 379 (1815) ; • Heyer v. Pruyn, 7 Paige Ch. 
 
 Nevitt V. Bacon, 32 Miss. 212, 226 (N. T.) 465 (1839) ; 8. c. 34 Am. 
 
 (1856); s. c. 66 Am. Dec. 609; Dec. 355; Drayton v. Marshall, 
 
 Tripe v. Matey, 39 N. H. 439 (1859); Rice (S. C.) Eq. 383, 384 (1839) ; s. o. 
 
 Evans v. Huffman, 5 N. J. Eq. 33 Am. Dec. 84 ; Wright v. Eaves, 
 
 (1 Halst.) 354 (1846); Roberts v. 10 Rich. (S. C.) Eq. 682 (1858); 
 
 Welch, 8 Ired. (N. C.) Eq. 287 Hughes v. Edwards, 22 U. S. (9 
 
 (1852) ; Richmond v. Aiken, 25 Vt. Wheat.) 489 (1824) ; bk. 6 L. ed. 143. 
 
 334 (1853) ; Hughes v. Edwards, 22 « Cheever v. Perley, 93 Mass. (11 
 
 U. S. (9 Wheat.) 489 (1824) ; bk. 6 L. Allen) 584 (1866). 
 
 ed. 141 ; Trash v. White, 3 Bro. Ch. •* Medley v. Elliott, 62 lU. 533 
 
 288, 291 (1791) ; Hillary v. Waller, (1872) ; Parker v. Banks, 79 N. C. 
 
 13 Ves. 265 (1806). 480 (1878) ; Martin v. Jackson, 27 
 
 » Boyd V. Beck. 29 Ala. 703 (1857); Pa. St. 504 (1856). 
 
 Noyes v. Sturdivant, 18 Me. 104 * See Rockwell v. Servant, 63 111. 
 
 (1841) ; Bacon V. Mclntire, 49 Mass. 424 (1872); Jamison v. Perry, 88 
 
 (8 Mete.) 87 (1844) ; Tripe v. Marcy, Iowa, 14 (1873). 
 89 N. H. 439 (1859); Zeller v.
 
 62 PEESmiPTION FROM MORTGAGOe's POSSESSION. [§ 58. 
 
 by his simple neglect or refusal to pay the interest. The 
 mortgagor or his grantee must commit some act which 
 amounts to a refusal to recognize the mortgage, or there 
 must exist some other circumstance from which a jury will be 
 induced to find the fact of adverse possession/ Yet it is 
 held that the mortgagor's possession is to be termed adverse 
 in law after a breach of the conditions of the mortgage.' 
 
 § 58. Presumption arising from mortgagor's posses- 
 sion. — It has sometimes been questioned whether the 
 doctrine of presumption, arising from the lapse of time 
 and entire neglect to take any measure to enforce a claim, 
 can properly be applied to the case of a mortgage of real 
 estate ; and in some of the earlier English cases the doctrine 
 was advanced that the common law presumption applicable 
 to bonds, judgments and similar instruments, arising from a 
 delay of twenty years in enforcing them, did not apply 
 to the case of a mortgage, because in such a case the legal 
 estate was in the mortgagee and the mortgagor was a mere 
 tenant at will, his possession of the premises being in theory 
 the possession of the mortgagee. But this doctrine was 
 early repudiated by Lord Thurlow' and by the Master of the 
 Rolls* in very strong language, and it has not since been 
 asserted in any case either in England or America. It is 
 now the universal doctrine that debts secured by mortgages 
 stand on the same footing as other demands, and are held 
 to be defeated by the same presumptions arising from lapse 
 of time and laches on the part of the mortgagee.* 
 
 While it is true that the mortgagor is not the tenant at 
 will of the mortgagee in any such sense that his possession 
 
 > Jones V. Williams, 5 Ad. & El. (N. Y.) 245 (1815) ; s. c. 7 Am. Dec. 
 
 291 (1836) ; Patridge v. Bere, 5 B. & 315 ; Jackson v. Pratt, 10 Johns. 
 
 Aid. 604 (1822). (K T.) 382 (1813); Collins v. Torry, 
 
 * Wilkinson v. Flowers, 37 IVCss. 7 Johns. (N. Y.) 278 (1810) ; s. c. 5 
 579 (1859) ; 8. c. 75 Am. Dec. 78. Am. Dec. 273 ; Giles v. Baremore, 
 
 « Trash v. White, 3 Bro. Ch. 289 5 Johns. Ch. (N. Y.) 552 (1821) ; 
 
 (1791). Rowland v. Shurtleff, 43 Mass. (8 
 
 * Christopher v. Sparke, 2 Jac. Ss Mete.) 26 (1840) ; s. c. 25 Am. Dec 
 Walk. 223 (1820). 844 ; Inches v. Leonard, 13 Mass. 
 
 » See Jackson v. Wood, 12 Johns. 379 (1815).
 
 § 58.] PEESUMPTIOISr FEOM MOETGAGOE's POSSESSION. 63 
 
 can not become adverse, yet while the mortgagor acknow- 
 ledges his relation to the mortgagee by paying interest and 
 installments of the debt, his possession is said to be the 
 possession of the mortgagee.' But the mortgagor has a 
 right to convey or to lease the mortgaged premises or to deal 
 with them in any way he sees fit as owner, so long as he 
 does not impair the security, without thus rendering hii 
 possession hostile to that of the mortgagee ; and the con^ 
 structive possession of the mortgagee will continue until the 
 possession of the mortgagor or his grantee is in actual and 
 open hostility to that of the mortgagee.* 
 
 Although the doctrine of presumption, arising from posses- 
 sion by the mortgagor for more than twenty years, has been 
 frequently applied as against the mortgage debt, and 
 may now be said to be fully established everywhere,* yet 
 such a presumption is not conclusive, and circumstances 
 may be shown sufficiently strong to repel the presumption.* 
 
 » See Harris v. Mills, 28 111. 44 
 (1863). 
 
 « Boyd V. Beck, 29 Ala. 703 (1857); 
 Roberts v. Littlefleld, 48 Me. 61 
 (1860) ; Chick v. RoUins. 44 Me. 104 
 (1857); Howland v. ShurtlefE, 43 
 Mass. (2 Mete.) 26 (1840) ; s. o. 85 
 Am. Dec. 884 ; Inches v. Leonard, 
 13 Mass. 379 (1815); Benson v. 
 Stewart, 30 Miss. 49 (1855); Sheaf e v. 
 Gerry, 18 N. H. 245 (1846) ; How- 
 ard V. Bildreth, 18 N. H. 105 (1846)} 
 Bates V. Conrow, 11 N. J. Eq. (3 
 Stockt.) 137 (1856) ; Martin v. Jack- 
 son, 27 Pa. St. 504 (1856) ; Drayton 
 V. MarshaU, 1 Rice (S. C.) Eq. 383 
 (1839) ; Atkinson v. Patterson, 46 
 Vt. 750 (1874) ; Pitzer v. Burns, 7 
 "W. Ya. 63 (1873); Higginson v. 
 Mein, 8 U. S. (4 Cr.) 415 (1808) ; bk. 
 2 L. ed. 664 ; Jones v. Williams, 5 
 Ad. & E. 291 (1836) ; s. c. 6 Nev. & 
 M. 816 ; Hall v. Surtes, 5 B. & Aid. 
 687 (1822). 
 
 • Jackson v. Wood, 12 Johns. (N. 
 T.) 245 (1815); Jackson v. Pratt, 10 
 
 Johns. (N. T.) 382 (1813); Collins v. 
 Torry, 7 Johns. (N. Y.) 278 (1810); 
 Giles V. Baremore, 5 Johns. Ch. (N. 
 Y.) 552 (1821); Newcomb v. St. 
 Peter's Church, 2 Sandf. Ch. (N. Y.) 
 636 (1845); McDonald v. Sims, 3 Ga. 
 383 (1847); Field v. Wilson, 6 B. 
 Mon. (Ky.) 479 (1846); Bacon v. 
 Mclntire, 49 Mass. (8 Mete.) 87 
 (1844); Howland v. Shurtleflf, 43 
 Mass. (2 Mete.) 26 (1840); s. c. 35 
 Am, Dec. 884; Inches v. Leonard, 
 12 Mass. 879 (1815); Hoffman v. 
 Harrington, 83 Mich. 392 (1876); 
 Reynolds v. Green, 10 Mich. 356 
 (1862); Wilkinson v. Flowers, 87 
 Miss. 579 (1859); Nevitt v. Bacon, 
 82 Miss. 212 (1856); McNair v. Lot, 
 34 Mo. 285 (1863); Martin v. Bowker, 
 19 Yt. 526 (1847); Hughes v. 
 Edwards, 22 U. S, (9 Wheat.) 489 
 (1824); bk. 6 L. ed. 142. 
 
 4 Moore v. Cable, 1 Johns. Ch. 
 (N. Y.) 386 (1815); Cheever ▼. 
 Perley, 93 Mass. (11 Allen) 584 
 (1866) ; TVanmaker v. VanBuskirk,
 
 64 PRESTJMPTIOTT FROM MORTGAGOR'S POSSESSION. [ §58. 
 
 This presumption, arising from the policy of the law, does 
 not necessarily proceed on the belief that payment has 
 actually been made ;' at most, the lapse of time and the 
 neglect of the mortgagee to enforce his demand against 
 the mortgagor, and the continuance of the latter in adverse 
 possession, are grounds for a presumption of fact which may 
 authorize a jury to infer the payment or satisfaction of the 
 mortgage, and for that reason may be a sufficient answer 
 in an action of foreclosure." But there are some cases which 
 hold that, where there has been no recognition of the 
 mortgage debt for a period less than the statutory period of 
 limitation, such possession will not raise a presumption 
 of payment.' 
 
 The presumption as to payment by an adverse possession 
 of twenty years may be rebutted by showing a payment of 
 interest, a promise to pay, an acknowledgment of the debt 
 by the mortgagor or some similar circumstance ;* but in such 
 cases parol evidence, in order to rebut the presumption as to 
 payment, should show clearly some positive act within that 
 time, which is an unequivocal recognition of the debt.* 
 There must be a part payment* or a positive new promise/ in 
 
 1 N. J. Eq. (1 Saxt.) 685 (1832) ; (1879) ; Coldcleugh v. Johnson, 84 
 
 Booker v. Booker, 29 Gratt. (Va.) Ark. 312 (1879) ; Locke v. Caldwell, 
 
 605 (1877) ; s. c. 26 Am. Rep. 401 ; 91 lU. 417(1879) ; Murphy v. Coates, 
 
 Hughes V. Edwards, 22 U. S. (9 33 N. J. Eq. (6 Stew.) 424 (1881); 
 
 Wheat.) 489 (1824) ; bk 6 L. ed. 142. Snavely v. Pickle, 29 Gratt. (Va.) 
 
 1 Hillary v. Waller, 12 Ves. 239, 27 (1877) ; Pears v. Laing, L. R. 13 
 
 252 (1806). Eq. 41 (1871). 
 
 ' Jackson v. Wood, 12 Johns. (N. ' Jarvis v. Albro, 67 Me. 810 
 
 Y.) 245 (1815) ; Jackson v. Pratt, 10 (1877). 
 
 Johns. (N. Y.) 382 (1813) ; ColUns « Schmucker v. Sibert, 18 Kan. 
 
 V. Torry, 7 Johns. (N. Y.) 278 104 (1877). See Pease v. Catlin, 1 
 
 (1810) ; Jackson V. Hudson, 3 Johns. HI. App. 88 (1878). 
 
 (N. Y.) 375 (1808) ; Demarest v. An acknowledgment or part pay- 
 
 Winkoop, 3 Johns. Ch. (N. Y.) 135 ment by an administrator or a de- 
 
 (1817) : Chick v. Rollins, 44 Me. 104 mand not exhibited as required by 
 
 (1857) ; Crook v. Glenn, 30 Md. 55 law will not stop the running of the 
 
 (1868) ; Bacon v. Mclntire, 49 Mass. statute of limitations. Clawson v. 
 
 (8 Mete.) 87 (1844). McCune, 20 Kan. 337 (1878). 
 
 * Boon V. Pierpont, 28 N. J. Eq. ■> Crone v. Citizen's Bank of La. 28 
 
 (1 Stew.) 7 (1877). La. An. 449 (1876). 
 
 *Cook V. Parham, 63 Ala. 456
 
 §59.] 
 
 PEESUMPTION AS TO PAYMENT. 
 
 65 
 
 order to accomplish this purpose ; a mere silent acquiescence 
 in the mortgagee's demand of a payment, or an admission 
 of the debt, is not of itself sufficient to repel the presumption. 
 A new promise, to take the case out of the statute, need not 
 specify the amount nor the time, if it otherwise indentifiesthe 
 debt. Thus a written promise to renew a note and to give 
 a new mortgage, whenever the exact amount due shall be 
 ascertained, amounts to an equitable renewal.* 
 
 § 59. Presumption as to payment — How rebutted. — 
 
 The presumption of payment, arising from an uninterrupted 
 possession by the mortgagor for twenty years after condition 
 broken, may be rebutted^ by circumstances explaining the 
 delay, as by showing that the plaintiff was ignorant of the 
 defendant's residence,* or that the plaintiff being an alien 
 had been prevented from suing by the existence of war,* or 
 by showing that the parties resided in a country whose 
 commercial relations were disturbed by the presence of 
 
 > Hartv. Boyt, 54 Miss. 547 (1877). 
 
 * Bailey v. Jackson, 16 Jotins. (N. 
 Y.) 210 (1819) ; a c. 8 Am. Dec. 
 809 ; Cheever v. Parley, 93 Mass. 
 (11 Allen) 584, 588 (1832) ; Creighton 
 V. Proctor, 66 Mass. (12 Cush.) 437 
 (1853; ; Ayres v Waite, 64 Mas3. 
 (10 Cush.) 76 (1852) ; Howland v. 
 Shartlefl, 43 Mass. (3 Mete.) 26 
 (1840) ; 8. c. 35 Am. Dec. 384. 
 
 ' Bailey v. Jackson, 16 Johns. 
 (N. T.) 210 (1819) ; B. c. 8 Am. Dec. 
 809. 
 
 * As to when a debt or other lia- 
 bility will be presumed to be paid or 
 discharged, see in addition to cases 
 already cited in the foregoing notes : 
 Central Bank of Troy v. Heydorn, 
 48 N. Y. 260, 272 (1872) ; Lynde v. 
 Denison, 3 Conn. 392 (1820) ; Tripe 
 V. Marcy, 39 N. H. 439, 449 (1859) ; 
 Thorpe v. Corwin, 20 N. J. L. (1 
 Spen.) 317 (1844) ; Allen v. Everly, 
 24 Ohio St. Ill (1873) ; Foulk v. 
 Brown, 2 Watts (Pa.) 215 (1834) ; 
 Gwyn V. Porter, 5 Heisk, (Tenn.) 
 
 253 (1871) ; Brobst v. Brock, 77 U. 
 S. (10 Wall.) 519, 535 (1870) ; bk. 19 
 L. cd. 1002. 
 
 But it must be remembered that 
 there is a manifest difference be- 
 tween those cases where length of 
 time operates as a bar to an action, 
 and those in which it can be used 
 only as matter of evidence. For in 
 the former cases it may be pleaded 
 in bar and is conclusive, though the 
 debt be not paid ; but in the latter 
 cases being merely evidence, it only 
 raises a presumptive fact, which 
 may be repelled by other circum- 
 stances to be considered in arriving 
 at the truth. Bailey v. Jackson, 16 
 Johns. (N. Y.) 210 (1819) ; s. c. 8 
 Am. Dec. 309 ; Shields v. Pringle, 
 2 Bibb. (Ky.) 387 (1811) ; Howland 
 V. Shurtleff, 43 Mass. (2 Mete.) 28 
 (1840) ; Allen v. Everly, 24 Ohio St. 
 Ill (1873); Bissell v. Jaudon, 16 
 Ohio St. 498 (1866); Brobst v. Brock, 
 77 U. S. (10 Wall.) 519, 535 (1870) ; 
 bk. 19 L. ed. 1002. 
 (5)
 
 66 ADVEESE POSSESSION". [§ 60. 
 
 hostile armies,' or by showing any other circumstances which 
 raise an improbability of payment or discharge," as well as by 
 an express acknowledgment of the debt or by acts recogniz- 
 ing it. Thus also relationship between the parties will repel 
 the presumption arising from the lapse of time, that there is 
 no debt, — especially where the exaction of payment might 
 have occasioned distress.* And in some states it is held that 
 where the statutory period expires after the death of the 
 debtor, an action may, under the statute, be commenced 
 against his administrator, if brought within eighteen months 
 after the decedent's death ;* but in no case will the provi- 
 sions of the statute of limitations be suspended until after 
 administration, where it began to run against the decedent 
 in his life-time, if the administrator could have taken out 
 letters and sued earlier.' 
 
 When the statute of limitations has once commenced to 
 run, its operation will not be suspended by any subsequent 
 disability.* 
 
 § 60. Adverse possession by several successive 
 owners. — Adverse possession may be held by several 
 successive owners. It is not necessary that the possession 
 should continue for twenty years in the same person. If 
 the time embraced by two or more possessions amounts to the 
 period prescribed by the statute as a bar, it will be competent 
 
 ' Hale V. Pack, 10 "W. Va. 145 C.) L. 185 (1824) ; 8. 0. 18 Am. Dec. 
 
 (1877). 647. 
 
 « Suavely v. Pickle, 29 Gratt. (Va.) ' Demarest v. Wj^nkoop, 8 Johns. 
 
 27 (1877) ; Brobst v. Brock, 77 U. Ch. (N. Y.) 129 (1817) ; s. o. 8 Am. 
 
 S (10 Wall.) 535 (1870) ; bk. 19 L. ^^ec. 467 ; Jackson v. Moore, 13 
 
 ed. 1002. Jo^s- (N. T.) 513 (1816); 8. 0. 7 
 
 » Wanmaker v. VanBuskirk, 1 N. '^"- ^«<^- ^^^ ' ^"^'^ -^^rn'r v. 
 
 J. Eq. (1 Saxt.) 685 (1832) ; b. 0. 23 ^'^' "^ H^^' & J- (^d.) 14 (1826) ; 
 
 Am. Dec. 748 ; Leman v. Newnham. «• ^' ^^ ^™- I^^c. 290 ; Thompson 
 
 1 Vcs. sr. 51 (1747). '^- S™^^^' "^ ^erg. & R. (Pa.) 209 
 
 * See Wenman v. Mohawk Ins. (^^^1)5 «• °- ^^^^- '^^' 453; Adam- 
 Cc. 13 Wend. (N. Y.) 267 (1835); ^°^ ,T;?„T*^' 2 Mill (S. 0. Const.) 
 B. ; 28 Am. Dec. 464. See al o 267 (1818) ; a c 12 Am. Dec. 665; 
 
 T, J -. -n J* /TVT -o- % Paysoux V. Prather, 1 Nott. «& McO. 
 
 Fla- V. Ruden, 1 Bradf. (N. Y.) (g c.) 296 (1818); 8. c. 9 Am. Dec 
 
 190 (1H50); Scovil v. Scovil, 80 691 ; Fitzhugh v. Anderson, 2 Hen. 
 
 How. (N. Y.) Pr. 262 (1865). & Munf. (Va.) 289 (1808) ; 8. 0. 8 
 
 * I^icks V. Martindale, 1 Harp. (S. Am. Dec. 625.
 
 § 61.] WHEN LIMITATION COIVIMENCES. 67 
 
 to join the one adverse possession to the others, in order to 
 make the bar effectual ; for it is immaterial whether the 
 possession be held for the entire period by one party or by 
 several parties in succession, each holding part of the time, 
 and all together holding the entire period, provided the 
 possession be continued and uninterrupted, and adverse to 
 the claim of the plaintiff, during the whole period. But if 
 a period of time intervenes in which the possession is not 
 adverse, the statute will only run from the commencement 
 of the last adverse possession.' 
 
 § 6i. When limitation begins to run against a mort- 
 gage. — The statute of limitations begins to run against a 
 mortgage as soon as the right to foreclose it accrues, and not 
 from the date or the delivery of the mortgage;' the time which 
 would bar an action at law to recover possession of the 
 mortgaged property, after condition broken, will in general 
 bar an action in equity to foreclose the mortgage.* Gen- 
 erally the right of action to foreclose a mortgage accrues 
 upon the forfeiture of the condition of the mortgage, and 
 from this date the statute of limitations begins to run.* 
 The condition of the mortgage having been forfeited, the 
 mortgagor holds from that time subject to the rights of 
 the mortgagee to foreclose ; and if the latter sleeps upon his 
 rights for the length of time fixed by the statute of 
 limitations for barring an action for the recovery of the 
 possession of the mortgaged premises, his rights will be 
 lost.* 
 
 The absence from the state of the mortgagor or any one 
 liable for the mortgage debt, will not prevent the statute of 
 
 * Benson v. Stewart, 00 Miss. 49, * Wilkinson v. Flowers, 37 Miss. 
 
 67 (1855). See also Emory v. 579 (1859) ; s. c. 75 Am. Dec. 78. 
 
 Keighan, 88 111. 482 (1878). » Jackson v. Wood, 12 Johns. (N. 
 
 « Prouty V. Eaton, 41 Barb. (N. T.) 242 (1815) ; s. c. 7 Am. Dec. 
 
 T.) 409 (1863). 315 ; Wilkinson v. Flowers, 37 Miss. 
 
 « Wilkinson v. Flowers, 37 Miss. 579 (1859) ; s. c. 75 Am. Dec. 78 ; 
 
 679 (1859) ; s. c. 75 Am. Dec. 78 ; Nevitt v. Bacon, 32 Miss. 212, 227 
 
 Nevittv. Bacon, 32 Miss. 212 (1856); (1856); s. c. 66 Am. Dec. 609; 
 
 s. c. 66 Am. Dec. 609 ; Benson v. Benson v. Stewart, 30 Miss. 49 
 
 Stewart, 30 Miss. 49 (1855). (1855) ; 4 Kent Com. 403.
 
 68 WHEN MOKTGAGE BARRED. [^ 62. 
 
 limitations from running against the mortgagee's right to 
 foreclose. Limitations in equity act only by analogy to the 
 rules of law ; and a suit for foreclosure being, in effect, a 
 proceeding in rem, there is no analogy in the application of 
 the statute of limitations to such proceedings, so far as the 
 effect of the defendant's absence from the state upon the 
 running of the statute is concerned.* 
 
 Where the mortgage debt is payable in installments falling 
 due at different times, the condition of the mortgage is a 
 continuing one, and the mortgagee may await the maturity 
 of the last note or installment before an entry and sale, or 
 before treating the non-payment of the first installment as 
 a forfeiture of the mortgage. And in such cases the 
 mortgagor's possession will not be adverse to that of 
 the mortgagee until the maturity of the last installment; 
 for it is not until that date that the final breach of the 
 condition of the mortgage occurs.* 
 
 § 62. When foreclosure of mortgage barred. — The 
 
 right to foreclose a mortgage is not barred by the same 
 lapse of time which bars an action upon a note secured by 
 a mortgage ;' but it will be barred by that lapse of time 
 which would bar an action for the recovery of the mort- 
 gaged premises.* Uninterrupted possession for the period 
 of twenty years after condition broken, without any payment 
 or demand of principal or interest,* or any claim on the part 
 
 ' Anderson v. Baxter, 4 Org. 105 315; Wilkinson v. Flowers, 37 Miss. 
 
 (1871). 579 (1859) ; s. c. 75 Am. Dec. 78 ; 
 
 2 Parker v. Banks, 79 N. C. 480 Nevitt v. Bacon, 32 Miss. 212, 227 
 (1878). (1856) ; s. c. 66 Am. Dec. 609 ; Ben- 
 
 3 Nevitt V. Bacon, 32 Miss. 212 son v. Stewart, 30 Miss. 49 (1855) ; 
 (1856) ; s. c. 66 Am. Dec. 609 ; 4 Kent Com. 402. 
 
 Trotter v. Erwin. 27 Miss. 772 (1854); » Barned v. Earned, 21 N. J. Eq. 
 
 Bush V. Cooper, 26 Miss. 611 (1853) ; (6 C. E. Gr.) 245 (1870) ; Hayes v. 
 
 8. c. 59 Am. Dec. 270 ; Miller v. Whitall, 13 N. J. Eq. (2 Beas.) 242 
 
 Trustees of Jefferson College, 13 (1861) ; Wanmaker v. VanBuskirk, 
 
 Miss. (5 Smed. & M.) 651 (1846) ; 1 N. J. Eq. (1 Saxt.) 685 (1832) ; 
 
 IVIiller V. Helm. 10 Miss. (2 Smed & s. c. 23 Am. Dec. 748 ; Evans v. 
 
 M.) 687, 697 (1843). Huffman, 5 N. J. Eq. (1 Halst.) 360 
 
 < Jackson v. Wood, 12 Johns. (1846). 
 (N. Y.) 242 (1815) ; B. c. 7 Am. Dec.
 
 §62.] 
 
 WHEW MORTGAGE BAREED. 
 
 69 
 
 of the mortgagee, raises the presumption that the mortgage 
 debt has been paid,' and, in the absence of circumstances 
 excusing the delay, bars the right of the mortgagee to fore- 
 close his mortgage.' But it has been said that no presump- 
 tion of the payment of the mortgage will be raised from the 
 lapse of a less period ;' and this is particularly true where for 
 a part of the time the business of the courts and the com- 
 mercial intercourse of the country are interrupted by war.* 
 
 ' Harrington v. Slade, 22 Barb. 
 (N. T.) 161 (1856) ; Bailey v. Jack- 
 son, 16 Johns. (N. Y.) 210 (1819) ; 
 8. c. 8 Am. Dec. 309 ; Giles v. Bare- 
 more, 5 Johns. Ch. (N. Y.) 545 
 (1821) ; Livingston v. Livingston, 4 
 Johns. Ch. (N. Y.) 287 (1820) ; s. c. 
 8 Am. Dec. 562 ; Heyer v. Pniyn, 7 
 Paige Ch. (N. Y.) 465 (1839) ; s. c. 84 
 Am. Dec. 355 ; Swart v. Service, 21 
 Wend. (N. Y.) 36 (1839) ; b. c. 34 
 Am. Dec. 211 ; Perkins v. Cartmell, 
 4 Harr. (Del.) 275 (1843) ; Records 
 V. Melson, 1 Houst. (Del.) 139 (1855) ; 
 VanDuyn v. Hepner, 45 Ind. 589 
 (1874) : Jarvis v. Albro. 67 Me. 310 
 (1877) ; Baltimore & O. R. R. Co. 
 V. Trimble, 51 Md. 99 (1879); 
 Cheever v, Perley, 93 Mass. (11 
 Allen) 584 (1866) ; Creighton v. Proc- 
 tor, 66 Mass. (12 Cush.) 437 
 (1853) : Ayres v. Waite, 64 Mass. 
 (10 Cush.) 76 (1852); Bacon v. 
 Mclntire, 49 Mass. (8 Mete.) 87 
 (1844); Hovrland v. Shurtleff, 43 
 Mass. (2 Mete.) 26 (1840) ; s. c. 35 
 Am. Dec. 384 ; Sheafe v. Gerry, 18 
 N. H. 245 (1846) ; Howard v. Hil- 
 dreth, 18 N. H. 105 (1846) ; Downs 
 V. Sooy, 28 N. J. Eq. (1 Stew.) 55 
 (1877) ; Earned v. Barned, 21 N. J. 
 Eq. (6 C. E. Gr.) 245 (1870) ; Hayes 
 V. Whitall, 13 N. J. Eq. (3 Beas.) 
 242 (1861) ; Wanmaker v. VanBus- 
 kirk, 1 N. J. Eq. (1 Saxt.) 685 
 (1832) ; 8. c. 23 Am. Dec. 748 ; 
 Evans v. Huffman, 5 N. J. Eq. 
 
 (1 Halst.)360 (1846) ; Todd's Appeal, 
 24 Pa. St. 429 (1855); Bank of 
 United States v. Biddle, 2 Pars. 
 Cas. (Pa.) 31 ; Drayton v. Marshall, 
 Rice (S. C.) Eq. 373 (1839) ; s. c. 33 
 Am. Dec. 84 ; Atkinson v. Dance, 
 9 Yerg. (Tenn.) 424 (1836) ; 8. c. 30 
 Am. Dec. 422 ; Booker v. Booker, 
 29 Gratt. (Va.) 605 (1877) ; s. o. 26 
 Am. Rep. 401 ; Whipple v. Barnes, 
 21 Wis. 327 (1867); Hughes v. 
 Edwards, 22 U. S. (9 Wheat.) 489 
 (1824) ; bk. 6 L. ed. 142 ; N. Y. 
 Code Civ. Proc. §§ 365, 379. 
 
 « Belmont v. O'Brien, 12 N. Y. 
 394 (1855) ; Jackson v. Wood, 12 
 Johns. (N. Y.) 242 (1815) ; Jackson 
 V. DeLancey, 11 Johns. (N. Y.) 365 
 (1814) : s. c. 13 Johns. (N. Y.) 537 
 (1816) ; Jackson v. Pierce, 10 Johns. 
 (N. Y.) 415(1813) ; Collins v. Tony, 
 7 Johns. (N. Y.) 278 (1810) ; Jack- 
 son V. Hudson, 3 Johns. (N. Y.) 375 
 (1808) ; Giles v. Baremore. 5 Johns. 
 Ch. (N. Y.) 545 (1821) ; Dunham v. 
 Minard, 4 Paige Ch. (N. Y.) 441 
 (1834) ; Chick v. Rollins, 44 Me. 104 
 (1857) ; Blethen v. Dwinal, 35 Me. 
 556 (1853) ; Cheever v. Perley, 93 
 Mass. (11 Allen) 584 (1866) ; Gould 
 v. White, 26 N. H. 178 (1852); 
 Evans v. Hoffman, 5 N. J. Eq. 
 (1 Halst.) 354 (1846). 
 
 3 Boon V. Pierpont, 28 N. J. Eq. 
 (1 Stew.) 7 (1877). 
 
 * Montgomery v. Bruere, 4 N. J. 
 L. (1 South.) 266 a818).
 
 70 
 
 WHEN DEBT ALONE BAEEED. 
 
 [§63. 
 
 § 63. Foreclosure of mortgage when debt barred.— 
 
 While the lapse of time may afford presumptive evidence of 
 the payment of a mortgage and bar a right to foreclose,' yet 
 such presumption will not arise, and an action to foreclose 
 a mortgage will not be barred by the same lapse of time, 
 which bars an action upon a note secured by the mortgage ;" 
 but the right to foreclose will be barred by the same lapse of 
 time only that would bar an action for the recovery of the pos- 
 session of the mortgaged premises.* Thus, it is generally held 
 that uninterrupted possession by the mortgagor for twenty 
 years, after condition broken, without entry or claim on the 
 part of the mortgagee, where such delay is not explained, 
 will bar the right to foreclose the mortgage.* The running 
 of the statute of limitations against a note secured by mort- 
 gage, or other lien, raises no presumption of payment so as to 
 cut off the lien, and such mortgage or pledge may be resorted 
 to in equity, notwithstanding the fact that the remedy on the 
 note is barred ;" consequently a mortgage may be foreclosed 
 
 » Swart V. Service, 21 Wend. (N. 
 T.) 36 (1839) ; s. c. 34 AtQ. Dec. 211 ; 
 Wanmiiker v. VanBuskirk. 1 N. J. 
 Eq. (1 Saxt.) 685 (1833) ; 8. C. 23 Am. 
 Dec. 748. 
 
 « Green v. Gaston, 56 Miss. 751 
 (1879) ; Wilkinson v. Flowers, 37 
 Miss. 579 (1859) ; s. c. 75 Am. Dec. 
 78 ; Nevitt v. Bacon, 33 Miss. 212 
 (1856): s. c. G6 Am. Dec. 609 
 Trotter v. Irwin, 37 Miss. 772 (1854) 
 Bush V. Cooper, 26 Miss. 611 (1853) 
 s. 0. 59 Am. Dec. 270 ; Miller v 
 Trustees of Jefferson College, 13 
 Miss. (5Smed. & M.) 651 (1846); 
 Miller v. Helm, 10 Miss. (3 Smed. & 
 M.) 697 (1843). 
 
 3 Jackson v. Wood, 12 Johns. (N. 
 y.) 242 (1815) ; 8. 0. 7 Am. Dec. 
 815 ; Wilkinson v. Flowers, 37 Miss. 
 679 (1859) ; s. c. 75 Am. Dec. 78 ; 
 Nevitt V. Bacon. 32 Miss. 212, 217 
 (.1856) ; s. c. 66 Am. Dec. 609 ; 
 
 Benson v. Stewart, 30 Mias. 49 
 (1855) ; 4 Kent Com. 402. 
 
 * Mayor, etc., of New York ▼. 
 Colgate, 12 N. Y. 140 (1854) ; Gould 
 V. Holland Purchase Ins^ Co., 16 
 Hun (N. Y.) 540 (1879) ; Fisher v. 
 Mayor, 3 Hun (N. Y.) 652 (1875) ; 
 Heyer v. Pruyn, 7 Paige Ch. (N. Y.) 
 465 (1839) ; s. c. 34 Am. Dec. 359 ; 
 Howland v. Shurtlefl, 43 Mass. (3 
 Mete.) 28 (1840) ; 8. c. 35 Am. Dec. 
 384. 
 
 6 Brost V. Corey, 15 N. Y. 510 
 (1857) ; Waltermire v. Westover, 14 
 N. Y. 16 (1856); New York Life Ins. 
 & T. Co. V. Covert, 29 Barb. (N. Y.) 
 441 (1859); Pratt v. Iluggins, 23 
 Barb (N. Y.) 285 (1859) ; Gillette v. 
 Smith, 18 Hun (N. Y.) 12 (1879) 
 Heyer v. Pruyn, 7 Paige Ch. (N. Y.l 
 465 (1839) ; s. c. 34 Am. Dec. 355 
 Jones V. Merchants' Bank of Albany. 
 4 Robt. (N. Y.) 227 (1867) ; Ware v.
 
 §63.] 
 
 WHElSr DEBT ALOITE BAEEED. 
 
 n 
 
 and the premises sold to pay the mortgage debt, although 
 the note secured by the mortgage is barred by the statute of 
 limitations, because the mortgage has a legal import more 
 
 Curry, 67 Ala. 274 (1883) ; Scott v. 
 Ware, 64 Ala. 174 (1881) ; Bizzell v. 
 Nix, 60 Ala. 281 (1877) ; B. c. 31 Am. 
 Rep. 38 ; Birnie v. Main, 29 Ark. 
 591 (1874); Hough v. Bailey, 33 
 Conn. 289 (1864) ; Haskell v. Bailey, 
 22 Conn. 573 (1853); Belknap v. 
 Gleason, 11 Conn. 160 (1836) ; 8. C. 
 27 Am. Dec. 721 ; Browne v. Browne, 
 17 Fla. 607(1880) ; s. c. 38 Am. Rep. 
 96 ; Elkins v. Edwards, 8 Ga. 325 
 (1850) ; Wright v. Leclaire, 3 Iowa, 
 231 (1856) ; Crocker v. Holmes, 65 
 Me. 195 (1875) ; Ozmun v. Reynolds, 
 11 Minn. 459, 473 (1866) ; Trustees of 
 Jefferson College v. Dickson, Freem. 
 Ch. (IVliss.) 482 (1843) ; Savings Bank 
 V. Ladd, 40 N. H. 463 (1860) ; Fisher 
 V. Mossman, 11 Ohio St. 46 (1860) 
 Gary v. May, 16 Ohio, 66 (1847) 
 Sparhawk v. Buell, 9 Vt. 74 (1837) 
 Coles V. Withers, 33 Gratt. (Va.) 186 
 (1880) ; Wayt v. Carwithen, 21 W. 
 Va. 516 (1884) ; Pitzer v. Burns, 7 
 W. Va. 77 (1873) ; Knox v. Galligan, 
 21 Wis. 470 (1867) ; Wiswell v. Bax- 
 ter, 20 Wis. 680 (1866) ; Almy v. 
 Wilbur, 2 Woodb. & M. C. C. 404 
 (1846). See Waltermirev. Westover, 
 14 N. Y. 20 (1856); Jackson v. 
 Sackett, 7 Wend. (N. T.) 94 (1831) ; 
 Baldwin v. Norton, 2 Conn. 163 
 (1817) ; Elkins v. Edwards, 8 Ga. 
 326 (1850) ; Kellar v. Sinton, 14 B. 
 Men. (Ky.) 307 (1853); Grain v. Paine, 
 58 Mass. (4 Cush.)* 483 (1849) ; East- 
 man, V. Foster, 49 Mass. (8 Mete.) 19 
 (1844) ; Thayer v. Mann, 36 Mass. 
 (19 Pick.) 536 (1837); Trotter v. 
 Erwin, 27 Miss. 772 (1854) ; Wood 
 V. Augustine, 61 Mo. 46 (1875); 
 Cookes V. Culbertson, 9 Nev. 199 
 
 (1874) ; Mackie v. Lansing, 2 Nev. 
 802 (1866) ; Read v. Edwards, 2 Nev. 
 262 (1866); Henry v. Confidence 
 Gold & Silver M. Co., 1 Nev. 619 
 (1865) ; Longworth v. Taylor, 2 Cin. 
 Sup. Ct. Rep. (Ohio) 89 (1870); 
 Myer v. Beal, 5 Oreg. 130 (1873) ; 
 Harris v. Vaughn, 2 Tenn. Ch. 483 
 (1875) ; Richmond v. Aiken, 25 Vt 
 324 (1853) ; Kennedy v. Knight, 21 
 Wis. 340 (1867) ; Whipple v. Barnes, 
 21 Wis. 327 (1867); Cleveland v. 
 Harrison, 15 Wis. 670 (1862) ; Union 
 Bank of La. v. Stafford, 53 U. S. (12 
 How.) 827, 340(1851) ; bk. 13 L. ed. 
 1008 ; Townsend v. Jemison, 50 U. S. 
 (9 How.) 413 (1850); bk. 13 L. ed. 880; 
 McElmoyle v. Cohen, 38 U. S. (13 
 Pet.) 312 (1839) ; bk. 10 L. ed. 177 ; 
 Hughes V. Edwards, 22 U. S. (9 
 Wheat.) 489 (1839) ; bk. 6 L. ed. 143 ; 
 Sturges V. Crowninshield, 17 U. S. 
 (4 Wheat.) 122 (1819) ; bk. 4 L. ed. 
 529; Sparks v. Pico, 1 McMl. C. C. 
 497 (1859) ; Higgins v. Scott, 2 Bam. 
 & Ad. 413 (1831) ; Spears v. Hartly, 
 3 Esp. 81. (1799). 
 
 The supreme court of Ohio say in 
 the case of Fisher v. Mossman, 
 supra, that : "A discussion of the 
 question on principle, and a review 
 of the authorities bearing upon it, 
 would be a work of supererogation, 
 after it has been so thoroughly done 
 already in Belknap v. Gleason, and 
 we content ourselves with sajing, 
 that it seems to us that that case was 
 correctly decided, and that it is de- 
 cisive of the one before us on the 
 point under consideration." 11 Ohio 
 St. 46 (1860).
 
 72 
 
 MOETGAGE DEBT BAEEED. 
 
 [§63. 
 
 extensive than the mere, evidence of the debt,' and remains 
 in full force until the debt, which it secures is paid," except 
 in those cases where, by negligence, the mortgagee has lost 
 his rights. 
 
 In some of the states, however, the rule has been adopted 
 that when an action upon a promissory note, which is secured 
 by mortgage upon real property, is barred by the statute of 
 hmitations, the remedy of the mortgagee upon the mortgage 
 is also barred/ Where such a rule prevails, a grantee of the 
 the mortgagor, purchasing subsequently to the execution of 
 mortgage, has a right to plead the statute of limitations as to 
 that part of the claim of the plaintiff which asks for a decree 
 foreclosing the mortgage and for a sale of the mortgaged 
 premises, or at least that portion of such premises which has 
 been transferred to the grantee.* Such a statute, however, 
 simply takes away the remedy upon the mortgage ; it dges not 
 discharge the debt nor in any way extinguish the right or 
 
 > See Borst v. Corey. 15 N. T. 506 
 (1857) ; Heyer v. Pruyn, 7 Paige Ch. 
 (N. Y.) 465 (1839) ; Baldwin v. 
 Norton, 2 Conn. 161 (1817) ; Elkins 
 V. Edwards, 8 Ga. 325 (1850) ; Joy 
 V. Adams, 26 Me. 330 (1846) ; Balch 
 V. Onion, 58 Mass. (4 Cush.) 559 
 (1849) ; Thayer v. Mann, 36 Mass. 
 (19 Pick.) 535 (1837) ; Micliigan Ins. 
 Co. V. Brown, 11 Mich. 265 (1863) ; 
 Wilkinson v. Flowers. 37 Miss. 579 
 (1859); 8. c. 75 Am. Dec. 78; 
 Nevitt V. Bacon, 33 Miss. 212 (1856); 
 8. c. 66 Am. Dec. 609 ; Trotter v. 
 Erwin, 27 Miss. 772 (1854) ; Miller 
 V. Trustees of Jefferson College, 
 13 Miss (5 Smed. & M.) 651 (1846) ; 
 Richmond v. Aiken, 25 Vt. 324 
 (1853) ; Whipple v. Barnes, 21 Wis. 
 327 (1867) ; Wiswell v. Baxter, 20 
 Wis. 680 (1866). But see Haskell v. 
 Bailey, 22 Conn. 569 (1853). 
 
 » Joy V. Adams, 20 Me. 330 (1846). 
 
 » Lent V. Morrill, 25 Cal. 492 
 (1864) ; McCarthy v. White, 21 Cal. 
 
 495 (1863) ; Lord v. Morris, 18 Cal. 
 482 (1861) ; Emory v. Keighan, 94 
 111. 543 (1880) ; Brown v. Rockhol, 
 49 Iowa, 282 (1878) ; Clinton Co. v. 
 Cox, 37 Iowa, 570 (1873) ; Hubbard 
 V. Missouri V. L. Ins. Co., 25 Kan. 
 172 (1881) ; Schmucker v. Sibert, 18 
 Kan. 104 (1877) ; s. c. 26 Am. Rep. 
 765; Hurley v. Cox, 9 Neb. 230 
 (1879); Blackwell v. Barnett, 52 
 Tex. 326 (1880) ; Ross v. Mitchell, 
 28 Tex. 150 (1866) ; Daggs v. Ewell, 
 3 Woods C. C. 344 (1879). 
 
 * Wood V. Goodfellow, 43 Cal. 185 
 (1872) ; Lent v. Shear, 26 Cal. 361 
 (1864) ; Grattan v. Wiggins, 23 Cal. 
 16 (1863) ; McCarthy v. White, 21 
 Cal. 495 (1863) ; Lord v. Morris, 18 
 Cal. 482, 490 (1861); Medley v. 
 Elliott, 62 111. 532(1872) ; Pollock v. 
 Maison, 41 111. 517 (1866) ; Harris v. 
 Mills, 28 111. 44 (1862) ; Schmucker 
 V. Sibert, 18 Kan. 104 (1877) ; s. c. 
 26 Am. Rep. 765 ; Low v. Allen, 41 
 Me. 248 (1856).
 
 § 64.] EEMOYAL OF STATUTOET BAE. 73 
 
 destroy the obligation;* the debt still remains unsatisfied 
 and unextinguished and is a sufficient consideration to sup- 
 port a new promise." 
 
 The same rule applies to a special statute, limiting the 
 time for instituting a suit, that applies to the general statute 
 of limitations. Thus where a claim is barred by a special 
 statute, limiting the time within which claims against the 
 estate of a deceased person may be presented or sued, such 
 claim is not paid or satisfied by a failure to present or sue it 
 within the time thus limited ; and in those instances where 
 the claim is secured by mortgage, the mortgage may be 
 foreclosed, notwithstanding the fact that an action on the 
 debt is barred at law.* 
 
 § 64. Removal of bar of the statute. — The bar of the 
 
 statute of limitations may be removed by an acknowledgment 
 of the debt.* The cases differ widely as to what con- 
 stitutes a sufficient acknowledgment for this purpose, 
 some of them holding that any acknowledgment, however 
 slight, without a new promise to pay, is sufficient to remove 
 the bar of the statute ;* but other cases require a specific 
 agreement to pay.* 
 
 ' Sichel V. Carrillo, 42 Call. 493 (1813) ; s. c. 6 Am. Dec. 428 ; Fries 
 
 (1871). V. Boisselet, 9 Serg. & R. (Pa.) 128 
 
 2 Sichel V. Carrillo, 42 Cal. 493 (1822) ; s. c. 11 Am. Dec. 683 ; 
 (1871). Glenn v. McCullough, 1 Harp. (S. C) 
 
 3 Sichel V. Carrillo, 43 Cal. 493 L. 484 (1824) ; s. "c. 18 Am. Dec. 
 (1871) ; Duty v. Graham, 12 Tex. 661 ; Lee v. Perry, 3 McC. (S. C.) 
 427 (1854) ; Graham v. Vining, 1 552 (1826) ; s. c. 15 Am. Dec. 650 ; 
 Tex. 639 (1847). Burden v. McElhenny, 2 Nott. & 
 
 * Danforth V. Culver, 11 Johns.(N. McC. (S. C.) 60 (1819) ; s. c. 10 Am, 
 
 T.) 146 (1814); s. c. 6 Am. Dec. Dec. 570; Olcott v. Scales, 3 Vt 
 
 361 ; Lord v. Shaler, 3 Conn. 132 173 (1831) ; e. c. 21 Am. Dec. 585. 
 
 (1819); 8. c. 8 Am. Dec. 160; "Lord v. Shaler, 3 Conn. 133 
 
 Mellick V. DeSeelhorst, 1 111. (Breese) (1819) ; s. c. 8 Am. Dec. 160 ; Glenn 
 
 171 (1827) ; s. c. 12 Am. Dec. 172 ; v. McCullough, 1 Harp. (S. C.) L. 
 
 Bell V. Rowland, Hard. (Ky.) 484 (1824) ; s. c. 18 Am. Dec. 661 ; 
 
 301 (1808) ; s. 0. 3 Am. Dec. 729 ; Burden v. McElhenny, 2 Nott. & 
 
 Seaward v. Lord, 1 Me. (1 Greenl.) McC. (S. C.) 60 (1819) ; s. c. 10 Am. 
 
 163 (1821) ; s. c. 10 Am. Dec. 50 ; Dec. 570. 
 
 Bangs V. Hall, 20 Mass. (2 Pick.) « Danforth v. Culver, 11 Johns. 
 
 379 (1824) ; s. c. 13 Am. Dec. 437 ; (N. Y.) 146 (1814) ; s. c. 6 Am. Dec. 
 
 Jones V. Moore, 5 Binn. (Pa.) 573 361 ; BeU v. Roland, Hard. (Ky.)
 
 u 
 
 REMOVAL OF STATUTOEY BAE. 
 
 [§64. 
 
 From a careful consideration of the cases it will be found 
 that it is clearly established both in this country and in 
 England, (i) that a debt barred by the statute of limitations 
 may be revived by a new promise; (2) that such new 
 promise may be either an express or an implied promise ; 
 (3) that the latter is created by a clear and unqualified 
 acknowledgment of the debt ; and (4) that if the acknowledg- 
 ment be accompanied by such qualifying expressions or cir- 
 cumstances as repel the idea of an intention or a contract to 
 pay, an implied promise will not be created.' Where the 
 acknowledgment of a debt is accompanied by a promise to pay 
 conditionally, it will be of no avail unless the condition upon 
 which the promise is made by the defendant is complied 
 with, or the event happens upon which the promise depends.' 
 But the acknowledgment or promise, to take the case out of 
 the statute of limitations, must be made by the debtor or 
 by some one in his behalf, and must be made to the creditor 
 or to some one acting for him and not to a mere stranger.* 
 
 801 (1808) ; 8. c. 3 Am. Dec. 729. 
 
 See Newhouse v. Redwood, 7 Ala. 
 599 (1839) ; McCormick v. Brown, 
 86 Cal. 180 (1868); Kimmel v. 
 Schwartz, 1 111. (Breese) 216 (1828) ; 
 Gray v. Lawridge, 2 Bibb (Ky.) 
 285 (1811); Hopkins v. Stout, 6 
 Bush (Ky.) 384 (1869); Smith v. 
 Dawson, 10 B. Men. (Ky.) 114 (1849); 
 Tischer v. Hess, 9 B. Mon. (Ky.) 
 617 (1849) ; French v. Frazier, 7 J. 
 J. Marsh. (Ky.) 431 (1832) ; Head v. 
 Manner, 5 J. J. Marsh. (Ky.) 259 
 (1831) ; Rochester v. Buford, 5 J. J. 
 Marsh. (Ky.) 32 (1830); Hord v. Lee, 
 4 T. B. Mon. (Ky.) 36 (1826); 
 Lansdale v. Brashear, 3 T. B. Mon. 
 (Ky.) 332 (1826) ; McLean v. Tliorp, 
 4 Mo. 259 (1836) ; Shaw v. Newell, 
 2 R. I. 269 (1852); Belote v. Wynne, 
 7 Yerg. (Tenn.) 541 (1835) ; Bell v. 
 Morrison, 26 U. S. (1 Pet.) 351, 363 
 (1828) ; bk. 7 L. ed. 179. 
 
 ' Blakeman v. Fonda, 41 Conn. 
 561 (1874); Wachter v. Albee, 80 
 
 lU. 47 (1875) ; Carroll v. Forsyth, 69 
 m. 127 (1873) ; Collins v. Bane, 34 
 Iowa, 385 (1872); Gray v. McDowell, 
 6 Bush (Ky.) 475 (1869) ; Citizens' 
 Bank v. Johnson, 31 La. An. 128 
 (1869) ; Parker v. Shuford, 76 N. C. 
 219 (1877) ; Miller v. Baschore, 83 
 Pa. St. 356 (1877); Senseman v. 
 Hershman, 82 Pa. St. 88 (1876). 
 
 * Sedgwick v. Gerding, 55 Ga. 264 
 (1875) ; Carroll v. Forsyth, 69 111. 
 127 (1873). See Norton v. Colby, 53 
 111. 198 (1869) ; Parsons v. Northern 
 niinois Coal & I. Co., 38 Bl. 433 
 (1865) ; Ayers v. Richards, 13 111. 
 148 (1850). 
 
 ' Wakeman v. Sherman, 9 N. Y. 85 
 (1853) ; Bloodgood v. Bruen, 8 K 
 Y. 362 (1853) ; Ringo v. Brooks, 26 
 Ark. 540 (1871) ; Farrell v. Palmer, 
 36 Cal. 187 (1868) ; Keener v. CruU, 
 19 Bl. 189 (1857) ; Collins v. Bane, 
 34 Iowa, 385 (1872) ; Roscoe v. Hale, 
 73 Mass. (7 Gray) 274 (1856) ; Taylor 
 V. Hendrie, 8 Nev. 243 (1873);
 
 § 64.] EIGHTS OF PUECHASEE. 75 
 
 Part payment of a debt is evidence of a promise to pay 
 the remainder, and will prevent the operation of the statute 
 of limitations as a bar ;' and it is a universally recognized 
 rule that a payment of the interest or of a part of the 
 principal will remove the bar of the statute of limitations 
 and renew a mortgage, so that an action may be brought to 
 enforce it within twenty years after such last payment.' 
 But it would seem that the payment of interest by a 
 mortgagor, after he has sold the property to another, will 
 not prevent or remove the bar of the statute of limitations 
 so far as a subsequent purchaser is concerned.* Where 
 there are several persons interested in the equity of redemp- 
 tion, however, a payment of interest by one of them will 
 remove the bar or prevent the running of the statute as to 
 all,* and a payment by a duly authorized agent of the mort- 
 gagor, or other person interested in the equity of redemp- 
 tion, will have the same effect ;* but a payment by a mere 
 stranger will not have such effect.* 
 
 Although the payment of interest by one party interested 
 in the equity of redemption will be valid and binding upon 
 all, yet where mortgaged lands are sold to different persons, 
 one of whom pays the entire interest on the mortgage for 
 
 Johns V. Lantz, 63 Pa. St. 324(1869); Huyck, 6 Barb. (N. T.) 588 (1849) ; 
 
 Kyle V. Wells, 17 Pa. St. 286 (1851); Bell v. Morrison, 26 U. S. (1 Pet) 
 
 8. c. 55 Am. Dec. 555 ; Christy v. 370 (1828) ; bk. 7 L. ed. 182 ; Rosa 
 
 Flemington, 10 Pa. St. 129 (1848) ; v. Jones, 89 U. S. (23 Wall.) 593; bk. 
 
 B. c. 49 Am. Dec. 590 ; F. & M. 23 L. ed. 730. 
 
 Bank v. Wilson, 10 Watts (Pa.) 261 * See Wenman v. Mohawk Ins. 
 
 (1840); Georgia Ins. & T. Co. v. Co., 13 Wend. (N. T.) 267 (1835) ; s. 
 
 Ellicott, Tanney C. C. 130 (1840) ; c. 28 Am. Dec. 464 ; and Kincaid v. 
 
 8 Pai-sons on Cont. (5th ed.) 85. See Archibald, 10 Hun (N. Y.) 9 (1877). 
 
 Sibert v. Wilder, 16 Kan. 176 » ^Qy, York Life Ins. & T. Co. v. 
 
 (1876); 8. c. 22 Am. Rep. 280; Covert, 29 Barb. (N. Y. ) 435 (1859) ; 
 
 Trammell v. Salmon, 2 Bail. (S. C.) Jarvis v. Albro, 67 Me. 310 (1877). 
 
 308 (1831); Robbins v. Farley, 2 * Pears v. Laiug, L. R. 13 Eq. 
 
 Strobh. (S. C.) 348 (1847). 51, 54 (1871) ; Roddam v. Motley, 1 
 
 » Newlin v. Duncan, 1 Harr. (Del.) DeG. & J. 1 (1857). 
 
 204 (1833) ; s. c. 25 Am. Dec. 66 ; " Ward v. Carttar, L. R. 1 Eq. 29 
 
 Hunt V. Bridgham, 20 Mass. (2 Pick.) (1865). 
 
 581 (1834) ; s. c. 13 Am. Dec. 458. « Chinnery v. Evans, 11 H. L. 
 
 See Reid v. McNaughton, 15 Barb. Cas. 115 (1864). 
 (X Y.) 179 (1853); Carshore v.
 
 76 EIGHTS OF PUECHASEE. [§ 65. 
 
 more than twenty years, without calling upon the others for 
 contribution, he can not, upon subsequently purchasing the 
 mortgage, enforce it against such non-contributing parties 
 or their grantees.* 
 
 § 65. Rights and liabilities of grantee of mortgagor, 
 
 — The grantees of a mortgagor have no greater rights 
 and succeed to no better title than the mortgagor himself 
 possessed at the time the conveyance was made ; therefore, 
 a purchaser with actual or constructive notice of the exist- 
 ence of a mortgage on the premises can avail himself of the 
 defence of the bar of the statute of limitations, only when 
 his grantor could have done so." A purchaser of mortgaged 
 premises, who assumes and agrees to pay the mortgage debt, 
 recognizes it as a subsisting incumbrance, and his grantee 
 will be bound by such admission^ and will not be entitled 
 to set up the statute of hmitations after the lapse of 
 twenty years, unless he has by act or word renounced the 
 mortgage, and thereafter held adversely to the mortgagee. 
 And the recital in a deed of an existing mortgage will con- 
 stitute an acknowledgment which will remove the bar of the 
 statute, and will have the same effect upon the purchaser 
 and his grantees as a direct assumption of the mortgage 
 debt.* Such purchaser will be bound by the acts and 
 declarations of his vendor in reference to the mortgage 
 while he retains the equity of redemption or any part of it. 
 
 Thus the purchasers of mortgaged premises are bound by 
 an acknowledgment of the mortgage as a valid and subsisting 
 incumbrance, made by their grantor within twenty years 
 before the commencement of the suit to foreclose such 
 mortgage, and can not for that reason rely upon the statute 
 of limitations as a bar.* A purchaser with notice from a 
 
 ' Pike V. Goodnow, 94 Mass. (12 " Palmer v. Butler, 36 Iowa, 576 
 
 Allen) 472 (1866). (1873). 
 
 » Medley v. Elliott, 62 111. 532 » Heyer v. Pruyn, 7 Paige Ch. (N. 
 
 (1872) ; Waterson v. Kirkwood. 17 Y.) 465 (1839) ; s. c. 84 Am. Dec. 
 
 Kan. 9 (1876). 355 ; Hughes v. Edwards. 22 U. S. 
 
 8 Harrington v. Slade, 22 Barb. (9 Wheat.) 489 (1824); bk. 6 L. ed. 
 
 CN. Y.) 161 (1856) : Schmucker v. 142. 
 Sibert, 18 Kuu. 1U4 (1ST7).
 
 § 66.'] PEESUMPTION OF IMOETGAGEE's POSSESSION". 77 
 
 mortgagor takes under the mortgage and subject to the 
 rights and interests of the mortgagee ; his rights and title are 
 no better than those of his grantor, and the statute of 
 limitations will not begin to run in his favor, until after some 
 hostile act or declaration which makes his possession adverse 
 to that of the mortgagee.* 
 
 While an acknowledgment of a mortgage by the mortgagor 
 is binding upon his grantees, where made before the statute 
 of limitations has run, yet an acknowledgment or a part 
 payment made by the mortgagor, after the note and mortgage 
 are once barred, will not revive them as against his grantees 
 or any other person who has acquired an interest in the 
 premises prior to such acknowledgment or part payment.' 
 And it is the settled doctrine in some states that the mort- 
 gagor has no power, by express stipulation or otherwise, or 
 by absenting himself from the state, to suspend the running 
 of the statute of limitations, or in any manner to prolong 
 the time for the payment of his mortgage against persons 
 who have subsequently acquired an interest in the equity of 
 redemption, either as purchasers or incumbrancers.* 
 
 § 66. Possession by mortgagee — Presumption of 
 foreclosure. — It is a well settled rule that the possession 
 of mortgaged premises for twenty years by the mortgagee, 
 without any payment of principal or interest by the mort- 
 gagor, and without an accounting or an acknowledgment of a 
 subsisting mortgage and without any dealing between the 
 mortgagee and mortgagor in relation to the land, is pre- 
 sumptive evidence that the mortgage has been foreclosed/ 
 
 ' Thayer v. Cramer, 1 McC. (S. C.) Cox, 37 Iowa, 570 (1873); Schmucker 
 
 Eq. 395 (1826) ; Mitchell v. Bogan, v. Sibert, 18 Kan. 104 (1877) ; Water- 
 
 11 Rich. (S. C.) 686, 706 (1857) ; son v. Kirkwood, 17 Kan. 9 (1876). 
 
 Wright V. Eaves, 5 Rich. (S. C.) Eq. . * Demarest v. Wynkoop, 3 Johna. 
 
 61 (1852). Ch. (N. Y.) 135 (1817) ; s. c. 8 Am. 
 
 » Schmucker v. Sibert, 18 Kan Dec. 467 ; Blethen v. Dwinal, 35 
 
 104 (1877). Me. 556 (1853) ; Dexter v. Arnold, 1 
 
 » Wood V. Goodfellow, 43 Cal. Sumn. C. C. 109 (1831) ; Ashton v. 
 
 185 (1872) ; Sichel v. Carrillo, 42 Milne, 6 Sim. 369 (1833) ; Cholmon- 
 
 Cal. 493 (1871) ; Barber v. Babel, 36 deley v. Clinton. 2 Jac. & W. 1, 180 
 
 Cal. 1 (1868) ; Lent v. Shear, 26 Cal. (1820). 
 861 (1864). See also Clinton Co. v.
 
 h 
 
 78 DEFICIENCY WHEN DEBT BARKED. [§§ 67-68. 
 
 and is a bar to an action for redemption unless the mortgagor 
 can bring himself within the provisions of the statute of 
 limitations.* The whole doctrine has been fully unfolded in a 
 very elaborate opinion in a leading English case,' in the course 
 of which the court remark: "The actual possession of the 
 mortgagee, continued for twenty years without any payment 
 of interest by the mortgagor, or anything done or said during 
 that period to recognize the existence of the mortgage or 
 to acknowledge it on the part of the mortgagee, would clearly 
 operate as a bar to redemption by the mortgagor." 
 
 § 67. Decree for deficiency when debt barred. — In an 
 
 action to foreclose a mortgage a court of equity may render 
 a decree in personam against the mortgagor for any part of 
 the debt remaining unsatisfied on the sale, notwithstanding 
 the fact that the remedy on the note has been barred by 
 the statute of limitations.* 
 
 § 68. Right of mortgagee to retain possession after 
 remedy barred. — After forfeiture the mortgagee or his 
 heirs, having obtained possession of the mortgaged premises, 
 are entitled to retain such possession until the mortgage 
 debt is satisfied.* The assignee of a mortgagee in possession 
 
 ' Demarest v. "Wynkoop, 3 Johns, Conn. 135 (1819) ; B. 0. 8 Am, Dec. 
 
 Ch. (N. Y.) 129, 136 (1817) ; 8. c. 8 164 ; Jesus College v. Bloom, 3 Atk. 
 
 Am. Dec. 467. See Anonymous, 3 263 (1745) ; Pearce v. Creswlck, 2 
 
 Atk. 313 (1746) ; Aggas v. PickereU, Hare, 293 (1843); 1 Foubl. Eq. I, Ch. 
 
 3 Atk. 225 (1745) ; Lytton V. Lytton, 1, §3, note f.; Cooper Eq. PL 
 
 4 Bro. Ch. 458 (1793) ; Reeks v. Introd. p. xxxi. 
 Postlethwaite, Coop. Eq. 161 (1815); * Chase v. Peck, 21 N. Y. 581 
 Barron v. Martin, Coop. Eq. 189 (1860) ; Siahler v. Singner, 44 Barb. 
 (1815) ; Jenner V. Tracy, 3 P. Wms. (N. Y. ) 606 (1865); Munroe v. 
 287 (1731), note ; Belch v. Harvey, Merchant, 26 Barb. (N. Y.) 883 
 8 P. Wms. 287 (1730) ; Bonney v. (1858) ; Casey v. Buttolph, 12 Barb. 
 Ridgard, 17 Ves. 99 (1809) ; s. c. 4 (N. Y.) 637 (1851) ; Jackson v. 
 Bro. Ch. 138; 1 Cox. Eq. 145 Delancy, 13 Johns. (N. Y.) 537 
 (1784); Hodlev.Healey.l Ves. «&B. (1816); s. c. 7 Am. Dec. 403; 
 536 (1813). Moore v. Cable, 1 Johns. Ch. (N. Y.) 
 
 « Cholmondeley v. Clinton, 2 Jac. 385 (1815) ; Watson v. Spence, 20 
 
 & W. 187 (1820). Wend. (N. Y.) 260 (1838) ; Phyfe v. 
 
 » Birnie v. Main, 29 Ark. 591 RUey, 15 Wend. (N. Y.) 248 (1836) ; 
 
 (1874). See 1 Story Eq. Jur. | 64 k. s. c. 30 Am. Dec. 55 ; VanDuynev. 
 
 citing Middletown B^nk v. Russ, 3 Thayre, 14 Wend. (N. Y.) 284
 
 §68.] 
 
 POSSESSION AFTEE REMEDY BAEKED. 
 
 Ty 
 
 will be protected by the mortgage to the same extent as the 
 mortgagee, although no foreclosure maybe shown ;* and this 
 is true although the assignment was obtained on an usurious 
 consideration.' The reason for this is because the mortgagee 
 is still, independent of statute,* to be considered the absolute 
 owner at law after default of payment.* 
 
 (1835) ; Bussey v. Page, 14 Me. 133 
 (1836); Pacev. Chadderdon,4Mmn. 
 499 (1860) ; Pettengill v. Evans, 5 N. 
 H. 54 (1829) ; Henry v. Confidence 
 Gold & Silver Mining Co., 1 Nev. 
 619 (1865) ; Den v. Wright, 7 N. J. 
 L. (2 Halst.) 175 (1824); 8. o. 11 Am. 
 Dec. 543 ; Harris v. Haynes, 34 Vt 
 220 (1861) ; Hennesy v. Farrell, 20 
 Wis. 43 (1865). 
 
 * Jackson v. Bowen, 7 Cow. (N. 
 T.) 13 (1827) ; Jackson v. Minkler, 
 10 Johns. (N. T.) 480 (1813). See 
 also Madison Ave. Baptist Church 
 V. Baptist Church in Oliver St, 73 
 N. Y. 83 (1878) ; Trimm v. Marsh, 
 64N.T. 599 (1874) ; a o. 13 Am. Rep. 
 623 ; Winslow v. McOaU, 33 Barb. 
 (N. Y.) 241 (1860); Bolton v. 
 Brewster, 82 Barb. (N. Y.) 889 (I860). 
 
 See also ' Watson ▼. Spence, 20 
 Wend. (N. Y.) 261, 264 (1838); Jack- 
 son V. DeLancey, 11 Johns. (N. Y.) 
 365 (1814) ; B. 0. 13 Johns. (N. Y.) 
 537 (1816) ; Randall v. Raab, 2 Abb. 
 (N. Y.) Pr. 807, 314 (1855) ; Casey 
 V. Buttolph, 12 Barb. (N. Y.) 637, 
 640 (1851). 
 
 » Jackson v. Bowen, 7 Cow. (N. 
 Y.) 13 (1837). 
 
 » See 3 N. Y. Rev. Stat (2d ed.) 
 336, §57. 
 
 * Edwards v. Farmers' Fire Ihb. 
 Co., 31 Wend. (N. Y.) 467, 484 
 (1839). See also Jackson v. Pierce, 
 10 Johns. (N. Y.) 414 (1813) ; Smith 
 y. Shuler, 12 Serg. & R. (Pa.) 340 
 (1834); Simpson's Lessee v. Am- 
 moDS, 1 Binn. (Pa.) 170 (180^
 
 CHAPTER V. 
 
 PARTIES PLAINTIFF, 
 
 69. Introductory. 
 
 70. Parties generally in equitable 
 
 foreclosures. 
 
 71. Application of general rules 
 
 by American courts. 
 73. Parties plaintiff generally. 
 
 73. Sole mortgagee, owning the 
 
 mortgage, may foreclose. 
 
 74. Assignor of mortgage can not 
 
 foreclose 
 
 75. Assignee, sole owner of mort- 
 
 gage, may foreclose. 
 
 76. Form of assignment to enable 
 
 assignee to foreclose. 
 
 77. When assignor and assignee 
 
 should or should not both be 
 parties. 
 
 78. Joint mortgagees ; any one or 
 
 more may foreclose. 
 
 79. Same rule — Joint mortgagees 
 
 in representative capacity. 
 
 80. Partners ; any one or more 
 
 may foreclose. 
 
 81. Joint mortgagees, one dying ; 
 
 doctrine of survivorship. 
 
 82. When personal representatives 
 
 of deceased joint mortgagee 
 necessary parties. 
 
 83. Mortgagees, owners in sever- 
 
 alty; any one or more may 
 foreclose. 
 
 84. Owner of one of several notes 
 
 secured by a mortgage may 
 foreclose. 
 
 85. All owners of notes necessary 
 
 parties — Payable in order of 
 maturity. 
 
 86. Notes payable pro rata in New 
 
 York and some other states. 
 
 87. Owner of mortgage, having 
 
 pledged the same as collateral 
 security, may foreclose. 
 
 88. Pledgee necessary party-Mort- 
 
 guge collaterally assigned. 
 
 j 89. Assignee of mortgage as col- 
 lateral security may foreclose. 
 
 90. Owner of an equitable interest 
 
 of any kind in the mortgage 
 may generally foreclose. 
 
 91. Special cases of equitable in- 
 
 terest—Annuitants, legatees, 
 executors. 
 
 92. Special cases of equitable 
 
 assignment — Purchaser on 
 defective foreclosure — Pay- 
 ment by mistake or fraud. 
 
 93. Equitable owner by subroga- 
 
 tion may foreclose. 
 
 94. A surety for the mortgage 
 
 debt may sometimes fore- 
 close — First, having guaran- 
 teed debt. 
 
 95. Surety may foreclose-Second, 
 
 grantee having assumed mort- 
 gage. 
 
 96. Surety may foreclose — Third, 
 
 junior interest redeeming 
 from senior interest. 
 
 97. Assignee of a mortgage with- 
 
 out the bond can not fore- 
 close. 
 
 98. Assignee of the note, bond or 
 
 debt may foreclose, though 
 the mortgage is not assigned. 
 
 99. Mortgagees owning contem- 
 
 poraneous mortgages, being 
 equal liens, any one or more 
 may foreclose. 
 
 100. Owner of two mortgages cao 
 
 not foreclose both at same 
 time in separate actions. 
 
 101. Assignee in bankruptcy or by 
 
 general assignment, or re- 
 ceiver of a corporation, may 
 foreclose. 
 
 102. Assignee pendente lite may 
 
 continue a foreclosure. 
 
 103. Owner of mortgage dying — 
 
 Personal representatives may 
 foreclose. 
 
 80
 
 §§ 69-70.] 
 
 PAKTEES GENERALLY. 
 
 81 
 
 § 104. Vendor under land contract 
 dying— Personal representa- 
 tives may foreclose. 
 
 105. Owner of mortgage dying — 
 
 Heirs, devisees and legatees 
 generally can not foreclose. 
 
 106. An executor or administrator 
 
 to whom a mortgage is 
 executed may foreclose. 
 
 107. The successor in office of an 
 
 executor or administrator 
 may foreclose. 
 
 108. Foreign executors and admin- 
 
 istrators — When they may 
 foreclose. 
 
 § 109. Methods of avoiding rule re- 
 quiring domestic administra- 
 tor for plaintiff. 
 
 110. Trustees may foreclose. 
 
 111. Beneficiaries--When not neces- 
 
 sary parties. 
 
 118. Beneficiarieig, cestuis que trust, 
 may sometimes foreclose. 
 
 113. Mortgages to persons in official 
 
 capacity ; they or their suc- 
 cessors may foreclose. 
 
 114. A married woman owning a 
 
 mortgage may foreclose. 
 
 § 69. Introductory. — In the conduct of an action in a 
 court, or of a proceeding under a statute, it has always been 
 of the first importance that the persons to be bound by 
 the result should be brought within the jurisdiction of the 
 authority pretended to be exercised. With some classes 
 of actions the practitioner has no difficulty in determining 
 who should be brought into- court ; but in the enforcement 
 of the rights which attach to a mortgage and the debt it 
 secures, difficult and complicated questions are often 
 presented as to who should be brought within the cognizance 
 of the court, that a complete remedy may be obtained by 
 the prosecutor, and that the rights of no claimant of an 
 interest in the subject matter or in the object of the pro- 
 ceeding, may be made to suffer an injury, or allowed to 
 pass unprotected — and this is necessarily so from the 
 peculiar character and history of mortgage securities, and 
 from the large place that the law of mortgages fills in the 
 general jurisprudence and practice of our states. Attention 
 will be given in the following chapters on parties to a 
 consideration of the questions, who may be and who should 
 be brought into an action or a proceeding to enforce a 
 mortgage, and what are the rights of parties with reference 
 to such enforcement. 
 
 § 70. Parties generally in equitable foreclosures. — 
 There are two leading principles which control courts of 
 equity the world over in determining the proper parties to 
 a suit: first, that the rights of no man shall be decided in a 
 court of justice unless he himself is present; second, that 
 
 (6)
 
 82 EULES rrr americatt couhts. [§ 71. 
 
 the a'ecree rendered shall provide for the rights of all persons 
 whose interests are in any way connected with the subject- 
 matter of the action. The combination of these two 
 principles has given rise to the general rule that all persons 
 having an interest in the object of the suit ought to be 
 made parties. As expressed by an eminent English jurist, 
 "all persons materially interested in the subject ought 
 generally to be parties to the suit — plaintiffs or defendants 
 — however numerous they may be, so that the court may be 
 enabled to do complete justice by deciding upon and 
 settling the rights of all persons interested, and that the 
 orders of the court may be safely executed by those who 
 are compelled to obey them, and future litigation may be 
 prevented."* It is only by the application of such broad > 
 principles that that complete justice which equity courts 
 ** delight to render,'" can be administered to the numerous 
 persons who, in nearly every case, have some interest in the 
 mortgage debt or in the mortgaged premises under fore- 
 closure. In their practical application, however, these 
 principles are subject to many limitations and modifications, 
 due mainly to local interpretation and to statutory enact- 
 ments. 
 
 § 71. Application of general rules by American courts. 
 — These general principles, established by such eminent 
 English judges as Lords Talbot,* Redesdale,* Hardwicke,* 
 Eldon,* Langsdale' and Sir William Grant,* have been 
 adopted by all our equity courts, state and federal; and 
 in many states the general principles of equity, respecting 
 parties to suits, have been incorporated into their codes. In 
 New York it is provided that " all persons having an 
 Interest in the subject of the action and in obtaining the 
 judgment demanded, may be joined as plaintiffs."* " Any 
 
 ' Lord Redesdale in Red. PI. 164. • Cockbum v. Thompson, 16 Ves 
 
 » Knight V. K., 3 P. Wms. 833 Jr. 321 (1809). 
 
 (1784). ' Richardson v. Hastings, 7 Beav. 
 
 » Knight V. K, 8 P. Wms. 333 323, 326 (1844). 
 
 (1784). • Palk V. Clinton, 12 Ves. Jr. 68 
 
 * Red. PI. 164. (1806). 
 
 • Poore V. Clarke, 2 Atk. 515 (1742). » N. Y. Code Civ. Proo. § 448.
 
 § 72.] PARTIES PLAINTIFF GENERALLY. 83 
 
 person may be made a defendant who has or claims an 
 interest in the controversy adverse to the plaintiff, or who 
 is a necessary party defendant, for a complete determination 
 or settlement of a question involved therein.'" But in the 
 details of practice, various and often antagonistic rules have 
 grown up in the different states respecting the proper and 
 necessary parties to foreclosures, as will be seen from an 
 examination of the cases cited under almost any of the 
 following sections. It is only in rare or complicated cases, 
 however, that the rules differ materially, especially where 
 questions of trust, assignment, representation and personal 
 liability are concerned ; in simple cases the rules are 
 substantially alike. When a mortgage and the parties to it 
 remain the same at the time of foreclosure as at the time of 
 delivery, it is a universal rule that the mortgagee and 
 the mortgagor are the only parties to be brought before the 
 court. 
 
 §72. Parties plaintiff generally. — Mortgages are now 
 universally recognized as securities upon, and not titles in, 
 real estate. The party holding the security has such an 
 interest in the title, however, that so long as his debt exists 
 the security binds the title to its ultimate payment. That the 
 title may be cleared of this lien by the process of foreclosure, 
 the equitable rule has been established that every party who 
 has any interest in the mortgage debt must be brought 
 before the court, that the rights and interests of all in the 
 security may be adjudged in relation to the mortgaged 
 premises. 
 
 All parties interested in the mortgage debt may come 
 before the court together; and in some states it is pro- 
 vided by statute that ''all persons having an interest in 
 the subject of the action and in obtaining the judgment 
 demanded may be joined as plaintiffs."' It is indispensable 
 that the plaintiff have a real interest in the action ; and the 
 New York Code has provided that every action must be prose- 
 cuted in the name of the real party in interest, except that 
 since the abolition of uses and trusts, a personal representative 
 
 ' N. T. Code Civ. Proc. §447. » N. Y. Code Civ. Proc. § 446.
 
 84: PERSOlNrS INTERESTED JIUST BE PARTIES. [§ 72. 
 
 and a trustee of an express trust may sue without join- 
 ing with him the person for whose benefit the action is 
 prosecuted.' 
 
 There are many cacses in which more than one person has 
 an interest in the mortgage, and in which all interested may 
 join as plaintiffs. Some, however, may refuse to join as co- 
 plaintiffs, and such parties may, as a general rule, be made 
 defendants to the action. It is not material who begins the 
 action, for it is sufficient in equity that all parties interested 
 in the subject of the suit be before the court, in the form of 
 plaintiffs or of defendants ; but no person can be a plaintiff 
 unless he has a real interest in the mortgage or in the debt 
 thereby secured. It is generally true that any person who 
 is so interested, even in a remote or conditional way, may, 
 as plaintiff, commence an action to foreclose, making defen- 
 dants all other parties interested in any way in the bond and 
 mortgage, upon their refusal to join as co-plaintiffs." 
 
 As no one but the mortgagee, or those claiming under 
 him, can have any cause for commencing a foreclosure, he or 
 his successor in interest generally becomes a party to the 
 action by voluntarily instituting it as plaintiff. Bonds and 
 mortgages have become such favorite securities and invest- 
 ments with capitalists and others, that the law determining 
 the rights of parties holding them has grown into unusual 
 importance in many states, so that complicated questions 
 have arisen in the courts as to who can maintain an action 
 for foreclosure. This chapter will be devoted to the 
 consideration of parties plaintiff, or those who may com- 
 mence the foreclosure of a mortgage. 
 
 ' N. Y. Code Civ. Proc. § 449. obtained, he may be made a defen- 
 
 ' This general equitable rule has dant, the reason therefor being 
 
 been embodied in the codes of some stated in the complaint. And where 
 
 states. See the N. Y. Code Civ. Proc. the question is one of a common or 
 
 ^ 448 : "Of the parties to the action, general interest of many persons ; 
 
 those who are united in interest must or where the persons, who might be 
 
 be joined as plaintiffs or defendants, made parties, are very numerous, 
 
 except as otherwise expressly pre- and it may be impracticable to bring 
 
 scribed in this act. But if the them all before the court, one or 
 
 consent of any one. who ought to be more may sue or defend for the 
 
 joined as a plaiulifi, can not be benefit of all."
 
 §§ 73-74] SOLE MORTGAGEE ASSIGNOE. 85 
 
 § 73. Sole mortgagee, owning the mortgage, may 
 foreclose. — It is almost axiomatic that a sole mortgagee, 
 who continues to own his mortgage, may be plaintiff in an 
 action to foreclose the same. He is a party to the contract, 
 and the only person who can be injured by a breach of it on 
 the part of the mortgagor, or those who succeed to the 
 mortgagor's interest ; he is the only person who can be 
 plaintiff, as no one else has any interest in the mortgage or 
 in the indebtedness thereby secured.' The same rule is true 
 in statutory foreclosures." 
 
 The fact that a mortgagee has been appointed adminis- 
 trator of his mortgagor's estate will not prevent his 
 foreclosing against the heirs of the mortgagor.* And where 
 a decree of foreclosure has been vacated for irregularity, the 
 mortgage is not cancelled, but will be restored, and the 
 mortgagee may foreclose again. A surety may foreclose an 
 indemnifying mortgage which he holds in his own name, 
 without joining his principal in the action.* And a person 
 holding a mortgage conditioned to pay an annuity in certain 
 quantities of produce, may foreclose upon a breach of the 
 condition, and have the premises sold for the amount of 
 damages that he may be able to prove.* 
 
 § 74. Assignor of mortgage can not foreclose. — If the 
 
 mortgagee has assigned his bond and mortgage absolutely 
 and unconditionally, he has, of course, no further interest in 
 it, and can not, even nominally, be plaintiff in an action to 
 foreclose.* A foreclosure by a mortgagee, who had parted 
 with all his interest in the bond and mortgage, has been held 
 
 ' Haskell v. BaUey, 23 Conn. 573 (1859) ; so can a surety of a note 
 
 (1853) ; Newall v. Wright, 3 Mass 
 138 (1807) ; Wendell v. New Hamp- 
 shire Bank, 9 N. H. 404, 417 (1838) 
 Sutton V. Stone. 2 Atk. 101 (1740) 
 « Hubbell V. Sibley, 5 Lans. (N, 
 
 after payment, Tilford v. James, 7 
 B. Mon. (Xy.) 337 (1847) ; McLean 
 V. Ragsdale, 31 Miss, 701 (1856); 
 also an indorser, Lewis v. Starke, 18 
 IVIiss. (10 Smed. & M.) 120 (1848). 
 
 Y.) 51 (1871). ' Peterson v. Oleson, 47 Wis. 122 
 
 ' Hunsucker v. Smith, 49 Ind. (1879), citing similar cases. See 
 
 114 (1874). Morrison v. Morrison, 4 Hun (N. 
 
 * An acceptor of a bill can fore- Y.) 410 (1875). 
 
 close after payment, Planters' Bank * Barraque v. Manuel, 7 Ark. (3 
 
 V. Douglass, 2 Head (Tenn.) 699 Eng.) 516 (1847).
 
 86 
 
 ASSIGNEE MAY FORECLOSE. 
 
 [§V5. 
 
 nugatory.* And in an action brought by a mortgagee " for 
 the use of his assignee," the complaint was dismissed for the 
 reasons that the assignee was not made a party and that 
 the plaintiff did not have a real interest in the action ;' but 
 where an assignment was defective, the action was allowed 
 to be maintained in the name of the mortgagee.* After 
 an assignment, the mortgagee is neither a proper nor a neces- 
 sary defendant to the action.* 
 
 § 75. Assignee, sole owner of mortgage, may foreclose. 
 
 — A person who acquires the absolute and unconditional 
 ownership of a bond and mortgage by assignment from 
 the mortgagee, or from a mesne assignee, may maintain 
 an action for the foreclosure of the same ;* he is, indeed, 
 the only possible plaintiff, as he has "contracted to 
 stand in the place of the original mortgagee and of all 
 
 > Gushing v. Ayer, 25 Me. 383 
 (1845) ; Call v. Leisner, 23 Me. 25 
 (1843). 
 
 * Burton v. Baxter, 7 Blackf. 
 (Ind.) 297 (1844). See Winkelman 
 V. Kiser, 27 111. 21 (1861) ; Prjor v. 
 "Wood, 31 Pa. St. 142 (1858). 
 
 * Partridge v. Partridge, 38 Pa. 
 Bt. 78 (1860), distinguishing Pryor 
 V. Wood, 31 Pa. St. 143 (1858). 
 
 * Andrews v. Gillespie, 47 N. Y. 
 487 (1872) ; Whitney v. McKinney, 
 7 Johns. Ch. (K Y.) 144 (1823). See 
 post %% 75, 178 and cases cited. 
 
 * Andrews v. Gillespie, 47 N. Y. 
 487 (1872); Christie v. Herrick, 1 
 Barb. Ch. (N. Y.) 254 (1845) ; Frank- 
 lyn V. Hayward, 61 How. (N. Y.) 
 Pr. 43 (1881) ; Whitney v. McKin- 
 ney, 7 Johns. Ch. (N. Y.) 144 
 (1823). See Meeker v. Claghorn, 44 
 N. Y. 349 (1871), and Allen v. 
 Brown, 44 N. Y. 228 (1870), for a 
 general discussion of the rights of 
 an assignee of a chose in action to 
 maintain a suit in his own name. 
 Brown v. Snell, 6 Fla. 741 (1856) ; 
 Strother v. Law, 54 111. 413 (1870) ; 
 
 Crooker v. Jewell, 81 Me. 306 (1850), 
 where the assignor was an adminis- 
 trator; Hills V. Eliot, 12 Mass. 26 
 (1815) ; Gould v. Newman, 6 Mass. 
 239 (1810); Fisher v. Meister, 24 
 Mich. 447 (1872) ; McGuffey v. Fin- 
 ley, 20 Ohio, 474 (1851), relying 
 upon Miller v. Bear, 3 Paige Ch. (N. 
 Y.) 466 (1833), and collating author- 
 ities. Kinna v. Smith, 3 N, J, Eq. 
 (2 H. W. Gr.) 14 (1834), where the 
 assignor was an executor ; Dolman 
 V. Cook, 14 N. J. Eq. (1 McCart.) 
 56 (1861) ; Horstman v. Gerker, 49 
 Pa. St. 282 (1865); Knox v. Galligan, 
 21 Wis. 470 (1867). In Douglass v. 
 Durin, 51 Me. 121 (1863), the 
 assignor was an heir, and as the as- 
 signment passed no title to the 
 assignee, the foreclosure was void. 
 In Casper v. Munger, 62 Ind. 481 
 (1878), the assignee of a mortgage, 
 given to indemnify the mortgagee 
 against certain contingencies, was 
 allowed to foreclose on the accruing 
 of the liability. Wood v. Williams, 
 4 Madd. 186 (1819) ; Fisher on Mort- 
 gages, § 355.
 
 § 76.] FOKM OP ASSIGimENT. 87 
 
 assignors.*' No other person can be interested in the 
 mortgage debt. But if the pretended assignee has no title 
 whatever to the mortgage, a foreclosure conducted by him, 
 will be absolutely void and will pass no title to the purchaser.* 
 It has been held that if the husband of a married woman 
 fails to unite with her in executing an assignment of 
 her separate bond and mortgage, the assignee will not 
 obtain a title upon which he can maintain a foreclosure.* 
 And the assignment to a wife of a mortgage executed 
 by her husband upon lands which he still owned at the 
 time of the assignment has been held to extinguish the 
 debt, so that no action would lie;* but in New York 
 and most states such an assignment would not now impair 
 the security. So where a husband became the assignee of a 
 mortgage executed by himself and wife upon her separate 
 real estate, he was allowed to foreclose it as a valid and 
 subsisting lien.* The assignee of a land contract may also 
 forclose by an equitable action ;* so may the assignee of a 
 ** title bond," which is much in the nature of an ordinary 
 land contract.* Mortgages containing a power of sale may 
 be enforced by an assignee, the same as by the original 
 mortgagee.* 
 
 § 76. Form of Assignment to enable assignee to 
 foreclose. — The form of the assignment should be in writing, 
 but that is not indispensable. A parol assignment will give 
 the assignee such an equitable interest in the mortgage that 
 he can maintain a foreclosure in his own name;* and 
 
 ' Gale V. Battin, 12 Minn. 287 ^ Mason v, Ainsworth, 58 111. 163 
 
 (1867) ; Bolles v. CarU, 12 Minn. 113 (1871) ; Heath v. HaU, 60 Dl. 344 
 
 (1866). (1871) ; seemingly contra, "Wilson 
 
 ' Stoops V. Blackford, 27 Pa. St. v. Spring, 64 111. 14 (1872) ; Demp- 
 
 213 (1856). ster v. West, 69 lU. 613 (1873). 
 
 » Clark V. Wentworth, 6 Me. (6 » Slaughter v. Foust, 4 Blackf. 
 
 Greenl.) 259 (1830). (Ind.) 379 (1837) ; Clearwater v. Rose, 
 
 * Faulks V. Dimock, 27 N. J. Eq. 1 Blackf. (Ind.) 137 (1821) ; Green 
 
 (12 C. E. Gr.) 65 (1876). v. Marble, 37 Iowa, 95 (1873) ; Pease 
 
 « Wright v.Troutman, 81 El. 374 v. Warren, 29 Mich. 9 (1874) ; Den- 
 
 (1876). See also Hutchinson v. ton v. Cole, 30 N. J. Eq. (3 Stew.) 
 
 Crane, 100 Dl. 269 (1881). 244 (1878) ; Andrews v. McDaniel, 
 
 « Semour v. Freeman, Smith (Ind.) 68 K C. 385 (1873). 
 
 25 (1848^9). •
 
 88 ASSIGNOE ATTD ASSIGNEE BOTH PARTIES. [§ 77. 
 
 mere delivery has been held sufficient.' But in such cases 
 the assignor has been held a necessary party,' and it would 
 certainly be unsafe to omit him. In Massachusetts and 
 Maine a parol assignee can not foreclose in his own name.* 
 A quit-claim deed from a mortgagee has been held to work 
 an equitable assignment of the mortgage to a grantee/ and 
 in Maine it seems to be a common form of assignment. 
 
 The assignee of one of several notes or bonds secured by 
 a mortgage, may foreclose the mortgage in his own name,* 
 for the reason that by the assignment of the note he 
 acquires an equitable interest in the mortgage, and pro tanto 
 becomes an assignee of the mortgage.' In some states the 
 courts hold that the assignee of a note acquires only a 
 fro rata' interest in the mortgage security, unless the 
 contract of assignment otherwise provides.* But all courts 
 are agreed that the assignee obtains such an interest in 
 the mortgage that he can maintain a foreclosure and sale 
 for the recovery of his part of the debt. 
 
 § 77. When assignor and assignee should or should 
 not both be parties. — It is not necessary for the assignee 
 
 •Galway v. FuUerton, 17 N. J. Ohio St. 419 (1863). See ;)<?«< §§84, 
 
 Eq. (2 C. E. Gr.) 390 (1866). See 85, 86, and notes. 
 
 post §§ 90, 93. 6 Grattan v. Wiggins. 23 Cal. 16 
 
 * Denby v. Mellgrew, 58 Ala. 147 (1863) ; Andrews v. Fiske, 101 Mass. 
 (1877). 422 (1869) ; Brown v. Delaney, 23 
 
 » Smith V. Kelly, 27 Me. 237 Minn. 349 (1876); Chappell v. Allen, 
 
 (1847); Prescott v. Ellingwood, 23 38 Mo. 213(1866); Anderson v. Baum- 
 
 Me. 345 (1843) ; Adams v. Parker, gartner, 27 Mo. 80 (1858) ; Page v. 
 
 78 Mass. (12 Gray) 53 (1858). Pierce, 26 N. H. (6 Post.) 317 (1853); 
 
 * Johnson v. Leonards, 68 Me. 237 Furbush v. Goodwin, 25 N. H. (5 
 (1878); Dixfield v. Newton, 41 Me. Fost.) 425 (1852). ^Qepost §§84, 85, 
 221 (185G); Dorkay v. Noble, 8 Me. (8 86. 
 
 Greenl.) 278 (1882) ; Carll v. Butman, ' Smith v. Day, 23 Vt. 662 (1850) ; 
 
 7Me. (7GreenI.)102(1830); Bullard Belding v. Manley, 31 Vt. 550 
 
 V. Hinckley. 5 Me. (5 Greenl.) 273 (1849) ; Keyes v. Wood, 21 Vt. 331 
 
 (1828) ; Stewart v. Thompson, 3 Vt. (1849) ; Wright v. Parker, 2 Aik. 
 
 255 (1831). (Vt.) 212 (1827). 
 
 ' Gower v. Howe, 20 Ind. 396 « Langdon v. Keith, 9 Vt. 299 
 
 ri86H) ; Hough V. Osborne, 7 Ind. (1837) ; Wright v. Parker, 2 Aik. 
 
 140 (18r.5) : Stanley v. Beatty, 4 lud. (Vt.) 212 (1827). Seei?c>s< g§ 84, 85, 
 
 134 (1853) ; Johnson v. Candage, 31 86. 
 Me. 2« (1849) ; Swartz v. Ltiist, 13
 
 § 77.] PAETLES ON ABSOLUTE ASSIGNMENT. 89 
 
 to join his assignor with him as a co-plaintiff, as the assignor 
 no longer has any interest in the bond and mortgage. This 
 is also true where it is the assignor's intention simply to 
 authorize the assignee to collect for his benefit the moneys 
 secured by the mortgage.* Neither is it necessary to make 
 the assignor, under either of such circumstances, a party 
 defendant to the action ;' but if an answer is pleaded, setting 
 up a defence growing out of the bond and niortgage while 
 in the hands of the assignor, the assignee, as plaintiff, may 
 give notice of the action to his assignor, and offer to him 
 the conduct of the defence; upon his giving such notice the 
 assignor will be bound by the judgment in the action, 
 whether he undertakes the defence or not." 
 
 After an absolute assignment, the suit can not ordinarily 
 be prosecuted by the assignee in the name of the mortgagee, 
 for, as has been stated, it is a cardinal principal of foreclosures 
 that they must be brought in the name of the real party in 
 interest.* An allegation in the pleading that the suit is for 
 the benefit of the assignee will not vary the rule ;* and 
 where an assignment authorized the assignee " to foreclose 
 or release the mortgage at pleasure," the mortgagee was 
 considered such a necessary party to a foreclosure that the 
 title offered at the sale would be defective without him.* 
 
 ' Christie v. Herrick, 1 Barb. Ch. was allowed to foreclose in the 
 
 (N. T.) 254 (1845). name of the mortgagee, and against 
 
 * Thayer v. Campbell, 9 Mo. 377 his will, on giving him an indemni- 
 (1845). See post § 178. fying undertaking against costs ami 
 
 * Andrews v. Gillespie, 47 N. T. damages. See ante %% 7.3. 74, aiirl 
 487 (1872). notes 
 
 * Graham v. Newman, 21 Ala. * Prior v. Wood, 31 Pa. St. 143 
 497 (1852) ; Irish v. Sharp, 89 111. (1858), distinguished in Partridge v. 
 261 (1878) ; Winkelman v. Kiser, 27 Partridge, 38 Pa. St. 78 (1860), where 
 111. 21 (1861) ; Pryor v. Wood, 31 the assignment was defective and the 
 Pa. St. 143 (1858). For cases holding assignor foreclosed for the benefit 
 that the suit may be maintained in of the assignee. See Clow v. Derby 
 the name of the mortgagee, see Coal Co., 98 Pa. St. 433 (1881') which 
 Holmesv. French, 70 Me. 341 (1879); seems contrary in practice to the 
 Hurd V. Coleman, 42 Me. 183 (1856); other Pennsylvania cases cited. See 
 also Gable v. Scarlett, 56 Md. 169 anU §S 73. 74. 
 
 (1881), indicating that the rule is * Wright v. Sperry, 31 Wis. 3R1 
 
 fixed by "statute. In Calhoun v. (1867). 
 Tullass, 35 Ga. 119 (1866), an assignee
 
 90 
 
 JOENT MORTGAGEES. 
 
 [§78. 
 
 Where foreclosure is conducted by the process of scire 
 facias, it can not be in the name of the assignee, but must 
 always be in the name of the original mortgagee.' 
 
 It may be remarked here that the assignee of a bond and 
 mortgage takes it subject to the equities between the 
 original parties, and to the equities which third persons 
 could enforce against the assignor." The assignee can 
 generally acquire no better title than his assignor possessed ;' 
 but the rule is limited where the mortgage is given to secure 
 a negotiable note.* For these reasons it is often prudent to 
 make the assignor a party defendant.* The assignee also 
 takes, and may enforce, all the collateral securities which his 
 assignor holds.* 
 
 § 78. Joint mortagees ; any one or more may fore- 
 close. — Where a bond and mortgage have been executed 
 or assigned to two or more persons jointly, or are held by 
 them in any way jointly, they may unite as co-plaintiffs in a 
 
 » Bourland v. Kipp, 55 111. 376 
 (1870) ; Camp v. Small, 44 111. 37 
 (1867) ; Olds v. Cummings, 31 111. 
 188 (1863). 
 
 * Greene v. Warnick, 64 N. T. 
 220 (1876), reversing 4 Hun (K Y.) 
 703 ; Trustees of Union College v. 
 Wheeler, 61 N. Y. 88, 99, 104 (1874), 
 (opinion per Theodore W. Dwight, 
 C, collating and reviewing the 
 authorities at length) ; affirming 5 
 Lans. (N. Y.) 160 ; s. c. 59 Barb. (N. 
 Y.) 585. Schafer v. Reilly, 50 N. Y. 
 61 (1872) ; Ingraham v. Disborough, 
 47 N. Y. 421 (1872). See Crane v. 
 Turner, 67 N. Y. 437 (1876), and 
 Davis V. Bechstein, 69 N. Y. 440, 442 
 (1877), per Church, Ch. J. 
 
 » Kamena v. Huelbig, 23 N. J. 
 Eq. (8 C. E. Gr.) 78 (1872) ; Rose v. 
 Kimball, If N. J. Eq. (1 C. E. Gr.) 
 185 (1863) ; Woodruff v. Depue, 14 
 N. J. Eq. (1 McCart.) 168 (1861). 
 This proposition was questioned as 
 to a boTiafide purchaser for a valuable 
 consideration by Comstock, J., in 
 
 McLallen v. Jones, 20 N. Y. 163 
 (1859). See Bush v. Lathrop, 22 N. 
 Y. 535, 537, 550 (1860), per Denio, 
 J., who examined and repudiated 
 the supposed distinction between 
 "latent" equities, so called, and 
 those existing between the original 
 parties to the instrument ; but this 
 case was overruled in Moore v. 
 Metropolitan Nat. Bank, 55 N. Y. 
 41, 49 (1873), opinion 'per Grover, J.; 
 Allen, J,, dissented. See also the 
 later cases cited above. Lee v. Kirk- 
 patrick, 14 N. J. Eq. (1 McCart.) 
 264 (1862). In Mott v. Clark, 9 Pa. 
 St. 399 (1848), it was held that 
 the assignee did not take subject to 
 the latent equities of third persons. 
 See Atwater v. Underbill, 22 N. J. 
 Eq. (7 C, E. Gr.) 599 (1872.) 
 
 * Carpenter v. Longan, 83 U. S. 
 (16 Wall.) 271 (1872) ; bk. 21 L. ed. 
 313. 
 
 ' See post % 178 et aeq. 
 
 * Philips v. Bank of 'Lewistown, 
 18 Pa. St. 394 (1852).
 
 § 79.] JOINT MOETGAQEES. 91 
 
 foreclosure ; or any one or more of them may maintain the 
 action without joining the others as co-plaintiffs.' A joint 
 foreclosure has been allowed where the mortgage was joint 
 in form, but given to secure different debts in severalty." It 
 is quite well settled that in such cases all the parties 
 interested in the mortgage must be brought before the court 
 as plaintiffs or defendants ;* so, in an action to redeem, all 
 the mortgagees are necessary parties.* Where a note and 
 mortgage had been executed by thirteen persons to three of 
 their number, the three were allowed to foreclose against 
 the other ten for ten-thirteenths of the debt.* But before 
 any person who is jointly interested with others in a 
 mortgage debt can be made a defendant, he must be 
 requested to unite as a co-plaintiff/ 
 
 § 79. Same rule — Joint mortgagees in representative 
 capacity. — The same rules hold true when the joint mort- 
 gagees hold the mortgage in a representative or official 
 capacity. A mortgagee, by his will, appointed his mortgagor 
 and another person his executors; the second executor was 
 entitled to foreclose against his co-executor, the mortgagor, 
 making him a defendant individually and as executor, upon 
 the principle that one co-executor may maintain an action 
 in equity against another co-executor to compel the payment 
 of a debt owing by him to the estate.* A mortgagee may 
 also foreclose, though he has with others been made an 
 assignee of the mortgagor for the benefit of creditors.* 
 
 * Paton V, Murray, 6 Paige Ch. closiire, it is not necessary to bring 
 
 (K. Y. ) 474 (1837); Sanford v. the others into the action. See on^ 
 
 Bulkley, 30 Conn. 344 (1862); Baker § 70. 
 
 V. Shephard, 80 Ga. 706 (1860) ; * Woodward v. "Wood, 19 Ala. 318 
 
 Hopkins V. Ward, 12 B. Men. (Ky.) (1851). 
 
 185 (1851) ; Gleises v. Maignan, 3 » McDowell v. Jacobs, 10 CaL 887 
 
 La. 530 (1832) ; Brown v. Bates, 55 (1858). 
 
 Me. 520 (1868). « See ante § 72 ; N. T. Code Clr. 
 
 « Shirkey v. Hanna, 3 Blackf . Proc. § 448. 
 
 (Ind.) 403 (1834). ■» McGregor v. McGregor, 35 N. 
 
 'Hopkins v. Ward, 12 B. Men. Y,218 (1866); Lawrence v. Lawrence, 
 
 (Ky.) 185 (1851) ; seemingly contra, 3 Barb. Ch. (N. T.) 71 (1848). 
 
 Piatt V. Squire, 53 Mass. (12 Mete.) * Paton v. Murray, 6 Paige Ch. 
 
 494, 501 (1847), holding that where (N. Y.) 474 (1837). 
 one joint mortgagee begins a fore-
 
 92 PARTNERS JOINT MORTGAGEES. [§§ 80-81. 
 
 And the fact that a person owns an undivided part of 
 certain premises, and at the same time holds a mortgage 
 on another undivided part, will not prevent his foreclosing.* 
 
 § 80. Partners ; any one or more may foreclose. — 
 
 Partners may unite in the foreclosure of a mortgage held by 
 them as a part of their joint capital, or any one of them 
 may bring the action as sole plaintiff. If any of the part- 
 ners refuse to join as co-plaintiffs, the courts generally 
 require them to be brought in as defendants ; but it must 
 appear in the pleadings, and be a fact, that the co-partners 
 have refused to become co-plaintiffs, before they can be 
 made defendants to the action.* Even where a mortgage 
 was executed to one member of a co-partnership to secure 
 a partnership debt, all the partners were deemed necessary 
 parties to an action for foreclosure." It would seem, how- 
 ever, that if a mortgage is held by one of the partners as a 
 trustee for the partnership, he can foreclose without in any 
 way bringing the other partners into the action.* In case 
 of the death of a partner pending foreclosure, a bill of 
 revivor against his personal representatives is unnecessary, 
 the survivors taking the entire legal title to the bond and 
 mortgage under the doctrine of survivorship in joint 
 tenancy.* 
 
 § 81. Joint mortgagees, one dying ; doctrine of sur- 
 vivorship. — It seems quite well established that the doctrine 
 of joint tenancy and survivorship, as applied to the tenure of 
 lands, is also applicable to the joint ownership of choses 
 in action, including mortgages. In People v. Keyser,* 
 Selden, J., says: "There was never any doubt that the 
 entire legal interest remained in the survivor. The only 
 
 > Baker v. Shephard, 30 Ga. 706 * Shelden v. Bennett, 44 Mich. 
 
 (1860) ; Gleises v. Maignan, 3 La. 634 (1880). 
 
 530 (1832). » Roberts v. Stigleman, 78 lU. 120 
 
 « N. Y. Code Civ. Proc. § 448 ; (1875). See post § 81. 
 
 Jewell V. West Orange, 36 N. J. Eq. « 28 N. Y. 226, 236 (1863), citing 
 
 (9 Stew.) 403 (1883). 1 Cbitty on Pleading, 19, 20; 2 
 
 3 DeGreiff v. Wilson, 30 N. J. Fonbl. Eq. 103, and notes ; Rolls v. 
 
 Eq. (3 Stew.) 435 (1879) ; Noyes v. Yate, Yelv. 177 (1611), note 1. 
 Sawyer, 3 Vt. 100^1831).
 
 § 81.] JOINT MORTGAGEES — SURVIVORSHIP. 93 
 
 doubt was, whether the survivor did not take the whole 
 interest, legal and equitable, according to the rule of sur- 
 vivorship applied to a joint tenancy in lands ; but it was 
 finally held, the case of Petty v. Styward,' being the leading 
 case, that, although the entire legal interest vested in the 
 survivor, he was to be regarded in equity as a trustee for 
 the personal representatives of deceased parties for their 
 equal shares." It is also well settled that upon the death 
 of a partner, the surviving partners take the legal title to 
 the property of the partnership for the purpose of settling 
 its affairs. 
 
 The courts have accordingly deduced the rule that upon the 
 death of one of a number of joint owners of a mortgage, 
 the surviving owners can foreclose it without bringing the 
 personal representatives or heirs of the deceased joint 
 mortgagee into the action.* It has been explicitly held, 
 that " a suit upon a mortgage to obtain a foreclosure, may 
 be brought and maintained by the surviving mortgagee."' 
 Where a mortgage had been executed to a husband and 
 wife, she was allowed to foreclose upon his death, without 
 bringing his personal representatives into the action.* 
 There can be no harm, however, in making the personal 
 representatives of a deceased joint mortgagee parties 
 defendant to the action, for, if a contest as to the ownership 
 of the mortgage should arise, they would then be conclu- 
 ded by the decree of foreclosure ;* furthermore, they have 
 
 » 1 Eq. Cas. Abr. 290. (1868). See also Kinsley ▼. Ab- 
 
 • Erwin v. Ferguson, 5 Ala. 158 bott, 19 Me. 430, 433, opinion par 
 
 (1843) ; Milroy v. Stockwell, 1 Ind. Shipley, J. In Penn v. Butler, 4 
 
 85 (1848) ; Lannay v. Wilson, 30 Md. U. S. (4 Dall.) 354 (1801) ; bk. 1 L. 
 
 636 (1860) ; Blake v. Sanbom, 74 ed. 864 ; the court say that the sur- 
 
 Mass. (8 Gray) 154 (1857) ; Martin v. viving obligee and mortgagee "was 
 
 McReynolds, 6 Mich. 70 (1858); entitled to the possession of the joint 
 
 McAllister v. Plant, 54 Miss. 106 securities, and that he might recover 
 
 (1876) ; Hansen v. Gregg, 7 Tex. 225 their amount." 
 
 (1851). See post §§ 103, 105. Contra, * Lannay v. Wilson, 30 Md. 536 
 
 Fisher on Mortgages, § 361 ; Vick- (1869); McMillan y. Mason, 5 Coldw. 
 
 crs V. CoweU, 1 Beav 529 (1839) ; (Tenn.) 263 (1868). 
 
 Mutual Life Lis. Co. v. Sturges, 32 * Freeman v, Scofield, 16 N. J. 
 
 N. J. Eq. (5 Stew.) 678, 683 (1880). Eq. (1 C. E. Gr.) 28 (1868). 
 » Williams v. HUton, 35 Me. 547
 
 94 MOETGAGEES IN SEVERALTY. [§§ 82-83. 
 
 an equitable interest in the proceeds of the foreclosure, a 
 portion of which must ultimately come into their hands for 
 distribution. 
 
 § 82. When personal representatives of deceased 
 joint mortgagee necessary parties. — In New Jersey the 
 personal representatives of a deceased joint mortgagee are 
 considered indispensable parties to a foreclosure by the 
 survivors;' they may be united as co-plaintiffs or made 
 defendants.' And where a personal representative com- 
 mences the action, the joint survivors are necessary parties. 
 Thus, where a mortgage had been executed to a husband 
 and wife, and after the husband's death foreclosure was 
 brought by the assignee of his administrator, the widow 
 was held erroneously omitted.* The rules of this section 
 apply also to the joint assignees of a mortgage ; and, indeed, 
 to joint owners generally, whatever may have been the 
 source of their title to the mortgage.* 
 
 §83. Mortgagees, owners in severalty; any one or 
 more may foreclose. — ^Any one or more of a number of 
 owners of a mortgage, each of whom holds a specific interest 
 therein in severalty, may bring an action to foreclose the 
 mortgage, making defendants such other owners as do not 
 consent to become co-plaintiffs ;* likewise all the owners may 
 unite as co-plaintiffs.* Where a mortgage is owned in 
 severalty, it is indispensable that all the interests be repre- 
 sented in an action to foreclose.* And even though debts 
 in severalty be secured by a joint mortgage, any creditor 
 may maintain a foreclosure, as in the case of a several 
 
 ' Mutual Life Ins. Co. v. Sturges, » Porter v. Clements, 3 Ark. 864, 
 
 82 N. J. Eq. (5 Stew.) 678, 683 (1880), 880 (1839), where the question of 
 
 explaining the reason for the rule, parity of interest in the action is 
 
 and following Freeman v. Scho- considered at length ; Brown v. 
 
 field, 16 N. J. Eq. (1 C. E. Gr.) 28 Bates, 55 Me. 520 (1868). 
 
 (1863). • Stevenson v. Mathers, 67 HI. 128 
 
 ' Freeman v. Scofield, 16 N. J. (1873), where the action was to for»- 
 
 Eq. (1 C. E. Gr.) 28 (1863). close a land contract. 
 
 8 Savings Bank v. Freese, 26 N. ' Nashville «& D. R. R Co. v. Orr, 
 
 J. Eq. (11 C. E. Gr.) 453 (1875). 85 U. S. (18 Wall.) 471 (1873) ; bk. 
 
 * Martin v. McReynolds, 6 Mich. 21 L. ed. 810. 
 70 (1858),
 
 § 84.J MORTGAGEES IN SEVERALTY. 95 
 
 mortgage, but the other creditors are absolutely necessary 
 parties as co-plaintiffs or defendants ;' a joint bill for fore- 
 closure is also allowable.* Upon the death of any of the 
 owners in severalty, his personal representatives must be 
 brought before the court.* The decree for foreclosure should 
 be for the payment to the several owners of the sums 
 respectively due to each.* Where mortgagees hold separate, 
 but contemporaneous and equal mortgages, they may unite 
 as co-plaintiffs, or any one may foreclose, making the others 
 defendants, as though there was but one mortgage in which 
 they held their interests in severalty.* 
 
 § 84. Owner of one of several notes secured by a 
 mortgage may foreclose. — In most of the Western and in 
 some of the Eastern states, notes with interest coupons, 
 instead of a bond, are given as the instrument of indebted- 
 ness. In order to facilitate their negotiability as investments, 
 a number of notes are often given instead of one. In these 
 states numerous decisions* have been rendered, fixing the 
 legal status of such notes, and the remedies and procedure 
 of owners for their collection. As the general result it may 
 be stated that an action at law may be maintained by 
 
 » See Tyler v. Treka Water Co., (1854) ; Goodall v. Mopley, 45 Ind. 
 
 14 Cal. 212 (1859) ; ^toa Life Ins. 355 (1873) ; Merritt v. WeUs, 18 Ind. 
 
 Co. V. Finch, 84 Ind. 301 (1882) ; 171 (1862) ; Stanley v. Beatty, 4 Ind. 
 
 Moffltt V. Roche, 76 Ind. 75 (1881); 134 (1858) ; Barrett v. Blackmar, 47 
 
 Howe V. Dibble, 45 Ind. 120 (1873). Iowa, 569 (1877) ; Lyster v. Brewer, 
 
 See anfe§ 78. 13 Iowa, 461 (1862); Sangster v. 
 
 • Shrrkey v. Hanna, 3 Blackf. Love, 11 Iowa, 580 (1861) ; Rankin 
 Ind. 403 (1834). v. Major, 9 Iowa, 297 (1859) ; Swen- 
 
 « Burnett V. Pratt, 39 Mass. (23 son v. Moline Plow Co., 14 Kan. 387 
 
 Pick.) 556 (1839) ; Vickers v. Co- (1875) ; Jenkins v. Smith, 4 Met. 
 
 well, 1 Beav. 529 (1889) ; Fisher, (Ky.) 380 (1868) ; Bell v. Shrock, 3 
 
 on Mortgages, §§ 349, 361, B. Mon. (Ky.) 29 (1841) ; Jordon v. 
 
 • Higgs V. Hanson, 13 Nev. 356 Cheney, 74 Me. 359 (1883) ; Moore 
 (1878). . V. Ware, 38 Me. 496 (1854) ; Johnson 
 
 » Cochran v. Goodell, 131 Mass. v. Candage, 31 Me. 28 (1849) ; 
 
 464 (1881). See post §§ 99, 184. Haynes v. Wellington, 25 Me. 458 
 
 • HartweU v. Blocker, 6 Ala. 581 (1845) ; Johnson v. Brown, 31 N. H. 
 (1844) ; Wilson v. Hay ward, 2 Fla. 405 (1855) ; Wiley v. Pinson, 23 Tex. 
 27 (184'8); Myers V. Wright, 33111. 486 (1859); Pettibone v. Edwarda, 
 284 (1864) ; Pogue v. Clark, 25 111. 15 Wis. 95 (1862). 
 
 851 (1861) ; Ross v. Utter, 15 111. 403
 
 96 SEVEEAL NOTES SECURED BY MORTGAGE. [§ 85. 
 
 the holder of any note as upon an ordinary promissory note. 
 Or, the holder of any one of a number of the notes 
 may proceed in the first instance by a suit in equity, as in an 
 ordinary foreclosure ; but he must bring all the other 
 mortgagees and holders of notes secured by the mortgage 
 into court, before a decree can be made.' It is peculiar that 
 two holders of notes can not join as plaintiffs ; each one 
 holds an interest in the mortgage pro tanto for his own note. 
 But where one person holds two or more notes, he may 
 foreclose them in the same action ;' in New Hampshire 
 on the other hand, foreclosure by a writ of entry can not be 
 maintained unless all the holders of notes unite as plaintiffs,' 
 and then, it would seem, only after all the notes have 
 become due.* 
 
 § 85. All owners of notes necessary parties— Payable 
 in order of maturity. — All holders of notes must be brought 
 into the action,* so that the amounts and priorities of their 
 several claims may be determined, for it is another peculiar- 
 ity of these notes in some states, that they are entitled to 
 payment in the order in which they fall due, and their 
 respective priorities as liens on the mortgaged premises 
 follow the same order. This rule obtains in Alabama,* 
 Florida,' Illinois,' Indiana,' Iowa," Kansas," Missouri," 
 
 • King V. Merchants' Exchange that they might come in on their own 
 Co., 5 N. Y. 547, 556 (1851) ; Pugh motion. But see the later cases of 
 V. Hclt, 27 Miss. 461 (1854) ; Archer Mitchell v. Ladew, 36 Mo. 526 
 V. Jones, 26 Miss. 583 (1853). See (1865), approved and followed in 
 also the cases cited in the first note Hurck v. Erskine, 45 Mo. 484 (1870) ; 
 to the section. Thompson v. Field, 38 Mo. 320 
 
 • Myers v. Wright, 33 HI. 284 (1866) ; Mason v. Barnard, 36 Mo. 
 (1864). See anU § 83. 384 (1865). 
 
 « Noyes v. Barnet, 57 N. H. 605 * Bank of Mobile v. Planters' and 
 
 (1876). Merchants' Bank, 9 Ala. 645 (1846); 
 
 • Hunt V. Stiles, 10 N. H. 466 McVay v. Bloodgood, 9 Port. (Ala.) 
 (1839). 547 (1839), explained in Cullum v. 
 
 • Myers v. Wright, 33 111. 284 Erwin, 4 Ala. 452 (1842). 
 
 (1864). See §§ 84 and 86, and cases ' Cotton v. Blocker, 6 Fla. 1 (1855). 
 
 cited. In Thayer v. Campbell, 9 Mo. ' Humphreys v. Morton, 100 lU. 
 
 277 (1845), It was held that the 692 (1881) ; Koester v. Burke, 81 111. 
 
 holders of other notes were not 436 (1876); Herrington v. McCollum, 
 
 necessary parties to the action, but 73 HI. 476 (1874); Flower v. Elwood«
 
 § 8 5. J NOTES PAYABLE IN ORDEE OF MA TURITY . 
 
 97 
 
 New Hampshire,' Ohio,' Virginia, West Virginia and 
 Wisconsin.* The principle upon which it proceeds is 
 potior in tempore, potior in jure. Justice Walker in Preston 
 V. Hodgen,* concisely stated the rule adopted in these 
 states : " The assignment of each note operates as an 
 assignment pro tanto of the mortgage, and by each assign- 
 ment it, in effect, becomes so many separate mortgages to 
 secure the several notes in the order of their maturity." But 
 where all the notes mature at the same time, they are equal 
 liens;* and if, by the terms of the notes and mortgage, 
 default in the payment of the first note or of the interest, 
 when due, renders all the notes due and payable, they 
 become equal liens upon default, and are payable pro rata 
 instead of pro tanto from the proceeds of a sale/ 
 
 66 ni. 438 (1872); Preston v. Hodgen, 
 50 111. 56 (1869); Funk v.McReynolds, 
 83 HI. 481 (1864). 
 
 •Gerber v. Sharp, 72 Ind. 653 
 (1880); Doss v. Ditmars, 70 Ind. 451 
 (1880) ; Evansville People's Sav. 
 Bank v. Finney, 63 Ind. 460 (1878) ; 
 Sample v. Rowe, 24 Ind. 208 (186^; 
 Murdock v. Ford, 17 Ind. 52 (1861); 
 Hough V. Osborne, 7 Ind. 140 (1855), 
 followed in Harris v. Harlan, 14 Ind. 
 439 (1860); Stanley v. Eeatty, 4 Ind. 
 134 (1853) ; State Bank v. Tweedy, 
 8 Blackf . (Ind.) 447 (1847). 
 
 '" Walker v. Schreiber, 47 Iowa, 
 529 (1877), and the cases cited in the 
 preceeding section. 
 
 " Richardson v. McEim, 20 Ean. 
 346(1878). 
 
 » Hurck V. Erskine, 45 Mo. 484 
 (1870) ; Thompson v. Field, 88 Mo. 
 320 (1866); MitcheU v. Ladew, 86 
 Mo. 526 (1865); Mason v. Barnard, 
 86 Mo. 384 (1865). 
 
 1 Noyes v. Bamet, 57 N. H. 605 
 (1876) ; Johnson v. Brown, 31 N. H. 
 405 (1855) ; Hunt v. Stiles, 10 N. H. 
 466 (1839). 
 
 « Winters v. Bank, 83 Ohio St. 
 250 (1877); Bushfleld v. Meyer, 
 10 Ohio St 834 (1859) ; Bank of 
 
 United States v. Coveit, 18 Ohio, 
 240 (1844). 
 
 •Pierce v. Shaw, 51 Wis, 816 
 (1881); Marine Bank v. International 
 Bank, 9 Wis. 57 (1859) ; Wood v. 
 Trask, 7 Wis. 666 (1859). 
 
 * 50 m. 56. 59 (1869) ; Gerber v. 
 Sharp, 72 Ind. 553 (1880), and cases 
 cited ; Murdock v. Ford, 17 Ind. 52 
 (1861). See also Smith v. Stevens, 
 49 Conn. 181 (1881). In Sargent v. 
 Howe, 21 lU. 148 (1859), A. executed 
 three notes to B. and conveyed 
 property in trust to 0. to secure 
 their payment ; B. assigned two of 
 the notes to D. It was held that 
 the assignment carried the security 
 with it as an incident to the debt, 
 and that D., by an equity action, 
 coiild compel the trustee to sell 
 enough of the property to pay his 
 notes. The assignment in such cases 
 is 1^0 tomto, not pro rata ; the notes 
 must be paid in the order in which 
 they mature, as they have priority 
 as Uens in that order. See Yansant 
 V. Allmon, 23 111. 80, 84 (1859). 
 
 » Humphreys v. Morton, 100 HL 
 592 (1881). 
 
 • Grattan v. Wiggins, 28 Cal. 16 
 (1863) ; Phelan v. Olney, 6 Cal. 478 
 
 (7)
 
 98 
 
 NOTES PAYABLE PKO RATA. 
 
 [§86. 
 
 § 86. Notes payable pro rata in New York and some 
 
 other states. — But in New York,' New Jersey,' Pennsyl- 
 vania," Minnesota," Michigan,* Mississippi," Kentucky,' and 
 Vermont' the rule has been adopted that bonds and notes, 
 maturing at different times and secured by a single mortgage, 
 are equal and concurrent liens and entitled to the security /r<? 
 rata. In a recent case in New York,* where mortgages were 
 simultaneously executed and recorded, but matured at 
 different times, Judge Finch, of the Court of Appeals, 
 decided that the one falling due first had no priority of 
 lien ; and, after collating and reviewing the cases in the 
 Western States, disapproved the proposition established 
 in so many of them, that different obligations maturing 
 at different times have priority of security according to the 
 order of their maturity. Whichever rule is adopted, all 
 
 (1856) ; Winters v. Bank, 33 Ohio 
 St. 250 (1877) ; Bushfield v. Mayer, 
 10 Ohio St. 334 (1859), supported 
 in p')int by Bank of United States 
 V. Covert. 13 Ohio, 240 (1844); 
 Pierce v. Shaw, 51 Wis. 316 (1881). 
 Contra, holding that the notes must 
 be paid in the order of their maturity, 
 Hurck V. Erskine,45 Mo. 484 (1870) ; 
 Mason V. Barnard, 36 Mo. 384 (1865). 
 
 » Granger v. Crouch, 86 N. Y. 
 494. 499 (1881) ; Bridenbecker v. 
 Lowell, 32 Barb. (N. Y.) 9 (1860). 
 
 > CoUerd v. Huson, 34 N. J. Eq. 
 (7 Stew.) 38 (1881). See the note to 
 the case, giving a full collation of 
 authorities. 
 
 3 Perry's Appeal, 22 Pa. St. 43 
 (1853), where four bonds and mort- 
 gages, simultaneous in execution and 
 record, but due in successive years, 
 were held to be equal liens and to 
 Bhare pro rata ; cases collated. The 
 rule was also applied where all the 
 bonds matured at the same time. 
 Hodge's Appeal, 84 Pa. St. 359 
 (1877). 
 
 * Wilson V. Eigenbrodt, 30 Minn. 
 4 (1882). See the able and ingenious 
 
 opinion of Mitchell, J., holding this 
 to be the rule for Minnesota unless a 
 contract to a different effect is ex- 
 pressed in the mortgage. 
 
 » Wilcox V. Allen, 36 Mich. 160 
 (1877) ; McCurdy v. Clark, 27 Mich. 
 445 (1873). 
 
 • Trustees Jefferson College v. 
 Prentiss, 29 Miss. 46 (1855) ; Bank 
 of England v. Tarleton, 23 Miss. 173 
 (1851) ; Henderson v. Herrod, 18 
 Miss. (10 Smed. & M.) 631 (1846) ; 
 Dick V. Mawry, 17 Miss. (9 Smed. 
 & M.) 448 (1848) ; Terry v. Woods, 
 14 Miss. (6 Smed. & M.) 139 (1846) ; 
 Cage V. Her, 13 Miss. (5 Smed. & 
 M.) 410 (1845) ; Parker v. Mercer, 7 
 Miss. (6 How.) 320 (1842). 
 
 ' Campbell v. Johnston, 4 Dana 
 (Ky.) 182 (1836). 
 
 8 Belding v. Manly, 21 Vt. 550 
 (1849) ; Keyes v. Wood, 21 Vt. 831 
 (1849); Wright v. Parker, 2 Aik. 
 (Vt.) 212 (1827). 
 
 9 Granger v. Crouch, 86 N. Y. 
 494, 499 (1881) ; in point and similar, 
 Collerd v. Huson, 34 N. J. Eq. (7 
 Stew.) 38 (1881). See^os^ §99.
 
 §§ 87-88.] MORTGAGE ASSIG^OH) COLLATEEALLT. 99 
 
 holders of notes and bonds are indispensable parties to 
 a foreclosure of the mortgage, in order to produce a perfect 
 title at the sale. It may be observed here that questions 
 affecting the rights of holders of bonds given with railroad 
 mortgages are not within the scope of this work, and 
 the reader is referred to text-books treating specially of 
 railway securities and kindred subjects.* 
 
 § 87. Owner of mortgage, having pledged the same 
 as collateral security, may foreclose. — Where the owner 
 of a mortgage has pledged it as collateral security for a debt of 
 less amount than the mortgage, he still has such an interest 
 in it as entitles him to bring an action for the foreclosure of 
 the mortgage. Vice-chancellor McCoun held, in Norton v. 
 Warner,^ that " the complainant had not divested him.self of 
 all interest in or control over the mortgage. The assign- 
 ment is but a partial one, made to secure to the pledgee 
 the payment of a loan, being less than the amount due on the 
 mortgage. In equity, he is still the owner, subject only 
 to the lien or pledge for the loan. The pledgee might have 
 filed a bill of foreclosure against the original mortgagor and 
 all parties in interest, and in that case the pledgee would 
 have been deemed a trustee for the mortgagee, for the 
 whole mortgage debt after satisfying his claim ; and upon 
 the pledgee's refusal to proceed — and which the bill alleges 
 — I see no good reason why the complainant might not 
 proceed, as he has done, to foreclose." 
 
 § 88. Pledgee necessary party — Mortgage collater- 
 ally assigned. — But in such an action the pledgee is a 
 necessary party,^ and may be made a co-plaintiff,* or a 
 defendant ; neither the mortgagor, nor any person other than 
 
 J Jones on Railway Securities. 40 Vt. 672 (1868); Brunette v. Schett- 
 
 2 3 Edw. Ch. (N. Y.) 106 (1837) ; ler, 21 Wis. 188 (1866). See post 
 
 Simson v. Satterlee, 64 N. T. 657 §§89, 181, 182. 
 
 (1876), affirming 6 Hun (N. Y.) 305. 'Plowman v. Riddle, 14 Ala. 
 
 In point Sinking Fund Com'rs v. 169(1848). See post %% 181, 182. 
 
 Northern Bank, 1 Mete. (Ky.) 174 * Hoyt v, Martense, 16 N. Y. 231 
 
 (,1858) ; McKinney v. Miller, 19 Mich. (1857). 
 
 142 (1869) ; George v. Woodward,
 
 lUO ASSIGNEE OB PLEDGEE DEFENDANT. [§ 88. 
 
 the assignee himself, can object that he is made a defendant.* 
 And if the assignee, or pledgee, refuses to become a co- 
 plaintiff upon the request of the mortgagee, he can not 
 himself object that he is made a defendant to the action ;* it 
 should be alleged in the complaint, however, that he has 
 refused to join as a co-plaintiff. If an objection is made at 
 all, it must be by demurrer or answer, or the alleged defect 
 will be considered waived at the trial.' The rule of this 
 section is in accordance with the general principle that all 
 parties interested in the mortgage debt must be before the 
 court, or the decree of foreclosure will not extinguish their 
 interests. Equity courts are not particular as to how parties 
 come before them, so long as all persons interested in the 
 subject-matter of the action are brought within their juris- 
 diction, so that a complete determination can be made of 
 the rights of all the parties interested. It is indispensable 
 that the pledgee, and all others interested in the mortgage 
 as a collateral security, be made parties to the action.* The 
 decree should provide first for the payment to the pledgee of 
 the amount due him, and then for the payment to the 
 mortgagee of the balance.* 
 
 It is also proper for the mortgagee and the pledgee to 
 join as co-plaintiffs in the action to foreclose, as they are 
 together the owners of the entire bond and mortgage. 
 Neither the mortgagor nor other parties to the action can 
 object to such joinder of plaintiffs, as all parties interested 
 in the mortgage debt are thereby brought before the court, so 
 that its decree will become binding and conclusive upon them.* 
 
 ' Simson v. Satterlee, 64 N. Y. * Kittle v. VanDyck, 1 Sandf. Ch. 
 
 657 (1876), affirming 6 Hun (N. Y.) (N. Y.) 76 (1843) ; Woodruff v. 
 
 805(1875). Depue, 14 N. J. Eq. (1 McCart.) 
 
 « Norton v. Warner, 3 Edw. Ch. 168, 176 (1861) ; Miller v. Hender- 
 
 (N. Y.) 106 (1837) ; N. Y. Code Civ. son,10 N. J. Eq.(2 Stockt.) 320(1855). 
 
 Proc. § 448. See ante § 72. See post §§ 181, 182. 
 
 » Carpenter v. O'Dougherty, 67 » Overall v. Ellis, 82 Mo. 822 
 
 Barb. (N. Y.) 397 (1873) ; e. c. 2 T. (1862) ; Brunette v. Schettier, 21 
 
 & C. (N. Y.) 427 ; aff'd 58 N. Y. 681 Wis. 188 (1866). 
 
 (1874). See O'Dougherty v. Rem- * Hoyt v. Martense, 16 N. T. 231 
 
 ington Paper Co., 81 N. Y. 496 (1857). 
 (1880) ; Remington Paper Company 
 V. O'Dougherty, 81 N. Y. 474(1880).
 
 89.] 
 
 ASSIGNEE MAY FORECLOSE. 
 
 101 
 
 § 89. Assignee of mortgage as collateral security may 
 foreclose. — In the foregoing section it has been seen that 
 though a mortgagee has pledged his mortgage as a collateral 
 security, he may nevertheless maintain an action to foreclose 
 it ; also, that the mortgagee and the pledgee may unite as 
 co-plaintiffs in foreclosing. It has now become well settled, 
 as a further principle, that the pledgee, who holds the mort- 
 gage as a collateral security, may also maintain an action for 
 its foreclosure.' The pledgee, however, can recover judg- 
 ment only for the amount of his claim, the payment of 
 which the decree should direct.* The amount secured and the 
 
 « Bard v. Poole, 12 N. T. 495, 507 
 (1855), per Denio J., stating the rea- 
 sons for the rule ; Bloomer v. Stur- 
 ges, 58 N. T. 168 (1874) ; Carpenter 
 V. O'Dougherty, 67 Barb. (N. Y.) 
 397 (1873) ; 8. 0. 2 T. & C. (N. Y.) 
 427, affirmed in 58 N. Y. 681 (1874); 
 Dalton V. Smith, 86 N. Y. 176 
 (1881) ; Bush v. Lathrop, 22 N. Y. 
 535 (1860) ; Whitney v. M'Kinney, 
 
 7 Johns. Ch. (N. Y.) 144 (1823) ; 
 Lehman v. McQueen, 65 Ala. 
 570 (1880); Hunter v.. Levan, 11 
 Cal. 11 (1858); Beers v. Hawley, 
 
 8 Conn. 110 (1819) ; Wilson v. Fat- 
 out, 42 Ind. 52 (1873) ; St. John v. 
 Freeman, 1 Ind. 84 (1848). See 
 Compton V. Jones, 65 Ind. 117 
 
 ■ (1878), where the debt, for which 
 the bond and mortgage had been 
 assigned as collateral security, had 
 been paid by the assignor, entitling 
 him to a reassignment of the securi- 
 ties, and the assignee unsuccessfully 
 attempted a foreclosure ; Rice v. Dil- 
 lingham, 73 Me. 59 (1881) ; Cutts v. 
 York Manuf. Co., 14 Me. 326 (1837) ; 
 8. c. 18 Me. 190 (1841), per Weston, 
 Ch. J., where the assignor was made 
 a defendant ; Brown v. Tyler, 74 
 Mass. (8 Gray) 135 (1857) ; Graydon 
 V. Church, 7 Mich. 36, 50, 68 (1859), 
 per Christiaucy, J., collating and 
 
 reviewing the authorities, especially 
 in New York ; Selectmen of Natchez 
 V. Minor, 17 Miss. (9 Smed. & M.) 
 544 (1848); Paige v. Chapman, 58 
 N. H. 333 (1878) ; Chew v. Bruma- 
 gim. 21 N. J. Eq.(6 C. E. Gr.)520, 529 
 (1870), per VanSyckel, J., a leading 
 case, collating and reviewing the 
 New York cases ; reported below in 
 19 N. J. Eq. 130 (1868), and affirmed 
 in Chew v. Bnmaagen, 80 U. S. (13 
 Wall.) 497 (1871) ; bk. 20 L. ed. 663. 
 where the proposition of this section 
 was considered at length ; Wilson v. 
 Giddmgs, 28 Ohio St. 554 (1876). 
 
 ' Carpenter v. O'Dougherty, 67 
 Barb. (N. Y.) 397 (1873). See the 
 preceding note. Salmon v. Allen, 
 11 Hun (N. Y.) 29 (1877). a compli- 
 cated case; McCrum v. Corby, 11 
 Kan. 464 (1873). In Underbill v. 
 Atwater, 22 N. J. Eq. (7 C. E. Gr.) 
 16 (1871), the assignee became the 
 owner of the entire mortgage pend- 
 ing the foreclosure of his original 
 claim, and a supplemental bill was 
 held necessary to cover his new in- 
 terest in the mortgage. See Acker- 
 son v. Lodi Branch R. R., 28 N. J. 
 Eq. (1 Stew.) 542 (1877) ; Van Deven- 
 ter V. Stiger, 25 N. J. Eq. (10 C. E. 
 Gr.) 224 (1874), holding that the 
 decree must be for the amount of the
 
 102 FOEECLOSI RE BY OWNER OF INTEREST. [§ 90. 
 
 interests of all the parties in the mortgage, together with 
 the fact that the assignment is only collateral or conditional, 
 must be specifically stated in the complaint; and it is 
 indispensable that the mortgagee, or owner of the equity of 
 redemption in the mortgage, be made a party to the action 
 in order that his interests also may be foreclosed.' It should 
 also appear in the complaint that the mortgagee has refused 
 to become a co-plaintiff with the pledgee; otherwise the 
 complaint will be demurrable. It is believed that a person 
 who holds an assignment of a mortgage to indemnify and 
 protect him against liabilities or obligations of any kind may 
 foreclose as soon as he is damnified. 
 
 § 90. Owner of an equitable interest of any kind in the 
 mortgage may generally foreclose. — According to Mr, 
 Pomeroy, it is a general principle of practice in most of our 
 states that every action must be prosecuted in the name of 
 the real party in interest.* Following this universal and 
 equitable principle, the courts have established a rule 
 that whoever holds an equitable or real interest of any kind 
 in a mortgage, may bring an action for its foreclosure;* 
 indeed, the rule in such actions is as elastic and liberal as 
 equity jurisprudence could possibly make it. It has become 
 almost axiomatic that an equity court cares little who brings 
 an action, so that he be a real party in interest, nor how 
 it is brought, so long as it acquires complete jurisdiction 
 of all the parties interested and of the entire subject-matter 
 in issue, so that a complete adjudication can be made, 
 upon the whole case. It has been shown that the person 
 who holds the largest interest in the mortgage should 
 commence the action ; and it is undoubtedly the best 
 
 debt and interest only ; Kamena v. ^ Hill v. Meeker, 23 Conn. 594 
 
 Huelbig. 23 N. J. Eq. (8 C. E. Gr.) (1855) ; Wooden v. Haviland, 18 
 
 78 (1872). Conn. 107 (1846). See Irish v. Sharp, 
 
 ' See post §§ 181, 182 and cases 89 111. 261 (1878), holding that the 
 
 cited; also ante % 87; Fisher on action should be brought in the name 
 
 Mortgages, i; 348, and the English of the equitable owner of the mort- 
 
 ca.'^es cited. gage, and not in the name of the mort- 
 
 * Pomeroy s Remedies, § 99. See gagee for his use. 
 ante ^ 72.
 
 § 91. J FORECLOSUEE BY AmSTTITAKTS, ETC. 103 
 
 practice to have all parties interested in the mortgage united 
 as plaintiffs, as opposed to all parties interested in the equity 
 of redemption, who are best made defendants.* But where 
 this is impossible, or parties refuse to join as co-plaintiffs, 
 they can equally well be made defendants, and the decree of 
 the court will be conclusive upon them. It often becomes 
 necessary to make persons who are interested in the 
 mortgage, defendants, as their interests may be antagonistic 
 to the interests of others who also own a part of the 
 mortgage. Furthermore, no one can be made a plaintiff 
 against his will, and a person refusing to become a plaintiff 
 can be brought into an action in no other way than as a 
 defendant.' 
 
 § 91. Special cases of equitable interest — Annuitants, 
 legatees, executors. — The cases in which questions have 
 arisen affecting equitable assignments and the conditional 
 and contingent rights of parties in mortgages, are so varied 
 in character that it is almost impossible to induce from them 
 any general rules or principles applicable to the subject 
 of this section. A legatee may foreclose a mortgage 
 upon default where it is bequeathed, — the interest to him 
 and the principal to another, — and the mortgage is to 
 be kept on foot by the terms of the will as a living security 
 for those purposes.* So a mortgagee may foreclose a mort- 
 gage conditioned for his support and maintenance during 
 life.* In Lawrence v. Lawrence,* a mortgage had been given 
 by a husband and wife who were executors to their 
 co-executrix to secure the payment of moneys of the estate 
 received by the husband as executor ; the wife, after 
 her husband's death, was not allowed to file a bill in her 
 character as executrix against his personal representatives 
 and heirs at law, to foreclose such mortgage, where it did not 
 appear from the bill that she was entitled, in her sole and 
 separate right as a legatee, to a portion of the fund secured by 
 
 ' See ante §§ 87, 89 and notes. * Ferguson v. Ferguson, 2 N. Y. 
 
 » N. Y. Code Civ. Proc. § 448. See 360(1849). 
 
 Beebe V. Morris. 56 Ala. 525 (1876). "3 Barb. Ch. (N. Y.) 71, 75 
 
 3 Hancock v. Hancock, 22 jS'. Y. (1848). 
 568 (.I860), per Comstock, Ch. J.
 
 104 PUECHASER AS EQUITABLE ASSIGNEE. [§92. 
 
 the mortgage. " If in such a case the wife had an interest in 
 the fund, and the co-executrix to whom the mortgage 
 was given, upon a proper application to her for that purpose, 
 refuses to proceed to foreclose the mortgage, the widow 
 of the mortgagee and the other legatees for whose benefit 
 the mortgage was given, may file a bill showing their respec- 
 tive rights in the fund, and claiming to have the benefit 
 of such mortgage and of a foreclosure thereof. But in that 
 case the mortgagee and all the legatees who are interested in 
 the fund, must be made parties to the suit ; or the bill must 
 be filed by some of the legatees in behalf of themselves and 
 of all others having an interest in the fund."* 
 
 § 92. Special cases of equitable assignment — Purchaser 
 on defective foreclosure — Payment by mistake or fraud. 
 — It may be stated generally that a purchaser at a foreclosure 
 sale becomes an equitable assignee of the mortgage fore- 
 closed, for the purpose of maintaining a second or strict 
 foreclosure to extinguish the liens of junior incumbrancers 
 who were not made parties to the original action, or of perfect- 
 ing a foreclosure in any way defective ;' he is entitled to an 
 action de novo on the mortgage.* But a deed executed by 
 both United States loan commissioners, in pursuance of a 
 sale held by one only, has been held void and not operative 
 as an equitable assignment of the mortgage to the purchaser, 
 so as to give him any rights under it.* Where omitted 
 
 > The above quotation is abridged (1883); Jones v. Mack,. 53 Mo. 147 
 
 from the chancellor's opinion. (1873) ; Bank of Wis. v. Abbott. 20 
 
 « BoUes V. Duff, 43 N. Y. 469 Wis. 570 (1866) ; Moore v. Cord, 1-1 
 
 (1871) ; Robinson v. Ryan, 25 K Y. Wis. 213 (1861) ; Stark v. Brown, 12 
 
 320 (1862) ; Franklyn v. Hayward, Wis. 572 (I860). 
 
 61 How. (N. Y.) Pr. 43(1881); Stewart » Rogers v. Holyoke, 14 Minn. 220 
 
 V. Hutchinson, 29 How. (N. Y.) Pr. (1869). In Robinson v. Ryan, 25 
 
 181 (1864) ; Taylor v. Agricultural N. Y. 320 (1862), the purchaser at a 
 
 & M. Ass., 68 Ala. 229 (1880); statutory foreclosure sale, defective 
 
 Goodenow v. Ewer, 16 Cal. 461 for want of service of a notice upon 
 
 (1860) ; Muir v. Berkshire, 52 Ind. the mortgagor, was held to stand as 
 
 149(1875); Shimer v. Hammond, 51 an assignee of the mortgage, ami 
 
 Iowa, 401 (1879) ; Shaw v. Heisey, was allowed in this action to fore- 
 
 48 Iowa, 468 (1878); Johnson close. 
 
 V. Robertson, 34 Md. 165 (1870) ; * Olmsted t. Elder, 5 N. Y. 144 
 
 Wilcoxson V. Osburn, 77 Mo. 621 (1851).
 
 § 93.] FORECLOSURE BY EQUITABLE ASSIGNEE. 105 
 
 parties or others bring an action to redeem from a foreclosure 
 sale, the purchaser is likewise regarded as an equitable 
 assignee of the mortgage/ and a necessary defendant. 
 
 A person who advances money for the payment of a 
 mortgage, with the expectation of having another mortgage 
 executed to himself as security, becomes an equitable 
 assignee of the existing mortgage, and upon refusal of the 
 mortgagor to execute a new mortgage, he may maintain an 
 action for the foreclosure of the first one.* So also a person 
 who loans money on a mortgage, to be used in part for the pay- 
 ment of a prior mortgage, is equitably subrogated as assignee 
 of the mortgage so paid, and may foreclose it, in case the 
 mortgage executed to him for the loan is declared usurious 
 or void for other reasons.* A valid and subsisting obligation 
 is not destroyed because included in a security, or made 
 the subject of a contract, void for usury; although formally 
 satisfied and discharged, it may be revived and enforced in 
 case the new security or contract is invalidated. And 
 where a mortgage, executed to a clerk in chancery, to secure 
 a widow's dower, was subsequently discharged by the clerk 
 without authority of the court, upon the execution to him 
 of a second mortgage for a larger sum, the court decided 
 that if the owners of the fund had not elected to foreclose the 
 second mortgage they might have foreclosed the first one, 
 on tiie ground that its discharge by the clerk, without 
 authority, was null and void.* 
 
 § 93. Equitable owner by subrogation may foreclose. 
 — It often occurs that a purchaser of an equity of redemption 
 in mortgaged premises, pays and procures an existing 
 mortgage to be discharged, believing it to be the only 
 incumbrance on the premises. Upon his discovery of liens 
 
 Bolles V. Duff, 43 K T. 469 294, 298 (1876), affirming 6 Hun 
 
 (1871)-, McSorley v. Larissa, 100 (N. T.) 632 (1876). See MiUer v. 
 
 Mass. 270 (1868) ; ChUds v. ChUds, WincheU, 70 K T. 437 (1877). 
 
 10 Ohio St. 339 (1859). •* Farmers' Loan & Trust Co. T. 
 
 « Gilbert v. Gilbert, 39 Iowa, 657 Walworth, 1 N. T. 433 (1848). See 
 
 (1874) ; Bank v. Campbell, 2 Rich. Homoeopathic Mut. Life Ins. Co. v. 
 
 (S. C.) Eq. 179 (1846). Marshall, 32 N. J. Eq. (5 Stew.) 
 
 » Patterson v. Bii-dsall, 64 N. Y. 103 (1880).
 
 100 EQUITABLE OWI^'ER MAY FOEECLOSE. \^ 94. 
 
 subsequent to the mortgage discharged, the mortgage may 
 be revived, and he will be held equitably subrogated to all 
 the rights of the mortgagee.' A grantor w^ho pays a 
 mortgage which his grantee has assumed, is held subrogated 
 to all the rights of the mortgagee, and in an action to 
 foreclose, may recover a judgment for deficiency against the 
 grantee ; and it is questionable whether, where the security 
 is being impaired, he has any remedy to protect himself, 
 except to pay his bond and mortgage and become subrogated 
 to the rights of the mortgagee.' 
 
 The form in which an assignee acquires his ownership or 
 interest in the mortgage is quite immaterial ; it may be by 
 mere delivery or by parol, but to enable the assignee to main- 
 tain a forclosure there must be a distinct intention to give 
 him an interest in the bond and mortgage. Where the 
 intention is to have a written assignment, a mere manual 
 delivery will not pass the title.* 
 
 § 94. A surety for the mortgage debt may sometimes 
 foreclose — First, having guaranteed debt. — If a person 
 who stands in the relation of surety to a mortgage debt is 
 compelled to pay it, he is entitled to be subrogated to the 
 rights of the mortgagee, and may foreclose the mortgage 
 in his own name, without a formal assignment either in 
 writing or by parol.* There are three principal ways in 
 which this relation and its attending rights may arise : First, 
 where the surety has guaranteed the payment of the 
 mortgage debt, in an assignment or a separate instrument, 
 he may take up the bond and mortgage and enforce their 
 
 ' Ayers v. Adams, 82 Ind. 109 • So held by Folger, J., in Strause 
 
 (1882) ; Lovejoy v. Vose, 73 Me. 46 v. Josephthal, 77 N. Y. 622 (1879). 
 
 (1881); Cobb v. Dyer, 69 Me. 494 See Green v. Marble, 37 Iowa, 95 
 
 (1879) ; Youngman v. Elmira & W. (1873) ; Andrews v. McDaniel, 68 N. 
 
 R. R., 65 Pa. St. 278 (1870). C. 385 (1873). 
 
 * Marshall v. Davies, 78 N. Y. 414, •• Mims v. McDowell, 4 Ga. 183 
 
 421 (1879), reversing 16 Hun (N. Y.) (1848); Norton v. Soule, 2 Me. 
 
 606. See Calvo V. Duvies. 73 N. Y. (2Greenl. ) 341 (1823); Saylors 
 
 211, 215 (1878). In point, Wads- v. Saylors, 3 Heisk. (Term.) 525 
 
 worth V. Lyon. 93 N.Y. 201 (1883); (1871). See also the cases cited 
 
 Wood V. Smith, 51 Iowa, 156 below, and a7ite §§ 89, 90 and notes. 
 (1879).
 
 § 95.J PAYTVtENT BY GRANTEE — ^SUBROaATION. 107 
 
 payment in his own name ;' and it has been held that not 
 even an assignment is necessary.' 
 
 § 95. Surety may forclose— Second, grantee having 
 assumed mortgage. — Second, where a grantor is obligated to 
 pay a mortgage debt and conveys the land to a grantee, who 
 assumes the payment thereof, he is entitled, on paying the 
 debt, voluntarily or otherwise, to be subrogated to the rights 
 of the mortgagee, and to enforce the mortgage against the 
 land as the primary fund for payment, and thereafter against 
 all persons liable for a deficiency. The right to foreclose is 
 perfect without an assignment of the bond and mortgage ;* 
 even in a case where the grantee had not assumed pay- 
 ment of the mortgage, the grantor, on paying the mortgage, 
 was deemed equitably subrogated to the extent that he 
 could maintain a foreclosure.* But an assignment can be 
 compelled upon tender of the amount unpaid, and if the 
 mortgagee refuses to assign, an action can be maintained 
 against him for a formal assignment of the bond and 
 mortgage. The theory upon which an assignment will 
 be decreed has been stated as that of equitable subrogation.* 
 Upon the rights of a surety in this connection, Judge 
 Morse,* of the New York court of appeals, has said: "I 
 understand the law to be as well settled, as the reason 
 
 « Darst T. Bates, 95 Dl. 493 (1880); (1853). See also Marshall v. Davies. 
 
 Gerber v. Sharp, 72 Ind. 553 (1880). 78 N. Y. 414, 431 (1879); a c. 68 
 
 » Walker v. King, 44 Vt. 601 How. (N. Y.) Pr. 231 ; Marsh v. 
 
 (1872). Pike, 10 Paige Ch. (N. Y.) 695 (1844), 
 
 ' McLean v. Towle, 3 Sandf. Ch. cited and reviewed in Calvo v. 
 
 (N. Y.) 117 (1845) ; Risk v. Hoffman, Davies, 73 N. Y. 211, 215 (1878); 
 
 69 Ind. 187(1879); Hoffman v. Risk, Cherry v. Monro, 2 Barb. Ch. (N. 
 
 58 Ind. 113 (1877) ; Josselyn v. Ed- Y.) 618 (1848) ; Stebbms v. Hall, 29 
 
 wards, 57 Ind. 212 (1877) ; "Wood v. Barb. (N. Y.) 525 (1859) ; ComeU v. 
 
 Smith, 51 Iowa, 156 (1879); Hoysradt Prescott, 2 Barb, (N. Y.) 16 (1847) ; 
 
 V. Holland, 50 N, H. 433 (1870). Ferris v. Crawford, 2 Den. (N. Y.) 
 
 * Baker v. Terrell, 8 Minn. 195 595 (1845) ; Tice v. Annin, 2 Johns. 
 (1868). Ch. (N. Y.) 125 (1816) ; Halsey y. 
 
 5 Johnson v. Zink, 51 N. Y. 333 Reed, 9 Paige Ch. (N. Y.) 446 
 
 (1873), affirming 52 Barb. (K Y.) (1842) ; Cox v. Wheeler, 7 Paige Ch. 
 
 396 (1868) ; Matteson v. Thomas, 41 (N. Y.) 248, 258 (1888) ; Brewer v. 
 
 lU. 110 (1866). Staples, 3 Sandf. Ch. (N. Y.) 579 
 
 • Averill v. Taylor, 8 N. Y. 44, 51 (1846).
 
 108 FORECLOSURE BY SURETY AGATNST GRANTEE. [^ 95, 
 
 and justice of the rule is clear, that any one who holds the 
 actual relation of surety for the mortgage debt, charged 
 upon land in which he has an interest, although his liability 
 as such surety extends no farther than to lose his interest in 
 the land, has a right to redeem, for the protection of such 
 interest. And I suppose it to be equally well settled, that 
 his right as surety in such a case, and upon his redeeming, 
 is, to be subrogated to the rights and to occupy the position 
 of the creditor from whom he redeems." And Chief Commis- 
 sioner Lott, in a later case' in the same court, determined that 
 the "relation of surety between the mortgagor and his grantee 
 does not deprive the obligee of the right of enforcing the 
 bond against the obligor. He is entitled to his debt, and 
 has a right to avail himself of all his securities. Equity, 
 however, requires that the obligor, on the payment of 
 the debt out of his own funds, should be subrogated to the 
 rights of the obligee, so that he can reimburse himself by a 
 recourse to the mortgaged premises for that purpose. This 
 can not prejudice the creditor, and it is clearly equitable 
 as between the debtor and the owner of the land. He clearly 
 has no right or color of right, justice or equity to claim that 
 he, notwithstanding the conveyance of the property subject 
 to the mortgage, and thus entitling him only to its value 
 over and above it, should in fact enjoy and hold it discharged 
 of the incumbrance, without any contribution toward its 
 discharge and satisfaction, from the land. This equitable 
 principle is fully recognized in most of the cases. Indeed, it is 
 so consistent with right and justice as to require no authori- 
 ties to sustain it." It is to be observed in all cases men- 
 tioned in this section, that the land is the primary fund for 
 the payment of the mortgage debt." The surety can not 
 compel the mortgagee to file a bill to foreclose the mortgage 
 and to exhaust his remedy against the principal debtor by a 
 judgment for deficiency ; but he may file a bill against 
 the mortgagee' and the subsequent grantee, who has 
 assumed the payment of the debt and thereby become 
 
 « Johnson v. Zink, 51 N. Y. 333, Y.) 595 (1844), affirming 1 Sandf. 
 336 (1873). Ch. (N. Y.) 210 (1843). 
 
 « Marsh v. Pike, 10 Paige Ch. (N. » Morse v. Larkin, 46 Vt. 371 (1874),
 
 § 96.] SUBROGAnON OF INCUMBEAifOEE. 109 
 
 the principal debtor, to have the debt paid to the mortgagee 
 by such grantee, or from the proceeds of a sale of the 
 mortgaged premises. " It is well settled that a surety, after 
 the debt has become due, may come into court and com- 
 pel the principal to pay the debt."* 
 
 § 96. Surety may foreclose — Third, junior interest 
 redeeming from senior interest. — Third, where a subse- 
 quent incumbrancer, though not holding the actual relation 
 of surety for the mortgage debt, still has such an interest in 
 the land that he may redeem from the mortgage debt by 
 paying the same, and thereby become subrogated to the 
 rights and the position of the mortgagee.' Cases under this 
 head are numerous in those states where foreclosure may be 
 made by entry and possession, and the mortgagor and those 
 claiming under him are obliged to assert their rights by 
 redemption, especially in Massachusetts, Maine and Ver- 
 mont. One of two joint mortgagors, who has been obliged 
 to pay the whole debt, has been held subrogated to the 
 rights of the mortgagee as against the other mortgagor ;* 
 and if a purchaser of a divided or an undivided part of 
 mortgaged premises pays the entire mortgage to protect his 
 own interest, he will become the equitable assignee of a 
 proportional part of the mortgage, and will be allowed to 
 enforce it against the remaining part of the premises.* So a 
 tenant for life, upon paying a prior existing mortgage, in 
 
 « Marsh v. Pike, 1 Sandf. Ch. (N. v. Taylor, 8 N. Y. 44 (1853) ; Cor- 
 
 Y.) 213 (1843), per Vice-chancellor nell v. Prescott, 2 Barb. (N. Y.) 20 
 
 Sandford, citing Warner v. Beards- (1847) ; Carpentier v. Brenham, 40 
 
 ley, 8 Wend. (N. Y.) 194 (1831) : 1 Cal. 221 (1870) ; TyrreU v. Ward, 
 
 Story's Eq. 327 ; 2 Story's Eq. 35, 102 IlL 29 (1882) ; Lowrey v. Byere, 
 
 §730; 144, § 849. See Cornell v. 80 Ind. 443(1881); Benton v.Shreeve, 
 
 Prescott, 3 Barb. (N. Y.) 16 (1847) ; 4 Ind. 66 (1853). For an exhaus- 
 
 Norton v. Warner, 3 Edw. Ch. (N. tive discussion of the doctrine of 
 
 Y.) 108 (1837), and note. Hayes v. subrogation and substitution, as ap- 
 
 Ward, 4 Johns. Ch. (N. Y.) 123, 133 plied to parties to a mortgage, se« 
 
 (1819) ; McLean v. Lafayette Bank, Rardin v. Walpole, 38 Ind. 140 
 
 3 McL. C. C. 587 (1845). (1871), collating the authorities. 
 
 » EUsworth V. Lockwood, 42 N. * Shinn v. Shinn, 91 111. 477 (1879) ; 
 
 Y. 89, 99 (1870), is the leadmg case ; White v. Fisher, 63 111. 258 (1871), 
 relied upon in Dings v. Parshall, 7 * Champlin v. Williams, 9 Pa. St 
 
 Hun (N. Y.) 522 (1876). See AveriU 841 (1848).
 
 1 iO ASSIGNEE OF MOKTGAGE WITHOUT BOND. [§ 97. 
 
 order to protect his own estate, is deemed an equitable 
 assignee of the mortgage.' But a surety is never entitled to 
 subrogation and foreclosure until he has paid the debt.' The 
 propositions stated in this section are dependent upon the 
 general principles of law which govern the relation of princi- 
 pal and surety, and more especially upon those principles 
 M^hich entitle a surety to be subrogated to the securities of 
 a creditor upon the default of the principal debtor in making 
 payment,' 
 
 § 97. Assignee of a mortgage without the bond can 
 not foreclose. — It is now a well established principle in the 
 law of mortgages that the assignee of a mortgage without 
 the bond, note or indebtedness which the mortgage was 
 given to secure, acquires no title whatever to the mortgage 
 debt, and can not maintain a foreclosure ; the mortgage in* 
 his hands is a mere nullity. The assignment of the mortgage 
 alone is scarcely presumptive evidence of an intention to 
 assign the indebtedness which it was given to secure ;* but 
 an assignment of a bond and mortgage, and the moneys due 
 and to grow due thereon, carries, by its terms, a note for 
 which they are held as collateral security.* In Merritt v. 
 Bartholick,* a leading case in New York, Judge Parker says: 
 ** As a mortgage is but an incident to the debt which it is 
 intended to secure, the logical conclusion is, that a transfer 
 of the mortgage without the debt is a nullity, and no interest 
 is acquired by it. The security can not be separated from 
 
 « Hamilton v. Dobbs, 19 N. J. Eq. Flanders, 32 Me. 175 (1850). See 
 
 (4 C. E. Gr.) 227 (1868). Bulkley v. Chapman, 9 Conn, 8 
 
 « Conwell V, McCowan, 53 111. 363 (1831), on the question of intent ; 
 
 (1870). PoweU, 1115, 1116. Bee post % 98. 
 
 ' Brandt on Suretyship and Guar- » Belden v. Meeker, 2 Lans. (N. 
 
 anty. Y.) 471 (1870); afltened 47 N. Y. 
 
 * Jackson v. Blodget, 5 Cow. (N. 307(1872). 
 
 Y.) 206 (1825) ; Nagle v. Macy, 9 « 36 N. Y. 44, 45 (1867), affirming 
 
 Cal. 426 (1858) ; Peters v. James- 47 Barb. (N. Y.) 253 (1866), and 34 
 
 town Bridge Co., 5 Cal. 334 (1855) ; How. (N. Y.) Pr. 129, and citing 
 
 Hamilton v, Lubukee, 51 111. 415 many cases ; Cooper v. Newland, 
 
 (1869) ; Hubbard v. Harrison, 38 17 Abb. (N. Y.) Pr. 342, 344 (1863) ; 
 
 Ind. 323 (1871) ; WUIis v. Vallette, Langdon v. Buell, 9 Wend. QX. Y.) 
 
 4 Met. (Ky.) 195 (1862) ; Lunt v. 80 (1832). 
 Lunt, 71 Me. 377 (1880) ; Webb v.
 
 § 9 8. J ASSIGNEE OF DEBT WITHOUT MOETGAGE. Ill 
 
 the debt and exist independently of it. This is the neces- 
 sary legal conclusion, and is recognized as the rule by a long 
 course of judicial decisions * * * for the legal maxim is, 
 the incident shall pass by the grant of the principal, but 
 not the principal by the grant of the incident." Accessoriuni 
 non ducit, sed sequitur principale. In a later case,* a bond 
 and mortgage had been given to secure the performance of 
 a contract ; after the contract had been rescinded, the 
 assignee of the bond and mortgage brought an action for 
 foreclosure, but it was dismissed on the ground that the 
 rescission of the contract extinguished the indebtedness and 
 the liability thereunder and destroyed the validity of the 
 bond and mortgage. 
 
 Some courts have held that an assignment of the mortgage 
 without the note or bond transfers a naked trust," and that 
 the assignee must hold the mortgage at the will and disposal 
 of the creditor who owns the bond.* Where a mortgage is 
 executed without a bond or other written evidence of the 
 debt secured, and it contains no covenant for the payment 
 of the debt, the assignee acquires a valid claim and lien upon 
 the land, but nothing more.* 
 
 § 98. Assignee of the note, bond or debt may foreclose, 
 though the mortgage is not assigned. — ^As has been seen 
 in the preceding section, the mortgage debt is the essential 
 fact, while the mortgage is merely an incident. Consequently 
 the assignee of the debt may foreclose, as he is the equitable 
 assignee of the mortgage, though he holds neither a written 
 nor a parol assignment of it.* He is the real party in interest 
 
 » Wanzer v. Gary, 76 K T. 526 66 Me. 204 (1868) ; Bailey v. Gould, 
 
 (1879). In point, Emory v. Keighan, Walk. Ch. (Mich.) 478 (1844). 
 
 94 111. 543 (1880). •» Severence v. Griffith, 2 Lans. 
 
 » Johnson v. Cornett, 29 Ind. 59 (N. Y.) 38 (1870). 
 (1867) ; Johnson v. Walter, 60 Iowa, » For the New York cases see the 
 315 (1882); Pope v. Jacobiis, 10 preceeding section. Center v. Plant- 
 Iowa, 262 (1859) ; Cleveland v. ers' & Mechanics' Bank, 22 Ala. 743 
 Cohrs, 10 Rich. (S. C.) 224 (1878). (1853) ; Doe v. McLoskey, 1 Ala. 
 
 3 Dudley v. CadweU, 19 Conn. 228 708 (1840) ; Willis v. Farley, 24 Cal. 
 
 (1848) ; Huntington v. Smith, 4 490 (1864) ; Bennett v. Solomon, 6 
 
 Conn. 237(1822); Medley v. Elliot, Cal. 134 (1856); Ord v. McKee, 'fj 
 
 62 111. 532 (1872); Webster v. Calden, Cal. 516 (1855) ; Quinebaug Bank
 
 112 
 
 MAKING ASSIGNOR PARTY DEFENDANT. 
 
 [§98. 
 
 and can give a full quittance of the debt, though he is not 
 in a position to execute a legal discharge of the mortgage.' 
 The rule of this section holds good even after the debt has 
 been put into a judgment." 
 
 While in a foreclosure it may not be indispensable to 
 join the assignor as a party plaintiff or defendant, it would 
 certainly be advisable to do so, in order to extinguish any 
 possible interest which he might continue to have or claim. 
 The assignor has sometimes been held a necessary party, on 
 the ground that an assignment of the note alone carries 
 only the equitable, and not the legal title to the security.' 
 
 V. French, 17 Conn. 134 (1845); 
 Huntington v. Smith, 4 Conn. 237 
 (1823) ; Austin v. Burbank, 2 Day 
 (Conn.) 474 (1807); Hamilton v. 
 Lubukee, 51 lU. 415 (1869) ; Olds v. 
 Cummings, 31 111. 188 (1863); 
 Herring v. Woodhull, 29 Dl. 92 
 (1862) ; Ryan v. Dunlap, 17 HI. 40 
 (1855) ; Holdrige v. Sweet, 23 Ind. 
 118(1864); Gowerv. Howe, 20 Ind. 
 396 (1863) ; Garrett v. Puckett, 15 
 Ind. 485(1860); Walker v. Schreiber, 
 47 Iowa, 529 (1877); Preston v. 
 Morris, 43 Iowa, 549 (1876); Bremer 
 Co. Bank v. Eastman, 34 Iowa, 392, 
 394 (1872); Bank of Indiana v. 
 Anderson, 14 Iowa, 544 (1863); 
 Sangster v. Love, 11 Iowa, 580 
 (1861) ; Blair t. Marsh, 8 Iowa, 144 
 (1859); Crow v. Vance, 4 Clarke 
 (Iowa), 434 (1857) and the cases 
 cited at pages 440, 441 ; Kurtz 
 V. Sponable, 6 Kan. 395 (1870) ; 
 Burdette v. Clay, 8 B. Hon. (Ky.) 
 295 (1847); Vimont v. Stitt, 6 B. 
 Mon. (Ky.) 478 (1846); Bank of 
 United States v. Huth, 4 B. Mon. 
 (Ky. ) 450 (1844); Warren v. 
 Homestead, 33 Me. 356 (1851); 
 Byles V. Tome, 39 Md. 461 (1873) ; 
 Ohio Life Ins. & Trust Co. v. Winn, 
 4 Md. Ch. Dec. 253 (1853) ; Briggs 
 V. Hannowald, 35 Mich. 474 (1877) ; 
 Martin v. McReynolds, 6 Mich. 70 
 
 (1858) ; Holmes v. McGinty, 44 Misa. 
 94 (1870); Laberge v. Chauvin, 3 
 Mo. 145(1839); Richards v. Kountze, 
 4 Neb. 208 (1876) ; Kyger v. Ryley, 
 2 Neb. 20, 28 ( 1865 ) ; Wheeler v. 
 Emerson, 45 N. H. 527 (1864); 
 Whittemore v. Gibbs, 24 N. H. 484 
 (1852) ; Lane v. Sleeper, 18 N. H. 
 209 (1846) ; Rigney v. Lovejoy, 13 
 N. H. 253 (1843); Southerin v. 
 Mendum, 5 N. H. 420, 432 (1831) ; 
 Hyman v. Devereux, 63 N. C. 624 
 (1869); Perkins v. Sterne, 23 Tex. 561 
 (1859) ; Keyes v. Wood, 21 Vt. 331 
 (1849) ; Pratt v. Bank of Bennington, 
 10 Vt. 293 (1838) ; Body v. Jewsen, 
 33 Wis. 402 (1873); Martineau v. 
 McCoUum, 3 Pin. (Wis.) 455 (1853) ; 
 Carpenter v. Longan, 83 U. S. (16 
 Wall.) 271 (1872) ; bk. 21 L. ed. 313. 
 
 ■ Way man v. Cochrane, 35 HI. 
 152 (1864). 
 
 ' Wayman v. Cochrane, 35 HI. 
 152 (1864) ; Swartz v. Leist, 13 Ohio 
 St. 419 (1862) ; Moore v. Cornell, 68 
 Pa. St. 320 (1871). 
 
 «Bibb V. Hawley, 59 Ala. 403 
 (1877) ; Denby v. Mellgrew, 58 Ala. 
 147 (1877) ; Prout v. Hoge, 57 Ala. 
 28 (1876) ; Graham v. Newman, 21 
 Ala. 497 (1852) ; Burton v. Baxter, 
 7 Blackf. (Ind.) 297 (1844) ; Stone v. 
 Locke, 46 Me. 445 (1859) ; Moore v. 
 Ware, 38 Me. 496(1854). 8ee ante %97.
 
 § 99.] CONTEilPOEANEOUS MOETGAGES. 113 
 
 Vice versa, if the assignor should commence a foreclosure of 
 his mortgage after having assigned the bond or debt, his 
 assignee would certainly be a necessary party. According 
 to the cases, however, the assignor could hardly maintain 
 an action to foreclose. The assignee and the assignor may 
 unite as co-plaintiffs ;' and it has been held that the assignee 
 can prosecute the action in the name of the assignor.' 
 
 § 99. Mortgagees owning contemporaneous mort- 
 gages, being equal liens, any one or more may foreclose. — 
 Where two or more bonds and mortgages have been simul- 
 taneously executed and recorded to secure independent 
 debts, or parts of the same debt, and are equal liens upon 
 the premises, the mortgagees may unite as co-plaintiffs 
 to foreclose their mortgages, or any one or more may 
 foreclose upon refusal of the others to unite as co-plaintiffs." 
 One of the mortgagees can not ignore the rights of the others, 
 and foreclose without making them parties ; if they are 
 omitted, the decree and sale will be defective,* and they can 
 redeem, or maintain a separate foreclosure.* The courts 
 seem to regard such mortgages the same as though they 
 constituted a single mortgage given to secure to the 
 mortgagees in severalty the amounts of their respective 
 claims.* In a New York case,^ it appeared that a part of the 
 purchase money for a farm was secured to a widow and 
 several heirs by separate mortgages given to the widow 
 and each of the heirs for their proportionate shares of 
 
 > Holdridge v. Sweet, 23 Ind. 118 Pa. St. 43 (1853), collating and re- 
 
 (1864). viewing the Pennsylvania cases, per 
 
 » Calhoun v. Tullass. 35 Ga. 119 Woodward, J. See post § 184. 
 
 (1866) ; English v. Register, 7 Ga. * But in Dungan v. American Life 
 
 887 (1849). Ins. Co., 52 Pa. St. 258 (1866), one 
 
 « Potter V. Crandall, Clarke Ch. mortgagee foreclosed, ignoring the 
 
 (N. T.) 119, 123 (1839). See Greene other, and the decree was held to 
 
 V. Warnick, 64 N. Y. 220 (1876), divest both. 
 
 reversing 4 Hun (N. T.) 703, where * Cain v. Hanna, 63 Ind. 408 
 
 the respective rights of simultaneous (1878). 
 
 mortgagees came before the court in * See ante §§ 83, 84. See Granger 
 
 a contest for surplus moneys ; Deck- v. Crouch, 86 N. Y. 494,499 (1881). 
 
 er v. Boice, 83 N. Y. 215 (1880); ' Potter v. Crandall, Clarke Ch.(N. 
 
 Cochran v. Goodell. 131 Mass. 464 Y.) 119, 123 (1839), p&r Vice- 
 
 (1881). See also Perry's Appeal, 23 Chancellor Whittlesey. 
 
 (8)
 
 114 DtFTERE^T MOETGAGES SEPARATE SUITS. [§ 100. 
 
 the purchase money; all the mortgages covered the same 
 property, and were executed and recorded simultaneously. 
 On default, one of the heirs filed a bill of foreclosure against 
 the mortgagor, the widow and the other heirs. The court 
 determined that a decree could not be granted, unless 
 the widow and co-heirs had refused to unite with him as 
 parties plaintiff, and unless all the rights of all the parties 
 were set forth in the plaintiff's bill. Vice-Chancellor 
 Whittlesey, writing the opinion, said : " The proper course 
 for the complainant to pursue is to ask his mother and 
 co-heirs to join with him in foreclosing all the mortgages in 
 one bill ; if any refuse, he can then make such as refuse, 
 defendants. He should set forth in his bill all the circum- 
 stances of the simultaneous execution of the mortgages; and 
 then the court can make a decree which will satisfactorily 
 dispose of all the rights of all the parties, whether some of 
 them are reluctant to proceed or not." 
 
 § 100. Owner of two mortgages can not foreclose both 
 at same time in separate actions. — A person who owns 
 two or more mortgages upon the same premises, can not 
 maintain separate actions at the same time for their fore- 
 closure.' In a case' where this proposition was squarely 
 before the court, Chancellor Walworth held that " the com- 
 plainant not only unnecessarily, but contrary to the settled 
 practice of the court, which is for the complainant to state 
 all of his junior incumbrances upon the mortgaged premises 
 in his bill to foreclose his prior mortgage, commenced two 
 separate and distinct foreclosure suits upon these two mort- 
 gages, on one piece of land, given by the same mortgagors 
 to the same mortgagee, and which mortgages, at the time of 
 filing these bills, belonged to the same person." The best 
 
 • Fitzhngh v. McPherson, 3 Gill other lands also, and an action waa 
 
 (Md.) 408 (1845). In Demarest v. then commenced on the second 
 
 Berry, 16 N. J. Eq. (1 C. E. Gr.) mortgage; but the second foreclosure 
 
 481 (1864), after an action had been was allowed to continue only on the 
 
 commenced on a first mortgage, it discontinuance of the first one. See 
 
 was discovered that a second mort- ante § 99. 
 
 gage covered the same premises ' Roosevelt v. Ellithorp, 10 Paige 
 
 described in the first mortgage and Ch. (N. Y.) 415, 419 (1843).
 
 §101.] ASSIGNEE OR RECEIYER MAT FOEECLOSE. 115 
 
 practice is to foreclose all the mortgages in one action,' or to 
 foreclose the senior mortgage, setting forth in the complaint 
 the claims upon the junior incumbrances. It matters not 
 that the mortgages are of different dates, and given to 
 different persons to secure different debts ; it is essential 
 only that they be owned by the same person at the time of 
 foreclosure, and that they cover the same premises. If the 
 junior mortgage covers other premises also, the fact should 
 be set forth in the complaint. If the junior mortgage alone 
 is foreclosed, the senior mortgage may remain as a valid and 
 subsisting lien." 
 
 § loi. Assignee in bankruptcy or by general assign- 
 ment, or receiver of a corporation, may foreclose. — An 
 
 assignee in bankruptcy or by general assignment may foreclose 
 a bond and mortgage which belonged to the estate of the 
 assignor, as he succeeds to the entire legal title to the assets ; 
 he acquires no better title, however, than the assignor 
 possessed.* Likewise, he may assign the mortgage, and the 
 assignee can maintain a foreclosure.* The assignor is not a 
 necessary party plaintiff or defendant ; if deemed best, how- 
 ever, he may very properly be made a defendant, so as to 
 extinguish any possible equities that he may claim. The 
 assignee may decline to collect the mortgage or to prosecute 
 a foreclosure if he believes that nothing can be realized. In 
 such a case the bankrupt or assignor is at liberty to com- 
 mence the suit in his own name, but the assignee should be 
 brought into the action, or at least be notified of its pen- 
 dency, and requested to prosecute it. The general rule 
 is that, if an assignee abandons any property or choses in 
 action belonging to the bankrupt's estate, or if he declines 
 to appear as prosecutor when summoned in a suit pending 
 in favor of the bankrupt, the right remains in or reverts to 
 the bankrupt ; he is still the legal and equitable owner of 
 his estate as against every one but his assignee.' 
 
 * McGowen v. Branch Bank at ' Upton v. National Bank of Head- 
 Mobile, 7 Ala. 823 ; Hawkins v. Hill, ing, 120 Mass. 153 (1876), 
 
 15 Cal. 499 (1860) ; Phelps v. Ells- * Ward v. Price, 13 N. J. Eq. (1 
 
 worth, 8 Day (Conn.) 397 (1809). Beas.) 543 (1859). 
 
 • Clements v. Griswold, 46 Hun » Towle v. Rowe, 58 N. H. 394 
 (N. Y.) 377 (1877). (1878).
 
 116 ASSIG]!^EE PE]ST)EXTE LITE. [§| 103-1 OST. 
 
 The receiver of an insolvent corporation may also foreclose 
 a mortgage,' and his successor in ofifice likewise succeeds to 
 the same right." " It is the settled doctrine that the receiver 
 of an insolvent corporation represents not only the corpor- 
 ation, but also creditors and stockholders, and that, in his 
 character as trustee for the latter, he may disaffirm and 
 maintain an action as receiver * * * to recover its funds or 
 securities invested or misapplied.'" 
 
 § 102. Assignee pendente lite may continue a fore- 
 closure. — A person who purchases a bond and mortgage 
 pending its foreclosure may be substituted as plaintiff and 
 continue the action in his own name, or the action may 
 be continued in the name of the assignor, if no one objects 
 and the matter is not brought to the attention of the court. 
 But objection can be made by answer if the assignment 
 is executed before the answer is pleaded.* If the assignment 
 is recorded, or the fact of the transfer is brought to the 
 knowledge of the court, it would seem that the action can be 
 continued only in the name of the true owner and real party 
 in interest,* who should bring himself forward in the suit by 
 petition or a supplemental bill.* 
 
 § 103. Owner of mortgage dying — Personal represen- 
 tatives may foreclose. — The legal title to a bond and mort- 
 gage passes, upon the death of its owner, to his personal 
 representatives, who are in equity trustees for the benefit of 
 the decedent's heirs or legatees. When, at an earlier day, it 
 was held that the mortgagee had a vested interest in the title 
 to the lands under his mortgage, his heirs, instead of 
 
 » Robinson v. Williams, 22 N. Y. Ch. (N. Y.) 539 (1836) ; Wallace ▼. 
 
 880 (1860), was an action by a re- Dunning, Walk. Ch. (Mich.) 416 
 
 ceiver against a receiver ; Iglehart v. (1844). See Smith v. Bartholomew, 
 
 Bicrce, 36 111. 133 (1864). 42 Vt. 356 (1869). 
 
 « Iglehart v. Bierce, 36 111. 133 » Bigelow v. Booth, 39 Mich. 623 
 
 (1864). (1878). See Ellis v. Sisson, 96 111. 
 
 « See Attorney-General v. Guard- 105 (1880). See post §§ 130-133. 
 
 Ian Mutual Life Ins. Co., 77 N. Y. • Foster v. Deacon, 6 Madd. 59 
 
 272, 275 (1879), per Andrews, J. (1821) ; Coles v. Forrest, 10 Beav. 
 
 «Mill3v. Hoa?, 7PaigeCh.(N.Y.) 552 (1847); Fisher on Mortgages, 
 
 18 (1837) ; Field v. Maghee, 5 Paige §§ 385-388.
 
 § lOS.] FORECLOSUKE BY EEPEESENTATTYES. 117 
 
 his personal representatives, were held to succeed to that 
 inters ' apon his death. But at present it is the uniform 
 law of America that a bond and mortgage are only securities, 
 and pass as personal property to the control and disposition 
 of a decedent's personal representatives ;* and the absence of 
 a personal obligation by bond, note or covenant for the 
 debt, does not affect the right of the personal representatives 
 to the possession of the mortgage. 
 
 A personal representative upon coming into due possession 
 and control of a bond and mortgage may maintain an action 
 for its foreclosure; indeed, he is the only person who can 
 foreclose the mortgage, as he holds the entire legal title to 
 it.* The administrator of a mortgagee, to whom the 
 mortgage was given to secure an annuity, may foreclose, if 
 
 » Kinna v. Smith, 3 K J. Eq. (2 H. 
 W. Gr.) 14 (1834) ; Grace v. Hunt, 
 1 Cooke (Tenn.) 844 (1813) ; Thorn- 
 borough V. Baker, 3 Swan. 628 
 (in75); Tabor v. Tabor, 3 Swan. 
 636 (1679). See the cases cited below. 
 
 » People V. Keyser, 28 N. T. 226 
 (1863) ; Newton v. Stanley, 28 N. Y. 
 61 (1863) ; Peck v. Mallams, 10 N. 
 Y. 509 (1853) ; Renaud v. Conselyea, 
 7 Abb. (N. Y.) Pr. 105 (1858), 
 reversmg 4 Abb. (N. Y.) Pr. 280 and 
 
 5 Abb.(N.Y.)Pr.346;Routh V.Smith, 
 
 6 Conn. 135, 139 (1823); Buck v. 
 Fischer, 2 Colo. 182 (1873) ; Dixon 
 V. Cuyler, 27 Ga. 248 (1859). In 
 Hunsucker v. Smith, 49 Ind. 114 
 (1874), an administrator held person- 
 ally a mortgage on the lands of the 
 decedent. Merrin v. Lt wis, 90 111. 
 505 (1878) ; Nolte v. Libbert, 34 Ind. 
 163 (1870) ; Cryst v. Cryst, Smith 
 (lud) 370 (1848) ; Talbot v. Dennis, 
 Smith (Ind.) 357 (1849); White v. 
 Rittemeyer, 30 Iowa, 272 citing 
 many cases ; Grimmel v. Warner, 
 21 Iowa, 13 (1866); Burton v. Hin- 
 trager, 18 Iowa, 348, 351 (1865). 
 So by statute in Missouri, Riley's 
 Adm'r v. McCord's Adm'r, 24 Mo. 
 
 265 (1857), (R. C. 1845, p. 749) ; also 
 in Michigan, Albright v. Cobb, 80 
 Mich. 855 (1874). See Webster v. 
 Calden, 56 Me. 204, 211 (1868); 
 Fay V. Cheney, 81 Mass. 399 (1833) ; 
 Dewey v. VanDeusen, 21 Mass. (4 
 Pick.) 19 (1826) ; Smith v. Dyer, 16 
 Mass. 18 (1819) ; Scott v. McFarland, 
 13 Mass. 309 (1816); Baldwm v. 
 Allison, 4 Minn. 25 (1860) ; Griffln 
 V. LoveU, 42 Miss. 402 (1869); 
 Mutual Life Ins. Co. v. Sturges, 33 
 N. J. Eq. (5 Stew.) 678 (1880) ; 8. o. 
 33 N. J. Eq. (6 Stew.) 828 (1880); 
 Gibson v. Bailey, 9 N. H. 168 (1838); 
 Trimmier v. Thomson, 10 Rich. 
 (S. C.) 164 (1877); Collamer v. 
 Langdon, 29 Vt. 32 (1856) ; Pierce 
 V. Brown, 24 Vt. 165 (1852) ; Weir 
 V. Mosher, 19 Wis. 311 (1865). For 
 the English cases see Cave v. Cork, 
 2 Y. & C. C. C. 130 (1843); Wilton v. 
 Jones, 2 Y. & C. C. C. 244 (1843) ; 
 Hobart v. Abbott, 2 P. Wms. 643 
 (1731) ; Meeker v. Tanton, 2Ch. Cas. 
 29 (1680) ; Gobe v. Carlisle, 2 Vern. 
 67 (1688), cited in Clerkson v. Bow- 
 yer, 2 Vern. 67 (1688). Fisher on 
 Mortgages, §§ 359, 360.
 
 116 £XECUIOii 3IAY EEVIVE rOllECLOSUEE. []§ 103. 
 
 the condition was broken during the decedent's life-time, 
 and recover the unpaid annuity." If two or more executors 
 or administrators have quahfied, all should unite as plaintiffs ; 
 but if any who have qualified refuse to join as co-plaintiffs, 
 they may be made defendants to the action ; they must be 
 brought before the court in some capacity.* In most states 
 it is not necessary to bring the heirs of the mortgagee into the 
 action/ while in a few they are held indispensable parties.* 
 
 Where a testator dies pending his foreclosure, his ex- 
 ecutor after qualifying may properly revive the action ; 
 and he may do this, though his co-executor be the owner 
 of the equity of redemption. In such a case it was held 
 advisable in reviving the action to make the co-executor 
 a defendant personally, as he was the owner of the equity of 
 redemption, and a defendant also in his representative 
 capacity; and the action was sustained upon the principle 
 that one co-executor may maintain an action in equity 
 against another co-executor to compel the payment of a 
 debt owing by him to the estate/ The executor of 
 a trustee has been allowed to foreclose a mortgage held in 
 
 ' Marsh v. Austin, 83 Mass. (1 absolutely and died insolvent with- 
 
 Allen) 235 (1861); Pike v. Collins, out the state, but ordinarily the heirs 
 
 83 Me. 38 (1851). of the mortgagee are held necessary 
 
 * Ralhbone v. Lyman, 8 R. I. 155 parties. For the English cases see 
 
 (1865); but see Alexander |v. Rice, Fisher on Mortgages, §359; Scott 
 
 52 Mich. 451 (1884). v. Nicoll, 3 Russ. 476 (1827) ; Ellis 
 
 3 Dayton v. Dayton, 7 111. App. 136 v. Guavas, 2 Ch. Cas. 50 (1680) ; 
 
 (1879) ; Griflin v. Lovell, 42 Miss. Freak v. Hearsey, 1 Ch. Cas. 51 
 
 402 (1869). This is the rule la New (1664). 
 York. ' McGregor v. ]\IcGregor, 35 N. 
 
 ■*Huggins V. Hall, 10 Ala. 283 Y. 218, 222 (1866), Wright and 
 
 (1846) ; Mclver V. Cherry, 8 Humph. Smith, JJ., writing the opinions, 
 
 (Tenu. ) 713 (1848); Atchison v. and relying largely upon Smith v. 
 
 Surguine, 1 Yerg. (Tenn.)400 (1830). Lawrence, 11 Paige Ch. (N. Y.) 206 
 
 They were necessary parties in Illi- (1844). In Miller v. Donaldson, 17 
 
 nois until the statute of 1874, Ch. 95, Ohio, 264 (1848), an administrator 
 
 i; 9, dispensed with tlie old rule. de bonis non f(n-eclosed a mortgage 
 
 Dayton v. Dayton, 7 111. App. 136 belonging to the estate of a testator 
 
 (1S79). In Etlieridge V. Vernoy, 71 whose e.xecutor was his mortgage 
 
 IS. C. l.'54(1874). tlie heirs were held debtor; the fact that he was made 
 
 not necessary where the mortgagee executor was held not to extiuguish 
 
 iiud asal^ued Ike boud and mortgage the debt.
 
 §§ 104-105.] EEPEESENTATIYES OF VENDOR. 119 
 
 trust by the decedent, where the trust was well defined and 
 did not rest in the discretion of the trustee ;' but the general 
 rule is for the successor of the trustee to foreclose." 
 
 § 104. Vendor under land contract dying — Personal 
 representatives may foreclose. — In the foreclosure of a 
 land contract, the rule as stated above is somewhat limited. 
 The personal representatives of a deceased vendor may 
 foreclose a land contract, but they must either show that 
 they have tendered, and are able and ready to give a deed 
 with a good title, or else they must make the heirs or 
 devisees of the deceased vendor, inheriting his legal title, 
 parties to the action, so that they may be bound by the de- 
 cree. Upon this subject Judge Earl has said that " by the 
 contract of sale, the land conveyed became real estate in 
 the purchasers, and would descend as such to their heirs or 
 devisees. The vendor held the legal title as trustee for the 
 purchasers. The purchase money due upon the contract 
 was, as to him, personal estate, and upon his death passed to 
 his personal representatives, as part of his personal estate ; 
 and the legal title to the real estate passed to his heirs 
 or devisees in trust for the purchasers.'" 
 
 § 105. Owner of mortgage dying — Heirs, devisees and 
 legatees generally can not forclose. — As has been shown 
 in the preceding section, the heirs of a deceased mortgagee 
 receive no title whatever to the bond and mortgage ; con- 
 sequently, having no interest in the security, they can not 
 
 * Bunn V. Vaughan, 1 Abb. App. at law of a decedent executed to his 
 Dec. (N. Y.) 253 (1867). administrator a deed of their title to 
 
 * See post §§ 110-113. the premises to enable her to transfer 
 
 * Thomson v. Smith, 63 N. Y. 301, it to the purchaser in fulfillment of a 
 803 (1875), citing Dart on Purchasers land contract, and the oixirt held, in 
 and Vendors, 121 ; Moyer v. Hin- an action to foreclose the lail<i con- 
 man, 13 N. Y. 180 (1855) ; Lewis tract, that the heirs were not necf,<?- 
 V. Smith, 9 N. Y. 502, 510 (1854) ; sary parties. In Leaper v. Lyo\i, 68 
 Moore v. Burrows, 34 Barb. (N. Y.) Mo. 216 (1878), on the other hand, 
 173 (1861) ; Adams v. Green, 34 the heirs were held necessajy parties. 
 Barb. (N. Y.) 176(1861) ; Champion even« though a deed executed by 
 V. Brown, 6 Johns. Ch. (N. Y.) 398 them had been tendered to the vendee 
 (1822). In Schroeppel v. Hopper, by the personal representatives. See 
 40 Barb. (N. Y.) 425 (1863), the heirs Anshutz' App. 34 Pa. St. 375 (1859).
 
 120 HEIES ATsT) LEGATEES FOEECLOSIN-G. [§ 105. 
 
 maintain an action for its foreclosure.* In a case where no 
 personal representative had been appointed, an heir was 
 allowed to foreclose on filing an indemnifying security 
 to protect the mortgagor from being subsequently called 
 upon for payment." Neither can an heir make such an 
 assignment of a mortgage as will entitle the assignee to 
 maintain a foreclosure.* Where a mortgagee died pending a 
 foreclosure, his heirs were allowed to revive the action ;* 
 and after administration had been closed upon the affairs of 
 a decedent, his distributees were allowed to foreclose a 
 mortgage belonging to his estate.' In an action to redeem 
 from a mortgage, the heirs and personal representatives 
 of the mortgagee have both been held necessary parties.* 
 
 Where, however, a mortgage is specifically bequeathed to 
 a legatee, the entire title passes to him and he may foreclose 
 the mortgage.^ But even in such a case it has been held 
 that the personal representatives should be made defen- 
 dants.* Where the legacy is made a general bequest to 
 be paid out of the mortgage, the action may properly be 
 brought by the executor, making the legatee a defen- 
 dant ;' and an executor has been allowed to foreclose, even 
 
 » Anthony v. Peay, 18 Ark. 24 "> White v. Secor, 58 Iowa, 533, 
 
 (1856) ; Roath v. Smith, 5 Conn. 135, 536 (1882) ; Grimmell v. Warner, 21 
 
 139 (1823) ; Kinna v. Smith, 3 N. J. Iowa, 13 (1866) ; Trenton Banking 
 
 Eq. (2 H. W. Gr.) 14 (1834). Cotitra, Co. v. Woodruff, 2 N. J. Eq. (1 H.W. 
 
 English authorities : Gobe v. Carl- Gr.) 117 (1838). For the English auth- 
 
 isle, cited in 2 Vern. 67 ( 1688 ) ; orities, see Fisher on Mortgages, 
 
 Clerkson v. Bowyer, 2 Vern. 67 § 355 ; Wood v. Williams, 4 Madd. 
 
 (1688); Fisher on Mortgages, §364. 186 (1819) ; Wetherell v. Collins, 3 
 
 See ante % 103, and the cases cited. Madd. 255 (1818) ; Hichens v. Kelly, 
 
 « Babbitt v. Bowen, 32 Vt. 437 2 Sm. & G. 264 (1854). The heir is 
 
 (1859). not a necessary party ; Fisher on 
 
 « Douglass V. Durin, 51 Me. 121 Mortgages, § 359 ; How v. Vigures, 
 
 (1863). 1 Rep. in Ch. 32 (1629) ; Skipp v. 
 
 * Mclver v. Cherry, 8 Humph. Wyatt, 1 Cox Ch. 353 (1787). 
 (Tenn.) 713 (1848); Atchison v. « Gibbes v. Holmes, 10 Rich. (S. 
 Surguine, 1 Yerg. (Tenn.) 400 (1880). C.) Eq. 484, 493 (1859). 
 
 » Hill V. Boy laud, 40 Miss. 618 ' Newton v. Stanley, 28 N. T. 61 
 
 (1866). (1863). See Buck v. Fischer 2 Colo 
 
 • Hiltnr T. Lothrop, 46 Me. 297 182 (1873). 
 (1858): Haskins v. Hawkes, 108 
 
 Mass. 379(1871).
 
 I 106. J EXECUTOR OE ADJIESTISTRATOR MORTGAGEE. 121 
 
 where the mortgage has been specifically bequeathed.' It is 
 beh'eved that such a foreclosure will always be allowed, 
 if there should be a deficiency of assets to pay the dece- 
 dent's debts. 
 
 § io6. An executor or administrator to whom a mort- 
 gage is executed may foreclose. — Whenever a bond and 
 mortgage are executed or assigned' to the personal represen- 
 tative of a decedent, to secure assets belonging to his estate, 
 the personal representative may bring an action in his official 
 capacity for foreclosure. The same principle is true where 
 a personal representative holds funds in the capacity of a 
 trustee ; and the fact that the investment of trust funds 
 in bonds and mortgages is so highly favored by courts, 
 renders this principle very important in the administration 
 of estates. The persons beneficially interested need not be 
 brought into the action.' The character of the personal repre- 
 sentative should clearly appear in the bond and mortgage, 
 and must be specifically alleged in the pleadings to foreclose.* 
 
 In a leading New York case^ the mortgagee was described 
 as " T. B., executor of the estate of T. T., deceased "prima 
 facie, the mortgage was held to be the private property 
 of T. B. After the death of T. B., an administrator of T. T., 
 with the will annexed, filed a bill for the foreclosure of the 
 mortgage. The court held that the personal representatives 
 of T. B. were necessary parties, and that the plaintiff should 
 
 1 Cryst V. Cryst, Smith (Ind.) 370 & W., executors of E. ;" after the 
 
 (1848-49). death of M., the question arose as to 
 
 ' Flagg V, Johnston, 39 Ga. 26 whether "W., the surviving executor, 
 
 (1869). could execute a sufficient discharge 
 
 ' For the English cases, see "Wood of the mortgage, and whether the 
 
 V. Harman, 5 Madd. 368 (1820) ; executors of M. ought not to unite 
 
 Locke V. Lomas, 5 DeG. & S. 326 with him in executing the discharge. 
 
 (1852); B.C. 16 Jur. 814(1852-53). It was held that the discharge hy 
 
 ■* Flagg V. Johnston, 39 Ga. 26 W. was sufficient. Qucere, as to 
 
 (1869). whether the surviving mortgagee 
 
 5 Peck v. Mallams.lON.T. 509,537, could not have maintained an action 
 
 546 (1853), opinions by Willard, John- for the foreclosure of the mortgage, 
 
 son and Mason, J J. In People v. Key- if he had sufficient authority to exe- 
 
 8er,28]Sr.Y.226(1863),(reportedbelow cute a discharge of the debt. See 
 
 in 39 Barb. 587 ; 17 Abb. (N. Y.) Pr. ante g 81, on the doctrine of survl- 
 
 215), a mortgage was made to " M. vorship among joint mortgagees.
 
 122 succEssoES m oiFicE. f§§ 107-108. 
 
 show by proper allegations that the mortgage was a part of 
 the assets of the estate of T. T. In a similar case/ a 
 mortgage was executed to " P., acting executor of the estate 
 of D." Upon the death of P., it was held that the mortgage 
 belonged prima facie to his estate, and could be foreclosed 
 by his personal representatives, but later the court decided 
 that evidence was admissible showing the real ownership of 
 the mortgage ; and it then appearing that it actually belonged 
 to D., the personal representatives of P. were not allowed 
 to maintain the action. And where an executor invests 
 estate funds in his individual name and capacity, his personal 
 representative alone, and not his successor, can foreclose the 
 mortgage.' 
 
 § 107. The successor in office of an executor or ad- 
 ministrator may foreclose. — When a mortgage is made to 
 A,, as executor or administrator, his successor in office 
 receives the legal title to the mortgage, and may foreclose 
 it. The personal representatives of A. have nothing what- 
 ever to do with the bond and mortgage, which legally and 
 equitably belong to the assets of the deceased person whom 
 he represented.' Thus, a mortgage had been executed to an 
 administrator to secure a widow's dower ; upon his death his 
 successor and not his personal representative was allowed to 
 foreclose." 
 
 § 108. Foreign executors and administrators — When 
 they may foreclose. — For more than a half century it has 
 been well established as a principle of inter-state law, that an 
 executor or administrator, appointed in a foreign political 
 jurisdiction, can not maintain a suit in the courts of other 
 states ; and the word " foreign " is used in each state to 
 designate all jurisdictions and laws without itself. While 
 foreign laws are recognized in all courts under the principle 
 
 » Renaud v. Conselyea, 4 Abb. (N. « Caulkins v. Bolton, 98 N. Y. 511 
 
 Y.) Pr. 280 (1856) ; s. c. 5 Abb. (N. (1885). 
 
 Y.) Pr. 346 (1857). On re-argument, » Renaud v. Conselyea, 4 Abb. 
 
 Strong, J., revised his opinion, writ- (N. Y.)Pr. 280(1856). Seepos^§113. 
 
 ing the decision in 7 Abb. (N. Y.) -» Brooks v. Smyser, 48 Pa. St. 86 
 
 Pr. 105 (1858). (1864).
 
 § 108 J rOEEIGN EXECUTOR OE ADMINISTEATOE. 123 
 
 of lex loci contractus, the machinery used for the enforce- 
 ment of such laws in their native jurisdictions is never 
 recognized or allowed in any other jurisdiction. " The right 
 which an individual may claim to personal property in one 
 country, under title from a person domiciled in another, can 
 only be asserted by the legal instrumentalities which the 
 institutions of the country where the claim is made have 
 provided. The foreign law furnishes the rule of decision as 
 to the validity of the title to the thing claimed ; but in 
 respect to the legal assertion of that title it has no extra- 
 territorial force. As a result of this doctrine it is now 
 generally held everywhere, and it is well settled in this state, 
 that an executor or administrator appointed in another 
 state has not, as such, any authority beyond the sovereignty 
 by virtue of whose laws he was appointed." * Accordingly 
 a foreign executor or administrator can not foreclose a mort- 
 gage by an equitable action in New York.* 
 
 If a foreign personal representative desires to foreclose a 
 mortgage in New York, or in any state outside of the politi- 
 cal jurisdiction in which he was appointed, it is necessary 
 for him to take out letters testamentary or of administration 
 in some probate court within the state where the mortgaged 
 premises are situated ; otherwise he can not obtain such a 
 standing in a court of equity as will enable him to maintain 
 an action for foreclosure.* " It is not because the executor 
 or administrator has no right to the assets of the deceased, 
 
 » Parsons V. Lyman, 20 N. T. 103 Smith v. Webb, 1 Barb. (N. Y.) 233 
 
 (1859), 'per Denio, J., citing Morrell (1847) ; Williams v. Storrs, 6 Johns. 
 
 V. Dickey, 1 Johns. Ch. (N. Y.) 153 Ch. (N. Y.) 353 (1822); Stone v. 
 
 (1814); Doolittle v. Lewis, 7 Johns. Scripture, 4 Lans.(N. Y.) 186(1870). 
 
 Ch. (N. Y.) 45 (1823) ; Vroom v. See the cases cited above. 
 VanHorne, 10 Paige Ch. (N. Y.) 549 * See the cases cited in the preced- 
 
 (1844). ing notes to this section. Alexander 
 
 « Peterson v. Chemical Bank, 32 v. Rice, 52 Mich. 451 (1884) ; Wood- 
 
 N. Y. 21, 40 (1865). affirming 29 ruff v. Mutchler, 34 N. J. Eq. (7 
 
 How. (N. Y.) Pr. 240 ; Parsons v. Stew.) 33 (1881), and note; Porter 
 
 Lyman, 20 N. Y. 112 (1859) ; Brown v. Trail, 30 N. J. Eq. (3 Stew.) 106 
 
 V. Brown, 1 Barb. Ch. (N. Y.) 189 (1878) ; Trecothick v. Austin, 4 Ma- 
 
 (1845); Vermilya v. Beatty, 6 Barb. son C. C. 16 (1825). Contra, Hey- 
 
 (N. Y.) 429 (1848); Lawrence v. wood v. Hartshorn, 55 2^. H. 4iU 
 
 Elmendorf, 5 Barb. (N. Y.) 73 (1848); (1875).
 
 124 bojiestic adminsteator plaesttiff [§109. 
 
 existing in another country, that he is refused a standing in 
 the courts of such country, for his title to such assets, though 
 conferred by the law of the domicile of the deceased, is 
 recognized everywhere. Reasons of form, and a solicitude 
 to protect the rights of creditors and others, resident in the 
 jurisdiction in which the assets are found, have led to the dis- 
 ability of foreign executors and administrators, which 
 disability, however inconsistent with principle, is very firmly 
 established."* 
 
 § 109. Methods of avoiding rule requiring domestic 
 administrator for plaintiff. — The rule, requiring a foreign 
 personal representative to take out letters testamentary or 
 of administration, may, however, be avoided by his making 
 an assignment of the bond and mortgage to some person 
 residing in the state where the premises are situated ; and 
 the assignee may maintain an action for their foreclosure. 
 
 It seems that the disability of a foreign executor or admin- 
 istrator to sue in other states does not attach to the subject- 
 matter of the action, but to \\it. person of the plaintiff ^ So a 
 foreign specific legatee of a bond and mortgage may foreclose, 
 on the ground that he is legally and equitably the absolute 
 owner of them.* But such a foreclosure by a specific legatee 
 or an assignee will not produce a perfect record title, 
 inasmuch as no evidence of the authority of the personal 
 representative to act in the place of the deceased mortgagee, 
 and to execute a proper assignment of the mortgage, is 
 to be found in the state.* Where a voluntary payment of 
 
 ' Peterson v. Chemical Bank, 32 and administrators. Attention ifl 
 N. y. 43 (1865). Hiram Deuio, Ch. also called to the elaborate briefs 
 J., has written the opinions in the printed with the opinion in Peterson 
 leading cases of Parsons v. Lyman, v. Chemical Bank. 
 20 N. Y. 108 (1859), and Peterson v. « Peterson v. Chemical Bank, 39 
 Chemical Bank («M25?'a),with so much N. Y. 43 (1805) ; Smith v. Webb, 1 
 learning and with such clearness. Barb. (N. Y.) 233 (1847) ; Smith v. 
 after an exhaustive review of all the Tiffany, 16 Hun (N. Y.) 552 (1879), 
 cases which in any way affect the per Hardin, J., collating and review- 
 principles stated in this section, that ing the cases upon this point, 
 they are worthy of the careful study ^ Smith v. Webb, 1 Barb. (N. T.) 
 of any one who has occasion to ex- 202 (1847). 
 
 amine the law afferting the extra- * SuJth v. Tiffany, 16 Hun (N, 
 
 teniloiial ri^^hls of fuiciiin executors Y.) 552 (1879).
 
 § 109.] PAY3IENT TO FOREIG-N" ADJIDflSTEATOR. 125 
 
 the mortgage debt is made by the mortgagor to a foreign 
 executor or administrator of the mortgagee, such payment 
 will discharge the debt and cancel the lien. "The result of 
 the cases seems to be that a foreign executor or adminis- 
 trator, appointed by the proper tribunal of the decedent's 
 domicile, is authorized to take charge of the property here 
 and to receive debts due to the decedent in this state, where 
 there was no conflicting grant of letters here, and where it 
 could be done without suit."* But in a recent case in New 
 York, where an administrator had been appointed upon the 
 estate of a deceased non-resident, and the mortgagor never- 
 theless paid his mortgage debt to a foreign administrator 
 who was subsequently appointed at the intestate's place of 
 residence, the domestic administrator in New York was 
 allowed to foreclose the bond and mortgage, and the court 
 determined that, under the circumstances, payment to the 
 foreign administrator was no defense to the action.* In 
 foreclosures, as in other actions, an objection that the plain- 
 tiff is a foreign executor or administrator, and therefore 
 legally disqualified from suing, must be taken by demurrer 
 or answer, or it will be considered waived.* 
 
 It is stated by Mr. Thomas,* that the foreclosure of a 
 mortgage by advertisement under a power of sale, and pur- 
 suant to statute, is a matter of contract and not n*" iMn'sdiction, 
 
 • Vroom V. VanHome, 10 Paige Lewis, 7 Johns. Ch. (N. Y.) 45 
 Ch.(N.T.) 549 (1844), :per Chancellor (1823); Averill v. Taylor, 5 How. 
 Walworth, cited with approval and (N. Y.) Pr. 476 (1850) ; but it is very 
 quoted by Denio, J., in Parsons v. doubtful whether this proposition 
 Lyman, 20 N. Y. 115 (1859). The would be approved at the present 
 same principle is stated as good law day. The former case was decided 
 by Judge Story, in Trecothick v. by Chancellor Kent in 1823, under a 
 Austin, 4 Mason C. C. 33 (1825). statute which made provision for the 
 
 ' Stone V. Scripture, 4 Lans. (N. foreclosur* of mortgages containing 
 
 Y.) 186 (1870). a power, and the mortgage in that 
 
 ' McBride v. Farmers' Bank of case contained a special power which 
 
 Salem, 26 N. Y. 457 (1863) ; Zabris- led the Chaucellor to say that the 
 
 kie v. Smith, 13 N. Y. 322, 326 foreclosure was a matter of private 
 
 (1855); Robbins v. Wells, 26 How. contract and not of court jurisdiction. 
 
 (N. Y.) Pr. 15 (1863). He cited a colony statute as old aa 
 
 * Thomas on Mortgages, p. 476, 1774. The court, in Averill v. Tay- 
 citing as authority, Doolittle v. lor, seemed to be in much doubt as
 
 126 
 
 TRUSTEES MAY FORECLOSE. 
 
 [§110. 
 
 and that a foreign executor or administrator may therefore 
 adopt that method of foreclosure without seeking the 
 authority of our courts of probate. 
 
 § lie. Trustees may foreclose. — It may be stated as a 
 general rule that a person who is in any manner appointed 
 the trustee of a person owning a mortgage or an interest 
 therein, may maintain an action in his own name, as trustee, 
 for its foreclosure.* So, also, a trustee, like a personal 
 representative, to whom a mortgage is executed to secure 
 funds of the trust estate, may foreclose in his own name as 
 such trustee." When the trust is merely nominal, it is usual 
 for the trustee to join the cestuis que trust with him as 
 co-plaintiffs ; indeed, some courts have held that the bene- 
 ficiaries are necessary parties plaintiff.* It is believed, 
 
 to whether thl 3 proposition was good 
 law, and with some hesitation relied 
 upon Chancellor Kent's opinion. 
 See Demarest v. Wynkoop, 3 Johns. 
 Ch. (N. Y.) 129 (1817). The propo- 
 sition, however, is supported by the 
 late case of Hayes v. Frey, 54 Wis. 
 503, 518 (1882), which relies upon 
 Doolittle V. Lewis, 7 Johns. Ch. (N. 
 T.) 45 (1823). 
 
 • Fisher on Mortgages, §§ 355, 358, 
 365. For the English cases, see 
 Oshourn v. Fallows, Russ. «fe M. 741 
 (1830) ; Adams v. Paynter, 1 Coll. 
 530 (1844) ; Smith v. Chichester, 2 
 Dm. & "War. 404 (18?9) ; Browne v. 
 Lockhart, 10 Sim. 426 (1840) ; Wil- 
 ton V. Jones, 3 Y. & C. C. C. 244 
 (1848); Allen v. Knight, 5 Hare, 
 280 (1846); Barkley v. Reay, 2 
 Hare, 306 (1843). 
 
 « Hays V. Dorsey, 5 Md. 99 (1853), 
 act of 1833, chap. 181 ; Hackensack 
 Water Co. v. DeKay, 36 N. J. Eq. 
 (9 Stew.) 548 (1883). In Hays v. 
 Gallon G. L. & C. Co., 29 Ohio St. 
 330 (1876), the trustee owned in his 
 own right no part of the mortgage 
 debt, and the relation of trustee did 
 not appear on the face of the notes or 
 
 mortgage. Holmes v. Boyd, 90 Ind. 
 332 (1883), where a note and collat- 
 eral mortgage were held in the name 
 of a cashier for his bank. See 
 ante §106 ; N. Y. Code Civ. Proc. 
 §449. 
 
 * Hitchcock's Heirs v. United 
 States Bank of Penn., 7 Ala. 386 
 (1845) ; Freeman v. Schofield, 16 N. 
 J. Eq. (1 C. E. Gr.) 28 (1863) ; Large 
 V. VanDoren, 14 N. J. Eq. (1 
 McCart.) 208 (1862) ; Woodruff v. 
 Depue, 14 N. J. Eq. (1 McCart.) 168, 
 176 (1861); Stillwell v. McNeely, 
 2 N. J. Eq. (1 H. W. Gr.) 305 (1840); 
 Davis V Hemingway, 29 Vt. 438 
 (1857) ; Fleming v. Holt, 12 AV. Va. 
 143 (1877). In Cassidy v. Bigelow, 
 25 N. J. Eq. (10 C. E. Gr.) 112, 
 (1874), the trustee and cestui que 
 trust united as plaintiffs. In Wright 
 V. Bundy, 11 Ind. 398 (1858), it was 
 held that the beneficiaries were not 
 necessary parties, but that they 
 might properly be united as co-plain- 
 tiffs. This case was thoroughly 
 argued twice by able counsel. For 
 the English authorities, see Fisher on 
 Mortgages, § 367; Goldsmid v. Stone- 
 hewer, 9 Hare Appx. 39; & c. 17 Jur.
 
 § 111.] BENEFICIAKIES NECESSAET PAETTES. 127 
 
 however, that if a beneficiary refuses to become a co-plaintiff, 
 he can be made a defendant ;' it is best, at least, when 
 possible, to bring all parties interested in the trust within 
 the jurisdiction of the court. 
 
 Where the number of beneficiaries is so large that great 
 inconvenience and expense would be incurred by making 
 them parties to the bill of foreclosure, the courts may, in 
 their discretion, dispense with a strict adherence to the rule.* 
 Thus, in one case a mortgage was executed to a person as 
 " the agent and trustee of the several subscribers to the 
 loan," which was of large amount ; the mortgagee was 
 allowed to file a bill for foreclosure in his own name, without 
 bringing the beneficiaries into the action.' The complaint 
 in such a case should state that the foreclosure is for the 
 benefit of the bondholders, and that they are too numerous 
 to be made parties.* 
 
 § III. Beneficiaries — When not necessary parties. — 
 In the foreclosure of railroad mortgages this limitation has 
 become so well established as to be a separate rule ; the 
 bondholders are never necessary nor proper parties plantifl 
 or defendant, but there may be circumstances which would 
 authorize the court to admit any of them as defendants on 
 
 199 (1852), holding that the benefl- Mortgages, §374. In point. Swift 
 
 ciaries are unnecessary parties. See v. Stebbins, 4 Stew. «S5 P. (Ala.) 
 
 Wood V. Harman, 5 Madd. 368 447 (1833). In Carpenter v. Canal) 
 
 (1820) ; Locke v. Lomas, 5 DeG. & Co., 35 Ohio St. 307 (1880), the 
 
 S. 326.(1852); 8. c. 16 Jur. 814(1852). lienholders were so numerous that 
 
 But where the trustee had died, it it was impracticable to bring 
 
 was deemed best to make the cestui* them all before the court, and one, 
 
 que trust parties, Stansfield v. Hob- as trustee, prosecuted for all. See 
 
 son, 16 Beav. 189 (1852). Bardstown & Louisville R. R. Co. 
 
 ' Large v. Van Doren, 14 N. J. r. Metcalfe, 4 Met. ( Ky. ) 199 
 
 E%. (1 McCart.) 208 (1862) ; Davis v. (1862). 
 
 Hemingway, 29 Vt. 438 (1 857). See « Willink v. Morris Canal Banking 
 
 Fisher on Mortgages, §373, for Co., 4 N. J Eq. (3 H. W. Gr.) 377 
 
 English cases; Minn v. Stant, 13 (1843). 
 
 Beav. 190 (1849) ; s. c. 15 Beav. 49 ; * Carpenter v. Blackhawk Gold 
 
 Browne ▼. Lockhart, 10 Sim. 426 Mining Co., 65 N. T. 43 (1875); 
 
 (1840). King v. The Merchants' Exchange 
 
 « See post, §§ 112, 186, for English Co., 5 N. T. 547 (1851). 
 and other authorities ; Fisher on
 
 128 FOEECLOSUEE BY BENEFICIAEIES. [§112. 
 
 their own application.' Another limitation to the general 
 rule is made in cases where a trustee is appointed to receive 
 and administer a fund for the benefit of creditors ; he may 
 foreclose without bringing the creditors before the court.' 
 In some cases the creditors are so numerous that it would 
 be simply impossible to make all of them parties to the 
 action ; furthermore, creditors are often decribed as a class, 
 and not by their individual names. 
 
 § 112. Beneficiaries, cestuis que trust, may sometimes 
 foreclose. — It is stated by Justice Story, on the authority of 
 English cases, that a beneficiary, or cestui que trust, may 
 maintain an action for the foreclosure of a mortgage 
 belonging to his trust estate, or in which he has an interest.* 
 So one or two beneficiaries may bring a foreclosure for 
 themselves and other beneficiaries,* especially if the trustee 
 is, for any reason, disqualified from acting.* But in such 
 cases it also necessary to make the trustee a party plaintiff 
 or defendant to the action, as the legal title to the mortgage, 
 
 ' See Jones on Railroad Securities, Co., 35 Pa. St. 30 (1860), where the 
 
 §§431, 437. cestuis que trust were numerous 
 
 * Christie v. Herrick, 1 Barb. Ch, bondholders, and the trustee was for 
 (N. Y.) 254 (1845). some reason disqualified from acting ; 
 
 » Ala. Life Ins. & Trust Co. v. also Davis v. N. Y. Concert Co., 41 
 
 Pettway, 24 Ala. 544 (1854) ; Carra- Hun (N. Y.) 492 (1886), where the 
 
 dine V. O'Connor, 21 Ala. 573 (1852) ; trustee for numerous bondholders 
 
 Marriott v. Givens, 8 Ala. 694 (1846); refused to foreclose at their request. 
 
 McGowan v. Branch Bank Mobile, Winton's Appeal, 87 Pa. St. 77 
 
 7 Ala. 823 (1845) ; Somes v. Skinner, (1878). In Bank of Commerce v. 
 
 16 Mass. 848 (1820) ; Martin v. Mc- Lanahan, 45 Md. 396 (1876), a deed, 
 
 Reynolds, 6 Mich. 70 (1858) ; Hack- intended as a mortgage, was executed 
 
 ensack Water Co. v. DeKay, 36 N. to one of a number of creditors to 
 
 J. Eq. (9 Stew.) 548 (1883) ; Mitch- secure his own claim and the claims 
 
 ell V. McKinney, 6 Heisk. (Tenn.) of others ; it was held that the c^i'ww 
 
 83(1871); Wood V.Williams, 4 Madd. que trust could not maintain an 
 
 186 (1819) ; Hichens v. Kelly, 2 Sm. action for foreclosure, although the 
 
 & G. 264 (1854); Story Eq. PI. grantee in the deed was a trustee, 
 
 §§ 201, 209. See N. Y. Code Civ. and the other creditors were benefi- 
 
 Proc. § 449. claries. But in Dorsey v. Thomp- 
 
 * Berry v. Bacon, 28 Miss. 818 eon, 37 Md. 25 (1872), the cestuis que 
 (1854). trust foreclosed a mortgage, making 
 
 * See Ashhurst v. Montour Iron the trustee a defendant.
 
 § 113.] FORECLOSUKE BY SUCCESSOES IN OFFICE. 129 
 
 if not the equitable title, is vested in him.' The best 
 practice is for the trustee and the beneficiary to unite as 
 co-plaintifTs.* 
 
 § 113. Mortgages to persons in ofificial capacity; they 
 or their successors may foreclose. — A person to whom a 
 bond and mortgage are executed in an official capacity may 
 foreclose the same in his own name as such officer, as he 
 holds the entire legal title ; the real party, who equitably 
 owns the fund, is not held a necessary party to the action. 
 So also a successor in office may foreclose in his own name 
 as such officer, as the courts hold him to be the equitable 
 assignee of the security.* His predecessor, in whose name 
 the mortgage was taken, need not be brought into the action, 
 and upon his death his personal representatives are not 
 necessary parties. The rule of this section is in harmony 
 with the principles stated in §§ 107 and no, as to executors, 
 administrators and trustees. Thus the successor of a 
 receiver of an insolvent corporation is allowed to sue in his 
 own name as such receiver.* Illustrations may be taken 
 from the reported cases, where mortgages have been given to 
 guardians of infants* and lunatics," to the comptroller of a 
 
 * In Hays v. Lewis, 21 Wis. 663 mortgage were turned over by an 
 (1867), the trustee was held an indis- administrator to a guardian as a part 
 pensable party, and it was questioned of his ward's distributive share. In 
 ■whether the cestuia que trust alone Commonwealth v, Watmough, 12 
 could maintain an action for fore- Pa. St. 316 (1849), a mortgage was 
 closure. executed to a guardian ; the wards, 
 
 * See ante §§ 110, 111 and notes. on becoming of age, assigned their 
 » Iglehart v. Bierce, 36 HI. 133 interests, and the assignee was held 
 
 (1864); Hiatt v. The State-Kitsel- to have the full legal title and 
 
 man, 110 Ind. 472(1886); Vanarsdall allowed to foreclose. See Caulkins 
 
 V. The State, 65 Ind. 176 (1879). v. Bolton, 98 N. Y. 511 (1885) ; Nor- 
 
 * Leavitt v. Pell, 27 Barb. (N. Y.) ton v. Ohrens, (Mich.) 12 West. Rep. 
 822 (1858) ; affirmed 25 N. Y. 474 415 (1888) ; MiUer v. Clark, 56 Mich. 
 (1862); Iglehart v. Bierce, 36 111. 133 337 (1885). 
 
 (1864). 6 See Peabody v. Peabody, 59 Ind. 
 
 »Lyon V. Lyon, 67 N. Y. 250 556 (1877), for an action brought 
 
 (1876) ; Cleveland v. Cohrs, 10 Rich. by a guardian or committee of a 
 
 (S. C.) 224 (1878). In Walter v. lunatic to foreclose a mortgage exe- 
 
 Wala, 10 Neb. 123 (1880), a note and cuted to the lunatic while sane. 
 
 (9)
 
 130 FORECLOSUEE BY ^[ARr.IED WOMAX, [§114. 
 
 state,' to the state superintendent of insurance," to United 
 States loan commissioners,' and to personal representatives* 
 and trustees/ It is not necessary for a general guardian, to 
 whom as such a mortgage has been assigned, to join his 
 ward as a party in an action for foreclosure.* 
 
 § 114. A married woman owning a mortgage may 
 foreclose. — It is now a universal principle of law in England 
 and in America that a married woman can own and control a 
 separate estate in real and in personal property, and that she 
 is entitled to all the rights and remedies pertaining to 
 property which 2. feme sole possesses, and may enforce them 
 as fully in the courts. She can own and foreclose a bond 
 and mortgage in her own name, and it is not necessary for 
 her to make her husband a party to the action, as he can 
 have no interest in it.* Where a bond and mortgage were 
 executed to a husband and wife, the wife was held entitled to 
 foreclose in her own name on the death of the husband, upon 
 the ground of survivorship in joint ownership ;* and it 
 appearing that the money was actually loaned by the wife, 
 that fact was held as another circumstance which entitled 
 her to foreclose in her own name. And so a discharge by a 
 husband of a mortgage executed to him and his wife, but 
 
 1 Flagg V. Hunger, 9 N. Y. 483 5 N. T. 144 (1851) ; Powell v. Tut- 
 
 (1854), holding that the the comp- tie, 3 N. Y. 396 (1850) ; Wood v. 
 
 troUer of New York had power to Terry, 4 Lans. (N, Y.) 80 (1871). 
 
 foreclose a mortgage assigned to him The foreclosure of United States loan 
 
 by a bank to secure the redemption mortgages is strictly statutory, and 
 
 of its notes ; so to the treasurer of is governed by the laws of the United 
 
 the state of New Jersey, Townsend States ; Laws of 1837, Ch. 150. 
 
 V. Smith, 12 N. J. Eq. (1 Beas.) 350 * See ante § 106. 
 
 (1858) ; Supervisors of Iowa Co. v. * See ante § 110. 
 
 Mineral Point R. R., 24 Wis. 93 « Bayer v. Phillips, 17 Abb. (N. Y.) 
 
 (1869). See Delaplaine v. Lewis, N. C. 425 (1886), with foot note. 
 
 Governor, etc., 19 Wis. 476 (1865). N. Y. Code Civ. Proc. § 1686. 
 
 » Smith V. Lombardo, 15 Hun (N. ' Bartlett v. Boyd, 34 Vt. 256 
 
 Y.) 415 (1878), where the action was (1861). So she can assign her mort- 
 
 in the name of the deputy. gage ; Kamena v. Huelbig, 23 N. 
 
 » Thompson v. Comm'rs, 79 N. Y. J. Eq. (8 C. E. Gr.) 78 (1872). 
 
 54 (1879) ; York v. Allen, 30 N. Y. « Shockley v. Shockley, 20 Ind. 
 
 104 (1864); Pell v. Ulmar, 18 N. 108(1863). 
 Y. 139 (1858) ; Olmstead v. Elder,
 
 §114.] FOKECLOSUKE BY MAREEED WOMAK. 131 
 
 really belonging to her, will not prevent her foreclosing.* 
 The marriage of a mortgagee, a fejne sole, to a mortgagor 
 will not extinguish the mortgage ; the mortgage remains 
 unaffected and may be foreclosed.' A husband can execute 
 a valid mortgage on his lands to his wife, who can foreclose 
 against him.* She can also foreclose a mortgage assigned to 
 her on her husband's lands. The assignment does not 
 operate as a discharge of the mortgage.* 
 
 ' McKinney v. Hamilton, 51 Pa. Wochoska, 45 Wis. 423 (1878) ; Put 
 
 St. 63 (1865). nam v. BickneU, 18 Wis. 333 (1864). 
 
 • This has been the law in New Such a mortgage was held void in 
 
 York since the act of 1848. Power Terry v. Wilson, 63 Mo. 493 (1876). 
 
 V. Lester, 17 How. (N. T.) Pr. 413 * Bean v. Boothby, 57 Me. 295 
 
 (1858) ; affd 23 N. T. 527 (1861), a (1869) ; Trenton Banking Co. v. 
 
 leading case. Woodruff, 2 N. J. Eq. (1 H. W. Qr.) 
 
 •Mix y. Andes Ins. Co., 9 Hun 117(1838). 
 (N. Y.) 397 (1876); Wochoska T.
 
 CHAPTER VL 
 
 PARTIES DEFENDANT— KECESSARY TO PERFECT THE TITLB. 
 
 OWNERS OF THE FEE TITLE. 
 
 § 115. Introductory. 
 
 116. General principles. 
 
 117. Mortgagor, still owning the 
 
 equity of redemption, neces- 
 sary. 
 
 118. Mortgagor, no longer owning 
 
 the equity of redemption, 
 not necessary. 
 
 119. Mortgagor always a desirable 
 
 defendant. 
 
 120. Mortgagor, still owning only 
 
 a divided or undivided part 
 of the premises, or being a 
 tenant in common by de- 
 scent or grant, a necessary 
 party. 
 
 121. Mortgagor, being a tenant in 
 
 common or by the entirety, 
 a necessary defendant. 
 
 122. Joint mortgagors— Survivor- 
 
 ship. 
 
 123. Mortgagor, still holding any 
 
 kind of an equitable, con- 
 tingent or latent interest, 
 generally necessary — Sher- 
 iff's execution sale. 
 
 124. Vendor and vendee under 
 
 land contract necessary. 
 
 125. Parties to deeds for security, 
 
 in escrow or in fraud, nec- 
 essary. 
 
 126. Purchaser and owner of the 
 
 equity of redemption by 
 grant or otherwise from the 
 mortgagor necessary. 
 
 127. Owner of mortgaged premises 
 
 omitted as defendant — Ef- 
 fect. 
 
 128. Remedies of omitted owner 
 
 of mortgaged premises. 
 
 129. Mesne owners of the equity 
 
 of redemption, no longer 
 owners, generally not neces- 
 sary. 
 
 130. Purchaser pendente lite not 
 
 necessary. 
 
 131. Common law doctrine of li$ 
 
 pendens. 
 
 132. New York statutory provis- 
 
 ions for lis pendens ; other 
 states. 
 
 133. Effect on parties of omitted 
 
 or defective lis pendens. 
 
 134. Mortgagor a married woman, 
 
 having a separate estate, 
 necessary. 
 
 135. "Wife of mortgagor or owner 
 
 of the equity of redemption 
 necessary. 
 
 136. Wife not executing mortgage 
 
 — Her remedies if omitted 
 as defendant. 
 
 137. Wife of mortgagor ; service 
 
 of summons or process 
 under early practice. 
 
 138. Wife of mortgagor ; service 
 
 of summons under present 
 practice. 
 
 139. Wife of mortgagor or owner 
 
 of equity of redemption, not 
 necessary in those states 
 where the common law 
 doctrine of dower has been 
 changed. 
 
 140. The husband of a mortgagor 
 
 who is a married woman, 
 having a separate estate, 
 generally not necessary. 
 
 141. Heirs of mortgagor or owner 
 
 of the equity of redemption 
 necessary. 
 
 142. Heirs of mortgagor or owner 
 
 — When not necessary. 
 
 143. Devisees of mortgaged prem- 
 
 ises necessary. 
 
 144. Legatees and annuitants nec- 
 
 essary. 
 
 145. Executors and administrators 
 
 generally not necessary. 
 
 133
 
 § 115.] NECESSARY AND PEOPEE DEFENDANTS. 133 
 
 146. Trustees, holding an interest 
 
 of whatever kind in mort- 
 gaged premises for benefi- 
 ciaries, necessary. 
 
 147. Cestnis que trust and benefi- 
 
 ciaries — When necessary. 
 
 148. Cestuis que trust — When not 
 
 necessary. 
 
 149. Statutes making Gestuia que 
 
 trust necessary. 
 
 150. Remaindermen and rever- 
 
 sioners necessary. 
 
 151. A defendant in esse necessary. 
 
 152. Assignee in bankruptcy or by 
 
 voluntary general assign- 
 ment, and receiver, neces- 
 sary. 
 
 § 153. Assignee in bankruptcy per^ 
 dente lite not necessary. 
 
 154. Infants, lunatics, idiots and 
 
 habitual drunkards neces- 
 sary parties. 
 
 155. Mortgage executed by ad- 
 
 ministrator or executor to 
 pay decedent's debts ; heirs 
 and devisees of the decedent 
 necessary. 
 
 156. Corporations necessary par- 
 
 ties by corporate name. 
 
 157. Tenants and occupants neces- 
 
 sary. 
 
 § 115. Introductory. — Most text-book writers have con- 
 sidered the subject of parties defendant to mortgage fore- 
 closures under the sub-divisions of necessary parties and 
 proper parties. Mr. Jones' has defined a necessary party as 
 " one whose presence before the court is indispensable to the 
 rendering of a judgment which shall have any effect on 
 the property ; without whom the court might properly refuse 
 to proceed, because its decree would be practically nugatory." 
 This definition, however, can not be considered logical, nor 
 in accordance with the decisions of the courts ; for at present 
 no one can be said to be a necessary party in order to main- 
 tain the action, nor necessary in the sense that his omission 
 would defeat the action or render the decree absolutely void. 
 
 The words " necessary " and " proper " are used with much 
 looseness, inaccuracy and uncertainty of definition in the 
 courts of our various states, — apparently in disregard of 
 the fact that the words are relative in signification, and that 
 they should be used as descriptive of parties, only with 
 reference to the purposes for which the parties are made 
 defendants to the foreclosure. Under the above definition 
 neither an owner of a part or of the whole of an equity of 
 redemption, nor a subsequent lienor, nor any other person 
 interested in the subject-matter of the action, can be called 
 a necessary party. 
 
 ' Jones on Mortgages, § 1394.
 
 134 WnO NECESSARY DEFENDANTS. [§116. 
 
 To make a logical analysis of the subject of parties defen- 
 dant to foreclosures, it will be necessary to divide the subject 
 according to the purposes for which the parties are brought 
 into the action. This chapter will be given to the consider- 
 ation of parties who are necessary defendants for the purpose 
 of extinguishing or of cutting off the entire equity of 
 redemption, and the interests of all persons who claim under 
 the owner of the equity by subsequent mortgages, judgments 
 or otherwise, — that is, of parties who are necessary in order 
 to exhaust every remedy against the land for the collection 
 of the mortgage debt, and in order to produce a perfect title 
 at the sale, or such a title as the courts will compel a bidder 
 to accept. The word " necessary " will be used throughout 
 the work in this sense alone; the word "proper" can not 
 enter into the analysis, for it is too uncertain in meaning, 
 and conveys the idea that there may be an option on the 
 part of the plaintiff as to whether he will bring a party into 
 the action or not. 
 
 For convenience of treatment and to make a logical division 
 of this part of the work, parties defendant will be considered 
 in this and the following chapter under the heads of Owners 
 of the Fee Title, and Subsequent Mortgagees and Lienors. In 
 this chapter exclusive attention will be given to parties who 
 own the equity of redemption in the mortgaged premises, or 
 who have any interest in the quality or the quantity of the 
 title. In the following chapter, attention will be given to 
 parties holding liens and incumbrances upon the mortgaged 
 premises which accrued subsequent to the execution and 
 delivery of the mortgage under foreclosure. 
 
 § Ii6. General principles. — Many states have now 
 codified the general equitable principle, that any person may 
 be made a defendant to an action who has or claims to have 
 an interest in the controversy adverse to the plaintiff, or who 
 is a necessary party to a complete determination or settle- 
 ment of the questions involved therein.' Applying this 
 principle to foreclosures, it may be said that any person who 
 
 ' N. Y. Code Civ. Proc. § 447 ; Pomeroy's Remedies, § 271. 
 
 See ante §§ 70. 71.
 
 § 117.] MOKTGAGOE NECESSAET DEFET^^DATTT. 135 
 
 is interested in any way in the mortgaged premises, or 
 who has an interest in the mortgage debt adverse to that of 
 the plaintiff, may be made a defendant in the action. Thus 
 the owner of any quantity or quality of estate in the 
 premises, even in the remotest degree or of the most trifling 
 value, becomes as necessary a party defendant to perfect the 
 title as the sole owner of the entire equity of redemption. 
 The holder of a lien by mortgage, judgment or any contin- 
 gent equity, is also generally a necessary defendant. 
 
 The primary object of the suit is to divest the title, which 
 existed in the mortgagor at the instant of the delivery of the 
 mortgage, of every interest which he or those claiming under 
 him can possibly have in it. If any such party is omitted, he 
 stands, of course, unaffected by the action, and the decree 
 produced will be defective. It matters not how valueless or 
 remote any interest may be ; it is of the utmost impor- 
 tance that it be brought within the jurisdiction of the court, 
 so that it may be extinguished. The omitted party has, 
 moreover, a right to redeem, and may thus put a purchaser 
 of a defective title to endless trouble and expense in defend- 
 ing an estate which should have been perfected in the original 
 action. 
 
 § 117. Mortgagor, still owning the equity of redemp- 
 tion, necessary. — If the mortgagor continues to own the 
 equity of redemption, he is for all purposes a necessary party 
 to an action to foreclose a mortgage;' if he has not incum- 
 bered the property, he is the sole necessary defendant, and 
 the simplest possible case of foreclosure exists. " There is 
 no doubt that the owner of the equity of redemption is a 
 
 ' Eaynor v. Selmes, 53 N. Y. 579 Hughes v. Patterson, 23 La, An. 679 
 (1873), reversing 7 Lans, (N. Y.) 440 ; (1871). For the English authorities, 
 Kay V. Whittaker, 44 N. Y. 565, see Fisher on Mortgages, § 298 ; 
 572 (1871) ; Griswold v. Fowler, 6 Fell v. Brown, 2 Bro. Ch. 276 
 Abb. (N. Y.) Fr. 113 (1857) ; Keed (1787) ; Palk v. Clmton, 12 Ves. 48 
 V. Marble, 10 Paige Ch. (K Y.) 409 (1806) ; Thomson and Baskerville 
 (1843) ; Lane v. Erskine, 13 111. 501, Case, 3 Rep. in Ch. 215 (1688). For 
 503 (1851), authorities collated by a mortgage of a life estate, see Hun- 
 Treat, Ch. J. ; followed in Harvey's ter v. Macklew, 5 Hare, 238 (1846). 
 Adm's V. Thornton, 14111. 317 (1852); See post §§ 126-128, and notes.
 
 136 MOETGAGOE NECESSAEY WHEN. [§ 117. 
 
 necessary party to a suit for the foreclosure of a mortgage. 
 The mere statement of this proposition is sufficient to show 
 its correctness, without the citation of any authorities in its 
 support. The action is brought for the express purpose of 
 foreclosing the equitable estate and right to redeem remain- 
 ing against the mortgage, and of transferring to the purchaser 
 at a sale by virtue of the decree, a complete legal title to the 
 mortgaged premises. The very object of the proceeding 
 would, therefore, be completely defeated if the owner of the 
 equity of redemption were not a party. No title could be 
 made that would not be defeasible by the person in whom 
 this equity of redeeming the mortgage remained, not barred 
 or destroyed."* If there are two or more mortgagors, all are 
 necessary defendants ; one can not represent the others.^ If 
 the title is held by a husband and wife as tenants by the 
 entirety, both will be necessary defendants.' And if com- 
 munity lands, held by tenants in common, are mortgaged, all 
 of the owners will be necessary defendants.* A person who 
 has signed a note, for which another person executes a mort- 
 gage as collateral security, is not a necessary party to a 
 foreclosure, as he has no interest in the land ;* he can be 
 made a defendant, however, if a judgment for deficiency is 
 sought against him. 
 
 If the mortgagor has conveyed the premises by an instru- 
 ment which remains unrecorded, he is still a necessary party, 
 as the record continues to show the title in him ;' it would 
 
 I Hall V. Nelson, 23 Barb. (N. Y.) (Ky.) 301 (1830), per Robertson. Ch. 
 
 90 (1856) ; s. c. 14 How. (N. Y.) Pr. J. See post § 122, on joint mort- 
 
 32, per Eraott, .J. ; Watson v. Spence, -gagors. 
 
 20 Wend. (N. Y.) 260 (1838), per ^ Curtis v. Gooding, 99 Ind. 45 
 
 Cowen, J.; Buckner v. Sessions, 27 (1884). 
 
 Ai'k. 219 (1871) ; Cox v. Vickers, 35 * Johnson v. San Francisco Sav. 
 
 Ind. 27 (1870) ; Lenox v. Reed, 13 Union, 63 Cal. 554(1883). 
 
 Kan. 223, 228 (1873) ; Champlin v. ^ Deland v. Mershon, 7 Clarke 
 
 Foster, 7 B. Mon. (Ky.) 105 (1846). (Iowa), 70 (1858). 
 
 In Louisiana a curator will be ap- ' Hall v. Nelson, 23 Barb. (N. Y.) 
 
 pointed by the court to represent the 88 (1856) ; Kipp v. Brandt, 49 How. 
 
 mortgagor, if he is a non-resident (N. Y.) Pr. 358 (1875j , Ostrom v. 
 
 or hides himself ; Lasere v. lioclie- McCann, 21 How. (N. Y.) Pr. 431 
 
 reau, 21 La. An. 205 (1869). (I860); Boice v. Mich. Mut. Life Ins. 
 
 * Slucktirv. Sluckcr, 3J. J. Marsh. Co., (Mich.) 13 West. Rep. 3?7
 
 118.] MOETGAGOR NOT NECESSAEY WHElf. 137 
 
 be unsafe at least to omit such a mortgagor. It is believed 
 that the safest and securest practice is, always to make the 
 mortgagor a party, if he can be easily served with the sum- 
 mons.* If the mortgagor has contracted to sell and convey 
 the premises, he remains a necessary party in order to cut 
 off the entire equity of redemption, even though the contract 
 be under seal and recorded.* 
 
 In strict foreclosures,' and also in foreclosures by adver- 
 tisement under statute, the mortgagor, or those succeeding 
 to his interests, are necessary parties defendant ;* the statute 
 must be strictly followed in the service of the required notice 
 upon the necessary parties.* 
 
 § ii8. Mortgagor, no longer owning the equity of 
 redemption, not necessary. — A mortgagor who has made an 
 
 absolute conveyance of all his interest in mortgaged premises 
 is not a necessary party to a foreclosure for the purposes of 
 perfecting the title and of exhausting all remedies against 
 the land for the collection of the debt ;* neither are the 
 
 (1888). See N. Y. Code Civ. Proc. 
 §§ 1670, 1671. and post § 132. 
 
 ' See post § 129, on intermediate 
 purchasers. 
 
 * Crooke v. O'Higgins, 14 How. 
 (N. Y.) Pr. 154 (1857). See post 
 %% 120, 121. 
 
 * Hornby v. Cramer, 12 How. (N. 
 Y.) Pr. 490 (1855). 
 
 * Robinson v. Ryan, 25 N. Y. 320 
 (1862) ; Cole v. Moffitt, 20 Barb. (N. 
 Y.) 18 (1854) ; Stanton v. Kline, 16 
 Barb. (N. Y.) 9 (1852); VanSlyke 
 V. Shelden, 9 Barb. (N. Y.) 278 
 (1850). 
 
 6 Mowry v. Sanborn, 65 X. Y. 581 
 (1875). 
 
 « Daly V. Burchell, 13 Abb. (N. Y.) 
 Pr. N. S. 264, 268 (1872) ; Griswold 
 V. Fowler, 6 Abb. (N. Y.) Pr. 113 
 (1857) ; VanNest v, Latson, 19 
 Barb. (N. Y.)604, 608(1855); Cherry 
 V. Monro, 2 Barb. Ch. (N. Y.) 627 
 (1848); Rhodes v. Evans, Clarke Ch. 
 (N. Y.) 108 (1840); Trustees v. 
 
 Yates, 1 Hoff. Ch. (N. Y.) 142 (1839); 
 Drury v. Clark, 16 How. (N. Y.)Pr. 
 428 (1857) ; Crooke v. O'Higgins, 14 
 How. (N. Y.) Pr. 154 (1857)^ Bram 
 v. Bram, 34 Hun (N. Y.) 487, 491 
 (1885) ; Root V. Wright, 21 Hun(N. 
 Y.) 344, 348 (1880), reversed in part, 
 but not as to this point, in 84 N. Y. 
 72 (1881) ; Whitney v. McKinney, 7 
 Johns. Ch. (K Y.) 144 (1«23) ; Bige- 
 low V. Bush, 6 Paige Ch. (N. Y.) 
 343 (1837) ; Horn v. Jones, 28 Cal. 
 194 (1865) ; Boggs v. Fowler, 16 CaL 
 559 (1860) ; Swift v. Edson, 5 Conn. 
 534 (1825); Bennett v. Mattingly, 
 110 Ind. 197 (1886); Stevens v. 
 Campbell, 21 Ind. 471 (1803) ; Burk- 
 ham V. Beaver, 17 Ind. 367 (1861) ; 
 Shaw V. Hoadley, 8 Blackf. (Ind.) 
 165 (1846) ; Johnson v. Monell, 13 
 Iowa, 300, 303 (1862); Jones v. 
 Lapham, 15 Kan. 540 (1875) ; Bailey 
 v. Myrick, 36 Me. 50 (1853) ; True 
 v. Haley, 24 Me. 297 (1844); Os- 
 borne v. Crump, 57 Miss. 622 (1880);
 
 loS MORTGAGOR PROPER WHEN. [§118. 
 
 assignees in bankruptcy, nor the heirs, nor the personal 
 representatives^ of such a mortgagor necessary parties.' But 
 a mortgagor who has sold his equity of redemption by a 
 warranty deed, may be made a party defendant on his own ap- 
 pHcation ; so also if he has any other interest in the foreclos- 
 ure, but if he fails to show a real interest in the action when 
 admitted, the court will subsequently dismiss him from it.* 
 
 The decisions are clear and uniform in sustaining these 
 propositions, and it is only in exceptional cases and for 
 special reasons that a court will require a mortgagor, who 
 has parted with his entire interest in the property, to be 
 brought in if the plaintiff has omitted him.* The mortgaged 
 premises are always the primary fund for the payment of the 
 debt, and a grantee has no right to object if the mortgagor 
 is not made a party to the bill of foreclosure.* Neither will 
 the objection of any other defendant be considered, unless 
 he shows that his interests will be prejudiced by the omission 
 of the mortgagor.* It is only when the party against whom 
 the mortgagee asks a personal judgment for deficiency is a 
 mere surety of the mortgagor, that he can insist that the 
 latter be made a defendant and that the plaintiff's remedy 
 against him for the deficiency in the property be exhausted 
 
 Andrews v. Stelle, 23 N. J. Eq. (7 7 Sim. 317 (1835) ; Fisher on Mort- 
 
 C. E. Gr.) 478 (1871). In Crenshaw gages, § 306. 
 
 V. Thackston, 14 S. C. 437 (1881), » Huston v. Stringham, 21 Iowa, 
 
 such a mortgagor was held a neces- 36 (1866) ; Gifford v. Workman, 15 
 
 eary party. Wright v. Eaves.lO Rich. Iowa, 34 (1863). 
 
 (S. C.) Eq. 583 (1858) ; Buchanan * Mims v. Mims, 35 Ala. 23 (1859) 
 
 V. Monroe. 32 Tex. 537 (1858) ; Swift v. Edson, 5 Conn. 534 (1825) 
 
 Miner v. Smith, 53 Vt. 551 (1881) ; Lane v. Erskine, 13 Dl. 501 (1851) 
 
 Delaplaine -v. Lewis, 19 Wis. 476 Shaw v. Hoadley, 8 Blackf. (Ind.) 
 
 (1865) ; Brown v. Stead, 5 Sim. 165 (1846) ; Murray v. Catlett, 4 G. 
 
 585 (1832). Fisher on Mortgages, Greene (Iowa), 108 (1853) ; Vreeland 
 
 § 305. V. Loubat, 3 N. J. Eq. (1 H. W. Gr.) 
 
 • Rickards v. Hutchiuson, 18 Nev. 104, 105 (1858); McGuffey v. Finley, 
 215 (1883). 20 Ohio, 474 (1851) ; 1 PoweU od 
 
 * Bryce v. Bowers, 11 Rich. (S. C.) Mortgages, 405, and note 2. 
 
 Eq. 41(1859). For the English cases, » Bigelow v. Bush, 6 Paige Ch, 
 
 see Rochfort v. Battersby, 14 Jur. (N. Y.) 343, 346 (1837). 
 
 239(1849); Lloyd V.Lander, 5 Madd. « Williams v. Meeker, 29 lowK 
 
 282 (1821) ; Collins v. Shirley, 1 R. 292, 294 (1870). 
 & M. 638 (1830); Kerrick v. Saffery,
 
 §§ 119-120.] MOEIUAGOE DESIEABLE. 139 
 
 before resorting to the surety.' If there are equities or 
 disputes between the grantee and the mortgagor, they must 
 be settled in another suit.* 
 
 § 119. Mortgagor always a desirable defendant. — It 
 
 is nearly always desirable, however, to make the mortgagor 
 a party defendant, even if he does not continue to hold the 
 equity of redemption ; it is against him especially that a 
 judgment for deficiency is sought on his bond or note which 
 the mortgage accompanies.* There may be, moreover, latent 
 or secret interests to be cut off, which he continues to hold 
 in the property; creditors may attack his conveyance as 
 fraudulent ; or his conveyance, absolute on its face, may be 
 intended only as a collateral security.* Thus, in an action 
 to foreclose a mortgage and to correct the description of the 
 premises, both the mortgagor and his grantee have been 
 deemed necessary defendants ;' and the grantor of a trust 
 deed has been held a necessary defendant for similar reasons.* 
 When the plaintiff has no knowledge or suspicion of such 
 equities, or fraudulent conveyance or collateral security 
 deeds, he will generally be bound only by what appears on 
 record. 
 
 § 120. Mortgagor, still owning only a divided or 
 undivided part of the premises, or being a tenant in 
 common by descent or grant, a necessary party. — As 
 
 long as a mortgagor continues to own any part of the title 
 which he mortgages, he is just as necessary a party to a 
 foreclosure as he would be if he continued to own the whole 
 title. ^ A mortgagee's joining with his mortgagor in a deed 
 
 » Drury v. Clark, 16 How. (N. Y.) (1821) ; King v. Martin, 2 Ves. Jr. 
 
 Pr. 424, 431 (1857) ; Bigelow v. 641 (1795). This point is well illu- 
 
 Bush, 6 Paige Ch. (N. Y.)343 (1837). Btrated by the litigation in Griswold 
 
 5 VanNest v. Latson, 19 Barb. v. Fowler, 6 Abb. (N, Y.) Pr. 113 
 
 (N. Y.) 604 (1855). (1857) ; Crooke v. O'Higgins, 14 
 
 » Root V. Wright, 21 Hun (N. Y.) How. (K Y.) Pr. 154 (1857). 
 
 344, 348 ; aff'd 84 N. Y. 72 (1881) ; ' Sickmon v. Wood, 69 111. 329 
 
 Pelry v. Ambrosher, 100 Ind. 511 (1873). 
 
 (1884) ; Stevens v. Campbell, 21 Ind. « Marsh v. Green, 79 HI. 385 (1875). 
 
 471 (1863) ; Miller v. Thompson, 04 ■> See ante % 117; Taylor v. Porter, 
 
 ilich. 10 (187G). See post chap. x. 7 Mass. 355 (1811) ; Spiller v. Spiller, 
 
 * Lluyd V. Lander, 5 Madd. 282 1 Hayw. (N. C.) L. 482 (1797).
 
 140 MOIITGAGOK NECESSARY PARTY WHEN. [§ 120. 
 
 of an undivided part of the mortgaged premises, for the pur- 
 pose of releasing his mortgage debt on that part, has been held 
 inoperative as a release. The mortgage still continued a 
 lien on the entire premises.* A mortgage executed by a ten- 
 ant in common upon his undivided interest in real property 
 will not affect the rights of his co-tenants." Such a mortgage 
 can not be enforced against the mortgagor's divided part of 
 the premises, until commissioners in partition have made an 
 actual division of the lands, and a decree has been entered 
 adjudging the mortgage a lien upon his part alone.* After a 
 mortgage has been adjudged by a decree in partition to be 
 a lien upon a divided instead of an undivided part of the 
 premises, the mortgagee will be confined for his remedy 
 exclusively to the share set off to his mortgagor.* Thus, in 
 an action to foreclose a land contract or " title bond " of an 
 undivided half of certain premises, the vendee of the remain- 
 ing undivided half was allowed to file a cross bill for partition, 
 and to have a decree entered that the divided half set apart 
 to him be held free and clear of the lien of the title bond.* 
 
 It has been intimated in some cases* that a purchaser 
 of an undivided interest in mortgaged premises would not 
 be an absolutely necessary party ; but it is nowhere ques- 
 tioned that a mortgagor still owning the remaining undivided 
 interest is always a necessary defendant. The above inti- 
 mation is not to be relied upon in New York or in those 
 states where foreclosure is generally accomplished by an 
 equitable action. 
 
 * Torrey v. Cook, 116 Mass. 163 217 (1874) ; CorneU v. Prescott, 2 
 (1874), per Gray, Ch. J. Barb. (N. Y.) 16 (1847). See also 
 
 5 Marks v. Sewall, 120 Mass. 174 Loomis v. Riley, 24 Dl. 307 (1860) , 
 
 (1876). Williams v. Perry, 20 Ind. 437 (1868). 
 
 « Reid V, Gardner, 65 N. Y. 578 « Frost v. Frost, 3 Sandf. Ch. (N. 
 
 (1875) ; Hatch v. Kimball, 14 Me. 9 Y.) 188 (1846) ; Mims v. Mims, 85 
 
 (1836) ; Rich v. Lord, 35 Mass. (18 Ala. 23 (1859) ; Douglass v. Bishop, 
 
 Pick.) 322 (1836) ; Colton v. Smith, 27 Iowa, 214, 216 (1869); HuU v. 
 
 28 Mass. (11 Pick.) 311 (1831) ; Lyon, 27 Mo. 570 (1858) ; Crenshaw 
 
 Stewart V. Allegheny National Bank, v. Thackston, 14 S. C. 437 (1881); 
 
 101 Pa. St. 342 (1882). Cholmondeley v. Clinton, 2 Jac. & 
 
 * Kline v. McGuckin, 24 N. J. Eq. W. 134 (1820) ; Palk v. Clinton, 12 
 (9 C. E. Gr.) 411 (1874\ Ves. 48, 59 (1806) ; Jones on Mort- 
 
 * Hammond v. Perry, 38 Iowa, gages, § 1405.
 
 §§121-122.] TENANTS BY ENTIKETY. 141 
 
 § 121. Mortgagor, being a tenant in common or by 
 the entirety, a necessary defendant. — The owner of an 
 undivided interest in lands, prior to the execution of a 
 mortgage by his co-tenant, is not a necessary party to 
 a foreclosure. If he is made a defendant, he can have the bill 
 dismissed as to himself ; even if the action proceeds to a 
 decree and sale, the judgment will not be binding upon him. 
 
 One of four joint tenants executed a mortgage purporting 
 to convey the whole estate; on foreclosure the remaining 
 three were held not necessary parties ; and even if they had 
 been made parties, their rights would not have been con- 
 cluded by the decree.' Where tenants in common jointly, 
 or jointly and severally, mortgage property, a foreclosure 
 can not be maintained against one of them separately to 
 collect a moiety of the debt ; the action must be against 
 both and those claiming under them. Neither can either of 
 them compel the mortgagee to receive half of the debt, and 
 thereby relieve him, and to proceed against his co-tenant for 
 the collection of the other half. The interests of tenants in 
 common in such cases must always be sold together, no 
 matter how numerous the owners may be.* If the mort- 
 gaged premises have been divided and conveyed in separate 
 parcels, as frequently happens, all the owners of the several 
 parcels must be made defendants to the foreclosure in order 
 to produce a perfect title.* 
 
 § 122. Joint Mortgagors— Survivorship.— It has been 
 
 held that neither the heirs nor the personal representatives 
 of a deceased joint mortgagor, or owner of the equity of 
 redemption, are necessary parties to a foreclosure. This 
 rule is undoubtedly based upon the common-law doctrine of 
 survivorship in cases of joint tenancy. But as it is frequently 
 an open question whether a title is held by persons as joint 
 tenants or as tenants in common, it is the safest practice 
 to make the heirs of the deceased owner parties to the 
 
 > Stephen v. Beall, 89 U. 8. (22 (1859) ; Peto v. Hammond, 29 Beav. 
 
 Wall.) 329 (1874) : bk. 22 L. ed. 786. 91 (1860) ; Ireson v. Denn, 2 Cox 
 
 « Frost V. Frost, 3 Sandf. Ch. (N. 425 (1796) ; Palk v. Clinton, 12 Yes 
 
 Y.) 188 (1846). 48, 59 (1806). . 
 
 * Wiley V. Pinson, 23 Tex. 480
 
 142 sheriff's execution sale. [i 123. 
 
 foreclosure. In New York the law was settled in Bertles v. 
 Nunan,' that under a conveyance to a husband and wife 
 jointly, they take as tenants by the entirety, and upon 
 the death of either, the survivor takes the whole estate ; in 
 such a case it would not be necessary to bring the heirs 
 of the deceased joint owner into the action. 
 
 § 123. Mortgagor, still holding any kind of an equi- 
 table, contingent or latent interest, generally necessary 
 — Sheriff's execution sale. — It may be generally stated 
 that, as long as the mortgagor continues to own or hold any 
 interest of an equitable nature in the mortgaged premises, 
 he is a necessary defendant to a foreclosure ; for the entire 
 equity of redemption can not be cut off or foreclosed as long 
 as such interest is outstanding and unaffected by the action.'^ 
 Such interests may be as various and different as the 
 cases in which questions affecting them arise. It is only 
 from an examination of numerous special cases that the 
 proposition of this section is advanced as a general rule. 
 
 The sale of a mortgagor's interest under an execution may 
 do away with the necessity of making the mortgagor a party 
 to a foreclosure, after the delivery of the sheriff's deed 
 and the expiration of the time limited for redemption, as 
 such a sheriff's sale passes the entire equity of redemption 
 remaining in the mortgagor to the purchaser as effectually 
 as a deed would. But during the period of redemption the 
 mortgagor is an indispensable party for the purposes stated 
 in this chapter.' It has been said by Chancellor Kent^ that 
 "he has an existing right of which he could not be divested 
 within the year by the sheriff's sale, and could only be in the 
 foreclosure action by making him a party." 
 
 It seems that a purchaser at a sheriff's sale under an 
 execution is also a necessary party from the time of his 
 
 ' 92 N. T. 152 (1883), per Earl, J„ Mims v. Mims, 35 Ala. 23 (1859). 
 
 reviewing Meeker v. Wright, 76 N. See post § 162. 
 
 Y. 262 (1879), and in substance over- * Hallock v. Smith, 4 Johns. Ch. 
 
 ruling it. (N, Y.) 649 (1820). The quotation 
 
 ' Morgan v. MagoflBn, 2 Bibb (Ky.) is modified from the original to read 
 
 395 (1811). with the text. 
 
 « N. Y. Code Civ. Proc. § 1440 ;
 
 § 123.] PURCHASER ON EXECUTION SALE. 143 
 
 purchase.* But where the execution sale is held pending a 
 foreclosure, the plaintiff is not bound to bring the purchaser 
 into the action by a supplemental bill ; the purchaser must 
 intervene on his own application if he wishes to be heard.* 
 
 It has been held that " a sale by a sheriff gives the 
 purchaser, under the certificate, an inchoate right to the 
 land, if not an interest in the land itself; and it is such 
 a right as will ripen into a title, unless the property be 
 redeemed from him. In this case the sale and purchase were 
 anterior to the filing of the bill of foreclosure, and though 
 the purchaser did not obtain a deed from the sheriff until 
 after the bill in this case and a notice of lis pendens were 
 filed, yet he is considered something more than a purchaser 
 pendente lite. He was a purchaser before, though his title 
 did not become consummated until afterward ; and by 
 his purchase he acquired such a right and interest in the 
 land as entitled him to be made a party to the foreclosure 
 suit, — and not having been made a party, he is not foreclosed 
 of his equity of redemption. The purchaser at the fore- 
 closure sale does not get an absolute title, as against the 
 purchaser at the execution sale.'" At the time of this 
 decision, too, there was no law requiring a sheriff's certificate 
 to be recorded in the county clerk's office, and the plaintiff 
 could have no notice of such certificate, as he now can, 
 without examining the books in the sheriff's office. 
 
 From these two cases, which are unquestioned as good law 
 it appears that both the owner of the equity of redemption 
 and the purchaser* at an execution sale are absolutely 
 necessary parties during the period of redemption following 
 
 » N. T. Code Civ. Proc. §§ 1440, Love, 27 Mich. 308 (1873). See 
 
 1441, 1448 ; Smitli v. Moore, 73 Ind. Smitli v. Moore, 73 Ind. 388 
 
 888 (1881) ; Byington v. Walsh, 11 (1881). 
 
 Iowa, 27 (I860). See fost § 126. * Seemingly contra. Woods v. 
 
 » Bennett v. Calhoun Association, Love, 27 Mich. 308 (1873), holding 
 
 9 Rich. (S. C.) Eq. 163 (1857). See that the purchaser at an execution 
 
 poit § 130, on purchasers pendente sale is not a necessary defendant, 
 
 lite. even though he may have filed his 
 
 » Lisurance Co. v. Bailey, 3 Edw. sheriff's certificate in the register's 
 
 Ch. (N. Y.) 416 (1840) ; strongly in oflSce. 
 point to the contrary. Woods v.
 
 l-il PARTIES TO A LAjS^D CO^STEACT. [§124. 
 
 an execution sale, and one or the other of them will 
 continue necessary, according as the property is redeemed 
 or not.' 
 
 § 124. Vendor and vendee under land contract neces- 
 sary. — The mortgagor or owner of the equity of redemption 
 also continues a necessary party, even though he may have 
 entered into a land contract or an agreement in any form to 
 convey the property. In such a case a mortgagor holds the 
 equitable relation of mortgagee to the party agreeing to 
 purchase, and can foreclose his land contract. He certainly 
 has such an equitable interest in the property, that the title 
 produced by foreclosure would not be perfect if he were 
 omitted as a party defendant in the action.' It is believed 
 that the person agreeing to purchase under a land contract 
 is also a necessary defendant,' although Crooke v. O'Higgins* 
 would seem to indicate that the omission to make him a 
 party would not prevent the rendition of a valid judgment 
 of foreclosure. 
 
 A curious case is reported in Weed v. Stevenson,* where it 
 appeared that an absolute deed was executed to a grantee 
 who executed a defeasance to a person other than the grantor, 
 and both were recorded as a mortgage ; in an action to 
 foreclose, the grantor was omitted as a party. Objection 
 was raised by demurrer that he was a necessary defendant. 
 The court ruled that the grantor was a proper, though not 
 a necessary, party ; that he might safely have been omitted, 
 but that if the plaintiff had any doubt about the validity of 
 
 ' For redeeming creditors, see N. * 14 How. (N. Y.) Pr. 154 (1857) ; 
 
 Y. Code Civ. Proc. §§ 1447. 1449, Greitlier v. Alexander, 15 Iowa, 
 
 1451, 1453, 1453 e^ se?. 470 (1863). In Blair v. Marsh, 8 
 
 ' Crooke v. O'Higgins, 14 How. Iowa, 144 (1859), the owner of a 
 
 (N. Y.) Pr. 154 (1857). In Roddy v. land contract, holding it as a "title 
 
 Elam, 12, 13 Rich. (S. C.) L. & Eq. bond," assigned it as a collateral 
 
 343 (1866), the plaintiff was allowed security ; on foreclosure, both the 
 
 to amend his bill so as to bring in the assignor and the assignee were made 
 
 original vendor. parties. 
 
 » The Equitable Life Ass. Soc. v. • Clarke Ch. (N. Y.) 166 (1840) ; 
 
 Bostwick, 22 N. Y. Wk. Dig. 360 Griswold v. Fowler, 6 Abb. (N. Y.) 
 
 (1885); Martin v. Morris, 62 "Wis. Pr. 113 (1857). 
 413 (1885;.
 
 §§125-126.] EQUITABLE OWlfEES. 145 
 
 his conveyance, he had a perfect right to make the grantor a 
 defendant to set such doubt at rest. 
 
 § 125. Parties to deeds for security, in escrow or in 
 fraud, necessary. — The mortgagor may also retain an equit- 
 able interest in the premises, and thereby remain a necessary 
 party, where he has made a conveyance, absolute on its face, 
 but intended only as a collateral security ; or where he has 
 delivered a deed in escrow ; or where the deed has been 
 executed, but remains unrecorded for secret purposes, and 
 the plaintiff has no knowledge or suspicion of the same ;' or 
 where the mortgagor conveys his equity of redemption in 
 fraud of creditors, and his conveyance is attacked or threat- 
 ened. It is thus seen that the instances in which the 
 mortgagor may still hold an equitable interest in the title, 
 after he has apparently parted with his entire ownership, are 
 innumerable and extremely various in character. 
 
 § 126. Purchaser and owner of the equity of re- 
 demption, by grant or otherwise from the mortgagor, 
 necessary. — An owner or holder of the equity of redemp- 
 tion by purchase from the mortgagor or a mesne purchaser, 
 is as necessary a defendant to a foreclosure as a mortga- 
 gor still owning the mortgaged premises." So, also, is a 
 
 'Many of these difficulties may s. c. 23Barb. (N.Y.)88; Burnham v. 
 
 now be obviated by filing the statu- DeBevorse, 8 How. (N. Y.) Pr. 159 
 
 tory lis pendens. Kipp v. Brandt, (1853) ; Reed v. Marble, 10 Paige 
 
 49 How. (N. Y.) Pr. 358 (1875) ; Ch. (N. Y.) 409 (1843) ; Williamson 
 
 Ostrom V. McCann, 21 How. (N. Y.) v. Field, 2 Sandf. Ch. (N. Y.) 533 
 
 Pr. 431 (18G0) ; N. Y. Code Civ, (1845); Watson v. Spence, 20 Wend. 
 
 Proc. §§1670, 1671. See post %%1Q1, (N. Y.) 260 (1838). In Mickles v. 
 
 132 on lis pendens. On fraudulent Dillaye, 15 Hun (N. Y.) 296 (1878), 
 
 transfers, see Adams v. Bradley, 12 the foreclosure was by advertise- 
 
 Mich. 346 (1864). ment. Merritt v. Phenix, 48 Ala. 
 
 " Raynor v. Selmes, 52 N. Y. 579 87 (1872) ; Hall v. Huggins, 19 Ala. 
 
 (1873) ; Miner v. Beekman, 50 N. Y. 200 (1851) ; Porter v. Muller, 65 Cal. 
 
 337, 344 (1872) ; Winslow v. Clark, 512 (1884) ; Bludworth v. Lake, 33 
 
 47 N. Y. 261 (1872) ; Robinson v. Cal. 265 (1867) ; Skinner v. Buck, 
 
 Ryan, 25 N. Y. 320 (1863) ; St. John 29 Cal. 253 (1865) ; Horn v. Jones, 
 
 v. Bumpstead, 17 Barb. (N. Y.) 100 28 Cal. 194 (1865) ; Carpentier v. 
 
 (1852) ; VauSlyke v. Shelden, 9 Williamson, 25 Cal. 154 (1S64) ; 
 
 Barb. (N. Y.) 278 (1850) ; Hall v. Heyman v. Lowell, 23 Cal. 106 
 
 Nelson, 14 How. (N.Y.)Pr. 32 (1856); (1863); Boggs v. Fowler, 16 Cal. 
 
 (10)
 
 146 
 
 OWNER OF EQUITY OF REDEMPTION. 
 
 [§ 126. 
 
 purchaser of a divided' or of an undivided' part of the 
 mortgaged premises a necessary defendant ; and if not made 
 a party, he will have the right to redeem his part by paying a 
 proportional part of the mortgage debt.* The purchaser of 
 an equity of redemption from an assignee in bankruptcy is a 
 
 659 (1860) ; Goodenow v. Ewer, 16 
 Cal. 461 (1860); DeLeon v. Hig- 
 uera, 15 Cal. 483 (1860) ; Luning v. 
 Brady, 10 Cal. 265 (1858) ; Coker v. 
 Smith, 63 Ga. 517(1881) ; Jenesonv. 
 Jeneson, 66 111. 260 (1872) ; Ohling 
 V. Luitjens, 32 111. 23 (1863) ; Dau- 
 gherty v. Deardorf, 107 Ind. 527 
 (1886), citing many Indiana cases ; 
 Petry v. Ambrosher, 100 Ind. 510 
 (1884) ; Searle v. Wliipperman, 79 
 Ind. 424 (1881) ; Mark v. Murphy, 
 76 Ind. 534 (1881) ; Lenox v. Reed, 
 12 Kan. 223, 228 (1873) ; Roney v. 
 Bell, 9 Dana (Ky.) 4 (1839) ; Cooper 
 V. Martin, 1 Dana (Ky.) 25 (1833) ; 
 Bailey v. Myrick, 36 Me. 50 (1853) ; 
 Learned v. Foster, 117 Mass. 365 
 (1875); Roche v. Farnsworth, 106 
 Mass. 509(1871); Campbell v. Bemis, 
 81 Mass. (16 Gray) 485 (1860) ; Put- 
 nam V. Putnam, 21 Mass. (4 Pick.) 
 139 (1826) ; Thayer v. Smith, 17 
 Mass. 429 (1821); Nichols v. Ran- 
 dall, 5 Minn. 304, 308 (1861) ; Wolf 
 V. Banning, 3 Minn. 202, 204 (1859); 
 Brundred v. Walker, 12 N. J. Eq. 
 (1 Beas.) 140 (1858); Durand v. 
 Isaacks, 4 McC. (S. C.) L. 54 (1826) ; 
 Rodgers v. Jones, 1 McC. (S. C.)Eq. 
 221 (1826) ; Meng v. Houser, 13 Rich. 
 (S. C.) Eq. 210, 220 (1867) ; Manufac- 
 turing Co. V. Price, 4 S. C. 338, 345 
 (1873) ; Norton v. Lewis, 3 S. C. 25 
 (1871) ; Morrow v. Morgan, 48 Tex. 
 304 (1878) ; Buchanan v, Monroe, 
 22 Tex. 537 (1858) ; Cord v. Hirsch, 
 17 Wis. 403 (1863) ; Green v. Dixon, 
 9 Wis. 532(1859); Hodgson v. Treat, 
 7 Wis. 203 (1858) ; Peto v. Ham- 
 mond, 29 Beav. 91 (1860) ; Maule v. 
 Beaufort, 1 Russ. 349 (1826) ; Brown 
 
 V. Stead, 5 Sim. 535(1833); Fisher on 
 Mortgages, §§ 299, 305. Contrary to 
 the above authorities, see Sumner v. 
 Coleman, 20 Ind. 486(1863); Clinev. 
 Inlow, 14 Ind. 419 (1860); and Semple 
 V. Lee, 13 Iowa, 304 (1862), holding 
 that the owner of the equity is not a 
 necessary, but only a proper, party ; 
 but these cases have been overruled 
 by later decisions in the same courts. 
 A fraudulent grantee was held a 
 necessary party in Adams v. Brad- 
 ley, 12 Mich. 346 (1864). The mere 
 nominal holder of the title, who has 
 no real interest therein, is a neces- 
 sary defendant, McDonald v. Mc- 
 Donald, 45 Mich. 44 (1880) ; Merri- 
 man v. Hyde, 9 Neb. 113 (1879). 
 Likewise the real owner of the 
 property, though not holding the 
 title, is a proper party and on his 
 application to become a defendant, 
 must be brought in by the plaintiff, 
 Johnston v. Donvan, 106 N. Y. 269 
 (1887) ; 8. o. 13 N. T. Civ. Proc 
 Rep. 315, 
 
 » Spiller V. Spiller, 1 Hayw. (N. 
 C), L. 483 (1797). 
 
 * Jefferson v. Coleman, (Ind.) 9 
 West. Rep. 73 (1887). See Day v. 
 Patterson, 18 Ind. 114 (1862), where 
 there were a number of purchasers 
 and aU were held necessary parties. 
 See also Sumner v. Coleman, 20 Ind. 
 486 (1863); Bates v. Ruddick, 2 
 Clarke (Iowa), 423 (1856). 
 
 •Bates V. Ruddick, 3 Clarke 
 (Iowa), 423 (1856); Curtis v. Gooding, 
 99 Ind. 45 (1884) ; Logan v. Smith, 
 70 Ind. 598 (1880); Williams v. 
 Beard, 1 S. C. L. 309 (1870).
 
 § 127.] OMITTED OWNER EFEECT. 147 
 
 necessary defendant, instead of the assignee or the bankrupt.* 
 In the foreclosure of a mortgage containing a power of sale, 
 the owner of the equity is entitled to due service of a notice, 
 and a bare compliance with the terms of the power is not 
 sufficient." But where the foreclosure is conducted by scire 
 facias, as it may be in Illinios and in some other states, the 
 mortgagor or his personal representatives are the only 
 necessary parties; the purchaser is not even a proper 
 party.* 
 
 In some states the courts have held the owner of the 
 equity a proper, but not a necessary, party ; but these courts 
 evidently mean that the owner is not a necessary defendant 
 for the maintenance of the action, as they are agreed that 
 his rights will remain unaffected unless he is brought into 
 the action. Under the meaning given to the word in this 
 chapter they are indispensable defendants, and the decisions 
 of these courts in fact support the proposition of this 
 section.* 
 
 § 127. Owner of mortgaged premises omitted as 
 defendant — Effect. — The cases are uniform in holding that 
 a purchaser at a foreclosure sale acquires no title whatever 
 to the mortgaged premises, unless the owner of the equity 
 of redemption is made a party, although the mortgagor and 
 subsequent incumbrancers may have been made defendants. 
 
 * Felder v. Murphy, 2 Rich. (S. to the extent that he was unaffected 
 C.) Eq. 58 (1845). by the decree if omitted, and might 
 
 ' Drinan v. Nichols, 115 Mass. redeem ; Georgia cases collated and 
 
 353 (1874). reviewed. See Knowles v. Lawton, 
 
 « Chickering v. Failes, 26 Dl. 507 18 Ga. 476 (1855), holding the pur- 
 
 (1861). chaser unnecessary where the mort- 
 
 * See ante § 115 ; Sumner v. Cole- gagor was made a party ; and May 
 man, 20 Ind. 486 (1863) ; Cline v. v. Rawson, 21 Ga. 461 (1857), 
 Inlow, 14 Ind. 419 (1860); Semple holding that where the mortgagor 
 V. Lee, 13 Iowa, 304 (1802). In has died, it is sufficient to make the 
 Rose V. Swann, 56 111. 37 (1870), the purchaser a party. See Meyey's 
 foreclosure of a land contract was Appeal, 4 Pa. St. 80 (1846), holding 
 sought ; subsequent purchasers of a purchaser not indispensable under 
 the rights of the vendee were held the acts of 1705 and 1822, but 
 proper, but not necessary, parties. unaffected by the action if omitted, 
 In Williams v. Terrell, 54 Ga. 463 and citing the earlier Pennsylvania 
 (1875), an owner was held necessary cases.
 
 148 
 
 05IITTED OWNER EFFECT. 
 
 [§ 127. 
 
 Such a purchaser remains a stranger to the title to the land, 
 and the sale operates only as an equitable assignment of the 
 mortgage to him.* It has sometimes been intimated that 
 such a sale is void," but the current of authorities agree that 
 it is binding upon the parties who have been brought into the 
 action. No suit can be instituted against the mortgagor for 
 the payment of the mortgage debt without making the 
 grantee of the equity of redemption a party defendant.* 
 
 The owner of the equity of redemption is not affected at all 
 by a decree rendered in an action to which he is not made a 
 party, as the court acquires no jurisdiction of him ;* the 
 decree is a nullity as to him, and he has a right to redeem, 
 or to enforce such other remedies as the courts of the 
 different states may allow." 
 
 The principles stated in this and the preceding section are 
 equally true, whether the owner acquires his title by grant, 
 or through a sheriff's sale under an execution, receiving a 
 
 ' Miner v, Beekman, 50 N. Y. 
 337, 344 (1872) ; Winslow v. Clark, 
 47 N. Y. 261 (1872) ; Robinson v. 
 Evan, 25 N. Y. 320 (1862) ; Kelgour 
 v.'Wood, 64 111. 345 (1872); Cutter v. 
 Jones, 52 111. 84 (1869); Barrett 
 V. Blackmar, 47 Iowa, 565, 571 
 (1877), per Day, Cli. J. ; Douglass v. 
 Bishop, 27 Iowa, 214, 216 (1869). 
 In point, Curtis v. Gooding, 99 Ind. 
 45 (1884) ; Moore v. Cord, 14 Wis. 
 213(1861). 
 
 ^ In point, Skinner v. Buck, 29 
 Cal. 253 (1865). See Boggs v. 
 Fowler, 16 Cal. 559 (1860), holding 
 that such a sale is void, and that no 
 title passes ; Nat. Fire Ins. Co. v. 
 McKay, 1 Sheld. (N. Y.) 138 (1867). 
 fc^ee Reed v. Marble, 10 Paige Ch. 
 (N. Y.) 409, 414 (1843) ; Watson v. 
 Spence, 20 Wend. (N. Y.) 260 
 (1838). In Micklcs v. Dillaye, 15 
 Ilun (N. Y.) 296 (1878), it is queried 
 whether a foreclosure by advertis- 
 ment, in which no notice is served 
 on the owner of the equity of 
 
 redemption, is not a mere nullity as 
 to all parties to the proceeding. 
 
 * ReeJ V. Marble, 10 Paige Ch. 
 (N. Y.) 409, 414 (1843). 
 
 * Kelgour v. Wood, 64 111. 345 
 (1872) ; Cutter v. Jones, 52 111. 84 
 (1869) ; Dunlap v. Wilson, 32 Dl. 
 517 (1863) ; Hurd v. Case, 32 111. 45 
 (1863) ; Ohling v. Luitjens, 32 HI. 
 23 (1863) ; Chickering v. Failes. 26 
 111. 517 (1861) ; Bradley v. Snyder, 
 14 111. 263 (1853) ; Porter v. Kilgore, 
 32 Iowa, 380 (1871) ; Street v. Beal, 
 16 Iowa, 68 (1864); Veach v. Schaup, 
 3 Clarke (Iowa), 194 (1856); Childs v. 
 Childs, 10 Ohio St. 339 (1859). In 
 point. Miner v. Beekman, 50 N. Y. 
 337 (1872). For other New York 
 cases see the first note to §136 
 ante. 
 
 * Barrett v. Blackmar, 47 Iowa, 
 565, 571 (1877), opinion per Day, 
 Ch. J. ; Douglass v. Bishop, 27 Iowa, 
 214, 216 (1869). See the cases in 
 the preceding note.
 
 § 127.] 
 
 OWlfEK OF KAUKM-ENT, 
 
 149 
 
 deed in due time,' or from an assignee in bankruptcy,* or by 
 descent or devise/ or otherwise,* or is a mere occupant 
 under a land contract to purchase.* 
 
 The purchaser of an easement from a mortgagor is also a 
 necessary defendant ; and if he is omitted, he may continue 
 to use and enjoy his easement without interruption, as the 
 action does not extinguish or affect his rights.* The rule 
 of this section remains the same, whether the foreclosure be 
 conducted as an action or by advertisement ; the notice 
 required in foreclosures by advertisement must be served on 
 the owner of the equity of redemption.'' If the owner has 
 not recorded his deed, and the mortgagee receives no notice 
 of his ownership,, the foreclosure may safely proceed without 
 making the owner a party, providing a lis pc?idens is properly 
 filed.* It will be readily seen that the principles of law 
 
 » Coster V. Clark, 3 Edw. Ch. (N. 
 Y.) 440 (1840) ; New York Life Ins, 
 & Trust Co. V. Bailey, 3 Edw. Ch. 
 (N. Y.) 416 (1840); Hallock v. 
 Smith, 4 Johns. Ch. (N. Y.) 649 
 (1820) ; Kepley v. Jansen, 107 lU. 
 79 (188B) ; Smith v. Moore, 73 Ind. 
 388(1881); Brooks v. Keister, 45 
 Iowa, 303 (1876) ; Buck v. Sanders, 
 1 Dana (Ky.) 189 (1833); Bollin- 
 ger V. Chateau, 20 Mo. 89 (1854); 
 Hemphill v. Eoss, 66 N. C. 477 
 (1872); Thorpe v. Ricks, 1 Dev. &B. 
 (N. C.) Eq. 619 (1837) ; Davis v. 
 Evans, 5 Ired. (N. C.) L. 525 (1845). 
 
 « Winslow V. Clark, 47 N. Y. 261 
 (1872) ; Burnham v. DeBevorse, 8 
 How. (N. Y.) Pr. 159 (1853). 
 
 * See post §§ 141-143, on heirs and 
 devisees. The purchaser of a devisee 
 is a necessary defendant. Ohliug 
 v. Luitjens, 32 111. 23 (1863). 
 
 * In Hall v, Huggins, 19 Ala. 200 
 (1851), the owner purchased the 
 equity at a sale held pursuant to an 
 order of the Orphans' Court. Where 
 a mortgage is foreclosed pending 
 proceedings to condemn lands for 
 public uses, the parties prosecuting 
 
 the proceeding should be made 
 defendants ; Colehour v. State Sav- 
 ings Institution, 90 111. 152 (1878). 
 
 » Martin v. Morris, 62 Wis. 418 
 (1885). 
 
 * In Packer v. Rochester & S. R. 
 R. Co., 17 N. Y. 283, 297 (1858), the 
 easement granted was to certain mill- 
 owners to construct and maintain a 
 race; the mortgagee foreclosing 
 omitted them as defendants. Pratt, 
 J., said : "The mortgage, therefore, 
 stands unforeclosed as to the rights 
 of the mill owners." See also the 
 opinion per Denio, J., p. 287. 
 
 ■I Stanton v. Kline, 11 N. Y. 199 
 (1854), reversing 16 Barb. (N. Y.) 9; 
 St. John V. Bumpstead, 17 Barb. (N. 
 Y.) 100 (1852); VanSlyke v. Shelden, 
 9 Barb. (N. Y.) 278 (1850). See, 
 especially, Mickles v. Dillaye, 15 
 Hun (K Y.) 296 (1878) ; N. Y. Code 
 Civ. Proc. § 2389. 
 
 8 Kipp V. Brandt, 49 How. (N. Y.) 
 Pr. 358 (1875) ; Ostrom v. McCann, 
 21 How. (N. Y.) Pr. 431 (1860). See 
 post §132 ; N. Y. Code Civ. Proc. 
 § 1670 ; Aldrich v. Stephens, 49 Cal. 
 676 (1875); Daniels v. Henderson,
 
 150 OMITTED OWNEK REMEDIES. [§128. 
 
 Stated in this section are based upon the broader and more 
 general principle already noticed, — that no person having an 
 interest in the mortgaged premises will be affected by the 
 decree of foreclosure, unless he is made a party to the action 
 and is brought within the jurisdiction of the court/ 
 
 § 128. Remedies of omitted owner of mortgaged 
 premises. — If the owner of the equity of redemption is 
 omitted as a defendant, the mortgagor or any other party 
 interested in the action may object to it by demurrer, if the 
 defect appears upon the face of the complaint, or by answer, 
 if the defect does not so appear;* if objection is not taken, 
 the defect will be deemed waived.* If the owner is omitted, 
 it is not necessary for him to maintain an Action to redeem 
 in order to assert his rights, for he is already the owner 
 of the title, never having been divested of it ; and the 
 purchaser at the sale, having acquired no title, is a stranger 
 to the premises, and can be ejected or proceeded against for 
 trespass.* The owner may, however, maintain an action 
 to redeem if he desires ; indeed, this is the usual practice, as 
 it brings the question of title directly in issue.' If the 
 
 49 Cal. 245 (1874) . See also Tucker 32 111. 517 (1863) ; Taylor v. Collins, 51 
 
 V. Leland, 75 N. Y. 186 (1878) ; Wis. 123 (1881) ; Baker v. Hawkins, 
 
 Houghton V. Kneeland, 7 Wis. 244 29 Wis. 576 (1872) ; Cord v. Hirsch, 
 
 (1858) ; contra. Hall v. Nelson, 14 17 Wis. 403 (1863). See Williams v. 
 
 How. (N. y.-) Pr. 33 (1856) ; s. c. 23 Meeker, 29 Iowa, 292 (1870). 
 
 Barb. (N. Y.) 88. See Carpentier v. ^ Davis v. Bechstein, 69 N. Y. 440 
 
 Williamson, 25 Cal. 154 (1864). In (1877). 
 
 Webb V. Maxan, 11 Tex. 678, 684 * VanSlyke v. Shelden, 9 Barb. 
 
 (1854), the court held that, if the (N. Y.) 278 (1850); Watson v. 
 
 mortgagee foreclosing received no Spence, 20 Wend. ("N. Y.) 260 (1838). 
 
 notice of the subsequent purchaser's In Kelgour v. Wood, 64 111. 345 
 
 deed, the decree would be conclusive (1872), it was held that ejectment 
 
 against the purchaser ; aliter, if he could not be maintained. See Cutter 
 
 had notice. v. Jones, 52 111. 84 (1869); also Fogal 
 
 'Seean<<j§§115, 116. v. Pirro, 10 Bosw. (N. Y. ) 100 
 
 « Bard v. Poole. 12 N. Y. 508 (1862). 
 
 (1855) ; Hall v. Nelson, 23 Barb. (N. " See Miner v. Beekman, 50 N. Y. 
 
 Y.) 88 (1856) ; Reed v. Marble. 10 337, 344 (1872), holding also that the 
 
 Paige Ch. (N. Y.) 409 (1843) ; Kittle action must be brought within ten 
 
 V. VanDyck, 1 Saudf. Ch. (N. Y.) years. Grandin v. Hernandez, 29 
 
 76 (1843) ; Erickson v. Ptafferty, 79 llun (N. Y.) 399, 403 (1883) ; Carll v. 
 
 111. 210 (1875); Dunlap v. Wilson, Butman, 7 Me. (7 Greenl.) 102 (1830)j
 
 §§ 129-130.] MESNE OWNERS — PAETLES. 151 
 
 owner of the equity has assumed the payment of the mort- 
 gage, there is a double reason for making him a party, as he 
 has thereby become the principal debtor, and the mortgagor 
 only a surety ; and if a judgment of deficiency is desired, it 
 must be obtained first against such owner.* 
 
 § 129. Mesne owners of the equity of redemption, no 
 longer owners, generally not necessary. — For the reasons 
 stated in a preceding section, parties who have once owned 
 the equity of redemption in mortgaged premises, and again 
 parted with the same by an absolute conveyance, are not 
 necessary defendants to a foreclosure for the purpose of 
 perfecting the title." As they have no interest in the mort- 
 gaged property, they can have no interest in an action 
 affecting it. It is only when latent equities, fraud or defects 
 in the deeds may invalidate the mesne conveyances of inter- 
 mediate purchasers, or when some of their deeds remain 
 unrecorded, that they and their grantors become necessary 
 parties. If they and all their grantors, subsequent to the 
 delivery of the mortgage, have assumed the payment of 
 the mortgage debt, they may properly be defendants if a 
 personal judgment for deficiency is sought against them, or 
 any of them.' The interesting question of personal liability 
 for the payment of the mortgage debt when it has been 
 assumed by a grantee in his deed of conveyance, will be fully 
 considered in a subsequent chapter.* 
 
 § 130. Purchaser pendente lite not necessary.— The 
 general principle is now recognized by all the courts of this 
 
 Green V. Dixon, 9 Wis. 532(1859). A Haley v. Bennett, 5 Port. (Ala.) 452 
 
 person who succeeds to the owner's (1837) ; Scarry v. Eldridge, 63Ind. 44 
 
 interest may also redeem ; Porter v. (1878) ; Barton v. Kingsbury, 43 Vt. 
 
 Kilgore, 32 Iowa, 380 (1871) ; Veach 640 (1871) ; Soule v. Albee, 31 Vt. 
 
 V. Schaup, 3 Clarke (Iowa), 194 142(1858). See Vrooman v. Turner, 
 
 (1856). See the cases cited in notes 69 N. Y. 280 (1877). See ante § 118! 
 
 to § 127 ante. ^ Vrooman v. Turner, 69 N. Y. 280 
 
 > See post chap. xi. (1877) ; Scarry v. Eldridge, 63 Ind. 
 
 « Lockwood V. Benedict, 3 Edw. 44 (1878). See Lockwood v. Bene- 
 
 Ch. (N Y.) 472 (1841). In point, diet, 3 Edw. Ch. (N. Y.) 472 (1841). 
 
 Merritt v.Phenix, 48 Ala. 87 (1872) ; * See post chap. xi. 
 Lewis V. Elrod, 38 Ala. 17 (1861) ;
 
 152 
 
 PUKCHASEE PENDENTE LITE. 
 
 [§ 130. 
 
 country and of England, that a purchaser, assignee or attach- 
 ing creditor of mortgaged premises, during the pendency of 
 a suit to foreclose, is bound by the decree made against the 
 party to the action from or through whom he derives title ;' 
 it is not necessary to bring a party, so acquiring title, before 
 the court. The reasons for this rule will be found in the two 
 succeeding sections. Such a purchaser acquires, of course, 
 only the rights of title or incumbrance which the person 
 from whom he purchased held at the time of the transfer. 
 
 The early decisions upon the proposition of this section 
 endeavored to make a clear distinction between voluntary 
 transfers and those accomplished by operation of law." It 
 has been said by one of our ablest judges," that there are 
 English and American cases holding that when the interest 
 of a party to the action is cast upon the transferee by 
 operation of law, and not by the act of such party, the 
 
 ' Fuller V. Scribner, 76 N, Y. 190 
 (1879) ; Lamontv. Cheshire, 65N.Y. 
 30 (1875) ; Lenihan v. Hamann, 55 
 N. Y, 653 (1873); Cleveland v. 
 Boerum, 28 Barb. (N. Y.) 201 (1856); 
 s. c. 3 Abb. (N. Y.) Pr. 294 ; and on 
 appeal from the judgment at special 
 term, 27 Barb. (N. Y.) 252 (1858), 
 afE'd 24 N. Y. 613 (1862) ; Zeiter v. 
 Bowman, 6 Barb. (N. Y.) 133 (1849); 
 Watt V. Watt, 2 Barb. Ch. (N. Y.) 
 371 (1847); Ostrom v. McCann, 21 
 How. (N. Y.) Pr. 431 (1860) ; Kind- 
 berg V. Freeman, 39 Hun (N. Y.) 
 466 (1886) ; Weeks v. Tomes, 16 
 Hun (N. Y.) 349 (1«78) ; The People's 
 Bank V. Hamilton Co., 10 Paige Ch. 
 (N. Y.) 481, 490 (1843) ; Curtis v. 
 Hitchcock, 10 Paige Ch. (N. Y.) 399 
 (1843) ; Jackson v. Losee, 4 Sandf. 
 Ch. (N. Y.) 381 (1846) ; N. Y. Code 
 Civ. Proc ^ 1671 ; Horn v. Jones, 28 
 Cal. 194(1865); Taylor v. Adam, 115 
 111. 570; 8. c. 2 West. Rep. 827(1886); 
 Chickering v. Fullerton, 90 111. 520 
 (1878); Addison v. Crow, 5 Dana 
 (Ky.) 279 (1837) ; Osborne v. Crump, 
 
 57 Miss. 622 (1880). See Loomis v. 
 Riley, 24 111. 307 (1860), where a 
 tenant in common of an undivided 
 half of certain lands mortgaged his 
 half during the pendency of a par- 
 tition suit ; Rogers v. Holyoke, 14 
 Minn. 220 (1869). In Chapman v. 
 West, 17 iSr. Y. 125 (1858), the action 
 was for the specific performance of 
 a land contract. See Fisher on 
 Mortgages, §§ 380-388, and the Eng- 
 lish cases cited. 
 
 * Cleveland v. Boerum, 23 Barb. 
 (N. Y.) 205 (1856). See the same 
 case athrmed on appeal in 24 N. Y. 
 613 (1862). 
 
 ^ Cleveland v. Boerum, 24 N. Y. 
 617 (1862), per Wright, J., a leading 
 case ; Lenihan v. Hamann, 55 N. Y. 
 652 (1873) ; Sedgwick v. Cleveland, 
 7 Paige Ch. (N. Y.) 290, 291 (1838). 
 See Smith v. Sanger, 3 Barb. (N. 
 Y.) 360 (1848); Anon v. Anon, 
 10 Paige Ch. (N. Y.) 20 (1842). The 
 last two cases seem to be overruled 
 by Cleveland v. Boerum, 24 N. Y. 
 613 (1862).
 
 § 131.] LIS PENDENS. 153 
 
 foreclosure will be defective, unless the transferee is brought 
 before the court ; but he intimates that these cases are not 
 to be relied upon, though he refers to the case of Sedgwick 
 V. Cleveland' as an illustration. 
 
 The statutes in most states now provide for filing a notice 
 of pendency of action, settling this question in accordance 
 with the general principle above stated ; and it matters not 
 whether the transferee acquires his title by the voluntary 
 act of the transferrer, or by operation of law. Though the 
 plaintiff is not bound to amend his complaint, so as to bring 
 in a purchaser or an incumbrancer pendente lite^ he may do 
 so if he chooses ; the purchaser can appear and defend in 
 the name of the party from whom he acquired his interest,' 
 or he can be made a party on his own application' by sub- 
 stitution, or subrogation.* 
 
 § 131. Common-law doctrine of lis pendens. — The 
 
 doctrine of lis pendens and the statutes enacted in the 
 several states to regulate the same, are of the greatest 
 importance to the plaintiff in determining who are necessary 
 defendants to a foreclosure, and of equal importance to 
 other parties having an interest in the equity of redemption. 
 Lord Bacon has stated the common-law rule to be that " no 
 decree bindeth any that cometh in bona Jide by conveyance 
 of the defendant before the bill exhibiteth, and is made no 
 party, neither by bill or order ; but when he comes in pendente 
 lite, and while the suit is in full prosecution, and without 
 any order of allowance or privity by the court, then regularly 
 the decree bindeth."* The rule had its origin in the civil 
 
 ' 7 Paige Ch. (N. Y.) 291 (1838). 98 Pa. St. 432 (1881) ; Eyster v. 
 
 « Cleveland v. Boerum, 24 N. Y. Gaff, 91 U. S. (1 Otto), 521 (1875) ; 
 
 620, 621 (1862) ; The People's Bank bk. 23 L. ed. 403. 
 
 V. Hamilton Co., 10 Paige Ch. * Seward v. Huntington, 94 N. Y. 
 
 (N. Y.) 484 (1843) ; Foster v. Deacon, 114 (1883). 
 
 6 Madd. Ch. 59 (1821) ; Coles v. For- « Bacon's Works, vol. 4, p. 515. 
 
 rest, 10 Beav. 552 (1847) ; Fisher on In Bishop of Winchester v. Paine, 
 
 Mortgages, § 385. 11 Ves. 194, 201 (1805), Sir Wil- 
 
 3 Cleveland v. Boerum, 24 N. Y. liam Grant said that "he who 
 
 613 (1862) ; The People's Bank v. purchases during the pendency of 
 
 Hamilton Co., 10 Paige Ch. (N. Y.) the suit, is bound by the decree that 
 
 484(1843); Clow v. Derby Coal Co. , may be made against the person
 
 154 LIS PENDENS IN NEW YOKK. [§ 132. 
 
 law, and was pungently stated in the legal maxim, peiidente 
 lite, nihil imiovetur. It is well settled that a judgment in an 
 action in rem binds not only the parties, but also all others 
 claiming or deriving title under them by a txzxisi&x pendente 
 lite^ Indeed, writers deduce from the cases the broad 
 rule that decisions in rem are binding and conclusive, not 
 only on the parties actually litigating the case and their 
 privities, but also on all other persons, if the suit was com- 
 menced against the proper parties, and judgment was 
 obtained bona fide and without fraud." 
 
 § 132. New York statutory provisions for lis pendens ; 
 other states. — Many of the states, in their codes or general 
 statutes, have enacted the common-law rule into a statutory 
 requirement and prescribed special rules of practice in con- 
 nection with it. New York first did this in 1823,' by a 
 special statute, which was re-enacted in the Revised Statutes,* 
 and subsequently formed into § 132 of the old Code, and 
 §§ 1670 and 1671 of the Code of Civil Procedure. Prior to 
 185 1 the notice could be filed only at the time of commencing 
 the action ; now it can be filed with the complaint, and be- 
 comes operative at once before the summons is served on any 
 of the defendants. Prior to 1858 a grantee, whose deed was 
 not recorded, had to be discovered by the plaintiff and made 
 
 from whom he derives the title ; the * See Cleveland v. Boerum, 24 N. 
 
 litigating parties are exempted from Y. 617 (1862). The learned jurist, 
 
 the necessity of taking any notice of Theodore W. Dvright, as Commis- 
 
 a title so acquired ; as to them it is sioner of Appeals, in Lament v. 
 
 as if no such title existed, otherwise Cheshire, 65 N. Y. 30, 36 (1875), 
 
 suits would be interminable, or, considered at length the history and 
 
 which would be the same in effect, the nature of a notice of pendency, 
 
 it would be the pleasure of one party of action, and the office it was 
 
 at what period the suit should be designed to fulfill. See Bellamy v. 
 
 determined. The rule may some- Sabine, 1 De6. & J. 566 (1857), a 
 
 times operate with hardship, but leading English case ; also Hunt v. 
 
 general convenience requires it." Hunt, 34 Mass. (17 Pick.) 118 
 
 » Rogers v. Holyoke, 14 Minn. 220 (1835). 
 
 (1869) ; Hull v. Lyon. 27 Mo. 570 » Laws of New York, 1823, chap. 
 
 (1858) ; McPherson v. Housel, 13 N. 182, § 11. 
 
 J. Eq. (2 Beas.) 299 (1861) ; Young- * Revised Statutes vol. 2, p. 174, 
 
 mauv. Elmira&W.R. R.,65Pa. St. §43. 
 278 (1870).
 
 § 132.] EFFECT OF LIS PENDEN'S. 155 
 
 a party to the action,* but since, and at present, every person 
 receiving or recording* his conveyance after the filing of such 
 notice with the complaint, even though it be a few hours 
 only,' is deemed a subsequent purchaser and incumbrancer; 
 he stands in the same position as he would if he had actually 
 purchased the land, or received his incumbrance, after the 
 filing of such notice, and he is bound by such proceedings " to 
 the same extent as if he was a party to the action,"* — that is, 
 he is barred and foreclosed of all rights in the premises. 
 
 A purchaser or lienor may be brought into the action 
 by a supplemental bill if desired.* Prior to 1862 the 
 lis pendens was inoperative as to each defendant, until the 
 summons had been served upon him,* but an amendment 
 of that year (continued in the present Code of Civil Proce- 
 dure) made the notice operative from the time of filing the 
 complaint, and also fixed the limit of sixty days within 
 which the summons must be served, or the notice would 
 become void/ Prior incumbrancers and persons whose rights 
 are superior to those of the plaintiff are not affected by the 
 notice." So, also, a person who claims title by virtue of a 
 tax deed is not bound by the notice.* 
 
 ' Hall V. Nelson, 14 How, (N. Y.) and died ; the grantee was held an 
 
 Pr. 33(1856); s. c. 23 Barb. (N.Y.)88. unnecessary party on reviving the 
 
 * Ostrom V. McCann, 21 How. (N. action. 
 Y.) Pr. 431 (1860), citing § 182 of * N. Y. Code Civ. Proc. § 1671. 
 
 the old N. Y. Code ; Earle v. Barn- » Harrington v. Slade, 22 Barb, 
 
 ard, 22 How. (N. Y.) Pr. 437, 440 (N. Y.) 161 (1856). See ante § 130. 
 (1862) ; Kipp v. Brandt. 49 How. « Tate v. Jordan, 3 Abb. (N. Y.) 
 
 (N. Y.) Pr. 358 (1875), strongly in Pr. 392(1856) ; Butler v. Tomlinson, 
 
 point. Supporting these cases, see 38 Barb. (N. Y.) 641 (1862) ; s. C. 15 
 
 Aldrich v. Stephens, 49 Cal. 676 Abb. (N. Y.) Pr. 88 (1862) : Muscott 
 
 (1875), and Daniels v. Henderson, v. Woolworth, 14 How. (N. Y.) I*r. 
 
 49 Cal. 245 (1874), 477 (1857) ; Burroughs v. Reiger, 12 
 
 8 Stern v. O'Connell, 35 N. Y. How. (N. Y.) Pr. 172 (1856) ; Fuller 
 
 104 (1866) , Ostrom v. McCann, 21 v. Scribner, 16 Hun (N. Y.) 130 
 
 How. (N. Y.) Pr. 431 (1860). See (1878) ; aff'd 76 N. Y. 190 (1879). 
 Weyh V. Boy Ian, 62 How. (K Y.) ' N. Y. Code Civ. Proc. § 1670. 
 
 Pr. 397 (1882) aff'd 63 How. (N. Y.) In point. Weeks v. Tomes, 16 Hun 
 
 Pr. 73 (1882), where, after the com- (N. Y.) 349 (1878) ; aff'd 76 N. Y. 
 
 mencement of the action and the 601 (1879). 
 
 filing of a lis pendens, the mortgagor « Chapman v. West, Impl'd, 17 N. 
 
 conveyed his squiiy of redemption Y. 125 (1858) ; Bank v. Connelly, 8
 
 156 O:\IITTED LIS PENDENS. [§§ 133-134. 
 
 § 133. Effect on parties of omitted or defective lis 
 pendens. — The notice of lis pendens is made by statute con- 
 structive notice to persons wlio are not parties to the action, 
 but who acquire their rights from or under those who have 
 been brought within the jurisdiction of the court. As their 
 rights alone are affected, they alone can take advantage of 
 the omission to file the notice, or of any defects in it.' 
 Whenever there is a defect in filing the lis pendens, as the 
 neglect to file the complaint with it, and any person obtains 
 an interest in or a lien upon the equity of redemption from 
 a party defendant during the pendency of the action and 
 the continuance of the defect, he will not be bound by the 
 decree and may redeem ;* the purchaser at a sale under 
 the decree of foreclosure will receive a defective title, 
 although an order may have been made that the complaint 
 be filed nunc pro tunc. 
 
 § 134. Mortgagor a married woman, having a separate 
 estate, necessary. — Where a married woman holds the fee 
 title of property in her own name as a separate estate, and 
 mortgages the same, or where she becomes the owner of the 
 equity of redemption in property previously mortgaged, she 
 is a necessary party to a foreclosure for the purposes stated 
 in this chapter.* A married woman had no capacity at 
 common-law to make contracts, and consequently no right 
 to execute a mortgage on her separate estate. Statutes in 
 
 Abb. (N. Y.) Pr. 128 (1858); Stuy- y.)Pr. 75(1849). For an exhaustive 
 
 vesant v. Hall, 2 Barb. Ch. (N, Y.) history and review of the cases 
 
 151 (1847) ; Chapman v. Draper, 10 affecting the right of Kfema covert to 
 
 How, (N. Y.) Pr. 367(1854); Stuy- mortgage her real estate, see the lead- 
 
 vesaut V. Hone, 1 Sandf. Ch. (N. Y.) ing case of Albany Fire Ins. Co. v. 
 
 419 (1844). Bay, 4 N. Y. 9, 38 (1850), affirming 
 
 » Becker v. Howard, 4 Hun (N. 4 Barb. (N. Y.) 407 (1848) ; opinions 
 
 Y.) 359 (1875) ; aff'd 66 N. Y. 5 by Jewett, Taylor and Pratt, JJ.; 
 
 (1876). Ellis V. Kenyon, 25 Ind. 134 (1865) ; 
 
 I White V. Coulter, 1 Hun (N. Y.) Eaton v. Nason, 47 Me. 133 (I860); 
 
 857 (1874). Galway v. Fullerton, 17 N. J. Eq. 
 
 « Dakin v. Insurance Co., 77 N. (2 C. E. Gr.) 389 (1866) ; Newhartv. 
 
 Y. 601 (1879) ; Weeks v. Tomes, 16 Peters, 80 N. C, 166 (1879) ; McFer- 
 
 Hun (N. Y.) 349 (1878). In point, rin v. White, 6 Cold. (Tenn.) 499 
 
 Olson V. Paul, 56 Wis. 30 (1882). (1869) ; Hill v. Edmonds, 5 DeG. & 
 
 » Conde v. Shepard. 4 How. (N. S. 603 (1852).
 
 § 135.] MAEELED WOMAN MOETGAGOE. 157 
 
 England and in America have greatly enlarged a married 
 woman's rights in property, so that she can now make valid 
 contracts affecting her real estate ; but in Massachusetts, 
 New Jersey and Pennsylvania it is necessary, even at the 
 present day, for the husband to join with his wife in the execu- 
 tion of a mortgage upon her separate estate in order to 
 make the mortgage vaHd.* It is in New York,' especially, 
 that married women's rights have been enlarged, so that 
 at present the law applicable to the subject-matter of this 
 work, with reference to a male or a feme sole^ is equally 
 applicable with reference to a y<?»/^ c^z/fr^. The interesting 
 question of a married woman's liability for a personal judg- 
 ment of deficiency will be fully considered hereafter.* 
 
 § 135. Wife of a mortgagor or owner of the equity of 
 redemption necessary. — It has become a settled rule of law 
 in all states where the common-law doctrine of dower 
 remains unchanged, and in many states where statutes have 
 prescribed a wife's rights in the real estate of her husband, 
 that the inchoate right of dower of a wife in the lands of 
 her husband is a real and existing interest, and as much 
 entitled to protection as the vested rights of a widow ; and 
 that neither can be impaired by any judicial proceeding to 
 which the wife or widow is not made a party. As such rights 
 constitute an interest in real estate, it is plain that a wife or 
 widow must be made a party to a foreclosure suit where she 
 has signed the mortgage, released her rights otherwise, or 
 acquired those rights subsequent to the execution of the 
 mortgage. The right of a wife to be endowed of an equity 
 of redemption has long been put at rest. She is an absolutely 
 necessary party to an action in order to produce such a title 
 as a purchaser at the sale will be compelled to accept.* But 
 
 » "Weed Sewing Macli. Co. v. (1870), and Glass v. Warnick, 40 Pa. 
 
 fimerson, 115 Mass. 554 (1874) ; St. 140 (1861). 
 
 Merchant v. Thomson, 34 N. J. * Laws of New York, 1848, chap. 
 
 Eq. (7 Stew.) 73 (1881), and the 200; 1849, chap. 375; 1860, chap. 90; 
 
 cases cited ; Armstrong v. Ross, 20 1862, chap. 172 ; 1884, chap. 381. 
 
 N. J. Eq. (5 C. E. Gr.) 109 (1869) ; » gge poht chap. x. 
 
 Black V. Galway, 24 Pa. St. 18 * Merchant's Bank v, Thomson, 
 
 (1854). Conflicting with this case, 55 N. Y. 7 (1873) ; Mills v. Van 
 
 see Graham v. Long, 65 Pa. St. 383 Voorhies, 20 K Y. 412 (1859) ;
 
 158 
 
 WIFE NECESSARY DEFENDANT. 
 
 [§i 
 
 60. 
 
 if the wife has been omitted as a party defendant and dies 
 during the pendency of the foreclosure, it will not be neces- 
 sary to bring in her heirs and personal representatives in 
 order to produce a perfect title, as they succeed to no 
 interest.' If the mortgagor has two wives, both are necessary 
 defendants." Though a wife may have made a grant of her 
 inchoate right of dower, she remains a necessary party ; the 
 grantee acquires no interest by the conveyance, as an 
 inchoate right of dower is inalienable.' Wherever the right 
 of dower has been abolished by statute, the wife is not a 
 
 Denton v. Nanny, 8 Barb. (N. Y.) 
 618 (1850); Wheeler v. Morris, 2 
 liosw. (N. Y.) 524, 529 (1858) ; Bell 
 V. The Mayor, 10 Paige Ch. (N. Y.) 
 49, 67 (1843). See Kay v. Whittalier, 
 44 N. Y. 565, 572 (1871), holding 
 that the wife is not an indispensable 
 defendant to sustain the action, but 
 that her rights will not be cut off by 
 the decree, unless she is made a 
 party ; Denton v. Nanny, 8 Barb. 
 (N. Y.) 618 (1850) ; Blydenburgh v. 
 Northrop, 13 How. (N. Y.) Pr. 289 
 (1856) ; Hubbell v. Sibley, 5 Lans. 
 (N. Y.) 56 (1871); Kittle v. Van 
 Dyck, 1 Sandf. Ch. (N. Y.) 76, 79 
 (1843); Mabury v, Ruiz, 58 Cal. 11 
 (1881) ; Daniels v. Henderson, 5 
 Fla. 452 (1854) ; Kissel v. Eaton, 64 
 Ind. 248 (1878) ; Watt v. Alvord, 25 
 Ind. 533 (1865) ; Verry v. Robinson, 
 25 Ind. 14 (1865); Richardson v. 
 Skolfield, 45 Me. 386 (1858) ; Gage 
 V. Ward, 25 Me. 101 (1845) ; Camp- 
 bell V. Knights, 24 Me. 332 (1844) ; 
 Smith V. Eustis, 7 Me. (7 Greenl.) 
 41 (1830); Lund v. Woods, 52 
 Mass. (11 Mete.) 566 (1840); Swan 
 V. Wiswall, 32 Mass. (15 Pick.) 126 
 (1833) ; Snyder v. Snyder. 6 Mich. 
 470 (1850) ; Atkinson v. Stewart, 
 46 Mo. 510 (1870). See Rands v. 
 Kendall, 15 Ohio, 671, 675 (1846), 
 where the law of dower in Ohio is 
 explained, with citations from cases 
 
 and statutes ; Eldridge v. Eldridge, 
 14 N. J. Eq. (1 McCart.) 195(1862) ; 
 Chiswell V. Morris, 14 N. J. Eq. (1 
 McCart.) 101 (1861); Ketchum v. 
 Shaw, 28 Ohio St. 503 (1876) ; State 
 Bank of Ohio v. Hinton, 21 Ohio 
 St. 509 (1871); McArthur v. Frank- 
 lin, 15 Ohio St. 485 (1864) ; s. c. 16 
 Ohio St. 193 (1865); Conover v. 
 Porter, 14 Ohio St. 450 (1863) ; Tay- 
 lor V. Fowler, 18 Ohio, 567 (1849) ; 
 Calmes v. McCrocker, 8 S. C. 87 
 (1876) ; James v. Fields, 5 Heisk. 
 (Tenn.) 394 (1871) ; Gregg v. Jones, 
 5 Heisk. (Tenn.) 443 (1871). But see 
 Verree v. Verree, 2 Brev. (S. C.) L. 
 211 (1807), holding that in 1807 a 
 wife was not entitled to dower in an 
 equity of redemption. In Newhall 
 V. Lynn Bank, 101 Mass. 428 (1869), 
 the wife of a husband who had 
 made an assignment in bankruptcy 
 was held a necessary party ; but in 
 Huston V. Neil, 41 Ind. 504 (1873). 
 it was held that a wife had no 
 interest in the partnership real estate 
 of her husband, and accordingly 
 was not a necessary party to the fore- 
 closure of a mortgage on the same. 
 
 » Miller v. MUler, 48 Mich. 311 
 (1882). 
 
 « Wood V. Chew, 13 How. (N. Y.) 
 Pr. 86 (1850). 
 
 » Earle v. Barnard, 23 How. (N. 
 Y.) Pr. 437 (18G2).
 
 § 135.] 
 
 WIFE — WHEN NOT NECESSAEY. 
 
 159 
 
 necessary defendant, as she has no interest in her husband's 
 lands.* 
 
 If the wife has signed the mortgage, she is, of course, 
 a necessary defendant.* " The only reason why the wife of 
 a mortgagor, who joins in the execution of such an instru- 
 ment, should be made a party, is to bar the equity of 
 redemption in her right of dower, or to give her the 
 opportunity, before it is foreclosed, to redeem and prevent 
 its sale.'" If the mortgage was executed by the husband 
 before marriage, the wife is as necessary a defendant as 
 though it had been executed by both after marriage and 
 during coverture ;* after the husband's death the widow 
 remains a necessary party.* 
 
 > See Ethiidge v. Vernoy, 71 N. 
 C. 184 (1874). See also Thornton v. 
 Pigg, 24 Mo. 249 (1857), for the 
 statute in Missouri, foreclosure being 
 held a statutory action at law. and 
 not an equitable action. See the 
 preceding section for other cases. 
 See Pitts v. Aldrich, 93 Mass. (11 
 Allen), 39 (1865). 
 
 2 Hinchliffe v. Shea, 34 Hun (N. 
 Y.) 365 (1884) ; Leonard v. Adm'r 
 of Villars, 23 111. 377 (1860); 
 Chambers v. Nicholson, 30 Ind. 349 
 (1868) ; Hinchman v. Stiles, 9 N. J. 
 Eq. (1 Stockt.) 361 (1853) ; Harts- 
 home V. Hartshorne, 2 N. J. Eq. 
 (1 H. W. Gr.) 349 (1840). Upon 
 the general question of a wife's right 
 of dower in mortgaged premises, see 
 Campbell v. Campbell, 30 N. J. Eq. 
 (3 Stew.) 415 (1879). See the cases 
 cited in the first note to this section. 
 Powell V. Ross, 4 Cal. 197 (1854) ; 
 Gary v. Wheeler, 14 Wis. 281 (1861). 
 See also Nimrock v. Scanlin, 87 N. C. 
 119 (1883). In Pitts v. Aldrich, 98 
 Mass. (11 Allen), 39 (1865), the wife 
 was held not a necessary party where 
 she had signed the mortgage. Colt, 
 J., writing the opinion and collating 
 the authorities, says that the law of 
 
 Massachusetts on this point differs 
 from that of all the other states. In 
 Mims V. Mims, 1 Humph. (Tenn.) 
 425 (1839), a widow who had signed 
 a mortgage was held not a necessary 
 party. See Mclver v. Cherry, 8 
 Humph. (Tenn.) 713 (1848). 
 
 8 Wright V. Langley. 36 HI. 381, 
 883 (1865). 
 
 * Smith V. Gardner, 42 Barb. (N. 
 T.) 356 (1864). See Northrup v. 
 Wheeler, 43 How. (N. Y.) Pr. 122 
 (1872), where the foreclosure was by 
 advertisement ; Gilbert v. Maggord, 
 2 111. (1 Scam.) 471 (1838) ; Eaton v. 
 Simonds, 31 Mass. (14 Pick.) 98 
 (1833) ; Hildreth v. Jones, 13 Mass. 
 525. See Bolton v. Ballard, 13 Mass. 
 227 (1816). Seemingly eonira, Bird 
 V. Gardner, 10 Mass. 364 (1813). In 
 Wilson V. Scott, 29 Ohio St. 636 
 (1876), the wife of a mortgagor, who 
 had executed the mortgage before 
 marriage, was held not a necessary 
 defendant. See the Indiana and 
 Illinois cases cited on purchase 
 money mortgages in the following 
 notes. 
 
 " Burton v. Lies, 21 Cal. 87 (1862). 
 See Bayly v. Muehe, 65 Cal. 845 
 (1884).
 
 160 
 
 WIFE NOT SIGNING MORTGAGE. 
 
 [§ 136. 
 
 § 136. Wife not executing mortgage — Her remedies 
 if omitted as defendant. — Where the mortgage was given 
 for purchase money, the wife's inchoate right of dower 
 attaches to the equity of redemption, and she is just as 
 necessary a defendant as she would have been had she signed 
 the mortgage, and her rights will not be affected unless she 
 is made a party to the action.* But in Illinois," Indiana* and 
 Michigan,* the contrary ruling prevails, that the wife is not 
 a necessary defendant. If the wife does not sign* a mort- 
 gage executed by her husband during coverture, an action to 
 foreclose it will not affect her rights, even if she is made a 
 
 ■ Mills V. VanYoorhies, 20 N. T. 
 412 (1859) ; s. c. 10 Abb. (N. Y.)Pr. 
 152 (1859), aff'g 23 Barb. (N. Y.) 
 125 (1856). Judge Selden, wilting 
 the opinion, cites Stow v. Tifft, 15 
 Johns. (N. Y.) 458 (1818), and gives 
 a sketch of the history of the statute 
 for purchase money mortgages. 
 Wheeler v. Morris, 2 Bosw. (N. Y.) 
 524 (1858) ; Blydenburgh v. North- 
 rop, 13 How. (N. Y.) Pr. 289 (1856); 
 Brackett v. Baum, 50 N. Y. 8 (1872), 
 per Rapallo, J., holds that the wife 
 is not a necessary party in the fore- 
 closure of a purchase money mort- 
 gage by advertisement. Young v. 
 Tarbell, 37 Me. 509 (1854) ; Fox v. 
 Pratt, 27 Ohio St. 512 (1875) ; Culver 
 V. Hnrper, 27 Ohio St. 464 (1875); 
 Welch V. Buckins, 9 Ohio St. 331 
 (1859); Carter v. Goodwin, 3 Ohio St. 
 75 (1853) ; Foster v. Hickox, 38 Wis. 
 408 (1875), authorities collated and 
 tbe subject generally discussed, per 
 Ryan, Ch. J. ; Thompson v, Lyman, 
 28 Wis. 266 (1871) ; Cary v. Wheeler, 
 14 Wis. 281 (1861); Holdane v 
 Sweet, 55 Mich. 196 (1884). 
 
 » Short v. Raub, 81 111. 509 (1876), 
 relying upon Stephens v. Bichnell, 
 27 HI. 444 (1862). 
 
 » Fletcher v. Holmes, 32 Ind. 497, 
 506, 536 (1870) ; opinions per Elliott, 
 
 J , and Gregory, Ch. J., collating 
 and reviewing the cases ; Frazer, J., 
 wrote a dissenting opinion. See 
 Walters v. Walters, 73 Ind. 425 
 (1881). But dower was abolished in 
 Indiana by the Code of 1852, and the 
 wife was made an heir. Hoskins v. 
 Hutchings, 37 Ind. 324 (1871) ; May 
 V. Fletcher, 40 Ind. 575 (1872), per 
 Wooden, J., citing Fletcher v. 
 Holmes, 32 Ind. 497, 506, 536 (1870), 
 and collating the cases. See the 
 Indiana acts of 1875 and 1879. See 
 the early case of Nottingham v. Cal- 
 vert, 1 Ind. 527 (1849), apparently 
 supporting the New York rule. 
 
 * Amphlett v. Hibbard, 29 Mich. 
 298 (1874). 
 
 « Baker v. Scott, 62 111. 86 (1871) 
 Leary v. Shaffer, 79 Ind. 567 (1881) 
 Sutton V. Jervis, 31 Ind. 265 (1869) 
 Mooney v. Maas, 22 Iowa, 380, 383 
 (1867); Amphlett v. Hibbard, 29 
 Mich. 298 (1874); Parmenter v. 
 Binkley, 28 Ohio St. 32 (1875). A 
 mortgage signed by a wife, but not 
 acknowledged by her, is not so exe- 
 cuted as to release her dower. Shel- 
 don V. Patterson, 55 lU. 507 (1870) ; 
 Westfall V. Lee, 7 Clarke (Iowa), 12, 
 14 (1858). See Walsh v. Wilson, 
 130 Mass. 124 (1881).
 
 § 136.] EEILEDIES OF OMITl^ED WIFE. 161 
 
 party, without allegations in the complaint setting forth the 
 facts, and even with such allegations, it is doubtful whether 
 her rights will be affected in any way.' In an action brought 
 by a widow for the recovery of her dower in lands which had 
 been sold under the foreclosure of a mortgage which she 
 had not executed with her husband, her dower was held 
 paramount to the mortgage and not affected by the fore- 
 closure, although she was made a defendant under the 
 general allegation of having some interest in the premises.* 
 
 Where a widow's dower has been admeasured in prem- 
 ises mortgaged by her husband alone, the decree of fore- 
 closure should be for the sale of the remaining two-thirds 
 in the first place, and then for the sale of the admeas 
 ured third, — subject, however, to the dower.^ If a wife or 
 widow, having a right of dower, is not made a party, it is 
 believed that the mortgagor or any other defendant may 
 object to the omission by demurrer or answer.* The wife of 
 a mortgagor is no more a necessary party than the mortgagor 
 himself after she has joined in a deed with him, conveying 
 their equity of redemption to a purchaser.' 
 
 The remedy of the wife or widow, whenever she is 
 omitted as a party, is to redeem ;' but this right to redeem 
 
 ' Merchants' Bank v. Thomson, lent, the wife was held restored to 
 
 55 N. y. 7 (1873) ; Lewis v. Smith, her dower. See Popkin v. Bum- 
 
 9 N. Y. 502, 514, 519 (1854). affirming stead, 8 Mass. 491 (1812). 
 11 Barb.(N. Y.)152 (1851); Lainerv. « Mills v. VanVoorhies, 20 N. Y. 
 
 Smith, 37 Hun (N. Y.) 529 (1885) ; 412 (1859) ; Denton v. Nanny, 8 
 
 Payu V. Grant, 23 Hun (N. Y.) 134 Barb. (N. Y.) 618 (1850) ; Ross v. 
 
 (1880) ; Foster v. Hickox, 38 Wis. Boardman, 22 Hun (N. Y.) 527 
 
 408 (1875). (1880) ; Bell v. Mayor of Xew York, 
 
 » Lewis V. Smith, 9 N. Y. 502 10 Paige Ch. (N.Y.) 49 (1843) ; Carll 
 
 (1854). V. Butman, 7 Me. (7 Greenl.) 102 
 
 3 Morton v. Noble, 22 Ind. 160 (1830) ; VanVronker v. Eastman, 48 
 
 (1864). Mass. (7 Mete.) 157 (1843) ; Gibson v. 
 
 * See ante % 128. Crehore, 22 Mass. (5 Pick.) 146 
 
 * The reasons stated in § 118 ante, (1827). See Sheldon v. Patterson, 
 apply to the wife or widow as well 55 111. 507 (1870), where several 
 as to the mortgagor. Elmendorf v. mortgages, some of which the wife 
 Lockwood, 4 Lans. (N. Y.) 393 had not executed, were fore- 
 (1871). In Maloney v. Horan, 12 closed in one action ; Opdyke v. 
 Abb. (N. Y.) Pr. N. S. 289 (1872), Bartles, 11 N. J. Eq. (SStockt.) 133 
 where a deed was set aside as fraudu- (1856). 
 
 (11)
 
 162 SERVING SUMMONS ON WIFE. [§ 137. 
 
 does not accrue until the death of the husband, ai which 
 time the dower becomes fixed.' She can, however, assert 
 her rights before the death of her husband, and have the 
 value of her inchoate dower computed by the annuity tables 
 and paid.* Ejectment can not be maintained by a wife or a 
 widow.* If the widow accepts a devise or bequest, which is 
 made to her in lieu of dower, it is believed that she will not 
 be a necessary defendant.* 
 
 § 137. Wife of mortgagor ; service of summons or 
 process under early practice.— At common law, and in 
 the chancery practice of this state, the summons, or subpasna, 
 was not required to be served upon the wife of the owner of 
 the equity of redemption, where she was made a party to 
 the foreclosure for the purpose of cutting off her inchoate 
 right of dower ; but the husband was bound, except where 
 the estate was the separate property of the wife, to enter a 
 joint appearance and to put in an answer for himself and wife. 
 
 This practice was based upon the common-law doctrine 
 that a husband and wife are one person, and that the wife's 
 inchoate right of dower was a kind of interest which resulted 
 from the marital relation, and did not belong to her as a 
 separate estate.* " The general rule is, that the service of a 
 subpoena against husband and wife on the husband alone is 
 a good service on both, and the reason is, that the husband 
 and wife are one person in law, and the husband is bound to 
 answer for both.'" It must be kept in mind that such service 
 upon the husband was good only when the wife's interest in 
 the property was an inchoate right of dower; when her 
 
 > White V. Coulter, 1 Hun (N. Y.) • Foote v. Lathrop, 53 Barb. (N. 
 
 357, 366 (1874); modified in 59 N. Y. Y.) 183 (1869), appeal dismissed in 
 
 629 (1874) ; Morton v. Noble, 22 Ind. 41 N. Y. 858 (1869) ; Eckerson v. 
 
 160 (1864) ; followed in Grable v. Vollmer, 11 How, (N. Y.) Er. 42 
 
 McCuUoch, 27 Ind. 472 (1867). (1855) ; Ferguson v. Smith, 2 Johns. 
 
 2 Unger v. Letter, 32 Ohio St. 210 Ch. (N. Y.) 139 (1816) , Lathrop v. 
 
 (1877). Heacock, 4 Lans. (N. Y.) 1 (1871) ; 
 
 2 Smith V. Gardner, 42 Barb. (N. Leavittv. Cruger, 1 Paige CJh. (N.Y.) 
 
 Y.) 356 (1864). 421 (1829). 
 
 * Zaegel v. Kuster, 51 Wis. 31 • Ferguson v. Smith, 3 Johns. Ch. 
 
 (1881). See Lewis v. Smith, 9 N. (N. Y.) 139 (1816), per Chancellor 
 
 Y. 502 (1854). Kent.
 
 § 138.] SERVING SUJEMOI^S ON WIFE. 163 
 
 separate property was concerned in the action, she had to be 
 personally served.' It is to be further observed that the 
 summons or process had to be directed to the wife ; if her 
 name was omitted, the court acquired no jurisdiction of her, 
 and her inchoate right of dower would not be cut off or 
 affected in any way by the action ; her right to redeem it 
 became perfect at the death of her husband. 
 
 § 138. Wife of mortgagor ; service of summons under 
 present practice. — It is believed that this old practice has 
 been changed in New York by the Code of Civil Procedure. 
 There is some conflict of opinion in the reported cases as to 
 the interpretation of § 450,' but the latest decisions indicate 
 that the summons must be served upon the wife, and that 
 service upon her husband alone is not sufficient.' In a case 
 in Maryland, a summons was directed to the wife, but not 
 served upon her ; the court said that as she had a potential 
 right of dower, and was not within its jurisdiction, she was 
 not affected by the action ;* and in another case,- where a 
 husband appeared and confessed u bill for the foreclosure of 
 a mortgage executed by himself and wife, the wife was 
 held not bound by the decree, as she did not appear in 
 person and no summons was issued against her.* 
 
 Under the old practice, too, the wife could not appear 
 separately and on her own account in an action to cut off 
 her inchoate dower, without leave of the court ; now, how- 
 ever, there is no question that the wife of the owner of the 
 equity of redemption may appear and defend in her own name 
 and by her own attorney, as though she were a feme sole* 
 
 'Mills V. VanVoorhies, 10 Abb. (N.Y.) 645 (1881) ; Hubbell v. Sibley, 
 
 (N. Y.) Pr. 152 (1859) ; Watson v. 5 Lans. (N. Y.) 51 (1871). Iil 
 
 Churcb, 3 Hun (N. Y.) 80 (1874) ; Northrup v. Wheeler, 43 How. (N. 
 
 Lathrop V. Heacock, 4 Lans. (N. Y.) Y.) Pr. 123, 123 (1872). the fore- 
 
 1 (1871) ; Watson v. Church, 5 T. «& closure was by advertisement, and 
 
 C. (N. Y.) 243 (1875) ; White v. service upon the wife was held 
 
 Coulter, 3 T. «fe C. (N. Y.) 608 indispensable under the statute. See 
 
 (1874) ; McArthur v. Franklin, 15 also the cases cited below. 
 
 Ohio St. 485 (1864). * Hurtt v. Crane, 36 Md. 29 (1872). 
 
 « Old N. Y. Code, § 114. » Pope v. North, 33 111. 440 (1864). 
 
 * White V. Coulter, 59 N. Y, 629 « Janinski v. Heidelberg, 21 Hun 
 
 (1874). modifying 1 Hun <N. Y.) 357 (N. Y.) 439 (1880) ; Muser v. Miller, 
 
 (1874). See WeU v. Martin, 24 Hun 3 N. Y. Civ. Proc. Rep. 394 (1883);
 
 164 WIFE WHEN NOT NECESSARY. [§§ 139-140. 
 
 After the death of the husband, service of the summons 
 or notice upon the widow is indispensable.* 
 
 § 139. Wife of mortgagor or owner of equity oi 
 redemption, not necessary in those states where the 
 common-law dockrine of dower has been changed. — 
 
 In those states where statutes have been enacted which 
 completely sever the husband and wife, and make them 
 independent of each other, as to their rights in real property, 
 the wife is not a necessary party to an action to foreclose a 
 mortgage upon her husband's property, even though she 
 signed the mortgage.* The reason for this rule is, that, as 
 she has no interest whatever in her husband's real estate, 
 she can have no interest whatever in an action affecting it. In 
 North Carolina the husband has absolute dominion over his 
 land during his life, and can give a perfect conveyance of it 
 without the consent of his wife ; in that state, therefore, the 
 wife is not a necessary party to the foreclosure of a mortgage 
 against her husband's property.^ But if the wife has signed 
 the bond or instrument of indebtedness, charging herself 
 with its payment, and a personal judgment for deficiency is 
 sought against her, she is a necessary party for that purpose.* 
 
 § 140. The husband of a mortgagor who is a married 
 woman, having a separate estate, generally not neces- 
 sary. — In most states where the common-law doctrine of 
 curtesy remains unmodified by statute, a husband who joins 
 with his wife in executing a mortgage on her separate real 
 property is not a necessary defendant, if the sale in the 
 action to foreclose takes place during the wife's life-time.' 
 
 B. c. 65 How. (N. Y.) Pr. 286 (1883) ; Thornton v. Pigg, 24 Mo. 249 
 
 FitzSimons v. Harrington, 1 N. Y. (1857) ; Miles v. Smith, 22 Mo. 502 
 
 Civ. Proc. Rep. 360 (1881) ; Fitz- (1856) ; Etheridge v. Vernoy, 71 N. 
 
 geraldv. Quann, 1 N. Y. Civ. Proc. C. 185 (1874). See Stevens v. 
 
 Rep. 278, 279 (1881) ; contra, Fitz- Campbell, 21 Ind. 471 (1863). 
 
 gerald v. Quann, 1 N. Y. Civ. Proc. ' Etheridge v. Vernoy, 71 N. C. 
 
 Rep. 273 (1881) ; N. Y. Code Civ. 185 (1874). 
 
 Proc. § 450 ; Throop's Code, p. 440. * See post chap. x. 
 
 • King v. Duntz, 11 Barb. (N. Y.) * Trustees of Jones Fund v. Roth, 
 
 191 (1851). See ante §§ 135, 136 and 18 N. Y. Wk. Dig. 459 (1883), citing 
 
 the cases cited. the statutes, and explaining the legal 
 
 ' Powell V. Ross, 4 Cal. 197 (1854); reasons for the rule.
 
 § 141.] HUSBAND NOT NECESSARY PARTY. 165 
 
 Neither by common-law nor by the statute of any state does 
 a husband have any interest in his wife's real property until 
 her death. This is the general rule ; but in some states the 
 husband is deemed a necessary party, owing to statutory 
 enactments and the special rules of their courts.' Four things 
 are requisite to an estate by curtesy," to wit: marriage, 
 actual seisin of the wife, issue, and the death of the wife ; 
 and in New York the wife must die intestate. Upon the 
 death of the wife intestate, after the accomplishment of 
 these four requisites, the husband becomes a necessary defen- 
 dant in order to cut off his curtesy and to perfect the title.* 
 In those states where statutes have made wholly separate 
 and independent of each other the respective estates of a 
 husband and a wife, the husband has no right to curtesy nor 
 to any other interest in his wife's real property, and is conse- 
 quently not a necessary party, so far as the title is concerned. 
 If, however, he has obligated himself for the indebtedness 
 by signing a note or bond, he is a necessary party if a 
 personal judgment for deficiency is sought against him.* 
 
 § 141. Heirs of mortgagor or owner of the equity of 
 redemption necessary. — The heirs' of a mortgagor or person 
 who dies seized of the equity of redemption in mortgaged 
 
 ' The husband has been held a Mass. Laws of 1874, chap. 184 ; 
 
 necessary party in the following Camden v. Vail, 23 Cal. 633 (1863) ; 
 
 cases : Hilton v. Lothrop, 46 Me. Harrison v. Brown, 16 Cal. 287 
 
 297 (1858); Yager v. Merkle, 26 (1860); Black v. Galway, 24 Pa. 
 
 Minn. 429 (1880) ; Wolf v. Banning, St. 18 (1854). See Laws of New 
 
 3 Minn. 202 (1859). Landon v. York, 1848, chap. 200; also ante 
 
 Burke, 36 Wis. 378 (1874), cites a § 134, and the second note to the 
 
 statute making the husband a neces- section, 
 
 sary party ; Mavrich v. Grier, 3 Nev. '■' 4 Kent Com. 29. 
 
 52 (1867). In Andrews v. Swanton, ^ Fogal v. Pirro, 10 Bosw. (N. Y.) 
 
 81 Ind. 474 (1882), the husband was 100 (1862) ; Leggett v. McClelland, 
 
 held a proper, if not a necessary, 39 Ohio St. 624 (1884). 
 
 party. In some states a mortgage * Thornton v. Pigg, 24 Mo. 249 
 
 executed by a married woman upon (1857) ; Riddick v. Walsh, 15 Mo. 
 
 herseparate real estate is void, unless 519, 538 (1852); Building, Loan & 
 
 her husband joins in its execution ; Sayings Assoc, v. Camman, UN. 
 
 in these states he is of course a J. Eq. (3 Stockt.) 382 (1857). See 
 
 necessary party to a foreclosure ; post chap. x. 
 
 Weed Sewing Mach. Co. v. Emer- ^ Wood v. Morehouse, 1 Lans. (N. 
 
 son, 115 Mass. 554 (1874). See the Y.) 405 (1869) ; Leonard v. Morris,
 
 166 
 
 HEIKS NECESSARY DEFENDAJ^TS. 
 
 [§ 141. 
 
 premises are as necessary parties to a foreclosure as the 
 deceased mortgagor or owner would have been, if the action 
 had been brought in his life-time, as they succeed by opera- 
 tion of law under the statute of descent to the entire interest 
 of the decedent in the property, the same as a purchaser 
 would succeed to such interest by grant. It is not suffi- 
 cient to make the personal representatives of the deceased 
 owner alone defendants,' except in cases of foreclosure by 
 
 9 Paige Ch. (N. Y.) 90 (1841); 
 Bigelow V. Bush, 6 Paige Ch. (N. 
 Y.) 345 (1837); Williamson v. Field, 3 
 Sandf. Ch. (N. Y.) 583 (1845) ; Bell v. 
 Hall, 76 Ala. 546 (1884) ; Hunt v. 
 Acre, 28 Ala. 580 (1856) ; Erwin v. 
 Ferguson, 5 Ala. 158(1843); Duval v. 
 McCloskey, 1 Ala. 708 (1840); Pillow 
 V. Sentelle, 39 Ark. 61 (1883) ; Kier- 
 nan V. Blackwell, 27 Ark. 235 (1871); 
 Brown v. Orr, 29 Cal. 120 (1865) ; 
 Burton v. Lies, 21 Cal. 87, 91 (1862); 
 Pritchard v. Elton, 38 Conn. 434 
 (1871) ; Britton v. Hunt, 9 Kan. 
 228 (1872) ; Brenner v. Bigelow, 8 
 Kan. 496, 504 (1871) ; Lane y. Ers- 
 kine. 13 111. 501 (1851), approved and 
 followed in JTai vey v. Thornton, 14 
 I.i;. Jr? ■1852;; McKay v. Wakefield, 
 63 Ind. 27 (1878); Daugherty v. 
 Deardorf, 107 Ind. 527; s. c. 5 West, 
 Hep. 850 (1886); Newkirk v. Burson, 
 21 Ind. 129 (1863); Shaw v. Hoadley, 
 BBlackf. (Ind.) 105(1846); Slaughter 
 V. Foust, 4 Blackf. (Ind.) 379 (1837) ; 
 White V. Pvittmeyer, 30 Towa, 268, 
 272 (1870), citing many cases and 
 authorities ; Smith v. Manning, 9 
 Mass. 422 (1812); Abbott v. God- 
 froy's Heirs. 1 Mich. 178 (1849), per 
 Miles, J., collating and reviewing 
 the tiulhorities ; Averett v. Ward, 
 1 Bush. (N. C.) Eq. 192 (1853) ; Bar- 
 rett V. Cochran, 8 S. C. 48 (1875) ; 
 Williams V. Beard, 1 S. C. 309(1869); 
 Denison v. League, 16 Tex. 399, 409 
 (1856) ; George v. Cooper, 15 W. Va. 
 
 666 (1880); Zaegel v. Kuster, 51 Wis. 
 31 (1881), explaining the statute of 
 1860, chap. 303 ; Stark v. Brown, 
 12 Wis. 572 (1860) ; see the statute 
 of 1842 ; Houghton v. Mariner, 7 
 Wis. 244 (1858). In Indiana the 
 widow is made an heir by statute, 
 and is a necessary party. See 
 Fletcher v. Holmes, 32 Ind. 497, 
 510 (1870), and the cases cited. A 
 sale has been held wholly void for 
 the omission of the heirs; Shiveley'3 
 Adm's V. Jones, 6 B. Mon. (Ky.) 
 274 (1845) ; Renshaw v. Taylor, 7 
 Oreg. 315(1879). lu Massachusetts, 
 where there is a tenant in possession 
 on whom to serve the process, the 
 heirs are not necessary parties ; 
 Shelton v. Atkins, 39 Mass. (23 
 Pick.) 71 (1839). The heirs of a 
 sub-vendee are necessary defendants 
 in the foreclosure of a land contract; 
 Batre v. Auze's Heirs, 5 Ala. 173 
 (1843). In Bayly v. Muehe, 65 Cal. 
 345 (1884), the heirs were held not 
 necessary parties where the personal 
 representatives had been made defen- 
 dants. 
 
 » Zaegel v. Kuster, 51 Wis. 31 
 (1881) ; Stark v. Brown, 12 Wis. 573 
 (1«60); see the statute of 1842, 
 referred to. In Missouri the heirs 
 are by statute not necessary par- 
 ties; Perkins v. Wood, 27 Mo. 547 
 (1858) ; Code of 1845. See Dixon's 
 Adm'rs v. Cuyler's Adm'rs, 27 
 Ga. 248 (1859), holding the personal
 
 § 142.] HEIES NECESSAKY DEFENDANTS. 167 
 
 advertisement,' The guardian of an infant heir is not a neces- 
 sary party, but the infant must be made a defendant, and the 
 process of the court must be personally served upon him.' 
 
 In reviving a foreclosure commenced against a deceased 
 mortgagor in his life-time, his heirs are necessary parties in 
 order to produce a perfect title. Thus, a grantor died 
 during the pendency of an action in the nature of a fore- 
 closure, for an accounting and sale of the premises, brought 
 upon a deed given to secure an advance of money; and the 
 suit having been revived against his administrator alone, a 
 bidder at the sale was relieved of his bid on the ground that 
 the title offered was defective, the heirs having been omitted as 
 defendants.' The general principles of law that have been 
 previously stated as rendering a mortgagor or an owner of 
 the equity of redemption by purchase a necessary party, 
 are equally applicable to the heirs at law of such a mortgagor 
 or owner.* 
 
 § 142. Heirs of mortgagor or owner — When not 
 necessary. — If the mortgagor parted in his life-time with 
 the equity of redemption, his heirs at law are not necessary 
 parties ;' but where the mortgagor at his decease still holds 
 an equitable interest in the equity of redemption, his heirs, 
 succeeding to his identical rights, will or will not be neces- 
 sary parties according to the rules of law previously stated.* 
 
 representatives instead of the heirs ^ Dodd v. Neilson, 90 N. Y. 243 
 
 necessary parties. See post % 145. (1882). In Givens' Admr'sv. Daven- 
 
 » ^Mackenzie v. Alster, 64 How. port, 8 Tex. 451 (1852), the heirs of 
 
 (N. Y.) Pr. 388 (1882) ; Low v. a mortgagor who died pending the 
 
 Purdy, 2 Lans. (N. Y.) 424 (18G9). foreclosure were held not necessary 
 
 See pust § 145, and the cases cited in parties in reviving it ; aliier where 
 
 this section. In Illinois, in a fore- the action was commenced agairLst 
 
 closure by scire facias, it has been the personal representatives after the 
 
 held sufficient under the statute to death of the mortgager, 
 
 make either the heirs or the execu- * See ante §§ 126, 127. 
 
 tors or administrators parties ; Rock- ^ Daly v. Bui'chall, 13 Abb. (N. 
 
 well V. Jones, 21 111. 279 (1859) ; Y.) Pr. N. S. 264, 268 (1872). In 
 
 John V. Hunt, 1 Blackf. (Ind.) 324 point, Wilkins v. Wilkins, 4 Port. 
 
 (1824). (Ala.) 245 (1837) ; Hibernia Savings 
 
 * Alexander v. Frary, 9 Ind. 481 Society v. Herbert, 53 Cal. 375(1879); 
 
 (ISo?) ; Moore v. Starks, 1 Ohio St. Medley v. Elliott, 62 III. 532 (1872). 
 
 369 11853). See the iS[. Y. Code Civ. See ante §§ 118, 119. 
 
 Proc. g 420. « See ante %% 120-128.
 
 168 HEIRS WHEN NOT NECESSARY. [§142. 
 
 If a judgment for deficiency is sought against the estate of a 
 deceased mortgagor, or of a deceased purchaser, who has 
 duly assumed the payment of the mortgage debt, the legal 
 representatives of the decedent are necessary parties for that 
 purpose ;' but they are not necessary parties for the purpose 
 of foreclosing the title.' The reason for this is, that in most 
 states the executors and administrators, or legal representa- 
 tives, of a deceased person receive no title or interest in the 
 land. 
 
 In those states, however, where the real as well as the 
 personal property passes into the hands of executors or 
 administrators, they are necessary parties to a foreclosure in 
 the place of the heirs, who are then not necessary parties f 
 and in statutory foreclosures by advertisement in New York 
 the personal representatives are indispensable parties.'' If the 
 heirs, or any of them, are omitted as parties, any defendant 
 interested in the action may object by demurrer, if the defect 
 appears upon the face of the complaint, or by answer, and 
 compel such omitted heir to be made a party.* And an 
 omitted heir will always be permitted to appear and defend 
 on application to the court.° 
 
 Where the decedent leaves a will, devising the equity of 
 redemption in mortgaged premises, the devisees and benefi- 
 ciaries become necessary parties instead of the heirs at law.' 
 But if the will contains a power of sale directing distribution 
 of the estate among certain heirs, the heirs will be necessary 
 parties, as the fee is devised to them subject to the execu- 
 tion of the power of sale.* As the probate of a will of real 
 estate may be impeached within a limited time," it is proper, 
 and may be necessary under certain circumstances, to make 
 the heirs at law also parties. The plaintiff omits them at the 
 risk of their subsequently redeeming. 
 
 1 See post chap. x. ^ Zundel v. Tacke, 47 Hun (N. Y.) 
 
 « Lcouard v. Morris, 9 Paige Ch. 239 (1888). 
 
 (N. Y.) 90 (1841). ' See post § 143, on devisees ; Hunt 
 
 a Harwood v. Marye, 8 Cal. 580 v. Acre, 28 Ala. 580 (1856). 
 
 (1857). ^ Nooaan v. Brennemann, 54 N. 
 
 * See post % 145, the last paragraph Y. Super. Ct. (22 J. & S.) 337 (1887). 
 and the cases cited. » N. Y. Code Civ. Proc. § 2627. 
 
 * See ante % 128.
 
 § 143.] DEVISEES IfECESSAKY DEEEifDAl^TS. 169 
 
 Where the title to mortgaged premises is conveyed to a 
 man and his wife as tenants by the entirety/ or is held 
 jointly by partners or others, the heirs of one of the deceased 
 joint owners are not necessary parties to cut off the equity 
 of redemption and to perfect the title by foreclosure ; if, 
 however, the deceased joint owner signed the bond or 
 became in any way liable for the mortgage debt, his legal 
 representatives are proper parties for the purpose of obtain- 
 ing a judgment of deficiency against his estate. The reason 
 for this rule is based on the common-law doctrine of survi- 
 vorship, by which the entire title, upon the death of any of 
 the joint owners, vests in the survivors.* 
 
 § 143. Devisees of mortgaged premises necessary. — 
 
 We have already seen that when the title to mortgaged 
 premises devolves upon heirs at law under the statute of 
 descent, they are necessary parties to a foreclosure. A tes- 
 tator is authorized by statute to make a will, superseding 
 the statute of descent in the disposition of his property. 
 Following the analogy of the rule which makes an heir a 
 necessary party, the person or devisee to whom the testator 
 passes the title of his mortgaged premises by will is also a 
 necessary party to foreclose the equity of redemption, as he 
 becomes the owner of the same.' A mortgage executed by 
 a devisee upon lands received by will, is always subject to 
 equities existing against the premises at the time of the 
 testator's death." If the entire title to the premises is de- 
 vised, the heir, of course, is not a necessary party, as he has 
 no interest in the property.^ As a surrogate's decree, 
 admitting a will of real estate to probate, is only presumptive 
 
 ' Bertles v. Nunan, 92 N. Y. 153 ters not whether the devise is ahso- 
 
 (1883). See ante % 123. lute or in trust ; Mayo v. Tomkies, 
 
 ■' 4 Kent Com. 360. 6 Munf. (Va.) 520 (1820) : Graham's 
 
 3 Leggett V. Mut. Life Ins. Co., 64 Exec'rs v. Carter, 2 Hen. & M. (Va.) 
 
 Barb. (N. Y.) 36 (1872) ; Robinson 6 (1807) ; Coles v. Forrest, 10 Beav. 
 
 V. Ilobinson, 1 Lans. (N. Y.) 117 552(1847). 
 
 (186&) ; Nodine v. Greenfield, 7 * Simons v. Bryce, 10 S. C. L. 354 
 
 Paige Ch. (N. Y.) 547 (1839) ; Sav- (1878). 
 
 ings & Loan Society v. Gibb, 21 * Macclesfield v. Fitton, 1 Vern. 
 
 Cal. 595 (1863) ; Sanderson v. Ed- 168 (1683) ; Lewis v. Nangle, 2 Ves. 
 
 wards, 111 Mass. 335 (1873). It mat- Sr. 431 (1752) ; s. c. 1 Ambl. 150.
 
 170 LEG ATJEES NECESSARY. [§§144-14:5. 
 
 evidence of the matters adjudged in the decree, and as the 
 probate of the will may be impeached within a limited 
 time, the heirs at law may, during such time, become neces- 
 sary defendants,' and they ought not to be omitted from the 
 action, if any of them dispute the validity of the will. Until 
 a decree is made, admitting a will to probate, the heirs are 
 necessary parties ; and it is believed that the devisees are also 
 necessary. It is suggested that in such a case the rule of 
 law may be applied which renders both the vendee and the 
 vendor in a land contract of mortgaged premises necessary- 
 parties.* 
 
 § 144. Legatees and annuitants necessary. — A legacy 
 or an annuity charged by a will upon mortgaged premises 
 is a lien thereupon, the same as though the decedent had 
 mortgaged or otherwise incumbered the equity during his 
 life-time ; and the beneficiary of such a legacy or annuity is 
 an indispensable party in an action to foreclose.' It seems, 
 however, where a legacy is made generally from the estate, 
 and not charged specifically upon the mortgaged premises, 
 that the legatee is not a necessary party : but such a legatee 
 may become an indispensable party if there is an insuffi- 
 ciency of personal property to pay the legacy,* and it becomes 
 necessary to resort to the mortgaged premises to produce a 
 fund to pay it. 
 
 § 145. Executors and administrators generally not 
 necessary. — In New York and in many other states the 
 administrator of a person who dies seized of an equity of 
 redemption, is not a necessary party defendant to a fore- 
 closure,* except where the action is commenced during the 
 
 " N. Y. Code Civ. Proc. § 2637. " Hebron Society v. Schoen, 60 
 See the preceding section ; exactly How. (N. Y.) Pr. 185 (1880). 
 in point, Hunt v. Acre, 28 Ala. 580 ' For the New York cases see ante 
 (1856). §§ 141, 142. Dodd v. Neilson, 90 
 2 See ante § 124. N. Y. 243 (1882), held that it was not 
 » Hebron Society v, Schoen, 60 sufficient to make the personal repre- 
 How. (N. Y.) Pr. 185 (1880); Mc- sentatives defendants ; the heirs were 
 Gown V. Ycrks, 6 Johns. Ch. (N. also necessary, Erwin v. Ferguson, 
 Y.) 450 (1822) ; Batchelor v. Middle- 5 Ala. 158 (1843) ; Inge v. Board- 
 ton, 6 Hare, 75 (1847). man, 2 Ala. 331 (1841) ; Wilkins v.
 
 § l-i5.] EXECUTORS NOT NECESSARY DEFENDANTS. 171 
 
 pendency of a proceeding in a probate court to sell the dece- 
 dent's equity of redemption to pay his debts.* The reason 
 for this rule is, that administrators have no interest in the 
 real estate of a decedent.* Neither are executors necessary 
 parties, unless their office is coupled with an interest in the 
 property by trust, power of sale or otherwise. In a few 
 states, personal representatives are held indispensable parties 
 defendant,' while a majority of the decisions indicate that it 
 
 Wilkins, 4 Port. (Ala.) 245 (1837) ; 
 but held necessary in Dooley v. 
 YillaloDga, 61 Ala. 129 (1878); 
 Bissell V. Marine Co. of Chicago, 55 
 111. 165 (1870) ; Rockwell v. Jones, 
 21 111. 279(1859) ; Trapierv. Waldo, 
 16 S. C. 276 (1888) ; Stark v. Brown, 
 12 Wis. 572 (18G0) ; Houghton v. 
 Mariner, 7 Wis. 244 (1858). The 
 personal repre.sentative of a deceased 
 joint mortgagor should not be made 
 a party, according to Wiley v. Pia- 
 •son, 23 Tex. 486 (1859) ; Martin v. 
 Harrison, 2 Tex. 456(1847). 
 
 1 ]Sr. Y. Code Civ. Proc. §§ 2749, 
 2797, 2798. 
 
 ^ Willard v. Nason, 5 Mass. 240 
 (1809), See ante %% 141, 142. 
 
 ' In Missouri a statute makes it 
 sufficient to bring the personal repre- 
 sentatives into the action ; Perkins 
 V. Woods, 27 Mo. 547 (1858) ; Cad- 
 ■wallader v. Cadwallader, 26 Mo. 76 
 (1857) ; Miles v. Smith, 22 Mo. 502 
 (1856) ; Riley's Adm'rs v. McCord's 
 Adm'rs, 21 Mo. 285 (1855) ; s. c. 24 
 Mo. 265 (1857), holding the per- 
 sonal representatives indispensable ; 
 Randolph V. Widow, etc., of Chap- 
 man, 21 La. An. 486 (1869). See 
 Dixon V. Cuyler, 27 Ga. 248 (1859), 
 holding the heirs not necessary 
 parties. Hall v. Musler, 1 Disney 
 (Ohio), 35 (1855). In Blggerstaff v. 
 Loveland, 8 Ohio, 44 (1837), it was 
 held sufficient to make the peisoual 
 representatives parties defendant on 
 
 the ground that the statute reads, 
 "heirs, executors or administrators." 
 See also Heighway v. Pendleton, 
 15 Ohio, 735, 749, 758 (1846), where 
 it was held that the statute of 1807 
 made the equity of redemption a 
 "chattel descendible" to the personal 
 representatives, and not to the heirs. 
 Mebane v. Mebane, 80 N. C. 34, 38 
 (1879), distinguishing and ruling 
 contrary to Averett v. Ward, 1 Busb. 
 (N. C.) Eq. 192 (1853); Massie's 
 Heirs v. Donaldson, 8 Ohio, 377 
 (1838) ; Hunsecker v, Thomas, 89 
 Pa. St. 154 (1879); Wallace v. 
 Holmes, 40 Pa. St. 427 (1861), cit- 
 ing the statute; Bryce v. Bowers, 11 
 Rich. (S. C.) Eq. 41 (1859); Wright v. 
 Eaves, 10 Rich. (S.C.) Eq. 582 (1858); 
 Gibbes v. Holmes, 10 Rich. (S. C.) 
 Eq. 484, 493 (1859). See Trapier v. 
 Waldo, 16 S. C. 276 (1881), appar- 
 ently overruling these cases. In 
 Texas it has been held necessary 
 under a statute to present the claim 
 on the mortgage to the personal 
 representatives before foreclosing ; 
 Graham v. Yining, 1 Tex. 639 
 (1847) ; the remedy against the mort- 
 gagor's estate must be pursued in 
 the probate court. Limited in Cole 
 V. Robertson, 6 Tex. 356 (1851). to 
 the effect that a foreclosure m rem, 
 but not an action in personam, can 
 be maintained without a previous 
 demand on the personal representa- 
 tives.
 
 172 
 
 TRUSTEES NECESSARY DEFENDANTS. [§146. 
 
 is a proper and advisable practice always to bring before the 
 court the legal representatives of a deceased owner of an 
 equity of redemption.' 
 
 In the statutory foreclosure of mortgages by advertise- 
 ment in New York, the rule is fixed and absolute that the 
 notice must be served upon the "mortgagor, or, if he is 
 dead, upon his executor or administrator ;'" it is not required 
 to be served upon the heirs or devisees. If no personal 
 representatives have been appointed, foreclosure by adver- 
 tisement can not be maintained.* 
 
 § 146. Trustees, holding an interest of whatever kind 
 in mortgaged premises for beneficiaries, necessary. — 
 
 Whenever the title to, or an interest in, mortgaged premises 
 is passed to a person in trust for specific purposes, for the 
 benefit of other persons, the trustee is always a necessary 
 party to a foreclosure in order to cut off the entire equity of 
 redemption. The reported cases, almost without an excep- 
 tion, sustain this proposition, no matter what the character 
 or purpose of the trust may be.* Though none of the cases 
 
 * Personal representatives are held 
 proper parties in Bayly v. Muelie, 
 65 Cal. 345 (1884); Savings and Loan 
 Society v. Gibb, 21 Cal. 595 (1863) 
 Burton v. Lies, 21 Cal. 87 (1862) 
 Fallon V. Butler, 21 Cal. 24 (1862) 
 Darlington v. Efley, 13 Iowa, 177 
 (1862) ; Hodgdon v. Heidman, 66 
 Iowa, 645, (1885), holds personal 
 representatives proper parties if a 
 judgment for deficiency is desired ; 
 Brenner v. Bigelow, 8 Kan. 496, 504 
 (1871). 
 
 ^ Anderson v. Austin, 34 Barb. 
 (N. Y.) 319 (1861) ; Cole v. Moffitt, 
 20 Barb. (N. Y.) 18 (1854) ; Hornby 
 V. Cramer, 12 How. (N. Y.) Pr. 490 
 (1855) ; Low v. Purdy, 2 Lans. (N. 
 Y.) 424 (1869); 2 N. Y. Eev. Stat. 545; 
 Laws of 1844, chap. 346; N. Y. 
 Code Civ. Proc. S 2388. subdiv. 4. 
 
 * Mackenzie v. Alster, 64 How. (N. 
 Y.) Pr. 388 (1882) ; s. c. 12 Abb. (N. 
 
 Y.) N. C. 110. Boardman, J., 
 queries in VanSchaack, v. Sanders, 
 32 Hun (N. Y.) 515 (1884), s. c. 19 
 N. Y. Week. Dig. 170, whether 
 service on a devisee is not sufficient 
 where the executors have not quali- 
 fied. 
 
 *Bard v. Poole, 12 N. Y. 495 
 (1855) ; Case v. Price, 9 Abb. (N. Y.) 
 Pr. Ill (1859) ; Christie v. Herrick, 
 1 Barb. Ch. (N. Y.) 254 (1845) ; Leg- 
 gett V. Mutual Life Ins. Co. , 64 Barb. 
 (N. Y.)38 (1872); Toole v. McKiernan, 
 48 N. Y. Super. Ct. (16 J. & S.) 163 
 (1882) ; Grant v. Duane, 9 Johns. (N. 
 Y.) 591 (1812) ; Nodine v. Greenfield, 
 7 Paige Ch. (N. Y.) 547 (1839); Patou 
 v. Murray, 6 Paige Ch. (N. Y.) 474 
 (1837) ; King v. McVicker, 3 Sandf. 
 Ch. (N. Y.) 192 (1846) ; Williamson 
 V. Field's Ex'rs, 2 Sandf. Ch. (N. 
 Y.) 533, 563 (1845) ; Wilson v. Russ, 
 17 Fla. 691 (1880) ; C. & G. W. R.
 
 § 147.] TRUSTEES AND BENEFICIARIES NECESSARY. 173 
 
 state the reason for this principle, it is believed that it is 
 based upon the fact that all trustees are held accountable 
 by the courts for the performance of their trusts, and that 
 without being made parties they would have no opportunity 
 to be heard in an action afTecting the subject of their trust. 
 Even if the trust were not coupled with an interest, 
 there might be latent equities or hidden rights which 
 would impair the title offered at a foreclosure sale, if the 
 trustee were omitted as a party defendant. It is specially 
 necessary, and, in fact, indispensable, to make a trustee of 
 an express trust, or one who has an interest coupled with a 
 trust, a party.* Trusts created by wills are so various in 
 character and often approach so near a mere power, that 
 each case must be judged by itself as it arises ; and this is 
 notably true, when it is remembered that the common-law 
 theory of trusts and the statutory enactments of the various 
 states respecting them are so complicated and intricate.' 
 The trustee must be made a party in his reprensentative, 
 and not in his individual, capacity.' 
 
 § 147. Cestuis que trust and beneficiaries — When 
 necessary. — The decisions of the courts and the statutes of 
 this state have long established the dictum, that the cestuis 
 que trust and beneficiaries of a trust are necessary defendants 
 to a foreclosure, in order to cut off the entire equity of 
 redemption.* Judge Story says : " It will not in general be 
 
 Land Co. v. Peck, 112 111. 408, 435 when no estate, legal or equitable, 
 
 (1885) ; Walsh v. Truesdale, 1 111. vested in the trustee, he was not a 
 
 App. 126 (1877) ; Clark v. Reyburn, necessary party ; aliter when the 
 
 75U. 8. (8WaU.)318(1868); bk. 19 trustee takes any interest in the 
 
 L. ed. 354 ; Fisher on Mortgages, property. See the cases cited w- 
 
 §§ 365, 367 ; Wilton v. Jones, 2 Y, pra. 
 
 & C. C. C. 244 (1843). The heirs at « Nodine v. Greenfield, 7 Paige Ch. 
 
 law of a trustee are not necessary (N. Y.) 547 (1839). 
 
 parties ; N. & C. Bridge Co. v. ^ Rathbone v. Hooney, 58 N. Y. 
 
 Douglass, 12 Bush. (Ky.) 719 (1877). 463(1874). 
 
 See Gardner v. Brown, 88 U. S. (21 * Leggett v. Mutual L. I. Co., 64 
 
 Wall. 36 (1874) ; bk. 22 L. ed. 527, Barb. (N. Y.) 23, 36 (1872): reversed 
 
 where a trustee had not filed a in part in 53 N.Y. 400(1873); Case v. 
 
 required bond. Price, 17 How. (N.Y.) Pr. 348(1859); 
 
 1 In Case V. Price, 17 How. (N. Toole v. McKiernan, 48 N.Y. Super, 
 
 Y.) Pr. 348 (1859), it was held that Ct. (16 J. & S.) 163 (1882) ; Terrett v.
 
 174 CESTUIS QUE TEUST WHEN NECESSARY. [§ 147. 
 
 sufficient if the equity of redemption is conveyed or devised 
 to a trustee in trust, to bring him before the court ; but the 
 cestuis que trust (the beneficiaries) should also be made 
 parties.'" " It is conceded to be the general rule, that if the 
 equity of redemption is vested in a trustee in trust, the cestuis 
 que trust must be made parties to the foreclosure."* 
 
 And even where the receipt of trustees was to be sufficient 
 to discharge purchasers from all liability to the beneficiaries, 
 the equity of redemption having been conveyed to trustees 
 to sell and divide among certain specified persons, the cestuis 
 que trust were held necessary parties to a bill brought to 
 foreclose the mortgage.' The nature of the trust should 
 appear on the face of the instrument creating it. Where 
 the conveyance does not reveal the fact that it is a trust 
 deed, together with the names of the beneficiaries, the fore- 
 closure will produce a perfect title, and the rights of the 
 
 Crombie, 6 Lans. (N. T.) 82 (1872) ; 
 modified in 55 N. Y. 683; Nodiue v. 
 Greenfield, 7 Paige Ch. (N. Y.) 544 
 (1839) ; King v. McVickar, 3 Sandf. 
 Ch. (N. Y.) 192 (1846) ; Williamson 
 V. Field, 2 Sandf. Ch. (N. Y.) 562 
 (1845). See Dodd v. Neilson, 90 N. 
 Y. 243, 247 (1882). In Lockman v. 
 Reilley, 10 Abb. (N. Y.) N. C. 351 
 (1881), certain beneficiaries were held 
 imnecessary parties ; but in that case 
 the equity of redemption had been 
 changed into personalty by the 
 terms of a will. Woolner v. Wilson, 
 5 ni. App. 439 (1880); Day v. 
 Wetherby, 29 Wis. 363 (1872) ; Clark 
 V. Reyburn, 75 U. S. (8 Wall.) 318 
 (1868) ; bk. 19 L. ed. 354. See 
 Broward v. Hoeg, 15 Fla. 370 (1875), 
 for a case where alleged beneficiaries 
 were held not necessary parties. In 
 Johnson v. Robertson, 31 Md. 476 
 (18G9), the cestui que trust, bein^ a 
 non-resident, was held an unnecessary 
 party ; her interests were held bound 
 by a decree taken pro confesso against 
 her trustee. In Wood v. Nisbit, 20 
 
 Ga. 72 (1856), the premises were 
 conveyed to a person as trustee, who 
 executed a purchase money mort- 
 gage as trustee ; the cestui que trust 
 was held not a necessary party. 
 Contrary to the text, see Fisher on 
 Mortgages, § 367 et seq., and the 
 English cases, Hanman v. Riley, 9 
 Hare Append. 40 (1852); Goldsmid v. 
 Stonehewer, 9 Hare Append. 39 ; 
 8. c. 17 Jur. 199(1852); Sale v. Kitson, 
 17 Jut. 171; s. c. 3DeG., M. &G. 119 
 (1853); Tuder v. Morris, 1 Sm. & 
 Gif 603(1853); Cropper v. MeUersh, 
 1 Jut. N. S. 299 (1855). See Coles 
 V. Forrest. 10 Beav. 557 (1847). 
 
 > Story's Eq. PL §§ 193, 197. 
 
 ^ W illiamson v. Field, 2 Sandf. 
 Ch. (N. Y.) 562 (1845). a leading 
 case, per Vice-Chancellor Sandford. 
 All the books agree in sustaining this 
 proposition. Gore v. Stacpoole, 1 
 Dow's P. C. 18, 31 (1813), per Lord 
 Eldon ; Story's Eq. PI. §§ 198, 194, 
 207. Calvert on Parties, 181, 182. 
 
 » Calverley v. Phelp, 6 Madd. 229 
 (1822).
 
 § 148.] CESTUIS QUE TRUST WIIEN NOT NECESSAET. 175 
 
 cestuis que trust will be cut off, though they are not made 
 parties to the action.* 
 
 § 148. Cestuis que trust — When not necessary.— As 
 
 far as the reported cases show, there are only two exceptions 
 to the general rule above stated. First, " in cases of remote 
 limitation of the equity of redemption, in which, on account 
 of the impossibilty of bringing in parties not in esse, or not 
 ascertained, but who may ultimately become entitled, it is 
 held sufficient to bring before the court the persons in esse 
 who have the first estate of inheritance, together with the 
 persons having all the precedent estates and prior interests."* 
 But where a mortgagor conveyed his equity of redemption 
 to trustees in settlement for his daughter on her marriage, 
 out of which she was to receive an annuity, and the trustees 
 were to raise out of the same a sum of money for the 
 children of the marriage, the daughter and her children were 
 deemed necessary parties to a suit for the foreclosure of the 
 mortgage.' 
 
 Second, in cases where the beneficiaries are so numerous 
 that it would be intolerably oppressive to compel the 
 plaintiff to bring them all into the action, it is held sufficient 
 to make the trustees defendants.* Thus, in a case where 
 real estate had been purchased by a joint fund raised by 
 subscriptions from above two hundred and fifty subscribers, 
 and the property was conveyed to A., B. and C. as trustees, 
 who executed a purchase money mortgage, Chancellor Kent 
 
 > Johnston v. Donvan, 106 N. Y. * Christie v. Herrick, 1 Barb. Ch. 
 
 269 (1887) ; Brown v. Cherry, 38 (N. T.) 254 (1845) ; VanVechten v. 
 
 How. (N. Y.) Pr. 352 (1870) ; s. c. 56 Terry, 2 Johns. Ch. (N. Y.) 197 
 
 Barb. (N. Y.) 635; Young v. Whit- (1816); Paton v. Murray, 6 Paige Ch. 
 
 ney, 18 Fla. 54 (1881). (N. Y.) 474 (1837). See C. & G. W. 
 
 » Williamson v. Field, 2 Sandf. R. Land Co. v. Peck, 112 Bl. 408, 
 
 Ch. (N. Y.) 562 (1845). Special 435 (1885), citing VanVechten v. 
 
 attention is called to this case for its Terry, 2 Johns. Ch. (N. Y.) 197 
 
 learned and exhaustive discussion of (1816), and discussing this principle 
 
 the relation of trustees to their cestuia at length ; Swift v. Stebbins, 4 Stew. 
 
 que trust, in cases of mortgage fore- & Port. (Ala.) 447 (1833) ; Willis v. 
 
 closure. Henderson, 5 Bl. (4 Scam.) 13 (1842); 
 
 * Anderson v. Stather, 16 L, J. N. Y. Franklinite Co. v. Ames, 12 
 
 (Eq.) N. S. 152 (1845), before Sir N. J. Eq. (1 Beas.) 507 (1859). 
 Knight Bruce,* Vice-Chancellor.
 
 176 OESTUIS QUE TRUST AS DEFENDANTS. [§ 149. 
 
 held on the foreclosure that " the trustees were selected in 
 this case to hold and represent the property for the sake of 
 convenience, and because the subscribers were too numerous 
 to hold and manage the property as a co-partnership. The 
 trustees are sufficient for the purpose of this bill, which is 
 for a sale of the pledge ; it would be intolerably oppressive 
 and burdensome, to compel the plaintiff to bring in all of the 
 cestiiis que trust. The delay and the expense incident to such 
 a proceeding would be a reflection on the justice of the court. 
 This is one of those cases in which the general rule can not, 
 and need not, be enforced ; for the trustees sufficiently 
 represent all the interests concerned ; they were selected for 
 that purpose, and we need not look beyond them.'" Where 
 a trust is created for the benefit of numerous creditors, the 
 same explanation holds good, and the creditors are not 
 necessary parties, but may be safely represented by the 
 trustees ;" but the beneficiaries may properly be made defen- 
 dants, if the plaintiff desires to bring them into the action,' 
 
 § 149. Statutes making cestuis que trust necessary. 
 — The statutes of many states are clear in declaring that in 
 cases of trusts made to one or more persons for the use of 
 others, no estate or interest, legal or equitable, shall vest in 
 the trustee ; but that every beneficiary who by virtue of a 
 trust is entitled to the actual possession of lands and the 
 profits thereof, shall be deemed to have a legal estate therein, 
 according to his beneficiary interest.* No court has ever 
 
 ' VanVechten v. Terry, 3 Johns. Smart v. Bradstock, 7 Beav. 500 
 
 Ch. (N. Y.) 197 (1816). (1844) ; Powell v. Wright, 7 Beav. 
 
 » Grant v. Duane, 9 Johns. (N. Y.) 444 (1844) ; Law v. Bagwell, 4 Dru. 
 591 (1812). See the clear opinion of . «& War. 406 ; Doody v. Higgins, 9 
 
 Caton, J., in Willis V. Henderson, 5 Hare Append. 32 (1852); Gore v. 
 
 111. (4 Scam.) 13, 20 (1842) ; Fisher Harris, 15 Jur. 761 (1850); Wallwyn 
 
 on Mortgages, § 374. For the Eng- v. Coutts, 3 Mer. 707 (1815) ; Garrard 
 
 lish cases, see Thomas v. Dunning, v. Lord Louderdale, 3 Sim. 1 (1839). 
 
 5 DeG. & S. 618 (1852) ; Newton v. s Union Bank v. Bell, 14 Ohio St. 
 
 Earl of Egmont, 4 Sim. 574 (1831) ; 200 (1862). 
 
 Troughton v. Binkes, 6 Ves. 573 M N. Y. Rev. Stat. 728, §§ 47, 49. 
 
 (1801). A few creditors may repre- Kawson v. Lampman, 5 N. Y. 456 
 
 sent the remainder ; Holland v. (1851). 
 Baker, 3 Hare, 68 (1842), See also
 
 § 150.J REJVIAINDEEMEN AND EEVEESIONEES. 177 
 
 held, SO far as can be ascertained, that a cestui que trust may 
 be omitted as a party to a foreclosure, except in the two 
 cases already mentioned.' Even where a trustee executed 
 the mortgage under authority of a court, it was held that the 
 beneficiaries were necessary parties ;' the same would hold 
 true if the mortgage were executed by a trustee under 
 authority contained in a will or other instrument.* 
 
 The general rule of law of this section is undoubtedly 
 founded on the broad principle, that all persons having an 
 interest in the equity of redemption should be made parties, 
 and that none of them will be concluded as to their rights 
 unless they are brought into the action so that the court 
 acquires jurisdiction of them. Although the trustee has a 
 quasi interest in the premises, the beneficiaries are, never- 
 theless, the actual parties in interest, owning as they do the 
 equitable, if not the legal, title to the premises. 
 
 § 150. Remaindermen and reversioners necessary. — 
 
 All persons having a vested estate of inheritance in remainder 
 or reversion in mortgaged premises, must be brought into 
 court in an action to foreclose a mortgage ; but where there 
 are several future and contingent interests in the equity of 
 redemption in mortgaged premises, it is not necessary 
 generally to make every person having a future and contin- 
 gent interest a party to a bill of foreclosure. It seems 
 sufficient, if the person who has the first vested estate of 
 inheritance, and the several intermediate remaindermen and 
 persons having or claiming rights or interests in the premises 
 prior to the vested estates, are brought before the court.* 
 
 • See ante § 146, and the notes, for (1833); Nodine v. Greenfield, 7 Paige 
 special instances. Ch. (N. Y.) 544 (1839) ; Williamson 
 
 » Williamson v. Field, 2 Sandf. v. Field, 2 Sandf. Ch. (N. Y.) 533, 
 
 Ch. (N. Y.) 533 (1845). 563 (1845). See Lockman v. Reilley, 
 
 « Albany Fire Ins. Co. v. Bay, 4 95 N. Y. 64 (1884) ; s. c. 10 Abb. 
 
 N. Y. 9, 19 (1850). (N. Y.) N. C. 351, where questions 
 
 * Brevoort v. Brevoort, 70 N. Y. affecting the interpretation of a will 
 136 (1877) ; Rathbone v. Hooney, 58 were also involved. See Iowa Loan 
 N. Y. 463 (1874) ; Leggett v. Mutual & Trust Co. v. King, 58 Iowa, 598 
 Life Ins. Co., 64 Barb. (N. Y.) 23, (1882), See Breit v. Yeaton, 101 
 36 (1872); Eagle F. Ins. Co. v. 111. 242 (1882), an action for partition. 
 Cammet, 2 Edw. Ch. (N. Y.) 127 For the English authorities, see 
 
 (13)
 
 178 EEMAINDERIklEN AS DEFENDANTS. [§151, 
 
 It is clear equitable law that in order to make a foreclosure 
 valid as against all claimants, he who has the first estate of 
 inheritance must be brought before the court ; and even 
 then the intermediate remaindermen for life ought also to be 
 brought before the court, to give them an opportunity to 
 pay off the mortgage if they desire.' In a case where 
 mortgaged premises were bequeathed by a mortgagor to 
 his wife for life with remainder in fee to the children of his 
 brother, who should be living at the time of her death, and 
 to the issue of such of the children as should then have died 
 leaving issue, with the power to his executors to sell his real 
 estate and invest the proceeds for the benefit of the devisees, 
 the court decided that the children of the brother, who were 
 in esse at the death of the testator, took vested remainders 
 in fee, subject to open and let in after-born children, and 
 subject also to be divested by death during the continuance 
 of the life estate of the widow, or to be defeated by the 
 execution of the power of sale given to the executors by 
 the will ; and that accordingly the children of the brother 
 who were in esse at the time of filing the bill, ought to have 
 been made parties to the foreclosure, and that their equity 
 of redemption was not barred by a decree in a suit in which 
 the widow, the executors and the heirs at law alone were 
 made parties." 
 
 § 151. A defendant in esse necessary. — All the courjts 
 
 are agreed in cases involving these questions, that there must 
 be a defendant who is a person in esse* and who holds a 
 
 Fisher on Mortgages, §309 et seq.; 'Gore v. Stacpoole, 1 Dow. 31 
 
 Lloyd V. Johnson, 9 Ves. 37 (1802) ; ( 1813 ) ; opinion rendered in the 
 
 GifEord v. Hort, 1 Sch. & Lef 386, House of Lords, per Lord Chancellor 
 
 408 (1804); Yates v. Hambly, 2 Eldon. 
 
 Atk. 237 (1741); Sutton v. Stone, « Nodine v. Greenfield, 7 Paige 
 
 2 Atk. 101 (1740) ; Hopkins v. Hop- Ch. (N. Y.) 544 (1889). a leading 
 
 kins, 1 Atk. 581, 590 (1738); case, per Chancellor Walworth, cit- 
 
 Roscarrick v. Barton, 1 Ch. Cas. 218 ing and quoting Lord Eldon, in 
 
 (1671) ; Flsliwick v. Lowe, 1 Cox Gore v. Stacpoole, 1 Dow. 31 (1813). 
 
 Cas. in Eq. 411 (1787) ; Choppell v. » See Clark v. Reybum, 75 U. S. 
 
 Rees, 1 DeG., M. & G. 393 (1852) ; (8 Wall.) 318 (1868) ; bk. 19 L. ed. 
 
 Gore V. Stacpoole, 1 Dow. 18, 31 354, where mortgaged premises had 
 
 ( 1813 ) ; Cholniondeley v. Clinton, been conveyed in trust for the benefit 
 
 S Jac. & W. 133 (1820). of children bom and to be born ; all
 
 §152.] A DEFENDANT m ESSE NECESSAEY. 179 
 
 vested estate of inheritance ; and they are further agreed, 
 that all persons having estates and interests prior or superior 
 thereto, must be defendants.* As Vice-Chancellor McCoun 
 says, " A decree against the party having the estate of 
 inheritance will bind those in remainder or who in any way 
 come afterwards ; there must be a clear tenancy in tail to 
 dispense with the necessity of a remainderman being a party 
 to a bill of foreclosure. If there be an express estate for 
 life, and it is doubtful whether the same person is also ten- 
 ant in tail, the remainderman who has the first estate of 
 inheritance ought to be a party."* Though the cases are 
 uniform in using the term, " the first estate of inheritance," 
 it would certainly be advisable to make even the remotest 
 remainderman or reversioner, if he is tn esse, also a party ; 
 it will avoid the raising of any question by him upon the 
 determination or failure of the intermediate estate. 
 
 § 152. Assignee in bankruptcy or by voluntary 
 general assignment, and receiver, necessary. — An 
 
 assignee in bankruptcy, under the former national bankrupt 
 act, or by voluntary general assignment under the statutes 
 of the several states, of the owner of the equity of redemp- 
 tion in mortgaged premises, is a necessary defendant' to a. 
 
 the children in esse at the time of second marriage or death ; then to- 
 
 tiling the bill of foreclosure were his daughter Mary, as long as she 
 
 held necessary parties. See the cases should live ; and if she should have 
 
 cited in the preceding section. no heirs at her death, then to the 
 
 ' English authorities : Fisher on children of J. 0. It was held that 
 Mortgages, §§ 311, 315. A tenant the daughter Mary had only a Ufe 
 for life is necessary ; Reynoldson v. estate, and that on a bill of fore- 
 Perkins, Ambl. 564 (1769). See closure the children of J. C. ought 
 Handcock v. Shaen, Coll. P. C. 122 to have been made parties. " The 
 (1701), holding that intermediate first tenant in tail," says Lord Cam- 
 remaindermen are necessary. See den, "is sufficient ; he sustains the 
 Chappell V. Rees, 1 DeG., M. 6s interests of everybody ; thus any 
 G. 393 (1852) ; Gore v. Stacpoole, 1 remaindermen are considered ciph- 
 Dow. 31 (1813). ers." Reynoldson v. Perkins, Ambl. 
 
 « Eagle Fire Ins. Co. v. Cammet, 564 (1769). 
 
 2 Edw. Ch. (N. Y.) 127 (1833). In » Lenihan v. Hamann, 55 N. T. 
 
 this case M. C. mortgaged real estate 652 (1873) ; Bard v. Poole, 12 N. Y. 
 
 and died after making his will, by 507 (1855), a case of voluntary assign- 
 
 which he gave all his real and per- ment ; Cleveland v. Boerum, 23 
 
 eoual estate to his widow until Barb. (N. Y.) 205 (1856) ; afl'd 24
 
 180 ASSIGNEE IN BANKRUPTCY. [§ 152. 
 
 foreclosure, if the petition in bankruptcy or the voluntary 
 assignment was made before the commencement of the 
 action to foreclose ; so also the receiver of an insolvent cor- 
 poration is a necessary defendant.' If an action is brought 
 by the Attorney-General in the name of the People for the 
 dissolution of an insolvent corporation and the appointment 
 of a receiver, the People and the receiver are not necessary, 
 though proper, defendants to the foreclosure of a valid 
 existing mortgage." 
 
 This rule follows in analogy the broader principle of law 
 %vhich makes the owner of the equity of redemption always a 
 necessary party to a foreclosure.' The assignee succeeds by 
 the assignment to all the rights of the assignor, and becomes 
 the owner of the equity. It must be carefully noticed, that 
 to make the assignee a necessary party, the assignment must 
 be made while the assignor owns the equity of redemption 
 and before the commencement of the action to foreclose. 
 The assignor is not a necessary party after the assignment ;* 
 he may, however, properly be made a defendant ;' neither 
 are his general creditors necessary or proper parties/ 
 
 N. Y. 613 (1862) ; Wagner v Hodge, was by an equitable action, but not 
 
 34 Hun (N. Y.) 524 (1885), a case of if it were conducted by scire facias. 
 
 voluntary assignment, in which the King v. Bowman, 24 La. An. 506 
 
 defendant assignee was described (1872) ; Moors v. Albro, 129 Mass. 9 
 
 merely in his individual capacity and (1880) ; Freeland v. Freeland, 103 
 
 not as assignee ; it was held that he Mass. 475 (1869) ; Thorpe v. Ricks, 
 
 was properly and sufficiently made a 1 Dev. & B. (N. C.) Eq. 619, 620 
 
 defendant ; followed in Landon v. (1837) ; Dwyer v. Garlough, 31 Ohio 
 
 Townshend, 44 Hun ( N. Y. ) 561 St. 158 (1877) ; Stafford v. Adair, 57 
 
 (1887); Spring v. Short, 90 N. Y. 538, Vt. 63 (1885) ; Fisher on Mortgages, 
 
 545 (1882) : Winslow v. Clark, 47 N. § 308. 
 
 Y. 261, 263 (1872) ; Burnham v. De ' Raynor v. Selmes, 52 N. Y. 579 
 
 Bevors'e.S How.(N. Y.) Pr. 159 (1853); (1873), reversing 7 Lans. (N. Y.) 440. 
 
 Harris v. Cornell, 80 111. 54 (1875) ; See Herring v. K Y., L. E. ife W. 
 
 Stimpson v. Pease, 53 Iowa, 573 R. Co., 105 N. Y. 340, 371 (1887). 
 (1880); Eyster v. Gaff, 91 U. S. « Herring v. N.Y., L. E. & W, R. 
 
 (1 Otto), 521 (1875) ; bk. 23 L. ed. Co., 105 N. Y. 341, 371 (1887). 
 403 ; Gardner v. Brown, 88 U. S. » See ante %% 117, 126, 137. 
 
 (21 Wall.) 36 (1874) ; bk. 22 L. ed. * Rochfort v, Battersby, 14 Jur. 
 
 527. In Chickering v. Failes, 26 229(1849); Lloyd v. Lander, 5 Madd. 
 
 111. 507 (1861), the assignee was held 282(1831); Collins v. Shirley. 1 Russ 
 
 a necessary party if the foreclosure & M. 638 (1830) ; Kerrick v. Saffery,
 
 §153.] BANKRUPTCY PEiNDENTE LITE. 181 
 
 § 153. Assignee in bankruptcy pendente lite not 
 necessary. — Among the early decisions in New York,' it was 
 held tliat if an assignment were made during the pendency 
 of an action to foreclose; the decree of sale would be void as 
 against the assignee, unless he were brought in as a party. 
 The later decisions in all the courts of the country, however, 
 are uniform in applying to assignees in bankruptcy the 
 general rule previously stated, that purchasers pendente lite 
 are not necessary parties.* Justice Miller held, in the 
 Supreme Court of the United States,* that where an as- 
 signee in bankruptcy of a mortgagor is appointed during the 
 pendency of a foreclosure of the mortgaged premises, he 
 stands as any other purchaser would stand, on whom the 
 title had fallen after the com.mencement of the suit. If there 
 is any reason for interposing, the assignee should be substi- 
 tuted for the bankrupt or be made a defendant on petition. 
 
 Justice Allen, in deciding the same question in the 
 New York Court of Appeals,* in 1873, held substantially 
 the same ruling, and further that such a foreclosure might 
 be restrained by injunction by a United States court in 
 bankruptcy, but that, if allowed to proceed, the purchaser at 
 the sale would acquire a good title as against the mortgagor 
 or owner of the equity of redemption and against all parties 
 claiming under them, including an assignee in bankruptcy. 
 An exhaustive discussion of the question decided in these 
 cases was given by Justice Strong in Cleveland v. Boerum.* 
 Indeed, this was the earliest case to sustain the proposition 
 of this section ; it collates and reviews all the previous cases. 
 
 7 Sim. 317 (1835); Fisher on Mort- Ch. (N. Y.) 360 (1848J; Burr v. 
 306. Burr, 10 Paige Ch. (N. Y.) 20 (1842); 
 
 6 Franklyn v. Fern, Bam. Ch. Sedgwick v. Cleveland, 7 Paige Ch. 
 
 (folio) 30, 33 (1740) ; Singleton v. (N. Y.) 290, 291 (1838). 
 
 Cox, 4 Hare, 326 (1845) ; Rafferty « See ante § 130. See the cases 
 
 V. King, 1 Keen 619(1836); Collins v. cited in the preceding section. 
 
 Shirley, 1 Russ. & M. 638 (1830) ; ^ Eyster v. Gaff, 91 U. S. (1 Otto), 
 
 cited in 9 Sim. 399; Fades v. Harris, 521 (1875) ; bk. 23 L. ed. 403. 
 
 lY.&C. 234(1842); Fisher on Mort- ^ Lenihan v. Hamann, 55 K Y. 
 
 gages, § 307. 652 (1873). 
 
 • Spring V. Short, 90 N. Y. 538 ^ 23 Barb. (N. Y.) 202 ; afi'd 24 
 
 (1882). N. Y. 613 (1862). 
 
 ' Johnson v, Fitzhugh, 3 Barb.
 
 182 INFANTS, INCOMPETENTS, DEFENDANTS. [§ 154. 
 
 The error of the early decisions was due to the distinction 
 made by the courts, between transfers made pendente litehy 
 the voluntary act of the assignor and those accomplished 
 by operation of law. 
 
 § 154. Infants, lunatics, idiots and habitual drunkards 
 necessary parties. — Provision has been made in the statutes 
 of most of the states for a proceeding to dispose of the real 
 property of infants, lunatics, idiots and habitual drunkards 
 by sale, mortgage or lease. Prior to these statutes, there 
 was a proceeding in the common-law practice to accomplish 
 the same purpose. Where a mortgage has been executed 
 by a guardian or a committee of an incompetent person, 
 pursuant to an order of a court, the infant, lunatic, idiot or 
 habitual drunkard, as the case may be, is a necessary 
 defendant in an action to foreclose the mortgage.' Some 
 of the states declare the effect of such conveyances. The 
 New York Code of Civil Procedure declares that such a 
 mortgage " has the same validity and effect as if it was 
 executed by the person in whose behalf it was executed, 
 and as if the infant was of full age, or the lunatic, idiot or 
 habitual drunkard was of sound mind and competent to 
 manage his own affairs.'" A mortgage executed under such 
 
 1 Prentiss v. Cornell, 31 Hun (N. an action to redeem, was obliged to 
 
 Y.) 167 (1883). See Argricultural make both the infant and his guar- 
 
 Ins. Co. V. Barnard, 96 N. Y. 525 dian parties to the action. In would 
 
 (1884), holding also that a bond is seem that in Illinois an infant is not 
 
 not necessary with such a mortgage, a necessary party in any legal pro- 
 
 but that it is discretionary with the ceedings where he has a guardian to 
 
 court to require it. See Lyon v. represent his interests ; Campbell v. 
 
 Lyon, 67 N. Y. 250 (1876) ; McManis Harmon, 43 111. 18 (1867) ; Merritt 
 
 V. Rice, 48 Iowa, 361 (1878). In v. Simpson, 41 111. 391 (1866). In 
 
 Eslava v. LePretre, 21 Ala. 504 Boston Bank v. Chamberlain, 15 
 
 (1852), the committee of a lunatic, Mass. 220 (1818), an infant had exe- 
 
 who had been irregularly appointed, cuted a mortgage ; after reaching 
 
 executed a mortgage jointly with his majority he conveyed the prem- 
 
 her husband ; on foreclosure the ises subject to the mortgage. In an 
 
 lunatic was held a necessary party, action to foreclose, infancy at the 
 
 owing to the defect in the appoint- time of executing the mortgage was 
 
 ment. In Parker v. Lincoln, 12 pleaded in defense, but held no bar 
 
 !Mass. 16 (1815), a mortgage was to its validity. 
 executed to an infant who had a ** N. Y. Code Civ. Proc. § 2358 ; 
 
 guardian ; the mortgagor, bringing Valentine v. HafE, 73 N. Y. 184
 
 § 155.J I^UNATICS AUB IDIOTS DEFENDANTS. 183 
 
 a proceeding does not bind a wife's inchoate right of dower, 
 and she is not a necessary or proper party to a foreclosure 
 of the mortgage unless she has voluntarily signed it.' If an 
 infant or incompetent person whose real property has been 
 mortgaged in such a proceeding should die before an action 
 to foreclose was commenced, his heirs, devisees or legatees, 
 as the case might be, would become necessary parties.* 
 
 It is to be observed that a proceeding to mortgage the 
 property of an infant or incompetent person is statutory ; and 
 it is assumed here that the proceeding has been properly con- 
 ducted, and the mortgage duly executed. The plaintiff in 
 the foreclosure must allege in his complaint facts, showing the 
 interest of the infant or incompetent person in the premises, 
 if he is made a defendant.* Great care should be taken to 
 secure legal service of the summons upon the infant or 
 incompetent person ; it is also essential that a guardian ad 
 litem be appointed to represent the interests of the infant.* 
 The guardian or committee who executes the mortgage 
 pursuant to an order of the court is a very desirable, if not 
 an indispensable, party to the action to foreclose, especially 
 as he is interested in caring for any surplus that may arise, 
 and in seeing that no deficiency is created. 
 
 § 155. Mortgage executed by administrator or execu- 
 tor to pay decedent's debts; heirs and devisees of the 
 decedent necessary. — Many of the states have made statu- 
 tory provisions in their codes or otherwise, for disposing of a 
 deceased person's real estate to pay his debts, which provisions 
 are, in form and purpose, not unlike those made for disposing 
 of the property of infants and incompetent persons. The 
 practice under such provisions varies in different states. But 
 
 (18T8); Matter of Price, 67 K Y. dent infant under the age of fourteen 
 
 231 (1870) ; Cole v. Gourlay, 9 Hun years. Where there is a defect in 
 
 <X. Y.) 49o (1877). the action which results in a failure 
 
 ' See ante % 135, 136. to cut off the interest of the infant, 
 
 * See ante §§ 141-144. he can maintain an action to set 
 
 2 Aldrich v. Lapham, 6 How. (N. aside the foreclosure as to himself, 
 
 Y.) Pr. 129 (1850). on arriving at his majority; McMur- 
 
 *■ See lugersoU v. Mangam, 84 N. ray v. McMurray, 66 N. Y. 175 
 
 Y. 022 (1881), stating what cousti- (1876). 
 
 tulca piuper service on a uou-resi-
 
 18-4 MORTGAGE FOR DECEDENt's DEBTS. [§156. 
 
 it is a general principle of law, recognized by all courts, that 
 administrators or executors, in nnortgaging or selling a dece- 
 dent's real estate, act simply in a capacity representative of the 
 decedent, and are guided by orders of the probate court. 
 
 The title to the premises mortgaged in such a proceeding 
 vests in the heirs or devisees immediately upon the death of 
 the decedent, and is encumbered only pursuant to a statutory 
 proceeding designed to marshal and pay his debts. In New 
 York it is declared that a mortgage, executed pursuant to 
 such a proceeding, has the same effect as if it had been made 
 by the decedent immediately before his death.' The admin- 
 istrator or executor who signed the mortgage under the 
 order of the probate court, is a very proper, if not an 
 absolutely necessary, party to an action to foreclose, as he is 
 in some measure interested in the action.* 
 
 § 156. Corporations necessary parties by corporate 
 name. — Corporations play such an important part in the 
 commercial, industrial and social life of this age, that legis- 
 latures and courts have materially enlargejd their rights and 
 privileges so that more than ever they are a "single indivi- 
 dual " ' in the law. They are generally vested with all the 
 rights and may assume all the obligations known to the law. 
 With limited exceptions they may acquire real estate and 
 convey the same by deed or mortgage.* 
 
 Whenever a corporation in its corporate name becomes 
 the owner of the equity of redemption in mortgaged prem- 
 ises, or executes a mortgage upon its real estate, it is a 
 necessary defendant to a foreclosure in its corporate name.* 
 This rule is based upon the broad principle that corporations 
 may sue and be sued in law by their corporate names.* A 
 
 > N. Y. Code Civ. Proc. § 27G0. 96 N. Y. 467(1884) ; Greenpoint Su- 
 
 * See McMannis v. Rice, 48 Iowa, gar Co. v. Wliitin, 69N.Y. 338(1877). 
 
 361 (1878). ' Reed v. Bradley, 17 111. 331 
 
 « 2 Kent, 207. (1856) ; Ottawa Northern Plank 
 
 < See Aurora Agricultural &H. So- Road Co. v. Murray, 15 111. 336 
 
 ciety V. Paddock, 80 111. 263 (1873). (1854) ; Donnelly v. Rusch, 15 Iowa, 
 
 As to what is necessary to authorize 99 (1863). 
 
 a manufacturing corporation to exe- * 2 Kent, 284, 293 ; People's Bank 
 
 cute a mortgage in New York, see v. Hamilton Manufacturing Co., 10 
 
 Rochester Savings Bank v. Averell, Paige Ch. (N. Y.) 481 (1843).
 
 § 157.] 
 
 TENANTS AND OCCUPANTS. 
 
 185 
 
 stockholder is generally not a necessary defendant in the 
 foreclosure of a mortgage on corporate property ;' but a stock- 
 holder in a defunct corporation has such an interest as enti- 
 tles him to defend a foreclosure on the corporate real estate? 
 
 § 157. Tenants and occupants necessary. — Every 
 tenant who takes a lease from the owner of the equity of 
 redemption in mortgaged premises, subsequent to the execu- 
 tion and delivery of the mortgage, is a necessary defendant 
 to a foreclosure.* The occupant or person in possession of 
 the premises at the time of the commencement of the 
 foreclosure is alsoi indispensable, no matter how or under 
 what circumstances he came into possession.* A tenant or 
 occupant not made a party is not bound by the decree, and 
 if omitted, he can not be ejected till the expiration of his 
 tenancy.* His omission will, moreover, produce such a 
 defect of title as to relieve a purchaser at the sale of his bid.* 
 
 A tenant is not affected by a foreclosure till the sale is 
 consummated and the deed delivered.' And if he is omitted 
 
 1 Smith V. The Smith Moquette 
 Loom Co., 20 N. Y. Wk. Dig. 343 
 (1884). 
 
 * Chouteau v. Allen, 70 Mo. 292 
 (1879). 
 
 « Globe Marble Mills Co. v. Quinn, 
 76 N. Y. 23 (1879); Clarkson v. 
 Skidmore, 46 K Y. 297 (1871), 
 modifying 2 Lans. (N. Y.) 238; 
 Whalen v. White, 25 N. Y. 462 
 (1862) ; Zeiter v. Bowman, 6 Barb. 
 (N. Y.) 133 (1849) ; Simers v. Sal- 
 tus, 3 Den. (N. Y.) 214 (1846); 
 Fuller V. VanGeesen, 4 Hill (K Y.) 
 171 (1843); Ostrom v. McCann, 21 
 How. (N. Y.) Pr. 431, 433 (1860); 
 Peck V. Knickerbocker Ice Co., 18 
 Hun (N. Y.) 183 (1879) ; Hirsch v. 
 Livingston, 3 Hun (N. Y.) 9 (1874) ; 
 B. c. 48 How. (N. Y.) Pr. 243 ; Cla- 
 son V. Corley, 5 Sandf. (N. Y.) 447 
 (1852) ; Campbell v. Savage, 33 Ark. 
 678(1878) ; Gartsidev. Outley, 58111. 
 210, 215 (1871) ; Tuttle v. Lane, 17 
 
 Me. 437 (1840) ; Fletcher v. Gary, 
 103 Mass. 475 (1870) ; Hemphill v. 
 Ross, 66 N. C. 477, 480 (1872); Coe 
 V. Manseau, 62 Wis. 81 (1885). 
 
 * Ostrom v. McCann, 21 How. (N. 
 Y.) Pr. 431, 433 (1860) ; Buckner v. 
 Sessions, 27 Ark. 219 (1871); Mc- 
 Lain v. Badgett, 4 Ark. 244 (1841) ; 
 Cox V. Vickers, 35 Ind. 27 (1870). 
 
 " Sproule V. Samuel, 5 111. (4 
 Scam.) 135, 139 (1842) ; Downard v. 
 Groff, 40 Iowa, 597, 598 (1875) ; 
 Suiter v. Turner, 10 Iowa, 517, 527 
 (1860). In point, McDermott v. 
 Burke, 16 Cal. 580 (1860) ; Richard- 
 son V. Hadsall, 106 111. 476, 479 
 (1883) ; Delespine v. Campbell, 45 
 Tex. 628 (1876). See the New York 
 cases in the preceding notes. 
 
 * Hirsch v. Livingston, 3 Hun (N. 
 Y.) 9 (1874) ; s. c. 48 How. (N. Y.) 
 Pr. 243. 
 
 ■" Wbalin v. White, 25 N, Y. 463 
 (1863).
 
 1S6 TEIfANTS A^B OCCUPANTS. [§ 157. 
 
 as a party, he will be entitled to the emblements, and all 
 crops tiiat may be grown before the expiration of his term ; 
 a purchaser at the sale will receive his title subject to the 
 rights of the tenant.' In a case where pending a foreclosure 
 a tenant went into possession and raised and cut a crop of 
 wheat before the action was concluded, he was allowed to 
 carry it away.' If a tenant is made a party and his rights 
 are cut off by the action, he will be entitled from the surplus 
 money, if any, to the value of his unexpired term and dam- 
 ages for ejectment ; if there is no surplus, he can maintain 
 an action against the lessor for damages.' Foreclosure 
 before the expiration of a tenant's term will not prejudice 
 his right to remove fixtures.* 
 
 A tenant or other person, who holds possession after the 
 execution and delivery of the deed by the referee to sell, 
 may be ejected at once, if he was made a party to the action ;* 
 but in some states confirmation of the referee's report of sale 
 is necessary before ejectment can be maintained.' If a lessee 
 on being requested by the purchaser to attorn yield up the 
 possession of the premises, it is equivalent to an actual evic- 
 tion and will be a good defense to an action by the mort- 
 gagor for rent accruing subsequently.* 
 
 • Cassilly v. Rhodes, 12 Ohio, 88 • Peck v. Knickerbocker Ice Co. , 
 (1843), a leading case on the subject 18 Hun (N. Y.) 183, 186 (1879); 
 of tenants' rights. Astor v. Turner, 11 Paige Ch, (N. 
 
 2 Johnson v. Camp, 51 111. 219 Y.) 436 (1845) ; Clason v. Corley, 5 
 
 (1869). Sandf. (N. Y.) 447 (1853). 
 
 « Clarkson v. Skidmore, 46 N. Y. ' Simers v. Saltus, 3 Den. (N. Y.) 
 
 297(1871), modifying 2 Lans. (N. 214 (1846); Jones v. Clark, 20 Johns. 
 
 Y.) 238 (1869). (N. Y.) 51 (1822) ; Magill v. Hins- 
 
 * Globe Marble Mills Co. v. Quinn, dale, 6 Conn. 464, 469 (1827) ; s. c. 
 T6 N. Y. 23 (1879). 16 Am. Dec. 70; Wakeman v. Banks, 
 
 " Kershaw v. Thompson, 4 Johns. 2 Conn. 445 (1818) ; Rockwell v. 
 
 Ch. (N. Y.) 609 (1820) ; Hirsch v. Bradley, 2 Coim. 1 (1816). 
 Livingston, 3 Hun (N. Y.) 9, 10 
 (1874); N. Y. Code Civ. Proc. § 2233
 
 CHAPTER YH. 
 
 PARTIES DEFENDANT— NECESSARY TO PERFECT THE TITLE. 
 
 SUBSEQUENT MORTGAGEES AND LIENORS, 
 
 159. 
 
 160. 
 
 161. 
 
 162. 
 
 163. 
 
 164. 
 165. 
 166. 
 
 167. 
 168. 
 
 Introductory. 
 
 Subsequent mortgagees, still 
 owniug their mortgages, 
 necessary defendants. 
 
 Subsequent mortgagees — 
 Remedies if omitted as de- 
 fendants. 
 
 Subsequent mortgagee own- 
 
 " iiig prior mortgage — Prac- 
 tice on foreclosure. 
 
 Subsequent judgment credi- 
 tors, still owning judgments, 
 necessary. 
 
 Judgment creditors pendente 
 Ide and creditors at large 
 not necessary. 
 
 .ludirinent creditors — Reme- 
 dies if omitted as defendants. 
 
 ^leclianic's lien, owner of, 
 necessary. 
 
 Subsequent lienor, an assign- 
 or no longer holding the 
 incumbrance, not necessary. 
 
 Subsequent lienors, holding 
 any kind of an equitable or 
 contingent interest in the 
 lien, generally necessary. 
 
 Assignee of subsequent mort- 
 gage, judgment or other 
 lieu, necessary. 
 
 § 169. Assignee of subsequent mort- 
 gage or lien pendente lite not 
 necessary. 
 
 170. Incumbrancer pendente lite 
 
 not necessary. 
 
 171. Subsequent mortgagee or lien- 
 
 or a married woman does 
 not alter rule ; necessary. 
 
 172. Heirs, devisees, legatees and 
 
 annuitants of deceased sub- 
 sequent lienor generally not 
 necessary. 
 
 173. Executors and administrators 
 
 of a deceased subsequent 
 lienor necessary. 
 
 174. Assignee in bankruptcy and 
 
 voluntary general assignee 
 of subsequent lienor neces- 
 sary. 
 
 175. General guardian of infant, 
 
 and committee of lunatic, 
 idiot or habitual drunkard, 
 trustees and beneficiaries, 
 holding subsequent mort- 
 gage or lien, necessary. 
 
 176. Purchasers at tax sales, boards 
 
 of supervisors, state comp- 
 trollers and municipal cor- 
 porations, defendants. 
 
 § 158. Introductory. — In this chapter will be continued 
 the consideration of parties who are necessary to a fore- 
 closure, for the purpose of producing to the purchaser at the 
 sale as perfect a title as the mortgagor could have granted 
 at the time of the execution of the mortgage ; that is, such 
 a title as a court will compel a bidder at the sale to accept. 
 As has been stated, this and the preceding chapter are devoted 
 to those parties who are necessary and indispensable to the 
 accomplishment of such a purpose. 
 
 187
 
 188 SUBSEQUENT LLKNOKS. [§158. 
 
 In the preceding chapter attention has been given exclu- 
 sively to those parties who are necessary to an action to 
 foreclose and to cut off the fee title and the entire equity of 
 redemption, as it existed in the mortgagor and the owners 
 of the equity from him by grant, descent, devise or otherwise, 
 even to the remotest degree in quantity of title or interest. 
 In this chapter attention will be given only to those parties 
 who acquired incumbrances and liens upon the equity of 
 redemption, subsequent to the execution of the mortgage 
 under foreclosure. It is to be kept clearly in mind that the 
 word " necessary," as it will be used in this chapter, has its 
 meaning limited and defined by the purpose of the plaintiff 
 in the action, which is, as has been stated, to produce and 
 offer at the foreclosure sale a perfect title. The word 
 *' necessary " has been used by courts and text-book writers 
 with a great deal of inaccuracy and confusion, simply because 
 applied with an absolute and invariable meaning, whereas it 
 is a general and indefinite term and always relative in signi- 
 fication. 
 
 Keeping it in view, then, that it is the design of this 
 chapter to consider those parties only who have acquired an 
 interest in the equity of redemption by lien or incumbrance, 
 subsequent to the execution of the mortgage under fore- 
 closure, it may be said generally that all such parties are 
 necessary to an action to foreclose, in order to extinguish 
 their claims and the claims of all persons holding under 
 them. It matters not whether the lien is created by the 
 voluntary act of the owner of the equity, as in executing a 
 mortgage, or by process and operation of law, as in docket- 
 ing a judgment against him. The theory of the law is, that 
 such an incumbrance is a pledge of the equity for the debt, 
 and gives the lienor an equitable interest in the mortgaged 
 premises. 
 
 As the owner of the equity may, by an absolute con- 
 veyance, transfer his entire interest, and thereby make his 
 transferee a necessary party as we have seen, so he can 
 on the same principle pledge, by a mortgage, judgment or 
 otherwise, a part or the whole of his interest in the premises, 
 and thereby render the incumbrancer a necessary party in
 
 I 159.] SUBSEQUENT MOKTGAGEES — DEFEND AJ!fTS. 189 
 
 order to wipe out his interest. Though a lienor does not 
 acquire the fee title to the equity, he acquires an interest in 
 the premises which the statutes of the various states have 
 long established, and which the courts have long recognized 
 and sustained ; and which parties dealing with the premises, 
 can not ignore, except at their own peril. It is to be 
 observed here that the interests in the mortgaged premises 
 held by parties considered in this chapter are personal 
 property, while the interests held by parties considered in 
 the preceding chapter were estates in real property. 
 
 An action to foreclose will not be dismissed if subsequent 
 incumbrancers are not made parties ; it can be sustained 
 without them, but their rights will not be concluded and 
 their interests in the mortgaged premises extinguished, 
 unless they are brought into the action.' It has been held 
 that an incumbrancer may even be dismissed from the action 
 on motion of the plaintiff, unless he objects ;' and a subse- 
 quent incumbrancer may intervene and be made a defendant 
 on his own application.* 
 
 § 159. Subsequent mortgagees, still owning their 
 mortgages, necessary defendants.— All authorities in all 
 countries where mortgages are foreclosed by equitable 
 actions, are agreed that subsequent and junior mortgagees 
 are necessary parties to the foreclosure of a prior mortgage 
 in order to extinguish and cut off their liens.* The action 
 
 > Donnelly v. Rusch, 15 Iowa, 99 (1844) ; Waller v. Harris, 7 Paige 
 
 (1863) ; Heimstreet v. Winnie, 10 Ch. (N. Y.) 167 (1838) ; Vroom v. 
 
 Iowa, 430 (1860) ; relied upon in Ditmas, 4 Paige Ch. 536 (1834) ; 
 
 Street v. Beal, 16 Iowa, 68, 70 (1864). Benedict v. Oilman, 4 Paige Ch. (N. 
 
 « Heimstreet v. Winnie, 10 Iowa, Y.) 58 (1833) ; Carpentier v. Bren- 
 
 430 (1860). ham, 40 Cal. 221 (1870) ; Shores v. 
 
 « Parott V. Hughes, 10 Iowa, 459 Scott River Co., 21 Cal. 185 (1862); 
 
 (1860). Montgomery v. Tutt, 11 Cal. 307, 
 
 * Gage V. Brewster, 31 K Y. 218 314 (1858) ; Whitney v. Higgins, 10 
 
 (1865) ; Brainard v. Cooper, 10 N. Cal. 547, 551 (1858) ; Goodman v. 
 
 Y. 356 (1852) ; Peabody v. Roberts, White, 26 Conn. 320 (1857) ; Broome 
 
 47 Barb. (N. Y.) 91 (1866) ; Arnot v. v. Beers, 6 Conn. 207 (1826); Swift v. 
 
 Post, 6 Hill (N. Y.) 65 (1843) ; Edson, 5 Conn. 534 (1825) ; Smith v. 
 
 Franklyn v. Hayward, 61 How. (N. Chapman, 4Conn.346(1822);Hodgen 
 
 Y.) Pr. 43 (1881) ; Vanderkemp v. v. Guttery, 58 Bl. 431 (1871) ; Strang 
 
 Shelton, 11 Paige Ch. (N. Y.) 28 v. Allen, 44 111. 428 (1867). See
 
 190 SUBSEQUENT MORTGAGEES DEFENDANTS. [§159. 
 
 can be sustained without them, but a defective title would 
 be offered at the sale which no court would compel a bidder 
 to accept.' The rule has long been settled that in a bill to 
 foreclose a mortgage, the rights of incumbrancers not made 
 parties to the suit, are not barred or affected by the decree.* 
 If the foreclosure is conducted by advertisement the same 
 rule prevails.' If the subsequent mortgagee is a trustee for 
 
 Shinn v. Shinn, 91 HI 477 (1879), 
 ■where the action was upon a deed of 
 trust in the nature of a mortgage. 
 In Kenyon v. Shreck, 52 111. 382 
 (1869), subsequent incumbrancers 
 were held not necessary parties to a 
 proceeding for foreclosure by scire 
 facias; aliter, if the foreclosure is 
 by an action in equity. Catterlin v. 
 Armstrong, 79 Ind. 514 (1881); 
 Hosford V. Johnson, 74 Ind. 479, 
 481 (1881); Hasselman v. McKernan, 
 50 Ind. 441 (1875) ; McKernan v. 
 Neff, 43 Ind. 503 (1873) ; Holmes v. 
 Bybee, 34 Ind. 262 (1870) ; Murdock 
 V. Ford, 17 Ind. 52 (1861) ; Proctor 
 V. Baker, 15 Ind. 178 (1860). See 
 also, in point, Mack v. Graver, 12 
 Ind. 254 (1859) ; Pattison v. Shaw, 6 
 Ind. 377 (1855), holding junior incum- 
 brancers proper, but not necessary, 
 parties. Meredith v. Lackey, 14 
 Ind. 529(1860); 8. c 16 Ind. 1 (1860) ; 
 Walker v. Schreiber, 47 Iowa, 329 
 (1877) ; Newcomb v. Dewey, 27 
 Iowa, 381 (1869); Knowles v. 
 Rablin, 20 Iowa, 103 (1865); 
 Anson v. Anson, 20 Iowa, 58 (1865); 
 Johnson v. Harmon, 19 Iowa, 56 
 (1865) ; Macey v. Fenwick, 4 B. 
 Mon. (Ky.) 309 (1843) ; Rogers v. 
 Holyoke, 14 Minn. 220 (1869); 
 Brown v. Nevitt, 27 Miss. 801 
 (1854); White v. Bartlett, 14 Neb. 
 320 (1883); Hinson v. Adrian, 86 
 N. C. 81 (1882) ; Mills v. Traylor, 
 30 Tex. 7 (1867) ; Weed v. Beebe, 21 
 Vt. 495 (1849); Deuster v. McCamus, 
 14 Wis. 307 (1861); Moore v. 
 
 Cord, 14 Wis. 213 (1861) ; Murphy 
 V. Farwell, 9 Wis. 102 (1859); 
 Farwell v. Murphy, 2 Wis. 533 
 (1853). For the English authorities, 
 see Fisher on Mortgages, § 318 ; 
 Burgess v. Sturges, 14 Beav. 440 
 (1851) ; Tylee v. Webb, 6 Beav. 552 
 (1843); Adams v. Paynter, 1 Coll. Ch. 
 530 (1844) ; Johnson v. Holdsworth, 
 1 Sim. N. S. 106 (1850) ; Delabere 
 V, Norwood, 3 Sw. 144 (1818); 
 Payne v. Compton, 2 Y. «& C. 457 
 (1837). See the following sections 
 and notes; also the cases cited in the 
 remaining notes to this section. 
 In Rowan v. Mercer, 10 Humph. 
 (Tenn.) 359 (1849), subsequent mort- 
 gagees were held proper, but not 
 necessary, parties ; the decree and 
 sale were held conclusive without 
 them. 
 
 > CuUum V. Batre, 2 Ala. 415 
 (1841), correcting Judson v. Eman- 
 uel, 1 Ala. 598 (1840); Hess v. 
 Feldkamp, 2 Disney (Ohio), 333 
 (1858). See Hay ward v. Stearns, 39 
 Cal. 58 (1870); Valentine v. Havener, 
 20 Mo. 133 (1854); Russell v. Mullan- 
 phy, 4 Mo. 319 (1836). See the 
 cases supra. 
 
 « McCall V. Yard, 9 N. J. Eq. (1 
 Stockt.) 358 (1853) ; 8. C. 11 N. J. 
 Eq. (3 Stockt.) 58 (1855). See also 
 Gould V. Wheeler, 28 N. J. Eq. (1 
 Stew.) 541 (1877); Willink v. Morris, 
 Canal & Banking Co., 4 N. J. Eq. 
 (3 H. W. Gr.) 377 (1843). 
 
 » Winslow V. McCaU, 32 Barb.(N. 
 Y.) 241 (1860).
 
 § 160.J RE^MEDEES OF OlMITTED MORTGAGEE. 
 
 191 
 
 numerous bondholders, it is sufficient to make him a 
 defendant in his representative capacity, without bringing 
 the bondholders into the action ; a bondholder may inter- 
 plead, however, /r<? interesse suo} The successor of a trustee 
 is also a necessary defendant if he has accepted the trust.* 
 
 § i6o. Subsequent mortgagees — Remedies if omitted 
 as defendants. — If a junior mortgagee is omitted as a party, 
 his remedy is to redeem from the sale under foreclosure ;* and 
 this right must be exercised in most states within ten years 
 from the time when the mortgage debt becomes due.* In 
 his redemption an accounting for rents and profits can be 
 compelled,* and the junior mortgagee will be obliged to pay 
 only the mortgage debt, principal and interest without the 
 costs of the previous foreclosure.* Though the property 
 may have been sold under foreclosure for less than the 
 mortgage, the party redeeming will nevertheless be obliged 
 to pay the amount due on the mortgage with interest ; 
 
 > McElrath v. Pittsburgh «fe S. R. 
 Co., 68 Pa. St. 37 (1871); Supervisors 
 of Iowa County v. Mineral Point R. 
 R.. 24 Wis. 93(1869). 
 
 ' Delaplaine v. Lewis, 19 Wis. 476 
 (1865). 
 
 'Wiley V. Ewing, 47 Ala. 418 
 (1872) ; Carpentier v. Brenhan, 40 
 Cal. 221 (1870) ; Hodgen v. Guttery, 
 58 HI. 431 (1871) ; Gower v. Win- 
 chester, 33 Iowa, 303 (1871) ; New- 
 comb V. Dewey, 27 Iowa, 381 (1869); 
 Roney v. Bell, 9 Dana (Ky.) 4 (1839); 
 Cooper V. Martin, 1 Dana (Ky.) 25 
 (1833) ; Clary v. Marshall, 5 B. Mon. 
 (Ky.) 274 (1845) ; Bank of U. S. v. 
 Carroll, 4 B. Mon. (Ky.) 50 (1843) ; 
 Avery v. Ryerson, 34 Mich. 363 
 (1876); Baker v, Pierson, 6 Mich. 
 522 (1859); Renard v. Brown, 7 
 Neb. 449 (1878) ; HoUiger v. Bates, 
 43 Ohio St. 437 (1885) ; s. c. 1 West. 
 Rep. 516. See the cases supra. 
 
 * Gage V. Brewster, 31 N. T. 218 
 (1865); Peabody v. Roberts, 47 
 Barb. (N. Y.) 91 (1866) ; County of 
 
 Floyd V. Cheney, 57 Iowa, 160, 163 
 (1881); Crawford v. Taylor, 43 
 Iowa, 260 (1875) ; Gower v. Win- 
 chester, 33 Iowa, 308 (1871). In 
 Illinois the time is only seven years ; 
 Ewing V. Ainsworth, 53 III 464 
 (1870). 
 
 » Gage V. Brewster, 31 N. T. 318 
 (1865); TenEyck v. Casad, 15 
 Iowa, 524 (1864). See the next note. 
 
 « Gage V. Brewster, 31 N. Y. 218 
 (1865), opinions per Denio, Ch. J., 
 Ingraham and Mullen, J J. Mullen, 
 J., in his opinion, makes a careful 
 analysis and review of Chancellor 
 Walworth's opinion in Vanderkamp 
 V. Shelton, 11 Paige Ch. (N. Y.) 28 
 (1844), approving it in all respects. 
 See Brainard v. Cooper, 10 N. T. 
 356 (1852); Vroom v. Ditmas, 4 
 Paige Ch. (N. Y.) 526 (1834) ; Bene- 
 diet V. Gilman, 4 Paige Ch. (N. Y.) 
 58 (1833), reviewed and commented 
 on in the same opinion. See also 
 Belden v. Slade, 26 Hun (N. Y.) 635 
 (1883).
 
 192 EEMEDLES OF OMITTED MORTGAGEE. [§ IGO. 
 
 if the property sold for more than the amount of the mort- 
 gage, its selhng price becomes the amount to be paid to 
 redeem.* After a mortgage has been paid, an action to 
 redeem can not be maintained upon it." It has been held 
 in some cases that a junior mortgagee, who was omitted as 
 a defendant in an action to foreclose a senior mortgage, may 
 maintain a foreclosure of his own mortgage, instead of 
 redeeming from the sale under the senior mortgage, and be- 
 coming thereby the equitable assignee of the senior mortgage/ 
 " There seems to be no impropriety whatever under 
 the authorities in concluding that the plaintiff may main- 
 tain the present action as one for the foreclosure of his 
 mortgage, notwithstanding the foreclosure and sale pre- 
 viously had under the senior mortgage. This conclusion is 
 of very great practical importance in cases like the one now 
 before the court, because it is, to say the least, exceedingly 
 doubtful whether the action to redeem can be brought after 
 the expiration of ten years from the time the mortgage debt 
 became due, or the last payment was made upon it. * * * If 
 an action to redeem in a case like the present one is the 
 only action which the incumbrancer can maintain, and that 
 must be commenced within ten years after the right has 
 accrued, the legal anomaly, after that, will be presented of a 
 party having a demand presumed by law to be unpaid, with- 
 out any legal or equitable means of applying towards its 
 
 » Johnson v. Harmon, 19 Iowa, 56 Weston, 27N .J. Eq.(13 0. E. Gr.)435 
 
 (18G5;, per Wright, Ch. J., writing (1876) ; Stewart v. Johnson, 30 Ohio 
 
 an exhaustive opinion. American St. 24 (1876) ; Besser v. Hawthorn, 
 
 Buttonhole Co. v. Burlington M. L. 3 Oreg. 129 (1869) ; 3 Oreg. 512 ; 
 
 Association, 61 Iowa, 464 (1883). Murphy v. Farwell, 9 Wis. 103 
 
 ' McHenry v. Coop«r, 27 Iowa, (1859). In Bache v. Purcell, 6 Hun 
 
 137, 141 (1869). (N. Y.) 518 (1876), a junior mort- 
 
 * Peabody v. Roberts, 47 Barb. gagee was allowed to foreclose, even 
 
 (N. Y.) 91 (1866). In Walsh v. Rut- though he had been made a party 
 
 gers Fire lus. Co., 13 Abb. (N. Y.) defendant to a foreclosure by a 
 
 Pr. 33 (1861), such a foreclosure was senior mortgagee. But see Fliess v. 
 
 held necessary. Coleman v. Wither- Buckley, 90 N. Y. 286 (1882), 
 
 spoon, 76 lud. 285(1881); McKernan holding that a junior morlgagee 
 
 V. Nelf , 43 Ind. 503 (1873) ; Atwater can not maintain a foreclosure to 
 
 V. West, 28 N. J. Eq. (1 Stew). 361 reach surplus moneys arising on the 
 
 (1677), an important case ; Chilver v. foreclosme of a senior moi igage.
 
 § 161.] PLAINTIFF SUBSEQUENT MOETGAGE. 193 
 
 payment the security created expressly for that purpose." * 
 A junior mortgagee or incumbrancer, who is omitted in the 
 foreclosure of a prior mortgage, may be cut off by a strict 
 foreclosure,^ conducted by the purchaser at the foreclosure 
 sale, who by his purchase of the premises becomes the equi- 
 table assignee of the prior mortgage.' 
 
 § i6i. Subsequent mortgagee owning prior mortgage 
 — Practice on foreclosure. — A junior mortgagee, who owns 
 a prior mortgage, must set forth, in his complaint to foreclose 
 the prior mortgage, his claim upon the junior mortgage, or 
 it will be cut off by the action ; he can not compel the 
 premises to be sold subject to his junior mortgage. " The 
 practice of the court requires that the complainant in his 
 bill should set out all his claims upon the mortgaged prop- 
 erty, and have the same in that suit duly litigated and 
 disposed of by the decree, and that, if he omits to set out 
 any incumbrance which he holds upon the premises junior 
 to the mortgage described in the bill, such junior incum- 
 brance will be cut off by a sale on a decree foreclosing the first 
 mortgage, and making no allusion to any further lien."* 
 
 As a general rule a foreclosure bars the claims of 
 all persons having liens subsequent to the mortgage fore- 
 closed, who are parties to the suit. The plaintiff is a party, 
 and if he fails to set up his claim on the junior mortgage, 
 the neglect is his own, and can not be remedied by under- 
 taking to impose a condition on the judgment of foreclosure 
 and sale, for which the judgment itself gives no warrant. If 
 the subsequent mortgagee has released the mortgaged 
 premises from the lien of his mortgage, he is no longer a 
 
 ' Peabody v. Roberts, 47 Barb. * Walsh v. Rutgers Fire Ins Co., 
 
 (N. Y.) 91,103 (1866), :per Daniels, 13 Abb. (N. T.) Pr. 33 (1861); 
 
 J., whose opinion seems to be at Wheeler v. VanKuren, 1 Barb. Ch. 
 
 variance with Gage v. Brewster, 31 (N. Y.) 490 (1846) ; Homoeopathic 
 
 N. Y. 218 (1865). Medical Life Ins. Co. v. Sixbury, 
 
 « Brainard v. Cooper 10 K Y. 359 17 Hun (K Y.) 428 (1879), per Tal- 
 
 1853) ; Franklyn v. Hayward, 61 cott, P. J. ; Roosevelt v. Ellithrop, 
 
 gow. (N. Y.) Pr. 43 (1881). 10 Paige Ch. (N. Y.) 415 (1843); 
 
 » Gage V. Brewster, 31 N. Y. 218 Tower v. White, 10 Paige Ch. (N. Y.) 
 
 (1865) ; Brainard V. Cooper, lON.Y. 395 (1843). See Clements v. Gris- 
 
 856 (1852). wold, 46 Hun (N. Y.) 377 (1887). 
 
 a3)
 
 194 JUDGMEI^T CREDITORS DEFENDANTS. [§ 162. 
 
 necessary defendant. The owner of real property, parcel B, 
 subject to a mortgage which also covers other property, 
 parcel A, in which last named property he has no interest, 
 is not a necessary party to an action to foreclose a prior 
 mortgage on said parcel A ; and though the said parcel A 
 be sold under the decree for such sum as leaves nothing to be 
 applied on the second mortgage, covering also plaintiffs 
 premises, he can not, by virtue of his said ownership of 
 parcel B, be allowed to come in and redeem.' 
 
 § 162. Subsequent judgment creditors, still owning 
 judgments, necessary. — A person who obtains and dockets 
 a judgment against the owner of an equity of redemption in 
 mortgaged premises, is a necessary defendant to a foreclosure 
 of the mortgage commenced after the docketing of the 
 judgment ;' a judgment creditor can not be joined by 
 the mortgagee as a co-plaintiff.' In some states judgment 
 creditors are held only proper and not indispensable parties; 
 but the courts which hold this are agreed that a judgment 
 creditor's rights are not affected, unless he is brought into 
 the action, and that his omission produces an imperfect 
 title.* In Maryland it seems to be the rule to make prior as 
 
 ' Barnes v. Decker, 49 K T. Supr. berger, 13 Fla. 169 (1870) ; Kelgour 
 
 Ct. (17 J. & S.) 221 (1883). v. Wood, 64 111. 345 (1872) ; Strang 
 
 « Verdin v. Slocum, 71 N. Y. 345 v. Allen, 44 111. 428 (1867) ; Ducker 
 
 (1877) ; Morris v. Wheeler, 45 N. Y. v. Belt, 3 Md. Ch. Dec. 13 (1851) • 
 
 708 (1871) ; Brainard v. Cooper, 10 Wylie v. McMakin, 2 Md. Ch, Dec. 
 
 N. Y. 356 (1853) ; Winebrener v. 413 (1851) ; Hinson v. Adrian, 86 N. 
 
 Johnson, 7 Abb. (N. Y.) Pr. N. S. C. 61 (1882). See the three preced- 
 
 202 (1869) ; Shaw v. McNish, 1 Barb. ing sections and notes. 
 Ch. (N. Y.) 326 (1846) ; Niagara ^ Felder v. Murphy, 2 Rich. (S. 
 
 Bank v. Roosevelt, 9 Cow. (N. Y.) C.) Eq. 58 (1845). 
 409 (1827) ; Arnot v. Post, 6 Hill (N, * Person v. Merrick, 5 Wis. 231 
 
 Y.) 65 (1843) ; Haines v. Beach, 3 (1856). In Leonard v. Groome, 47 
 
 Johns. Ch. (N. Y. ) 466 (1818); Md. 499(1877), the judgment credi- 
 
 Hubbell V. Sibley, 5 Lans. (N. Y.) tor was held not indispensable, ou 
 
 56 (1871) ; People's Bank v. Hamil- the ground that he was presumed to 
 
 ton Manuf. Co., 10 Paige Ch. (N. know of the senior mortgage, and 
 
 Y.) 481 (1843) ; Vroom v. Ditmas, 4 therefore to be able to protect his 
 
 Paige Ch. (N. Y.) 531(1834); Bene- own interests. See Harris v. Hooper, 
 
 diet V. Gilman, 4 Paige Ch. (N. Y.) 50 Md. 537 (1878). See also Gaines 
 
 58(1833) ; Alexander v. Greenwood, v. Walker, 16 Ind. 361 (1861), hold- 
 
 24 Cal. 505 (1864) ; Ritch v. Eichel- ing a judgment creditor onl^ a
 
 § 162.] JUDGMENT CREDITORS DEFENDANTS. 195 
 
 well as subsequent incumbrancers parties to a foreclosure.' 
 The above general rule applies if the foreclosure is conducted 
 by advertisement under the statute. All judgment creditors 
 must be served vi^ith the notice,* and if a judgment is 
 perfected against the owner of the equity at any time after 
 the first publication of the notice and before the day of 
 sale, the judgment creditor becomes a necessary party and 
 must be served with the notice. This ruling is based on the 
 language of the statute.' 
 
 In a recent foreclosure certain judgment creditors were 
 not originally made parties; but after the entry of judgment 
 they appeared by attorneys, on whose stipulation it was 
 ordered that all papers and proceedings be amended nunc 
 pro tunc, by inserting their names in the decree, and that 
 they be bound in all respects by the action. The bidder at 
 the sale refused to complete his purchase, on the ground that 
 there was a defect of the parties in the omission of the 
 judgment creditors; the court determined that it was 
 incumbent upon the plaintiff to establish unequivocally the 
 authority of the attorneys to enter into the stipulation, and 
 that without such authority the judgment creditors were 
 not bound, and the bidder could not be compelled to take 
 the title.* The omission of a judgment creditor, who holds 
 a judgment against the owner of a life estate in mortgaged 
 premises, will produce such a defect of title as to release 
 a bidder from his bid at the foreclosure sale.' 
 
 If a judgment is docketed against a person who subse- 
 quently purchases real estate and executes a purchase money 
 mortgage thereon, the judgment becomes an incumbrance on 
 the equity of redemption subsequent in its lien to the 
 
 proper party. See § 159 and the < Lyon v. Lyon, 67 N. Y. 250, 
 
 note on the Indiana cases. 253 (1876), 'per Miller, J. See also 
 
 > Heuisler v. Nickum, 38 Md. 270 Waldo v. Williams, 3 111. (2 Scam.) 
 
 (1873) ; Tome v. Mer. Mec. B. «fe L. 470 (1840), where the omission was 
 
 Co., 34 Md. 12 (1870); Md. Code, corrected by an a^ms writ, 
 
 vol. 2, art. 4, §§ 782, 792. « Verdin v. Slocum, 71 N. Y. 345 
 
 2 Root V. Wheeler, 12 Abb. (N. (1877), reversing 9 Hun (N. Y.) 150 
 
 Y.) Pr. &94 (18G1). (1876). 
 
 ^ Groff V. Morehouse, 51 N. Y. 
 503 (1873).
 
 196 JUDGMENT CREDITORS PENDENTE LITE. [§ 163. 
 
 purchase money mortgage, and the judgment creditor is a 
 necessary defendant to a foreclosure of the mortgage.' Like- 
 wise a judgment against a person who in any way becomes 
 the owner of the equity of redemption in mortgaged premises 
 becomes a lien upon the premises, and the judgment creditor 
 is a necessary party in an action to foreclose the mortgage. 
 
 § 163. Judgment creditors pendente lite and creditors 
 at large not necessary. — A judgment is a lien from the 
 time it is docketed,* but if the proceedings to recover 
 the judgment have not been completed, the judgment is not 
 a lien and the judgment creditor is not a necessary defen- 
 dant. Thus a party who had recovered an award against a 
 mortgagor, but had not yet reduced it to a judgment, has 
 been held hot a necessary party, for the reason that he had 
 no lien on the land ;' and where creditors had perfected their 
 judgments against a mortgagor a few days after he had 
 made a general assignment, they were held unnecessary 
 parties, and though they were made parties to the action, 
 they were not allowed to interppse a defense, as the assignee 
 was the only necessary defendant,* A creditor at large has 
 no status in court, and is not a necessary party ; he will not 
 even be allowed to intervene on his own application.* 
 
 What is said here refers to money judgments; but the 
 same rules apply to equitable decrees and orders affecting 
 mortgaged premises, which are entered in a "judgment 
 book," and also to the persons benefited or bound by such 
 decrees and orders.' A judgment creditor who has levied 
 an execution remains a necessary party until the sheriff's 
 certificate of sale is issued to the purchaser, and his judg- 
 ment has been satisfied in fuU.^ An attaching creditor is 
 
 ' Winebrener v. Johnson, 7 Abb. * Spring v. Short, 90 K T. 538, 
 
 (N. Y.) Pr. N. S. 203 (1869); DeSaus- 545 (1882). 
 
 sure V. Bollraann, 7 S. C. 339, 339 » Herring v. N. Y., L. E. & W. 
 
 (1875). R. R. Co. 105 N. Y. 340 (1887); 
 
 « N. Y. Code Civ. Proc. §§ 1250, People v. Erie Railway Co., 56 How. 
 
 1251 ; Allen v. Case, 13 Wis. 621 (N. Y.) Pr. 122 (1878) ; Gardner v. 
 
 (1861). Lansing, 28 Hun (N.Y.) 413 (1882). 
 
 » Jones V. Winans, 20 N. J. Eq. • N. Y. Code Civ. Proc. § 1236. 
 
 (5 C. E. Gr.) 96 (1869). ■" See ante % 123 ; N. Y. Code Civ.
 
 § 164.] REMEDIES OE OMITTED CREDITORS 197 
 
 also a necessary party,' but a judgment creditor whose 
 judgment is docketed pending the foreclosure, is not a 
 necessary defendant ; he may, however, intervene by petition, 
 or redeem before the sale.' If a subsequent judgment 
 creditor is omitted as a party defendant, any defendant who 
 has a real interest in the premises may object by demurrer, 
 if the defect appears on the face of the complaint, or by 
 answer if it does not so appear, and compel the omitted 
 party to be brought into court.' This rule is consistent with 
 equity practice and principles, and is believed to have its 
 foundation in the fact that if a judgment creditor were 
 omitted, the title offered at the sale would be defective, and 
 no bidder would offer as much as for a perfect title, thereby 
 causing a loss to parties having an interest in or a lien upon 
 the equity of redemption. 
 
 § 164. Judgment creditors — Remedies if omitted as 
 defendants. — Whenever a judgment creditor is omitted as 
 a defendant and the mortgaged premises are sold under 
 a decree of foreclosure, his only remedy is to redeem.* 
 
 Proc. § 1440. In point, Bullard v. ' Leveridge v. Marsh, 30 N. J. 
 
 Leach, 27 Vt. 491 (1854). In Woods Eq. (3 Stew.) 59 (1878) ; Ballard v. 
 
 V Love, 27 Mich. 308 (1873), the Anderson, 18 Tex. 377 (1857). See 
 
 purchaser at an execution sale, to ante % 128. 
 
 whoui a sherilT's certificate had been * Gage v. Brewster, 31 N. T. 218 
 
 issued and registered, was held an (1865,) ; Brainardv. Cooper, ION. Y. 
 
 unnecessary party. Short v. Bacon, 356 (1852); Winebrener v. Johnson, 
 
 99 N. Y. 275 ( 1885 ) ; Smith v. 7 Abb. (N. Y.) Pr. N. S. 202 (1869); 
 
 Moore, 73 Ind. 388 (1881). Belden v. Blade, 26 Hun (N. Y.) 635 
 
 ' Bramhall v. Flood, 41 Conn. 68 (1882) ; American Buttonhole Co. v, 
 (1874); Lyon V. Sandford, 5 Conn. Burlington M. L. Asso., 61 Iowa, 
 547 (1825) ; Campion v. Kille, 14 N. 464 (1883), relying upon Anson v. 
 J. Eq. (1 McCart.) 229 (1862) ; s. c. Anson, 20 Iowa, 55 (1865) ; Jones v. 
 15 N. J. Eq. (2 McCart.) 476 (1863) ; Harstock, 421©wa. 147 (1875) ; New- 
 Chandler V. Dyer, 37 Vt. 345 (1864), comb v. Dewey, 27 Iowa, 381 (1869). 
 overruling Nichols v. Holgate, 2 See also Rice v. Kelso, 57 Iowa, 115, 
 A\k.(Vt.)l?>S (1826), and the dictum 118 (1881) ; Wright v. Howell, 35 
 in Downer V. Fox, 20 Vt. 388(1848). Iowa, 288. 292 (1872); Stuart 
 See also the statute of 1864. v. Scott, 22 Kan. 585 (1879) ; Martin 
 
 'People's Bank v. Hamilton v. Fridley, 23 Minn. 13(1876); Pratt 
 
 Manuf. Co., 10 Paige Ch. (N. Y.) v. Frear, 13 Wis. 462(1861). As to 
 
 481 (1843). See post § 170, on in- what amount must be paid to redeem, 
 
 cum b lancers pendente lite. see Iowa Co. v. Beeson, 55 Iowa,
 
 198 OMISSION OF JUDGMENT OEEDITOES. [§ 164. 
 
 Under the early New York decisions, a judgment creditor 
 was required to issue 2. fieri facias y or execution, against the 
 equity of redemption in order to obtain a sheriff's certificate 
 of sale and deed, thereby making his judgment a specific, 
 instead of a general, lien before he could redeem ;* but it is 
 now well settled that a judgment creditor, omitted as a party 
 to the foreclosure, may redeem directly with his judgment 
 as a general lien, instead of making it a specific lien by 
 execution and a sheriff's sale. 
 
 Thus, judgment creditors who had been omitted from a fore- 
 closure issued executions, and in time obtained a sheriff's 
 deed ; they then brought an action to redeem, and it was held 
 that the judgment creditors, not having been made parties to 
 the action by which the mortgage was foreclosed, were not 
 bound by the decree, and that the foreclosure as to them 
 was utterly void. The judgment creditors would, therefore, 
 have a right to redeem the premises from the purchaser at 
 the sale under the judgment of foreclosure, even though 
 they had not made their liens specific by an execution and 
 sale upon their judgments. And the foreclosure being, 
 under the decisions of the Court of Appeals, utterly void as 
 to said judgment creditors, it necessarily follows that they 
 had a right to issue execution and to sell the premises under 
 it, in the same manner as if the mortgage had not been fore- 
 closed ; and it further follows that the purchaser at said sale, 
 upon receiving his deed from the sheriff, acquired a good 
 
 262 (1880). See also the preceding 7 Abb. (N. Y.) Pr. K S. 202 (1869); 
 
 sections. In New York and most Niagara Bank v. Roosevelt, 9 
 
 other states the redemption must be Cow. (N. Y.) 413 (1827) ; Arnot y. 
 
 within ten years. See the cases cited Post, 6 Hill (N. Y.) 66 (1843). 
 
 in the first note to § 163 anU. But Thus, in Arnot v. Post, 6 Hill 
 
 in Illinois the redemption must be (N. Y.) 66 (1843), Bronson, J., 
 
 within seven years ; Ewing v. Ains- held that an omitted judgment 
 
 worth, 53 111. 464 (1870). See Miller creditor's right to sell after the fore- 
 
 V. Finn, 1 Neb. 254 (1870), holding closure is just as perfect as it is be- 
 
 tliat redemption will not be allowed, fore, and a sale is the only mode in 
 
 if the purchaser under the fore- which he can assign his legal rights. 
 
 closure offers to pay the claim of the Without a sale he has nothing but a 
 
 omitted incumbrancer. lien, but by a sale the purchaser 
 
 ' Braiiiard v. Cooper, 10 N. Y. acquires a real interest in the land. 
 862 (1852) ; Winebrener v. Johnson,
 
 § 165.] OWITER OF mechanic's LIEN. 199 
 
 title to the extent of the right, title and interest of the 
 judgment debtor in said premises at the time of the docket- 
 ing of the judgments against him, or which he at any 
 time thereafter acquired in the premises.' 
 
 At present a judgment creditor has the alternative practice 
 of redeeming directly under his general lien, or of issuing an 
 execution and redeeming under the specific lien of a sheriff's 
 deed. A purchaser at a foreclosure sale, in his relation to a 
 judgment creditor, is deemed merely an equitable assignee of 
 the mortgage." A redeeming creditor is now obliged to pay 
 only the mortgage debt, principal and interest, without the 
 costs of the foreclosure ; but the purchaser at the foreclosure 
 sale and his grantees will be entitled to an accounting of 
 rents, taxes and disbursements for improvements.* 
 
 § 165. Mechanic's lien, owner of, necessary. — All 
 
 persons holding mechanics' liens, which, as incumbrances 
 upon the mortgaged premises, are subsequent to the mort- 
 gage, are necessary parties to an action to foreclose.* It 
 may not; always be easy to determine whether a mechanic's 
 lien, as a lien upon the premises, is subsequent to the mort- 
 gage, but questions affecting that subject can not be discussed 
 here ; for the purposes of this work it is assumed that the 
 mechanic's lien is subsequent. A mechanics' lien is a special 
 statutory charge upon real estate, peculiar to American law; 
 
 ' Winebrener v, Johuson, 7 Abb. and American cases, Gardner, J,, 
 
 (N. Y.) ■ Pr. N. S. 208 (1869), per writing the opinion, concludes that 
 
 Freedman, J., citing and relying such a general judgment lien is sufll- 
 
 upon Braiuard v. Cooper, 10 N. T. cient without execution, and a 
 
 356 (1852); Haines v. Beach, 3 Johns. sheriflf's deed to make it specific. 
 
 Ch. (N. Y.) 460 (1818). Brainardv. ' Brainard v. Cooper, 10 N ' Y. 
 
 Cooper was before the New York 356 (1852) ; Arnot v. Post, 6 Hill 
 
 Court of Appeals three times for (N. Y.) 67 (1843). 
 
 argument, and now stands as the « Gage v. Brewster, 81 N. T. 218 
 
 loading case upon the rights of judg- (1865); Brainard v. Cooper, 10 N. Y. 
 
 ment creditors who are omitted as 356 (1852) ; Winebrener v. Johnson] 
 
 parties to a foreclosure. The ques- 7 Abb. (N. Y.) Pr. N. S. 211 (1869)! 
 
 tion as to whether a naked or a gen- * Emigrant Industrial S. Bank v. 
 
 eral judgment lien is a sufficient title Goldman, 75 N. Y. 127, 129 (1878) ; 
 
 to maintain an action for redemption, Payne v, Wilson, 74 N. Y. 348 
 
 is considered at length, and after an (1878) ; Jones v. Harstock, 42 Iowa, 
 
 exhaustive review of the Euglish 147 (1875).
 
 200 ASSIGNED SUESEQUJLNT LIENS. [§ 166. 
 
 the English law knows no such lien.' As the various states 
 have regulations of their own concerning mechanics' liens, 
 it is impossible to state any very general rules affecting 
 them, except that a notice of the lien is uniformly re- 
 quired to be filed in the oiifice of the clerk of the county 
 where the premises are situated, ^nd that a mortgagee 
 foreclosing is bound to take notice of no liens except those 
 which are filed subsequent to the execution of his mortgage 
 and prior to the commencement of the action and the filing 
 of the lis pendens. The rules of law and practice which have 
 been stated as applying to subsequent mortgagees and judg- 
 ment creditors, it is believed, apply with equal force to the 
 owners of mechanics' liens. 
 
 § i66. Subsequent lienor, an assignor no longer 
 holding the incumbrance, not necessary. — No principle 
 of law or practice is more familiar, than that only those 
 parties who are interested in the subject-matter of an action 
 should be brought before the court. It is almost axiomatic 
 that a subsequent lienor, who has parted absolutely with his 
 lien, can have no interest in an action to foreclose a prior 
 mortgage. There are almost no cases which pointedly sup- 
 port this proposition ; but it is beyond dispute, as reasoned 
 from analogous cases,* that the proposition is true. Chancel- 
 lor Kent has held it as a general principle, "that a person 
 who has no interest in the suit and is a mere witness, against 
 whom there could be no relief, ought not to be a party ;" " 
 
 ' Kneeland on Mechanics' Liens, such a mortgagee and assignor is 
 
 pp. 8-13. not a necessary party, it must 
 
 * Andrews v. Gillespie, 47 N. Y. certainly follow that a subsequent 
 
 487 (1872) ; Christie v. Herrick, 1 mortgagee, who has parted with his 
 
 Barb. Ch. (N. Y.) 255(1845) ; Whit- entire interest in the mortgage, is 
 
 ney v. McKinney, 7 Johns. Ch. (N. not a necessary party to an action 
 
 Y.) 144 (1823) ; Ward v. VanBok- brought to foreclose a prior raort- 
 
 kelen, 2 Paige Ch. (N. Y.) 289 (1830). gage. Most in point, see Winslow 
 
 These cases are quoted from in post v. ilcCall, 33 Barb. (N. Y.) 241 
 
 ^§ 177-180. They uniformly hold (1860), relying upon Wetmore v. 
 
 that a mortgagee who has made an Roberts, 10 How. (N. Y.) Pr. 51 
 
 absolute and unconditional assign- (1855). 
 
 ment of his mortgage, is not a neces- ^ Whitney v. McKinney, 7 Johns. 
 
 Bary party to an action brouglit to Ch. (N. Y.) 147 (1823). 
 foreclose the same mortgage. If
 
 § 168.] ASSIGNED SUBSEQUENT LIENS. 201 
 
 and further, where an assignment is absolute and " the 
 mortgagee parts with all his interest in the mortgage, and 
 there is nothing special and peculiar in the case, that there 
 is no necessity to make the mortgagee a party to a bill to 
 foreclose." 
 
 Moreover, if the assignment were absolute and uncon- 
 ditional on its face, while the mortgagee retained some 
 equitable interest in the mortgage, it would be unjust and 
 contrary to first principles to hold a prior mortgagee fore- 
 closing, responsible for not taking notice of equities existing 
 between a subsequent mortgagee and his assignee, when he 
 had no knowledge of the same. If, however, knowledge of 
 such equities were brought to the mortgagee foreclosing, it 
 would be dangerous for him to omit either the assignor or 
 the assignee of the subsequent mortgage. If a junior mort- 
 gagee has been paid in full, he is, of course, no longer a 
 necessary or a proper defendant.' All that has been said in 
 this section with reference to subsequent mortgagees and 
 the'ir ■ assignees, applies with equal force to subsequent 
 holders of judgments, mechanics' and other liens, and their 
 assignees.* 
 
 The principles of law stated in this and the immediately 
 succeeding sections are so axiomatic to the practicing 
 attorney, and are so little discussed by writers on the subject 
 of this work, that it may seem useless to mention them here; 
 but the headings of these sections seemed necessary to the 
 author, in order to sustain and preserve the logical analysis 
 and arrangement of the subject. A slight examination will 
 show that the analysis of this chapter follows in many 
 respects that of the first chapter of this part of the work. 
 The object of this is to embrace every possible and conceiv- 
 able case of an incumbrance that could arise, whether the 
 courts have rendered decisions thereupon or not. 
 
 • McHenry v. Cooper, 27 Iowa, signed his judgment with a power of 
 137(1869). attorney, he was held a necessary 
 
 * In McKee v. Murphy, 34 N. Y. defendant, the power of attorney not 
 Supr. Ct. (3 J. <fe 8.) 261 (1872), operating as an absolute assignment, 
 though a judgment creditor hart as-
 
 202 EQUITABLE OWNERS OF JUNIOR LIENS. [§167. 
 
 § 167. Subsequent lienors, holding any kind of an 
 equitable or contingent interest in the lien, generally 
 necessary. — Whenever a person holding a subsequent mort- 
 gage, judgment or other lien on mortgaged premises assigns 
 his hen conditionally, as a collateral security or otherwise, 
 so that he retains an equitable interest in it, he is a necessary 
 party to an action to foreclose a prior mortgage.* The 
 assignee of the subsequent mortgage lien is also a necessary 
 party. It is believed, however, that this proposition should 
 be qualified to the effect, that the plaintiff to the foreclosure 
 must have notice from the record or otherwise of the 
 character and conditions of the assignment. The reason 
 for this rule evidently is, that all outstanding interests in 
 the equity of redemption by lien or otherwise must be 
 reached and covered by the action. The law sustaining the 
 proposition of this section is analogous in principle to that 
 which requires a mortgagor who has apparently parted with 
 his equity of redemption, but still holds an equitable interest 
 in it, to be made a defendant to a foreclosure." 
 
 There is another line of cases' which, by analogy, support 
 the proposition of this section. They uniformly hold, 
 where a mortgage is assigned as a collateral security, and an 
 action to foreclose is commenced by the assignee or the 
 assignor, the other refusing to become a co-plaintiff, that he 
 can and must be made a party defendant to the action, for 
 the reason that otherwise a pefect decree could not be 
 " made which would protect the mortgagor and the pur- 
 chaser of the mortgaged premises from any future claims 
 
 ' In Blair v. Marsh, 8 Iowa, 144 » See ante § 123 ; Patton v. Smith, 
 
 (1859), the assignor and the assignee 113 111. 499 (1885). 
 
 of a "title bond" were both made * Bloomer v. Sturges, 58 N. Y. 
 
 parties to the foreclosure of a prior 168, 177 (1874) ; Andrews v. Gilles- 
 
 existing mortgage, the title bond pie, 47 N. Y. 487 (1872) ; Christie v. 
 
 having been assigned merely as a Herrick, 1 Barb. Ch. (N. Y.) 254 
 
 collateral security. A junior mort- (1845); Slee v. Manhattan Company, 
 
 gagee,wlio has assigned his mortgage 1 Paige Ch. (N. Y.) 48 (1828); 
 
 as a collateral security, may redeem Kittle v. VanDyck, 1 Sanf. Ch. (N. 
 
 from a senior mortgagee foreclosing; Y.) 76 (1843). See post §$ 181, 182, 
 
 Maniiiug V. Markoi, 19 Iowa, 103 and the notes and cases cited. 
 (1865;.
 
 § 1G8.J ASSIGNEE OF SUBSEQUENT LIEN. 203 
 
 which the assignor might make.'" If this law is good for a 
 prior mortgage under foreclosure, why is it not equally good 
 for a subsequent mortgage, under precisely the same circum- 
 stances ? The only difference is, that in the foreclosure o£ 
 the prior mortgage, the mortgagee and the assignee are 
 cognizant of the equities between them, while in the latter 
 case the plaintiff may have no knowledge of the equities 
 existing between the subsequent mortgagee and his assignee. 
 
 § i68. Assignee of subsequent mortgage, judgment 
 or other lien, necessary. — A party who acquires uncondi- 
 tionally, by assignment or otherwise, the whole of a junior 
 mortgage, judgment or other lien upon mortgaged premises, 
 becomes at once the party in interest, in place of the original 
 lienor, and is consequently a necessary defendant in an 
 action to foreclose a prior mortgage.* This proposition, like 
 those stated in the two preceding sections, is deduced from 
 general principles of law quite as much as it is induced as a 
 conclusion from adjudged cases. Chancellor Walworth, 
 however, has held in an action to foreclose a mortgage, that 
 " it is now well settled, at least in this state, that after an 
 absolute assignment of a chose in action the assignee, at law 
 as well as in equity, is considered the real party to the suit. 
 A decree in equity between the defendant and the assignee 
 would now have the same effect in a court of law as if the 
 assignor was a party to such decree."* ** This court does 
 
 ' Christie v. Herrick, 1 Barb. Ch. sequent judgment, although the 
 
 (N. Y.) 254, 259 (1845), ^tfr Chancellor assignee was not made a defendant 
 Walworth. ' Ward v. VanBokkelen, 3 Paige 
 
 » In point, Winslow V. McCall, 32 Ch. (N. Y.) 289, 295 (1830). A note 
 Barb. (N. Y.) 241 (1860), relying to this decision by Mr. Paige, the 
 upon Wetmore v. Roberts, 10 How. reporter, gives an exhaustive dis- 
 (N. Y.) Pr. 51 (1855), which holds cussion of the question of the assign- 
 further that the assignee may redeem, ment of choses in action,- citing 
 the same as the original lienor, if he many cases in chronological order 
 is omitted as a defendant. In point, from English and American reports, 
 Augustine v Doud, 1 111. App. 588 showing that in the early part of 
 (1877). See also White v. Bartlett, this century the assignor still 
 14 Neb. 320 (1883), where the assign- remained a necessary party, while 
 ment was not recorded and the the assignee was hardly deemed 
 plaintiff had no knowledge of it ; proper, 
 the action was held to cut off the sub-
 
 204 ASSIGNEE PENDENTE LITE. [§169. 
 
 not look at the nominal parties to a contract. They look at 
 the real parties to it at the time the suit is commenced — the 
 parties in actual interest — and recognize their rights in 
 the same manner as if the contract was executed by or to 
 them. Thus the assignee of a chose in action is recognized 
 as the real party, and this court, rejecting all legal fictions, 
 treats him as such, and insists that the suit shall be brought 
 in his name.'" The law supporting the proposition stated in 
 this section is analogous to that which makes the purchr^ser 
 and owner of the equity of redemption by grant from a 
 mortgagor a necessary party to a foreclosure ;' the only 
 difference being that in the latter case the defendant holds 
 the fee title, while in the former he held only a lien on the 
 fee. 
 
 § 169. Assignee of subsequent mortgage or lien pen- 
 dente lite not necessary. — A person who during the 
 pendency of an action to foreclose a mortgage purchases a 
 mortgage, judgment or other incumbrance upon the mort- 
 gaged premises, which is subsequent in its lien to the mortgage 
 under foreclosure, is not a necessary party to the action, and 
 the plaintiff will not be obliged to bring such a purchaser 
 before the court ;^ the purchaser may, however, as he 
 succeeds to all the rights of the subsequent lienor, appear 
 and defend in the name of the party from whom he acquires 
 his lien, or be substituted on application in his place.* The 
 statutory enactments of the Code, which were discussed in 
 
 ' Western Reserve Bank v. Potter, 133, where a discussion of the com- 
 
 Clarke Ch. (N. Y.) 437 (1841), per mon law doctrine of lis pendens smd 
 
 Vice-Chancellor Whittlesey. of the statutory enactments in the 
 
 ' See ante %% 126, 127. various states is given. It may be 
 
 * In point. Case v. Bartholow, 21 generally stated that the princi])le3 
 Kan. 800 (1878), where a subsequent of law there presented, as applying 
 mortgage was purchased pending to the purchaser of the equity of 
 the foreclosure of a prior mortgage. redemption in mortgaged premises 
 
 * Sec Koch V. Purcell, 45 N. Y. during an action to foreclose, apply 
 Supr. Ct. (13 J, & S.)162(1879), asto also to the purchaser of a lien on the 
 the rights of such an assignee with same equity during the foreclosure, 
 reference to the action, and any sur- The statute of lis pendens in New 
 plus arising on tli« sale. See Fisher York also imquestiouably supports 
 on Mortgages, ^ii 380, 388, and the this proi)osilioa. 
 
 Ejiglish cases cilcd. See a/de §p! 131 ,
 
 §170.] ASSIGNEE PENDENTE LITE. 2U5 
 
 the preceding chapter as applying to the equity of redemp- 
 tion, apply with equal force to liens upon that equity.' 
 
 To sustain the proposition stated in this section, resort must 
 be had to the principle of analogy, as there are no reported 
 cases bearing directly upon the point. As has been shown, 
 the purchaser of the equity of redemption in mortgaged 
 premises, during the pendency of an action to foreclose, is 
 not a necessary defendant ;* no reason presents itself why 
 the purchaser of a lien on the same equity of redemption 
 under similar circumstances should be made a defendant. It 
 is assumed, of course, that the assignor of the purchaser 
 pendente lite is a party defendant to the action ; a pur- 
 chaser pendente lite, if his assignor is not a party to the 
 action, is no more bound by the decree of foreclosure than 
 the assignor himself would be. The assignee of a mortgage 
 is an incumbrancer within § 1671 of the New York Code of 
 Civil Procedure, and if he takes title by assignment after, or 
 records his assignment subsequently to, the filing of a lis 
 pendens, he is chargeable with notice.' 
 
 § 170. Incumbrancer pendente lite not necessary. — 
 Likewise it is reasoned by analogy that a person who obtains 
 a lien by mortgage, judgment* or otherwise upon the equity 
 of redemption in mortgaged premises, during the pendency of 
 an action to foreclose, is not a necessary party to the action, 
 providing it was commenced* or the lis pendens was filed* 
 before the Hen was obtained or recorded.^ In such a case 
 however, while the plaintiff is not bound to bring the 
 incumbrancer before the court, the incumbrancer himself 
 may intervene by petition at any time before the sale, and 
 if allowed by the court to come in at all, he will obtain 
 
 ' See ante § 133. « Lyon v. Sanford, 5 Conn. 548 
 
 • See ante § 132. (1825). 
 
 » Lamont v. Cheshire, 65 N. Y. 30 « ^^'uller v. Scribner, 16 Hun (N. 
 
 (1875) ; Hovey v. Hill, 3 Lans. (N. Y.) 180 (1878) ; afl'd 76 K Y 190 
 
 Y.) 167 (1870). (1879). 
 
 * Montgomery v. Birge, 31 Ark. ^ Bank of U. S. v. Carroll, 4 
 491 (1876) ; Linn v. Patton, 10 W. B. Mon. (Ky.) 50 (1843). See ante 
 Va. 187 (1877). S 133.
 
 2Ut) LIENOR PENDENTE LITB. [§ 170. 
 
 as good and perfect a standing in the case as any other 
 party, and may defend if he has a defense to offer.* 
 
 A lis pendens is not effective until the complaint is filed, 
 and the complaint can not be filed nunc pro tunc so as to 
 affect the rights which a judgment creditor may have 
 acquired in the meantime." In a case where a judgment 
 had been recovered and docketed against the owner of the 
 equity of redemption in mortgaged premises, after the filing 
 of a lis pe7idens and the service of the summons upon one or 
 more of the defendants, but prior to the service upon the 
 owner of the equity, the court would not relieve the bidder 
 at the sale of his bid, on the ground of a defect of parties to 
 the action ; the judgment creditor was not a necessary party.* 
 
 In another case, where no lis pendents had been filed 
 and a judgment was recovered and docketed between the 
 time of entering the decree of foreclosure and the day of 
 sale, it was held that the judgment creditor could merely 
 redeem at any time before the sale, but that thereafter his 
 rights would be effectually barred.* In the foreclosure of a 
 senior mortgage the owner of a junior recorded mortgage 
 was omitted as a party, as the deed from the original mort- 
 gagor to the person executing the junior mortgage had not 
 been recorded, and the senior mortgagee had no notice of 
 
 • F. and M. Bank ©f Milwaukee v. but refused to allow the judgment 
 
 Luther, 14 Wis. 96 (1861). See creditor to intervene, for the reason 
 
 People's Bank v. Hamilton Mfg. that his petition did not state a 
 
 Co., 10 Paige Ch. (N, Y.) 481 (1843), defense in proper form. 
 
 •where a creditor obtained a judg- * Weeks v. Tomes, 16 Hun (N.Y.) 
 
 ment against the owner of the equity 349 (1878) ; aff'd 76 N.Y. 601 (1879). 
 
 of redemption, and docketed the " Fuller v. Scribner, 76 N. Y. 190 
 
 same about a week after the decree (1879), afE'g 16 Hun (N. Y.) 180 
 
 of foreclosure was entered, but before (1878), and distinguishing Rogers v. 
 
 the sale ; a lis pendens had been Bonner, 45 N. Y. 379 (1871); the 
 
 duly filed at the commencement of judgment creditor was a subsequent 
 
 the action. Execution was issued incumbrancer within the meaning of 
 
 and the judgment creditor bid in the §§1670 and 1671 of the N. Y. Code 
 
 premises ; he thereupon presented to of Civil Procedure, 
 
 the court his petition, setting forth * McHenry v. Cooper, 27 Iowa, 
 
 all the facts of the case and his 137, 146 (1869). See Pratt v. Pratt, 
 
 defense. Chan cellor Walworth recog- 96 111. 184 (1880), where a second 
 
 nized the petition, and held it to be mortgage was executed pending a 
 
 the proper practice and procedure, foreclosure.
 
 §§ 171-172.] LIENOE A MAERIED WOMAN. 207 
 
 the deed or subsequent mortgage from the record or other- 
 wise ; the rights of the junior mortgagee were held concluded 
 and cut off by the action.' In another case the owner of a 
 recorded unindexed second mortgage was omitted as a party 
 defendant to the foreclosure of a prior mortgage, and the 
 foreclosure was held void as to him.' 
 
 § 171. Subsequent mortgagee or lienor a married 
 woman does not alter rule ; necessary. — Mortgages, judg- 
 ments and all other liens upon real estate are now unques- 
 tionably personal property. At common-law the husband 
 became upon marriage the owner of his wife's personal 
 property, including, of course, mortgages, judgments, etc., 
 even though they were placed in his wife's name after 
 marriage. In an action to foreclose a prior mortgage the 
 husband of a woman who held a subsequent incumbrance 
 was, undoubtedly, necessary as a party defendant to the 
 action ; she also was a necessary party. The common-law 
 rule has, however, been so completely superseded that it is 
 believed there is no state in America where it is now in 
 force. It is safely asserted that the husband of a feme 
 covert, who holds a subsequent lien upon premises under 
 foreclosure by a prior mortgagee, is not a necessary party 
 to the action. The wife, however, who holds the lien in her 
 own name, is always as necessary a party as though she were 
 a feme sole* Likewise, the wife of a person holding a subse- 
 quent lien is not a necessary party, as she has no interest 
 in it.* 
 
 § 172. Heirs, devisees, legatees and annuitants of 
 deceased subsequent lienor generally not necessary. — 
 
 Under the statutes of no state do the heirs at law receive 
 the legal title and possession of the personal property of a 
 deceased person. It is the theory of American law that 
 upon a person's death the title to all his personal property 
 
 " Kipp V. Brandt, 49 How. (N. Y.) • See ante §§ 159-164. 
 Pr. 358 (1875). « See Kay v. Whittaker, 44 N. Y. 
 
 » Mutual Life Ins. Co. v. Dake, 1 565 (1871). 
 Abb. (N. Y.) N. C. 380 (1876) ; aff'd 
 87 N. Y. 257 (1881).
 
 208 HEIRS OF SUBSEQUENT LIENOR. [§ 173. 
 
 vests in an executor or administrator, while the title to his real 
 property always vests in his heirs or devisees. Consequently 
 the heirs and devisees of a decedent, who held a subsequent 
 lien upon mortgaged premises, are neither necessary nor 
 proper parties to an action to foreclose a prior mortgage.* 
 
 In an action where the heirs and the personal represen- 
 tatives of a deceased subsequent mortgagee were all made 
 parties to the foreclosure of a prior mortgage, it was held, 
 where the question was, whether the plaintiff could tax 
 costs for five defendant heirs, that "there was no necessity 
 nor any apparent excuse for making the five children of the 
 subsequent mortgagee parties. The executor fully repre- 
 sented the rights of the decedent as a junior mortgagee, and 
 the heirs at law should not have been made defendants. 
 The extra costs of making them parties must therefore be 
 disallowed."' The same proposition is also true of devisees, 
 legatees and annuitants, under a will, for they take no title 
 to the subsequent lien, as it passes at once to the executor, 
 unless it is bequeathed specifically to the devisee, legatee or 
 beneficiary, in which case he, as the immediate owner of the 
 same, would become a necessary defendant. The benefi- 
 ciary, in such a case, takes title directly, as he would by a 
 specific assignment from the testator in his life-time.* 
 
 § 173. Executors and administrators of a deceased 
 subsequent lienor necessary. — As has been previously 
 stated, the entire personal estate of a decedent, both at law 
 and in equity, including mortgages, judgments and all kinds 
 of liens upon real estate, vests in his personal representatives, 
 — that is, in his executors or administrators. Without 
 exception in any state in the Union, the executor or admin- 
 istrator takes the entire legal title to all kinds of liens 
 created upon real estate. Of course, the title which a 
 personal representative has in the goods of a decedent is not 
 
 ' Shaw V. McNish, 1 Barb. Ch. • In Jeneson v. Jeneson, 66 111. 
 
 (N. Y.)328 (1846). See ante %% 141- 260 (1872), a decedent gave one of 
 
 144, and the cases cited. several notes secured by a mortgage 
 
 * Shaw V. McNish, 1 Barb. Ch. to an heir, who was held a necessary 
 
 (N. Y.) 338 (1846), per Chancellor defendant to the foreclosure of a 
 
 Walworth. prior mortgage.
 
 § l7o.] EXECUTORS OF SUBSEQUENT LIENOR. 
 
 209 
 
 the absolute ownership which a person has in his own 
 property ; nevertheless, the law treats the personal represen- 
 tative as the absolute owner, with full control and power of 
 disposition, as if the property were his own. 
 
 It easily follows that the executor of a deceased sub- 
 sequent mortgagee or lienor, is a necessary defendant in 
 an action to foreclose a prior mortgage, representing, as he 
 does, the entire interest of the junior lienor.* If a subsequent 
 lien is specifically bequeathed, the beneficiary becomes a 
 necessary party in place of the executor. If a subsequent 
 lienor dies during the pendency of an action to foreclose, 
 the action must be revived against his personal represen- 
 tatives. It is intimated that if a deceased subsequent lienor 
 is a non-resident of the state, the plaintiff foreclosing may 
 take out letters of administration for the purposes of the 
 action in the county where the mortgaged premises are 
 situated ;' but provision is made in the practice of most 
 states for serving the summons upon non-residents by publi- 
 cation or otherwise. 
 
 If no administrator or executor has been appointed or has 
 qualified as the personal representative of a deceased subse- 
 quent mortgagee or lienor, it is doubtful whether the plaintiff 
 foreclosing a prior mortgage can properly and safely rely 
 upon making only the heiis at law and next of kin of the 
 subsequent lienor parties defendant to the action. This 
 practice is sometimes resorted to where the heirs at law and 
 next of kin are few in number and can be easily served ; 
 
 ' Lockman v. Reilly, 95 N. Y. 64 ante §§ 141-144. In Lockman v, 
 
 (1884); Shaw v. McNish, 1 Barb. Reilly, 95 N. Y. 64 (1884), 'per 
 
 Ch. (N. Y.) 326 (1846), quoted from Rapallo, J., the premises were 
 
 in the preceding section ; Ger. Sav. bought in by an executor who was 
 
 Bank v. Muller, 10 K Y. Week. plaintiff in the foreclosure of a 
 
 Dig. 67 (1880); White v. Rittemeyer, junior mortgage ; on the foreclosure 
 
 30 Iowa, 268, 272 (1870), citing many of the senior mortgage the executor 
 
 caaes and authorities. Shields v, of the junior mortgagee was held 
 
 Keys, 24 Iowa, 298, 307 (1868), was the only necessary defendant, as tha 
 
 a foreclosure of a mechanic's lien, real estate was to be regarded as 
 
 citing Baldwin v. Thompson, 15 personalty. 
 
 Iowa, 504 (1864), and Burton v. * In point, Lothrop's Case, 33 N. 
 
 Hintrager, 18 Iowa, 348 (1865). See J. Eq. (6 Stew.) 246 (1880).
 
 21'» SUBSEQUEISTT IJENOE BANKKUPT. [§ 174. 
 
 tliey are, indeed, the actual and ultimate owners of the 
 subsequent lien, but, as has been seen, they are neither 
 necessary nor proper parties where there is a personal repre- 
 sentative.* Even though it may be inconvenient, and may 
 often necessitate considerable delay, it is nevertheless the 
 safest practice and the one here recommended, to cause an 
 administrator of such deceased subsequent lienor to be 
 appointed before the action to foreclose is commenced, or at 
 least before it proceeds to judgment.' 
 
 § 174. Assignee in bankruptcy and voluntary general 
 assignee of subsequent lienor necessary. — The case of 
 Bard v. Poole' holds quite pointedly that an assignee in 
 bankruptcy, who receives from his assignor an interest in a 
 mortgage, is a necessary defendant in an action for the fore- 
 closure of a prior mortgage. To sustain the proposition of 
 this section, resort is again had to reasoning by analogy, 
 upon which so much of this chapter is dependent. The 
 same rules and illustrations, which have shown an assignee 
 in bankruptcy of the owner of the equity of redemption* in 
 mortgaged premises to be a necessary defendant in an action 
 to foreclose, apply, it is believed, with equal force to an 
 assignee in bankruptcy of a person holding a lien upon the 
 same equity of redemption ; the assignee is equally a neces- 
 sary party in both cases.* The same rules apply to assignees 
 
 See the preceding eection ; • 13 N. T. 495, 507 (1855), per 
 Fisher on Mortgages, § 359; Whittla Denio, J. 
 V. Halliday, 4 Dm. and War, 267 * See ante % 152. 
 (1827). * Reference is had to § 168 ante, 
 * In point, Lothrop's Case, 33 N. where it appears that the assignee of 
 J. Eq. (8 C. E. Gr.) 246(1880), where a subsequent lien by sale and trans- 
 limited administration was granted fer is a necessary party. The same 
 for the purposes of the foreclosure, title and interest being transferred 
 See Koger v. Weakly, 2 Port. (Ala.) to an assignee in bankruptcy, no 
 616 (1835) ; Coursen's Will, 4 N. J. reason presents itself why the 
 Eq. (3 H. W. Gr.) 408 (1843). In pomt, assignee in bankruptcy is not also a 
 Fisher on Mortgages, § 369. See necessary defendant. From the 
 Long V. Storie, 23 L. J. Ch. N. S. proposition presented in §§ 126-128 
 200 (1853), where a creditor was ap- ante, the reasoning by analogy be- 
 pointed administrator for the pur- comes even stronger, 
 poses of the action.
 
 §§ 175-176.] JUNIOR LIENOR INFANT, ETC. 211 
 
 by voluntary general assignment and to receivers of insol- 
 vent corporations. If the assignee dies pending the fore- 
 closure and after having been made a defendant, the action 
 must be revived against his successor in office, or the right 
 to redeem will survive to the successor.' 
 
 § 175. General guardian of infant, and committee of 
 lunatic, idiot or habitual drunkard, trustees and benefi- 
 ciaries, holding subsequent mortgage or lien, necessary. 
 — If a subsequent mortgage is drawn in the name of the 
 general guardian or committee of an incompetent person, 
 the guardian or committee will, unquestionably, be a neces- 
 sary party defendant in an action to foreclose a prior mort- 
 gage, and the beneficiary will also be a very proper, if not 3 
 necessary, party." If, however, the subsequent lien is 
 executed or recovered in the name of the beneficiary, then 
 the infant, lunatic, idiot or habitual drunkard will be a 
 necessary party in his own name, without his guardian of 
 committee appearing as a party to the action. The process 
 of the court, however, is generally required to be served 
 upon the guardian or committee as well as upon the incom- 
 petent person.* 
 
 § 176. Purchasers at tax sales, boards of supervisors, 
 state comptrollers and municipal corporations, defen- 
 dants. — It is a universal principle of law that unpaid taxes 
 are a lien upon the real estate against which they are assessed 
 prior to mortgages, judgments and all other incumbrances 
 When real estate is sold for the satisfaction of unpaid taxes, 
 the purchaser likewise acquires a title that is good against all 
 
 ' Avery v. Ryerson, 34 Mich. 363 decree, they being too numerous to 
 
 (1876). be brought into the action. See 
 
 * InWillink v. Morris Canal Bank- Loehr v. Colborn, 93 Ind. 24 (1883) 
 
 lag Co., 4 K J, Eq. (3 H. W. Gr.) 377 Shinn v. Shinn, 91 III. 477 (1879) 
 
 (1843), the trustees and cestuis que also the English cases, Wetherell 
 
 fc'MS^ were both held necessary defen- v. Collins, 3 Madd. 255 (1818), and 
 
 dants ; but in Iowa County v. Osbourn v. Fallows, 1 Russ. & M. 
 
 Jlineral Point R. R., 24 "Wis. 93 741 (1830), stating circumstances 
 
 (1869), it was held sufficient to make under which the beneficiaries are 
 
 t'le trustee representing the bond- not necessary parties, 
 
 holders a defendant, and that the ^ N. Y. Code Civ. Proc. § 426. 
 bondholders would be bound by the
 
 212 PURCHASERS AT TAX SALES. [§176. 
 
 pre-existing incumbrances to the extent of his purchase 
 price, unless divested by an incumbrancer redeeming. 
 
 Purchasers at general tax sales, and states, counties and 
 cities, for whose benefit any unpaid tax was levied, are 
 not necessary parties to the foreclosure of a mortgage 
 upon the premises taxed ; but they are very proper par- 
 ties as prior incumbrancers for the purpose of determin- 
 ing the exact amount of their claims, and of having them 
 extinguished as liens upon the property, by a provision 
 in the judgment for their payment out of the proceeds of 
 the sale.* A purchaser at a tax sale will not be affected 
 by the subsequent foreclosure of a mortgage to which he is 
 not made a party." The purchaser's title is absolute and 
 prior to the mortgage, subject only to be redeemed by the 
 mortgagee. Under the rulings of the courts it is clearly 
 the best practice to make purchasers at tax sales, the owners 
 of tax certificates, and all parties, domestic corporations and 
 others, having any interest in unpaid taxes, parties defendant 
 to a foreclosure, that their claims may be ascertained and paid.* 
 
 Provision is made in the New York Code of Civil Pro- 
 cedure and in the statutes of some other states, requiring 
 the referee to sell, or the master in chancery, to pay all 
 outstanding taxes, assessments, water rates, etc., from the 
 proceeds of the sale.* Where such provision can be made 
 in the decree of sale, it is not so desirable to make parties 
 holding tax certificates defendants to the foreclosure. 
 
 ' Roosevelt Hospital v. Dowley, Iowa, 411 (1867). See Straka T. 
 
 57 How. (K Y.) Pr. 489 (1878). ;)er Lander, 60 Wis. 115 (1884), in 
 
 VanVorst, J. See post chap. ix. which action to foreclose, it was 
 
 * Becker v. Howard, 66 N. Y. 5, 8 alleged that a tax deed of the prem. 
 (1876). But see Adair v. Mergen- ises had been issued to one of the 
 theim, (Ind.) 13 West. Rep. 852 defendants and that the plaintiffs 
 (1888). had redeemed from the tax liens. 
 
 * See the cases supra ; Becker v. The municipality which issued the 
 Howard, 4 Hun (N. Y.) 359 (1875), tax deed was held not to be a neces- 
 per E. Darwin Smith, J. ; Ayres v. sary party ; the question of the 
 Adair County, 61 Iowa, 728 (1883), validity of the deed or of the redemp- 
 per Adams, J., discussing at length tion could not be determined in the 
 the rights of a purchaser at a tax foreclosure. 
 
 sale in relation to a pre-existing mort- * N. T. Code Civ. Proc. § 1676. 
 gage. See Crum v. Cotting, 22
 
 CHAPTEE VIIL 
 
 PAKTEES DEFENDANT— NECESSARY TO PERFECT THE TITLE. 
 
 PARTIES HOLDING PART OR EQUITABLE INTERESTS IN THE MORT- 
 GAGE UNDER FORECLOSURE, OR IN LIENS CONTEMPORARY 
 THEREWITH, NOT JOINING AS PLAINTIFFS, 
 NECESSARY DEFENDANTS. 
 
 ^177. IntTodiictory. 
 
 178. Assignor, having made an 
 
 absolute assignment of the 
 mortgage or no longer hold- 
 ing an interest in it, not 
 necessary. 
 
 179. Assignor — "When a prober 
 
 and desirable party. 
 
 180. Assignee of a mortgage abso- 
 
 lutely assigned, never a 
 necessary defendant. 
 
 181. Assignor of a mortgage, 
 
 assigned conditionally or 
 as collateral security, a nec- 
 essary party. 
 
 182. Assignee of a mortgage as- 
 
 signed collaterally, a neces- 
 
 sary defendant in foreclos- 
 ure by the assignor. 
 
 183. Joint or several mortgagees; 
 
 action commenced by one, 
 the others necessary defen- 
 dants. 
 
 184. Contemporary and equal 
 
 mortgagees ; foreclosure 
 commenced by one, others 
 necessary defendants. 
 
 185. Ownership of mortgage 
 
 doubtful or in dispute ; 
 action commenced by one 
 claimant, other claimants 
 advisable defendants. 
 
 186. Trustees and beneficiaries 
 
 sometimes necessary defen- 
 dants. 
 
 § 177. Introductory. — In the two preceding chapters, 
 attention has been given to those parties who were necessary 
 defendants in an action to foreclose a mortgage, in order to 
 extinguish the entire equity of redemption and all the liens 
 that had accrued upon it since the execution of the mort- 
 gage. It sometimes occurs that a mortgage is held by joint 
 owners, or that there are liens contemporary with it, or that 
 it is assigned collaterally or conditionally, whereby equitable 
 questions arc raised as to its true ownership. Part owners 
 and others having equitable interests in the mortgage under 
 foreclosure may refuse to join as co-plaintiffs. In such cases 
 it is always n.icessary to make them defendants, that their 
 interests may be extinguished. This rule is based upon the 
 general principle which was early considered' in this work, 
 
 See ante § 70. 
 
 21?
 
 214 rNTEODUCTORY. [§ 177. 
 
 that all parties interested in the mortgage or in the mort- 
 gaged premises are necessary parties, plaintiff or defendant, 
 in an action to foreclose. It is also a well recognized rule, 
 especially in equitable actions, that a person interested in 
 the subject-matter of an action, who refuses to become or 
 who is omitted as a co-plaintiff, may be made a defendant.' 
 
 It is to be observed that the parties defendant discussed 
 in this chapter could equally well be parties plaintiff, with one 
 or two exceptions; and that, being omitted or refusing to join 
 as parties co-plaintiff, they become absolutely necessary 
 parties defendant in an action to foreclose, in order to 
 produce at the sale a perfect title and to accomplish the 
 purposes for which a party is necessary, as repeatedly 
 stated in this part of the work. Chancellor Walworth, in 
 considering the necessity of making a party holding an 
 equitable interest in the mortgage a party to the action in 
 order to produce a perfect decree for the purchaser at the 
 sale, has held: "Where the mortgage is assigned as a mere 
 security for the payment of a debt, or where but a part of 
 the mortgage debt is assigned to the plaintiff, the assignor 
 is a necessary party to a bill filed to foreclose the mortgage, 
 so that a perfect decree may be made which will protect the 
 mortgagor and the purchaser of the mortgaged premises 
 under the decree to be made in the suit, from any future 
 claims which the assignor may make, notwithstanding his 
 assignment.'" A conveyance upon a foreclosure sale, to 
 produce this result, must convey the entire interest of the 
 mortgagor and the mortgagee, and be an entire bar against 
 each of them and against all persons claiming under them. 
 
 The New York Code of Civil Procedure provides " that a 
 conveyance upon the sale, made pursuant to a final judgment 
 in an action to foreclose a mortgage upon real property, 
 vests in the purchaser the same estate, only, that would 
 have vested in the mortgagee, if the equity of redemption 
 had been foreclosed. Such a conveyance is as valid, as if it 
 
 • N. Y. Code Civ. Proc. § 448. Ilobart v. Abbot, 3 F Wms. 643 
 
 « Christie v. Herrick, 1 Barb. Ch. (1731) ; N. Y. Codf ^Av. Proc. 
 
 (N. Y.) 259 (1845) ; Johnson v. Hart, § 1632. 
 
 3 Johns. Cas. (N. Y.) 322 (1802) ;
 
 § 178.] ASSIGNOR — WHEN NOT NECESSARY. 215 
 
 was executed by the mortgagor and the mortgagee, and is 
 an entire bar against each of them, and against each party 
 to the action who was duly summoned, and every person 
 claiming from, through or under a party, by title accruing 
 after the filing of the notice of the pendency of the action, 
 as prescribed in the last section."* It is apparent then that 
 if any person, who holds an interest in the mortgage under 
 foreclosure, as part owner or otherwise, is omitted as a 
 party to the action, the decree will not be binding upon him, 
 and his interest will not be cut off; his relation to the 
 subject-matter of the action continues as though the action 
 had never been commenced. 
 
 § 178. Assignor, having made an absolute assign- 
 ment of the mortgage or no longer holding an interest 
 in it, not necessary. — When the owner of a bond and mort- 
 gage makes an absolute and unconditional transfer of the 
 same by assignment or otherwise, he ceases to have any 
 interest in it, and is, consequently, no longer a necessary 
 party to an action to foreclose the mortgage ;" neither are 
 his heirs, executors or administrators necessary parties.* 
 An administrator who assigned a mortgage to an heir as 
 
 > N. Y. Code Civ. Proc. § 1632. Williams v. Smith, 49 Me. 564 
 
 « Clark V. Mackin, 95 N. Y. 346 (1861) ; Miller v. Henderson, 10 N. 
 
 (1884) ; Andrews v. Gillespie, 47 N. J. Eq. (2 Stockt.) 320(1855). Aliter, 
 
 Y. 487 (1872) ; Christie v. Herrick, if the assignment is not absolute, 
 
 1 Barb. Ch. (N. Y.) 254 (1845) ; Larimer v. Clemer, 31 Ohio St. 409 
 
 Western Reserve Bank v. Potter, (1877) ; Omohundro v. Henson, 26 
 
 Clarke Ch. (N. Y.) 437 (1841); Gratt. (Va.) 511 (1875); Scott v. 
 
 Whitney v. McKinney, 7 Johns. Ch, Ludington, 14 W. Va. 387 (1878). 
 
 (N. Y.) 147 (1823); Ward v. Van See Wright v. Sperry, 21 Wis. 
 
 Bokkelen, 2 Paige Ch. (N. Y.) 295 331 (1867), and the notes to ant» 
 
 (1880) ; Prout v. Hoge, 57 Ala. 28 §§ 75-77. Fisher on Mortgages, 
 
 (1870) ; Walker v. Bank of Jlobile, § 347, and the English authorities 
 
 6 Ala. 453 (1844) ; Barraque v. Man- cited. 
 
 uel, 7 Ark. 516 (1847) ; JMarkel v. ^ But in North Carolina the heirs 
 
 Evans, 47 Ind. 326 (1874) ; Gower v. of the mortgagee are held necessary 
 
 Howe, 20 Ind. 396 (1863) ; but held parties to a bill of foreclosure ; 
 
 necessary in Strong v. Downing, 34 Etheridge v, Vernoy, 71 N. C. 184, 
 
 Ind. 300 (1870). In point, Wilson 186 (1874); s. c. 70 N. C. 713*; 
 
 V. Spring, 64 111. 14 (1872), where Kerchner v. Fairley, 80 N. C. 25 
 
 the assignor assigned one of a num- (1879). See also PuUen v. Heroa 
 
 ber of notes secui-ed by a mortgage ; Mining Co., 71 N. C. 567 (1874).
 
 216 ASSIGNOR OFTEN DESIRABLE. [§ 179. 
 
 part of his distributive share of the decedent's estate, is not 
 a necessary party to a foreclosure brought by the heir.' 
 Chancellor Kent held, in 1823, that "where the assignment 
 is absolute, and the mortgagee parts with all his interest in 
 the mortgage, and there is nothing special or peculiar in the 
 case, the assignee is under no necessity to make the mort- 
 gagee a party to a bill to foreclose. The general principle 
 is, that a person who has no interest in the suit, and who is 
 a mere witness, against whom there could be no relief, ought 
 not to be a party."* 
 
 Another learned jurist, in referring to the history and the 
 reasons for this principle, determined that it is ** well settled 
 that where there has been an absolute assignment of all the 
 interest of the mortgagee in the debt secured by the mort- 
 gage, he is not a necessary party to a bill to redeem, or to a 
 bill of foreclosure. The reason why it was formerly consid- 
 ered necessary to make the assignor of a chose in action a 
 party to a bill in equity brought by the assignee, I apprehend, 
 must have been, that courts of law did not sanction and 
 protect such assignments considering them a species of 
 maintenance ; and the assignor, having the legal title or 
 interest in the thing assigned, might sustain an action at 
 law thereon, nothwithstanding a decree in equity to which 
 he was not a party. This reason has long since ceased, and 
 the above settled rule is now in force.'" 
 
 § 179. Assignor — When a proper and desirable party. 
 
 — If the assignor has guaranteed the payment or collection 
 of the mortgage debt, he is a necessary party defendant, if a 
 judgment for deficiency is sought against him.* If usury, 
 fraud or other defenses or equities existed against the 
 
 ' Westerfield v. Spencer, 61 Ind. (1884); Newman ▼. Chapman, 2 
 
 839(1878). Hand. (Va.) 93 (1823). See also 
 
 ^ Whitney v. McKiniiey, 7 Johns. Chambers v. Goklwin, 9 Ves. Sr. 
 
 Ch. (N. Y.) 147 (1823) ; Fenton v. 269 (18U4) ; Ward v. VanBokkelen, 
 
 Hughes, 7 Ves. 287 (1802). See also 2 Paige Ch. (N. Y.) 295 (1830), per 
 
 McGuffey v. Finlcy. 20 Ohio, 474 Chancellor Walworth. 
 
 ( 1851 ), and the notes to §^ 75-77 * See post % 233, on the liability of 
 
 ante. an assignor for a judgment of defi- 
 
 » Clark V. Mackin, 95 N. Y. 346 ciency.
 
 §3 79.] ASSIGNOR — OFTEN DESIKABLE. 217 
 
 mortgage in its inception or while the mortgagee held it, he 
 will be as assignor a very proper, if not a necessary, party 
 to the foreclosure conducted by his assignee ;' so also, if the 
 assignment is imperfect in form,* or is by parol,* the assignor 
 will be held a necessary party. In an action to foreclose, 
 brought by the assignee of the mortgage debt without the 
 mortgage, the assignor has been held a necessary defendant.* 
 It is now well settled that one who transfers a chose in 
 action warrants impliedly, at least, that there is no legal 
 defence to its collection arising out of his own connection 
 with its origin.* It has been held that the assignor, under 
 such circumstances, is not a necessary party to the action, 
 for the reason that upon the coming in of the answer setting 
 up usury, fraud, or other defences, the assignee as plaintiff 
 may give notice of such defence to the assignor and offer 
 to him the future conduct of the suit, which would make 
 the judgment binding upon him, and place the plaintiff in the 
 best possible position for maintaining an action against 
 the assignor for a breach of warranty. In such a case it 
 has been held that, " if the assignor was a necessary party 
 to a complete determination of the controversy, she should 
 have been so made under the provsions of §452, instead of 
 depriving the defendant (mortgagee) of a right to which he 
 was clearly entitled, because of her absence as such party. 
 It was the protection of the interest of the plaintiff 
 (assignee), and not that of the defendant, that mad^ her a 
 necessary party if so at all. By the sale and assignment of 
 the mortgage to the plaintiff's testator, the assignor 
 impliedly warranted that there was no legal defence to its 
 
 ' Ward V. Sharp, 15 Vt. 115 (1843). Strong v. Downing, 34 Ind. 300 
 
 See ante § 77, last paragraph. (1870). See also ante %% 84-86, 97, 
 
 » Holdridge v. Sweet, 23 Ind. 118 98. 
 
 (1864). » Littauer v. Goldman, 72 N. Y. 
 
 3 Denby v. Mellgrew, 58 Ala. 147 506 (1878) ; Andrews v. Gillespie, 
 
 (1877). 47 N. Y. 487 (1872); Delaware 
 
 * In Bibb v. Hawley, 59 Ala. 403 Bank v. Jarvis, 20 N. Y. 226 (1859). 
 
 (1877), the assignor was held a neces- So held of a bond and mortgage 
 
 sary party in case of an unindorsed which were usurious and void, and 
 
 note where the assignment was by a assigned by the mortgagee ; Ross v. 
 
 separate written instrument. See Terry, 63 N. Y. 613 (1875).
 
 218 ASSIGNOE OF MORTGAGE. [§§ 180-181. 
 
 collection arising out of its origin. * * * But it was 
 not necessary to make the assignor a party, to accom- 
 plish this object. It is well settled that a purchaser of 
 property, with a warranty of title, upon being sued for the 
 recovery thereof by one claiming a paramount title thereto, 
 may give notice to his vendor of the action, and offer to 
 him the conduct of the defense; and that upon his so doing, 
 the vendor is bound by the judgment in respect to the title, 
 whether or not the defense is undertaken by him."* 
 
 § iSo. Assignee of a mortgage absolutely assigned, 
 never a necessary defendant. — As the assignee of a mort- 
 gage becomes its absolute owner, he occupies the position of 
 the original mortgagee in all respects, and of course can 
 sustain no other relation to an action to foreclose than that 
 of plaintiff." He is always, however, a necessary party to 
 the action in some relation, as a perfect title could not be 
 offered at the sale, unless his interest by lien were extin- 
 guished. In an action by the mortgagor to redeem, he is, 
 vicf versa, a necessary defendant, in place of his assignor, the 
 mortgagee.' 
 
 § iSi. Assignor of a mortgage, assigned conditionally 
 or as collateral security, a necessary party. — A mortgagee 
 who assigns his bond and mortgage conditionally, as a 
 collateral security or otherwise, retaining to himself at the 
 same time an equitable interest of any kind, is a necessary 
 party to a foreclosure of the mortgage instituted by the 
 assignee; if he is not joined as a co-plaintiff, he will be a 
 necessapy/- defendant.* The logical reason for this rule is. 
 
 * Andrews v. Gillespie, 47 N. T. * In re Estate of Gilbert, 25 N. T. 
 492 (1872), per Grover, J. Wk. Dig. 470 (1887) ; Daltoa v. 
 
 « Lennon v. Porter, 68 Mass. (2 Smith, 86 N. Y. 176 (1881) ; Union 
 
 Gray), 473(1854), holding also that a College v. Wheeler, 61 N. Y. 88 
 
 mesne assignee is not a necessary (1874) ; Bloomer v. Sturges, 58 N. 
 
 defendant ; Burton v. Baxter, 7 Y. 175 (1874) ; Bard v. Poole, 12 N. 
 
 Blackf. (Ind.) 297 (1844). See ante Y. 495 (1855) ; Wes. Res. Bank v. 
 
 t^t^ 73-77, and notes. Potter, Clarke Ch. (N. Y.) 432 (1841); 
 
 * "Whitney v. McKinney, 7 Johns. Johnson v. Hart, 3 Johns. Cas. (N. 
 Ch. (N. Y.) 147 (1823), 2^er Chancel- Y.) 322 (1802); Slee v. Manhattan 
 lor Kent. Co., 1 Paige Ch. (N. Y.) 48 (1828) ;
 
 §181,] MOIITGAGE COLLATEEALLY ASSIGIfED. 
 
 210 
 
 that a complete decree could not otherwise be made which 
 would protect the mortgagor and the purchaser of the mort- 
 gaged premises from any claims which the assignor might 
 subsequently make, as the court would acquire no jurisdic- 
 tion of him, and an interest in the premises would remain 
 unextinguished. 
 
 Thus, in an action where it appeared that a mortgagee 
 had assigned his mortgage as a collateral security, and 
 subsequently made a general assignmerl: for the benefit 
 of creditors, it was held that the assignees or trustees 
 for the creditors succeeded to the rights of the mort- 
 gagee, and were necessary defendants in an action to fore- 
 close brought by the pledgee of the mortgage.' Kent 
 has stated as cogent reasons why the assignor should be 
 made a defendant where the assignment is made as a col- 
 lateral security, that he should have an opportunity to 
 redeem his bond and mortgage by paying the debt, and also 
 to show, if he could, that he had in fact paid his debt and 
 
 Kittle V. VanDyck, 1 Sandf. Ch. 
 (ISr. Y.) 76 (1843). See Hughes v. 
 Johnson, 38 Ark. 285 (1881) ; St. 
 John V, Freeman, 1 lud. 84 (1848); 
 Brown v. Johnson, 53 Me. 246 
 (1865) ; Ciitts V. York Manufactur- 
 ing Co., 14 Me. 326 (1837) ; s. c. 18 
 Me. 190 (1841) ; Stevens v. Reeves, 
 S3 N. J. Eq. (6 Stew.) 427 (1881); 
 Ackerson v. Lodi Branch R. R., 28 
 K J. Eq. (1 Stew.) 542 (1877); 
 Woodruff V. Depue, 14 N. J. Eq. 
 (1 McCart.) 168 (1861), authorities 
 stated in the briefs of the counsel ; 
 Miller v. Henderson, 10 N. J. Eq. 
 (2 Stockt.) 320 (1855); Fithian v. Cor- 
 ■win, 17 Ohio St. 118 (1866) ; Wright 
 V. Sperry, 21 Wis. 331 (1867). See 
 Chew V. Brumagen, )il N. J. Eq. (6 
 C. E. Gr.) 520, 529 (1870), exhaus- 
 tively collating and reviewing the 
 New York cases ; reported also in 
 19 N. J. Eq. (4 C. E. Gr.) 130(1868); 
 on appeal to the Supreme Court of 
 the United States, the assignor was 
 
 held not a necessary party ; the 
 assignee was held to be a trustee for 
 him to the extent of the surplus over 
 his own debt, for which he held the 
 mortgage as a collateral security ; 
 Chew V. Brumagen, 80 U. S. (13 
 Wall.) 497 (1871) ; bk. 20 L. ed. 663. 
 In Salmon v. Allen, 11 Hun (N. T.) 
 29 (1877), a complicated case, the 
 first pledgee had re-assigned the bond 
 and mortgage as a collateral security 
 for his own obligations ; on fore- 
 closure both of the assignees and the 
 original mortgagee were held neces- 
 sary parties. See also Graydon v. 
 Church, 4 Mich. 646 (1857), where 
 the assignor was not made a party 
 and he subsequently became insol- 
 vent ; Fisher on Mortgages, § 348 ; 
 Norrish v. Marshall, 5 Madd, 475 
 (1821) ; Hobart v. Abbot, 2 P. Wms. 
 643 (1731). See also ante %% 87-89, 
 and the notes. 
 
 ' Bard v. Poole, 12 N. T. 495 
 (1855), a case often cited.
 
 220 ASSIGNEE MORTGAGE AS COLLATERAL. [§ 182. 
 
 SO was entitled to a re-assignment of the mortgage ; and fur- 
 ther, that otherwise the mortgaged premises might be sold 
 without his knowledge.* In an early case, it was held that 
 the " assignor was, therefore, the principal party interested 
 in the mortgage at the time the bill was filed ; and although 
 the legal title to the bond and mortgage was in the plaintiff 
 (assignee) solely, the equitable interest was mainly in the 
 assignor. There is no doubt but that she was a necessary 
 party to the suit."* This rule holds good, even though the 
 assignment of the mortgage is absolute on its face and 
 expresses a full consideration, when the actual fact is, that 
 only a portion of the consideration was paid, and that such 
 payment was only a loan.* Where it appeared in a suit 
 brought by the assignee of a mortgage, assigned as collateral 
 security, to foreclose the same, that it was the intention of 
 the assignor to give such assignee the right to receive the 
 moneys due upon the mortgage and to foreclose the same in 
 his own name, it was held that the assignor was not a neces- 
 sary party, and that the decree of sale was perfect without 
 him.* 
 
 § 182. Assignee of a mortgage assigned collaterally, 
 a necessary defendant in foreclosure by the assignor. — 
 
 A mortgagee who has assigned a mortgage as collateral 
 security for a less amount than the mortgage may, as 
 assignor, file a bill of foreclosure in his own name, especially 
 if the purchaser or assignee holding the mortgage as col- 
 lateral security refuses to foreclose.' As has been seen, the 
 purchaser might have commenced the action and made 
 the mortgagee a defendant, if he refused to become a co- 
 plaintiff ;• and in that case the assignee would have become 
 
 ' Johnson v. Hart, 3 Johns. Cas. « Kittle v. VanDyck, 1 Sandf, Ch. 
 
 (N. Y.) 332 (1803) ; Bard v. Poole, (N. Y.) 78 (1843). 
 
 12 N. Y, 508 (1855). See Compton *■ Christie v. Herrick, 1 Barb. Ch. 
 
 V. Jones, 65 lud. 117 (1878), where (N. Y.) 254 (1845). 
 
 the debt had been paid, and the ' See ante §§ 87-89, and notes, 
 
 assignor was erroneously omitted as * Hoyt v. Martense, 16 N. Y. 231 
 
 a party. (1857) ; Brown v. Johnson, 53 Me. 
 
 « Kittle V. VanDyck, 1 Sandf. Ch. 240 (1365). See ante §§ 87-89. 
 (N. Y.) 7b (184^).
 
 § 183.] JOINT OR SEVERAL MORTGAGEES. 221 
 
 a trustee of the surplus.* In case the mortgagee, as assignor, 
 commences an action as sole plaintiff, the assignee, if he 
 refuses to become a co-plaintiff, will be a necessary party- 
 defendant.* This rule is based upon the same principle 
 stated in the preceding section, that the entire interest of 
 the mortgagee must be brought under the jurisdiction of the 
 court. If that part of the mortgagee's interest which is 
 assigned as a collateral security is not represented in the 
 foreclosure by the assignee, the decree of sale will, of course, 
 be defective, and the purchaser will not acquire the whole 
 interest of the mortgagee and the mortgagor.* 
 
 If the assignee refuses to become a co-plaintiff, and is 
 made a defendant, the reason why he is made a defendant 
 must be alleged in the complaint, or it will be demurrable ;* 
 if the objection is not taken by demurrer, it will be considered 
 waived. If the defect does not appear upon the face of 
 the complaint, it may be objected to by any party interested 
 in the action, by answer. The same is also true where the 
 action to foreclose is commenced by the assignee, as described 
 in the preceding section, and the assignor or mortgagee is 
 omitted as a party.* 
 
 § 183. Joint or several mortgagees ; action com- 
 menced by one, the others necessary defendants. — 
 Where a joint or several mortgage is foreclosed by one of 
 the mortgagees, and the remaining mortgagees refuse to 
 unite as co-plaintiffs in the action, they are uniformly held 
 necessary defendants," for the reason that their omission 
 
 * Norton v. Warner, 3 Edw. Ch. papers, see Anthony v. "Wood, 19 
 
 (N. Y.) 106 (1837). N. Y. Wk. Dig. 177 (1884). 
 
 « Norton v, Warner, 3 Edw. Ch. » N. Y. Code Civ. Proc. § 1632. 
 
 (N. Y.) 106 (1837) ; Simson v. Sat- * Carpenter v. O'Dougherty, 2 T. 
 
 terlee, 6 Hun (N. Y.) 305 (1875) ; & C. (N. Y.) 427 (1873) ; N. Y. Code 
 
 affd 64 N. Y. 657 (1876) ; McMillan Civ. Proc. § 448. 
 
 V. Gordon, 4 Ala. 716 (1843). So a * See ante % 89. 
 
 person who has attached a mortgage * See ante %% 78-83, and notes, 
 
 debt is held a necessary party defen- See also Denison v. League, 16 Tex. 
 
 dant ; Pine v. Shannon, 30 N. J. 399, 409 (1856) ; Porter v, Clements, 
 
 Eq. (3 Stew.) 404 (1879). To the 3 Ark. 364, 380 (1842) ; Vickers v. 
 
 contrary, unless the sheriff has Cowell, 1 Beav. 529 (1839). Fisher, 
 
 obtained actual possession of the on Mortgages, § 349. In Lovell v.
 
 222 JOINT OR SEVERAL MORTGAGEES. [§183. 
 
 fails to give the court complete jurisdiction over the mort- 
 gage debt. Thus, a mortgage had been executed to several 
 creditors to secure their respective claims ; on foreclosure 
 by some as plaintiffs, who omitted others as parties to the 
 action, the court held that the omitted parties might main- 
 tain a separate action for foreclosure, but that all should 
 have been originally brought before the court.' 
 
 In an action by A. to foreclose a mortgage executed to A. 
 and B., for a note given to A. alone, B. was held a necessary 
 party;" and where a mortgage is given by one of two joint obli- 
 gors on a note, it is erroneous to file the bill against the mort- 
 gagor alone ; the other joint maker of the note rs a necessary 
 defendant.* The holder of one or more of a number of 
 notes secured by a mortgage, is generally a necessary defen- 
 dant in an action for foreclosure brought by the holder of 
 any other note, providing he does not join as a co-plaintifl ; 
 this is specially true if the holder of the note has any 
 interest in the mortgage.* If no interest in the mortgage 
 passes with the transfer of the note, the holder of the note 
 is deemed an unnecessary party in some states.* 
 
 Farrington, 50 Me. 239 (1863), one Cal. 16(1863) ; Lietze v. Claybaugh, 
 
 of two mortgagors refusing to join as 59 111. 136 (1871) ; Preston v. Hod- 
 
 a co-plaintiflE in an action to redeem gen, 50 III. 56 (1869) ; Myers v. 
 
 was held a necessary defendant. Wright, 33 El. 284 (1864) ; Murdock 
 
 » Howe V. Dibble, 45 Ind. 120 v. Ford, 17 Ind. 53 (1861). In 
 
 (1873). See Tyler v. Yreka Water Rankin v. Major, 9 Iowa, 297, 300 
 
 Co., 14 Cal. 212 (1859), ontheneces- (1859), two notes were made to A. 
 
 sity of making them parties ; Nash- B. & Co. and secured by a mort- 
 
 ville & D. R. R. Co. v. Orr, 85 U. gage ; one was sold to J. W. R. ; A. 
 
 S. (18 Wall.) 471 (1873) ; bk. 22 L. B. & Co. and J. W. R. united as co- 
 
 e{j 810. plaintifEs to foreclose. The court 
 
 « Chrisman v. Chenoweth, 81 Ind. held that there was a misjoinder of 
 
 401 (1882). plaintiffs, and that one of them 
 
 8 Dediick v. Barber, 44 Mich. 19 should have been made a defendant. 
 
 (1880). See Fond du Lac Harrow Seemingly contra, see Harris v. 
 
 Co. V. Haskins, 51 Wis. 135 (1881). Harlan, 14 Ind. 439 (1860) ; Hensley 
 
 * In Pettibone v. Edwards, 15 v. Whiffln, 54 Iowa, 555 (1880) ; 
 
 Wis. 95 (1862), an action was Thayer v. Campbell, 9 Mo. 277 
 
 brought on the last of three notes (1845). But see ante %% 84-86, and 
 
 for the foreclosure of a mortgage, notes, citing the cases fully and 
 
 and the holder of the second note stating the rule in different states, 
 
 was held a necessary defendant. ' Hensley v. Whiflin, 54 Iowa, 
 
 Bee also Gratton v. Wiggins, 23 555 (1880) ; Kemerer v. Boiimes, 53
 
 §§ 184-185.] COl^TTEJMPOEARY MORTGAGEES. 223 
 
 In the foreclosure of a joint mortgage by the survivor of 
 the mortgagees, the personal representatives of the decedent 
 are not necessary defendants under the doctrine of survivor- 
 ship in joint tenancy.' The rule is otherwise where the 
 mortgage is held by parties in severalty.' Where a mortgage 
 was executed to a husband and wife, and the husband died 
 and his administrator assigned it, without the wife joining 
 in the assignment, she was held a necessary defendant in an 
 action brought by the assignee for foreclosure.* 
 
 § 184. Contemporary and equal mortgagees ; fore- 
 closure commenced by one, others necessary defendants. 
 
 — Where two or more mortgages, held by different parties, 
 are contemporary and equal liens upon premises, the 
 commencement of a foreclosure by the owner of any of 
 the mortgages as sole plaintiff, will render the remaining 
 mortgagees necessary defendants in the action.* This rule 
 is based upon the fact that courts regard the owners of 
 such mortgages the same as they would the owners of a 
 single mortgage given to secure in severalty the respective 
 amounts of the different contemporary mortgages. 
 
 § 185. Ownership of mortgage doubtful or in dispute ; 
 action commenced by one claimant, other claimants 
 advisable defendants. — Whenever the ownership of a 
 mortgage is in dispute, or parties other than those to the 
 instrument claim an interest in it, it is the best practice to 
 
 Iowa, 172 (1880) ; Bell v. Shrock, 2 Ward Savings Bank v. Hay, 55 
 
 B. Mon. (Ky.) 29 (1841) ; Pugh v. How. (N. Y.) Pr. 444 (1878). In 
 
 Holt, 27 Miss. 461 (1854) ; Archer v. Greene v. Warnick, 64 N. T. 220 
 
 Jones, 26 Miss. 583 (1853). (1876), reversing 4 Hun (N. T.) 703, 
 
 > Launay v. Wilson, 30 Md. 536 it was also held that, where there 
 
 (1869). See ante §§81, 82, and was an agreement that two mort- 
 
 notes, for a fuU presentation of this gages executed at the same time to 
 
 question. different parties should be equal 
 
 ' See ante §§ 80, 83 and notes. liens, the fact that one was recorded 
 
 2 Savings Bank v. Freese, 26 N. J. first gave it no priority, even in the 
 
 Eq. (11 C. E. Gr.) 453 (1875). See hands of a bona fide assignee who 
 
 ante §§ 81, 82. bought it relying upon the record 
 
 * Decker v. Boice, 83 N. T. 215 and believing it to be the first lien. 
 
 (1880) ; Cain v. Hanna, 63 Ind. 408 For a full list of cases upon the 
 
 (1878) ; Cochran v. Goodell, 131 subject of the section, see ante § 99. 
 Mass. 464 (1881). See Eleventh
 
 224 TRUSTEES AI^D BENEFICIARIES. [§186. 
 
 bring all claimants within the jurisdiction of the court, that 
 all interests may be bound by the decree, and the mortgage 
 completely foreclosed.' It often occurs that the legal title 
 to a mortgage is held by one person arid the equitable title 
 by another. Thus, where a defendant answers that no 
 valid assignment was made to the plaintiff, he may amend, 
 making his assignor a defendant to determine the question.* 
 
 § i86. Trustees and beneficiaries sometimes neces- 
 sary defendants.^ — In the foreclosure of a trust mortgage 
 by the trustee as plaintiff, it may be stated as a general rule 
 that the beneficiaries or cestuis que trust are necessary defen- 
 dants, unless they are joined as co-plaintiffs in the action.* 
 Likewise, if the action is commenced by a beneficiary, the 
 trustees and other beneficiaries are necessary defendants, 
 unless joined as co-plaintiffs.* There are some exceptions 
 to these rules, especially in the case of railroad mortgages 
 and where the beneficiaries are very numerous.* In a New 
 York case, where a mortgage was made to a person in trust 
 for the payment of several bonds of the mortgagor held by 
 different individuals, the bondholders were held necessary 
 parties to an action brought by the trustee as sole plaintiff." 
 
 » See Kellogg v. Smith, 26 N. Y. Waring v. Turton, 44 Md. 535(1876). 
 
 18 (1862) ; Hancock v. Hancock, 22 See ante §§ 110-112, where the cases 
 
 N. Y. 568 (1860) ; Peek v. Mallams, are cited fully. 
 
 10 N. Y. 509 (1853) ; Lawrence v. ■• Dorsey v. Thompson, 37 Md. 35 
 
 Lawrence, 3 Barb. Ch. (N. Y.) 71 (1872) ; Hackensack Water Co. v. 
 
 (1848) ; Slee v. Manhattan, 1 Paige DeKay, 36 N. J. Eq. (9 Stew.) 549 
 
 Ch. (N. Y. ) 48 (1828). See poit (1883) ; Hays v. Lewis, 21 Wis. 663 
 
 chap. ix. (1867). See ante § 113. 
 
 ' Burrows v. Stryker, 47 Iowa, * Swift v. Stebbins, 4 Stew. «& P. 
 
 477 (1877). (Ala.) 447 (1833). See ante §§ 110- 
 
 3 Large v. VanDoren, 14 N. J. Eq. 112. 
 (1 McCart.) 208 (1862) ; Davis v. « King v. The Merchants' Ex- 
 Hemingway, 29 Vt. 438 (1857) ; change Co., 5 N. Y. 547, 556 (1851). 
 Barkley v. Reay, 2 Hare, 306 And see Turner v. Midland R. R. 
 (1843) ; Fisher on Mortgages, § 375 Co., 24 N. Y. Wk. Dig. 239 (1886) ; 
 et seq. Contra, in Maryland, see The Mercantile Trust Co. v. The 
 Hays V. Dorsey, 5 Md. 99 (1853), Rochester & Ont. Belt R. Co., 20 
 under the act of 1833, chap. 181 ; N. Y. Wk. Dig. 508 (1885).
 
 CHAPTER IX. 
 
 PARTIES DEFENDANT. 
 
 PRIOB MORTGAGEES AND ADVERSE CLAIMANTS. 
 
 187. Introductory. 
 
 188. When prior mortgagees and 
 
 lienors can not be made 
 defendants. 
 
 189. Rights of senior and junior 
 
 mortgagees to maintain a 
 foreclosure. 
 
 190. When prior mortgagees and 
 
 lienors may be made defen- 
 dants. 
 
 § 191. Parties having a title par^ 
 mount to the mortgage, 
 neither proper nor neces 
 sary defendants. 
 
 192. Adverse claimants neither 
 
 proper nor necessary defen- 
 dants. 
 
 193. Senior mortgagees or incum- 
 
 brancers, claimed to be 
 junior lienors, proper de- 
 fendants for litigating ques- 
 tions of priority. 
 
 § 187. Introductory.— It has been repeatedly stated in 
 this work, upon the authority of numerous cases, that the 
 only proper or necessary parties to the foreclosure of a 
 mortgage are the mortgagor and the mortgagee and those 
 persons who have acquired rights under them subsequent to 
 the mortgage. But aside from this general rule, there are 
 cases in which it is proper to make others than such parties 
 defendants to the foreclosure, for the purpose of fully deter- 
 mining the issues involved, or for other purposes which the 
 plaintiff may desire to accomplish. It sometimes happens 
 that it is material to the interests of the mortgagee to make 
 a prior mortgagee or lienor a defendant to the action, for the 
 purpose of ascertaining the exact amount of his incumbrance 
 and of having it paid from the proceeds of the sale ; a 
 contest as to priority between mortgages upon the same 
 premises, can be litigated most directly in an action to fore- 
 close, if all the mortgagees are brought within the jurisdiction 
 of the court ; and at one time there was a great deal of 
 doubt, as to whether adverse claimaints should not be made 
 defendants to a foreclosure for the purpose of settling their 
 claims. These and other questions as to who can rightly be 
 made parties to a foreclosure for a full determination of 
 
 2S& as)
 
 226 
 
 PRIOR MORTGAGEES DEFEISTDANTS. 
 
 [§ 188. 
 
 all the issues involved are presented to every practicing 
 attorney. It is the design of this chapter to notice briefly 
 these miscellaneous matters. 
 
 § i88. When prior mortgagees and lienors can not be 
 made defendants. — It may be stated as a general rule that 
 persons holding mortgages or liens prior to the mortgage 
 under foreclosure are neither necessary nor proper parties to 
 the action.' A foreclosure is an equitable action in reniy 
 designed to extinguish the mortgage and to cut off all liens 
 which are subsequent to it upon the premises, and not to 
 affect in any way the title to the premises or the liens upon 
 it prior to the execution of the mortgage. It is the general 
 practice, where persons holding prior mortgages are not 
 made defendants and no provision as to their rights is made 
 in the judgment, to sell the premises subject to such mort- 
 gages ; no portion of the proceeds of the sale can be applied 
 
 ' Adams v. McPartlin, 11 Abb. 
 (N. Y.) N. C. 369 (1882) ; Hamlin v. 
 McCahiU, Clarke Ch. (N. Y.) 249 
 (1840) ; see the note to this case, cit- 
 ing numerous authorities. See Emi- 
 grant Industrial Savings Bk. v. Gk>ld- 
 man, 75 N. Y. 127, 131 (1878); Brown 
 V. Volkening, 64 N. Y. 76, 84 
 (1876) ; Frost v. Koon, 30 N. Y. 428, 
 444 (1864) ; Hancock v. Hancock, 23 
 N. Y. 568 (1860); Eagle Fire Ins. 
 Co. V. Lent, 6 Paige Ch. (N. Y.) 685 
 (1837). See Chapman v. West, 
 17 K Y. 125 (1858), where the 
 action was to establish a land con- 
 tract ; Lewis v. Smith. 9 N. Y. 503 
 (1854), aff'g 11 Barb. (N. Y.) 153 
 (1851) ; Bank of Orleans v. Flagg, 3 
 Barb. Ch. (N. Y.) 316 (1848) ; Hol- 
 comb V. Holcomb, 3 Barb. (N. Y.) 
 20 (1847); Smith v. Roberts, 63 
 How. (K Y.) Pr. 196, 200 (1881); 
 oEf'd 91 N. Y. 470, 477 (1883); Payne 
 V. Grant, 23 Hun (N. Y.) 134 (1880) ; 
 Vanderkemp v. Shelton, 11 Paige 
 Ch. (N. Y.) 28 (1844) ; Western Ins. 
 Co. V. Eagle Fire Ins. Co., 1 Paige 
 Ch. (N. Y.) 284 (1828). See also 
 
 Koch V. Purcell, 45 N. T. Supr. 
 Ct. (13 J. & S.) 162, 173 (1879); 
 also Hotchkiss v. Clifton Air Cure, 4 
 Keyes (N. Y.) 170 (1868), explaining 
 the remedy of a bidder at the sale, 
 when the referee varies the terms of 
 sale from the directions of the judg- 
 ment. In point. White v. Holman, 33 
 Ark. 753(1878); Broward v. Hoeg, 15 
 Fla. 370 (1875) ; Pattison v. Shaw, 6 
 Ind. 377 (1855) ; Tome v. Mer. Loan 
 Co., 34 Md. 13 (1870); Dawson v. 
 Danbury Bank, 15 Mich. 489 (1867) ; 
 Hudnit V. Nash, 16 N. J. Eq. (1 C. 
 E. Gr.) 550 (1862) ; Williamson v. 
 Probasco, 5 N. J. Eq. (4 Halst.) 571 
 (1851); Forrer v. Kloke, 10 Neb. 
 373, 377 (1880) ; Warren v. Burton, 
 9 S. C. 197 (1877) ; Weed v. Beebe, 
 21 Vt. 495, 502 (1849) ; Jerome v. 
 McCarter, 94 U. S. (4 Otto), 734, 736 
 (1876) ; bk. 24 L. ed. 136 ; Hagan v. 
 Walker. 55 U. S. (14 How.) 29, 37 
 (1852); bk. 14 L. ed. 312. See 
 Fisher on Mortgages, §§ 350-353, 
 and the English cases cited. Contra, 
 see Case v. Bartholow, 31 Kan. 300 
 (1878).
 
 §189.] SENIOR AND JUNIOR MORTGAGEES. 227 
 
 to their payment.' . A decree of sale can generally have no 
 effect upon the rights of prior lienors, whether they are made 
 parties to the action or not." The proposition of this section 
 also applies where the prior lien is a judgment* or a 
 mechanic's lien.* A prior lienor can not properly be made 
 a defendant to an action to foreclose or enforce a mechanic's 
 lien.' 
 
 § 189. Rights of senior and junior mortgagees to 
 maintain a foreclosure. — In a recent case it appeared that 
 after a junior mortgagee had commenced an action to 
 foreclose, the prior mortgagee also commenced a fore- 
 closure, making a defendant the junior mortgagee, who 
 answered that an action was pending for the foreclosure 
 of the junior mortgage to which the prior mortgagee 
 had been made a defendant, and asked the foreclosure 
 of the prior mortgage as well as the foreclosure of his 
 own; the court held after reviewing the authorities at 
 length, that the fact that the prior mortgagee was made 
 a defendant to the foreclosure of a junior mortgage did 
 not affect his rights at all, and that he might disregard 
 the foreclosure of the junior mortgage and prosecute 
 his own foreclosure to a sale.' If a prior mortgagee 
 who has been made a defendant to the foreclosure of a 
 junior mortgage dies, or his interest devolves on another 
 pending the action, the proceeding may go on without 
 reviving or continuing it against his personal representative 
 or successor, as he was not a necessary party to the fore- 
 closure. ' 
 
 • Bache v. Doscher, 67 N. Y. 429 Bank v. Goldman, 75 N. Y. 127, 132 
 (1876). (1878); Holcomb v. Holcomb, 2 
 
 •See the cases supra; Smith v. Barb. (N. Y.) 20 (1847); Vanderkemp 
 
 Eoberts, 91 N. Y. 470, 477 (1883). v. Shelton, 11 Paige Ch. (N. Y.) 28 
 
 » Frost V. Koon, 30 N. Y. 428, 444 (1844) ; Smith v. Schafier, 46 Md. 
 
 (1864); Kent v. Popham, 6 N. Y. 573(1877). 
 
 Oiv. Proc. 337 (1884), holding that • Adams v. McPartlin, 11 Abb. 
 
 complaint should be dismissed as to ( N. Y. ) N. C. 369 ( 1882 ). See 
 
 judgment creditor, with costs. Straight v. Harris, 14 Wis. 509 
 
 * Emigrant Industrial Savings (1861) ; Strobe v. Downer, 13 Wis, 
 Bank V. Goldman, 75 N. Y. 127, 132 10 (1860). 
 
 (1878). ' Hancock v. Hancock, 22 N. Y. 
 
 ^ Emigrant Industrial Savings 568 (1860).
 
 228 PJBIOJi MORTGAGEES DEiE^NiJAJSi'S. [§ 190. 
 
 Where in an action to foreclose a mortgage one having a 
 subsequent mortgage is made a party defendant, and such 
 party is also the owner of mortgages prior to that of the 
 plaintiff, he may answer in the action and ask to have such 
 prior mortgages paid out of the proceeds of the sale before 
 applying any portion thereof to the satisfaction of the 
 plaintiflf's mortgage.* In New York it is the usual practice, 
 where prior incumbrancers are improperly made parties to a 
 foreclosure, to order the action to be dismissed as to such 
 defendants upon their application, without prejudice to their 
 or the plaintiff's rights in any other proceeding.' If the 
 action is not dismissed as to them, their rights may be 
 expressly reserved in the decree ;' or they may disregard the 
 action, as the decree can have no effect whatever upon 
 their rights.* 
 
 § 190. When prior mortgagees and lienors may be made 
 defendants. — As an exception to the proposition of the two 
 preceding sections, a prior incumbrancer by mortgage, 
 judgment or otherwise, may be made a defendant to the 
 foreclosure of a junior mortgage for the purpose of having 
 the amount of his claim ascertained and paid out of the 
 proceeds of the sale, but such a purpose must be specifically 
 indicated and the prior claim set forth in full in the com- 
 plaint ;* even in such a case it will be impossible to compel 
 the prior lienor to accept payment from the proceeds of the 
 sale unless his lien has matured and is due and payable," and 
 
 » Doctor V. Smith, 16 Hun (N. Y.) 470 (1883); Emigrant Industrial Sav- 
 
 245(1878). ings Bank v. Goldman, 75 N. Y. 
 
 2 Corning v. Smith, 6 N. Y. 83 127, 132 (1878) ; Metropolitan Trust 
 
 (1851); Kentv. Popham, 6N. Y. Civ. Co. v. Tonawanda R. R. Co., 18 
 
 Proc. 337 (1884). Abb. (N. Y.) N. C. 868 (1887); 
 
 ' San Francisco v. Lawton, 18 Holcomb v. Holcomb, 2 Barb. (N. 
 
 Cal. 465 (1861). See Wilkerson v. Y.) 20 (1847) ; Vanderkemp v. Sbel- 
 
 Daniels, 1 G. Greene (Iowa), 179 ton, 11 Paige Ch. (N. Y.) 28 (1844) ; 
 
 (1848). Fisher on Mortgages, §§ 359-353. 
 
 ■» See the cases cited in the first * Frost v. Yonkers Savings Bank, 
 
 note to g 188 ante. 70 N. Y. 553, 557 (1877) ; Hamlm 
 
 » Smith V. Davis, 4 N. Y. Civ. v. McCahill, Clarke Ch. (N. Y.) 249 
 
 Proc. 158 (1883), discussing the (1840); Western Reserve Bank v. 
 
 point in a note and citing many Potter, Clarke Ch. ( N. Y. ) 439 
 
 cases ; Smith v. Roberts, 91 N. Y. (1841) ; Western Ins. Co. v. Eagl€
 
 § 190.] 
 
 PIIIOB MORTGAGEES DEFENDANTS. 
 
 229 
 
 it is doubtful whether a court will then decree the payment 
 of a prior lien from the proceeds of the sale, unless the 
 prior lienor has appeared and consented to the decree.* It 
 is not advisable to make a prior mortgagee a party to the 
 suit, unless he previously indicates a willingness to have the 
 whole title sold under the foreclosure and to have all 
 incumbrances paid out of the proceeds in the order of their 
 priority.' 
 
 It is believed that in a proper case the English rule con- 
 cerning prior mortgages will be followed in our courts. 
 Under this rule, if a subsequent mortgagee desires to sell 
 the whole estate, he can make the prior mortgagee or lienor 
 a party to the suit and require him to consent to such a sale 
 or to refuse it at once. If he consents, a sale of the whole 
 estate will be decreed ; otherwise, the decree will be for a 
 sale subject to his prior lien, the exact amount, terms and 
 conditions of which can be ascertained in the suit and made 
 known at the sale, so that a purchaser can know accurately 
 the incumbrances subject to which he is buying the title.* 
 
 Fire Ins. Co., 1 Paige Ch. (N. Y.) 
 284 (1838). 
 
 1 White V. Holman, 33 Ark. 753 
 (1878) ; Norton v. Joy, 6 111. App. 
 406 (1880) ; Warner v. Dewitt Co. 
 Bank, 4 111. App. 305 (1878) ; Per- 
 sons V. Alsip, 3 Ind. 67 (1850) ; 
 Troth V. Hunt, 8 Blackf. (Ind.) 580 
 (1847) ; Clarke v. Prentice, 3 Dana 
 (Ky.) 469 (1835); Champlin v. Foster, 
 7 B. Mon. (Ky.) 104 (1846) ; Waters 
 V. Bossel, 58 Miss. 603 (1881) ; Hud- 
 nit V. Nash, 16 N. J. Eq. (1 C. E. 
 Gr.) 550 (1863) ; Roll v. Smalley, 
 6 N. J. Eq. (3 Halst.) 464 (1847) ; 
 Evans V. McLucas, 12 S. C. 56 (1878); 
 Raymond v. Holborn, 23 Wis. 57 
 (1868); Jerome v. McCarter, 94 U. S. 
 (4 Otto), 734(1876), bk. 24 L. ed. 136; 
 Hagan v. Walker, 55 U. S. (14 How.) 
 29, 37 (1853); bk. 14 L. ed. 312 ; Fin- 
 ley V. Bank of United States, 24 U. S. 
 (11 Wheat.) 304 (1826) ; bk. 6 L. ed. 
 480. See Dunn v. Raley, 58 Mo. 134 
 
 (1874), as to what allegations must 
 be made in the complaint ; Gargaa 
 V. Grimes, 47 Iowa, 180 (1877); 
 Anonymous, 8 N. J. Eq. (4 Halst.) 
 174 (1849). See also Tootle v. White, 
 4 Neb. 401 (1876), in point. If the 
 prior mortgagee consents to a sale, 
 he can not afterward commence a 
 foreclosure of his own mortgage ; 
 Rowley v. Williams, 5 Wis. 151 
 (1856). 
 
 '^ Vanderkemp v. Shelton, 11 
 Paige Ch. (N. Y.) 28 (1844) ; Clarke 
 V. Prentice, 3 Dana (Ky.) 469 (1835); 
 Champlin v. Foster, 7 B. Mon. (Ky.) 
 104 (1846) ; Ducker v. Belt, 3 Md. 
 Ch. 13 (1851) ; Rucks v. Taylor, 49 
 Miss. 553 (1873) ; Miller v. Finn, 1 
 Neb. 254 (1871). 
 
 ' Langton v. Langton, 7 DeG., 
 M. & G. 29 (1855) ; Wickenden v. 
 Rayson, 6 DeG., M. & G. 210 (1855) ; 
 Parker v. Fuller, 1 Russ & M. 656 
 (1830); Delabere v. Norwood, 3
 
 230 
 
 TITLE PAr.AiilOUXT TO MORTGAGE. 
 
 [§ 191. 
 
 In Indiana, contrary to the practice in nearly all other states, 
 a prior incumbrancer is held a proper party to the foreclosure 
 of a junior mortgage, and when made a party will be bound 
 by the decree ;' so also in Nebraska, if the prior mortgage is 
 due.'' 
 
 § 191. Parties having a title paramount to the mort- 
 gage, neither proper nor necessary defendants. — Persons 
 who own an interest in mortgaged premises paramount to 
 the mortgage, are neither necessary nor proper parties to its 
 foreclosure, for the reason that they did not acquire their 
 rights under the mortgagor or the mortgagee, subsequent to 
 the execution of the mortgage.' Whether they are made 
 parties or not, the decree in the action will not in any way 
 affect their rights. Thus a widow, who did not sign a mort- 
 gage executed by her husband, should not be made a 
 defendant to its foreclosure ; and even if she is made 
 a defendant, her rights will not be affected in any way by 
 
 Swans, 144 n. (1818). See Bige- 
 low V. Casscdy, 26 N. J. Eq. (11 C. 
 E. Gr.) 557 (1875) ; Potts v. N. J. 
 Arms Co., 17 N. J. Eq. (3 C. E. 
 Gr.) 516 (1865) ; Gihon v. Belleville 
 Co., 7 N. J. Eq. (3 Halst. ) 531 
 (1849) ; Jerome v. McCarter, 94 U. 
 S. (4 Otto), 734, 736 (1876) ; bk. 24 
 L. ed. 136, and the cases cited in 
 the opinion. See also Perdicaris v. 
 Wheeler, 8 N. J. Eq. (4 Halst.) 68 
 (1849) ; Persons v. Merrick, 5 Wis. 
 231 (1856). 
 
 1 Masters v. Templeton, 92 Ind. 
 447(1883), citing numerous Indiana 
 cases, also holds that claims adverse 
 to the title may be litigated in a 
 foreclosure ; Merritt v. Wells, 18 
 Ind. 171 (1862). 
 
 2 White V. Bartlett, 14 Neb. 320 
 (1883). 
 
 s Lewis V. Smith, 9 N. Y. 502, 
 514 (1854), affirming 11 Barb. (N. Y.) 
 153 (1851); Walsh v. Rutgers, 13 
 Abb. (N. Y.) Pr. 33 (1861) ; Rath- 
 bone V. ilouue}', 58 N. Y. 403, 
 
 467 (1874); Merchants' Bank v. 
 Thompson, 55 N. Y. 711 (1873); 
 Lee V. Parker, 43 Barb. (N. Y.) 
 611, 614 (1865); Hamlin v. Mc- 
 Cahill, Clarke Ch. (N. Y.) 249(1840), 
 and the note ; Bram v. Bram, 34 
 Hun (N. Y.) 487, 491 (1885) ; Gage 
 V. Perry, 93 111. 176 (1879); McAlpin 
 V. Zitzer, 119 111. 273 (1887) ; s. c. 8 
 West. Rep. 345 ; Wilkinson v. 
 Green, 34 Mich. 221 (1876); Com- 
 stock V. Comstock, 24 Mich. 39 
 (1871); Horton v. Ingersoll, 13 Mich. 
 409 ( 1865 ) ; Wurcherer v. Hewett, 
 10 Mich. 453 (1862); McCIure v. 
 Holbrook, 39 Mich. 42 (1878); 
 Price's Ex'rs v. Lawtou, 27 N. J. 
 Eq. (12 C. E. Gr.) 325 (1876), citing 
 numerous cases ; Hekla Fire Ins. 
 Co. V. Morrison, 56 Wis. 133 (1882), 
 citing numerous cases ; Macloon 
 V. Smith, 49 Wis. 200 (1880) ; Palmer 
 V. Yager, 20 Wis. 91 (1865) ; Pelton 
 V. Farmin, 18 Wis. 222 (1864). See 
 the cases cited in the following 
 section.
 
 § 192.] ADVERSE CLATMAXTS DEFEND Als^TS. 231 
 
 the decree.' This is specially true if the complaint does not 
 contain allegations setting forth her real rights in the 
 property and asking to have them foreclosed ; and even with 
 such allegations in the complaint, it was held in one case 
 that the judgment passing upon her rights and foreclosing 
 them was erroneous and void.* 
 
 A person claiming dower by title paramount to the mort- 
 gage can not be brought into court in a foreclosure and 
 made to contest the validity of her dower. Whether she is 
 made a party or not, her rights will remain unaffected by 
 the action ; the sale should be made subject to her dower. 
 This rule also applies to persons holding an estate in remain- 
 der or reversion, where the life estate or the intermediate 
 interests of the beneficiary have been mortgaged.* 
 
 § 192. Adverse claimants neither proper nor necessary 
 defendants. — It is now an established rule in practice that 
 a foreclosure suit is not a proper action in which to litigate 
 the rights of persons who claim title to mortgaged premises 
 in hostility to the mortgagor." In New York it has been 
 
 "Lewis V. Smith, 9 N. Y. 502, 30 N. Y. 428, 444 (1864); Cor- 
 
 514 (1854), affirming 11 Barb. (N. ning v. Smitli, 6 N. Y. 82 (1851); 
 
 Y.) 153 (1851) ; Merchants' Bank v. Bank of Orleans v. Flagg, 3 Barb. 
 
 Thomson, 55 N. Y. 7, 11 (1873); Ch. (N.Y.) 316 (1848) ;" Meiggs v. 
 
 Lanier v. Smith, 37 Hun (N. Y.) Thomson, 66 How. (N. Y.) Pr. 466 
 
 529 (1885). (1884) ; Payn v. Grant, 23 Hun (N. 
 
 ^ Merchants' Bank v. Thomson, Y.) 134 (1880) ; Eagle Fire Co. 
 
 55 N. Y. 7, 11 (1873); Payn v. v. Lent, 6 Paige Ch. (N. Y.) 635, 
 
 Grant, 23 Hun (N. Y.) 134 (1880); 638 (1837). See also Brown v. 
 
 Bradley v. Parkhurst, 20 Kan. 462 Volkening, 64 N. Y. 76, 84 (1876) ; 
 
 (1878) ; Lounsbury v. Catron, 8 Neb. Marlow v. Barlew, 53 Cal. 456 (1879); 
 
 469 (1879) ; Shellenbarger v. Biser, Crogan v. Minor, 53 Cal. 15 (1878) ; 
 
 5 Neb. 195 (1876) ; Wicke v. Lake, San Francisco v. Lawton, 18 Cal. 465 
 
 21 Wis. 410(1867); Roche V. Knight, (1861); Gage v. Perry, 93 111. 176 
 
 21 Wis. 324 (1867). See Pool v. (1879) ; Gage v. Board of Directors, 
 
 Horton, 45 Mich. 404 (1881). 8 III. App. 410 (1881) ; Carbine v. 
 
 3 Piathbone v. Hooney, 58 N. T. Sebastian, 6 111. App. 564 (1880) ; 
 
 463, 467 (1874). See Standish v. Pancost v. Travelers' Ins. Co., 79 
 
 Dow, 21 Iowa, 363 (1866), a case of Ind. 172 (1881) ; Pattison v. Shaw, 
 
 trust. 6 Ind. 377 (1855) ; Comly v. Hen- 
 
 * Lewis V. Smith, 9 N. Y. 502, dricks, 8 Blackf. (Ind.) 189 (1846) ; 
 
 514 (1854), affirming 11 Barb. (N. Wilkinson v. Green, 34 Mich. 221 
 
 Y.) 153 (1851); Frost v. Koon, (1876); Summers v. Bromley, 28
 
 232 
 
 ADVERSE CLAIMANTS DEFENDANTS. 
 
 [§ 192. 
 
 determined that where a party setting up such a claim is 
 made a defendant to the foreclosure of a mortgage, the 
 decree will be held erroneous and will be refused, if it passes 
 upon his rights, though made after a hearing upon the plead- 
 ings and proofs.' The mortgagee has no right to make one, 
 who claims adversely to the title of the mortgagor and prior 
 to the mortgagee, a party defendant for the purpose of try- 
 ing the validity of his adverse claim of title." 
 
 The bill of foreclosure should be dismissed as to an adverse 
 claimant, unless the plaintiff alleges in his complaint and is 
 prepared to prove, that the facts upon which he relies arose 
 subsequently to the execution of the mortgage.' Disputes 
 involving the title to the mortgaged premises, arising out of 
 circumstances ante-dating the execution of the mortgage, 
 can not be litigated in a foreclosure, but must be tried by 
 ejectment or other suitable action apart from the foreclosure;* 
 but where the title was acquired at a tax sale subsequent to 
 the mortgage, the purchaser was held a proper party." It is 
 
 Mich. 125 (1873), citing New 
 York cases; Comstock v. Comstock, 
 24 Mich. 39 (1871); Wurcherer v. 
 Hewitt, 10 Mich. 453 (1862); 
 Chamberlain v. Lyell, 3 Mich. 
 448 (1855) ; Banning v. Bradford, 
 21 Minn. 308 (1875); Newman v. 
 Home Ins. Co., 20 Minn. 423 
 (1874) ; Bogey v. Shute, 4 Jones 
 (N. C.) Eq. 174 (1858) ; Lyman v. 
 Little, 15 Vt. 576 (1843) ; Lange v. 
 Jones, 5 Leigh (Va.) 192 (1834); 
 Peters v. Bowman, 98 U. S. (8 
 Otto ), 56 ( 1878 ) ; bk. 25 L. ed. 
 91 ; Dial v. Reynolds, 96 U. S. 
 (6 Otto), 340 (1877) ; bk. 24 L. ed. 
 644. See Chicago Theological Semi- 
 nary V. Gage, 103 111. 175 (1882) ; 
 Shellenbarger v. Biser, 5 Neb. 195 
 (1876); Coe v. N. J. Midland Ry., 
 31 N. J. Eq. (4 Stew.) 105 (1879). 
 See the cases cited in the preceding 
 section. 
 
 ' Lewis V, Smith, 9 N. T. 502, 
 514 (1854) ; Corning v. Smith, 6 N. 
 
 Y. 82 (1851); Eagle Fire Co. v. 
 Lent, 6 Paige Ch. (N. Y.) 635 (1837). 
 
 ^ Eagle Fire Co. v. Lent, 6 Paige 
 Ch. (N. Y). 635 (1837). See the 
 English authorities cited in this 
 case. 
 
 3 Corning v. Smith, 6 N. Y. 83 
 (1851) ; Meigs v. Thomson, 66 How. 
 (N. Y.) Pr. 466 (1884) ; s. c. 5 N. Y. 
 Civ. Proc. 106, containing an ex- 
 haustive note on parlies defendant 
 to foreclosures ; Keeler v. Mc- 
 Neirney, 6 N. Y. Civ. Proc. 363 
 (1883). 
 
 * Eagle Fire Co. v. Lent, 6 Paige 
 Ch. (N. Y.) 635 (1837) ; Brundage v. 
 Domestic and Foreign Missionary 
 Society, 60 Barb. (N. Y.) 204, 213 
 (1871) ; Keeler v. McNeirney, 6 N. 
 Y. Civ. Proc. 363 (1883). See Price's 
 Ex'rs V. Lawton, 27 N, J. Eq. (13 
 C. E. Gr.) 325 (1876). 
 
 ^ Horton v. Ingersoll, 13 Mich. 
 409 (1865) ; Carbine v. Sebastian, 6 
 111. App. 564 (1880). See Chicago
 
 §193.] SENIOR MOETGAGEES DEFENDANTS. 233 
 
 not right that the mortgagee, in pursuing his remedies, 
 should be delayed or hindered by litigation upon a question 
 of title which does not affect his rights in any way. In 
 Indiana and Kansas, however, adverse claims may be litigated 
 in a foreclosure.' 
 
 § 193. Senior mortgagees or incumbrancers, claimed 
 to be junior lienors, proper defendants for litigating 
 questions of priority. — As has been stated in the two pre- 
 ceding sections, parties who claim adversely or paramount 
 to the mortgagor are not even proper defendants in the fore- 
 closure of a mortgage ; but parties who claim subsequently 
 to the mortgagor, but adversely and paramountly to the 
 mortgagee, are proper, if not necessary, defendants to a 
 foreclosure for the purpose of litigating questions of priority 
 in lien between the mortgage under foreclosure and their 
 claims. This rule allows such questions only as affect the 
 rights of the mortgagee to be brought into the action for 
 litigation." "Whether a defendant's equities are prior and 
 superior to the rights of the plaintiff under his mortgage, or 
 junior and subordinate thereto, must necessarily be deter- 
 mined in the judgment for a foreclosure of the plaintiff's 
 mortgage. The defendant is not contesting the title of the 
 mortgagor, but simply asserts a right under him prior in 
 point of time to the mortgage. The question of priority 
 between the two is necessarily involved in the action and 
 proper to be determined in it."* 
 
 If a mortgagee or incumbrancer claiming priority is not 
 made a defendant, his rights will be in no way affected by 
 
 Theological Sem. v. Gage, 103 111. (1848) ; Payn v. Grant, 23 Hun (N. 
 
 175 (1882). Contra, Adair v. Mergen- T.) 134 (1880); Krutsinger v. Brown, 
 
 theim, (Ind.) 13 West. Rep. 853 73 Ind. 466 (1880); Cochran v. 
 
 (1888); Robertsv.Wood,38 Wis. 60 Goodell, 131 Mass. 464 (1881); 
 
 (1875). Dawson v. Danbury Bank, 15 Mich. 
 
 ' Masters v. Templeton, 92 Ind. 489, 495 (1867) ; Hoppock v. Ramsey, 
 
 447, 451 (1883) ; Bradley v. Park- 28 N. J. Eq. (1 Stew.) 414 (1877) ; 
 
 hurst, 20 Kan. 462 (1878) ; Nooner Board of Supervisors v. Mineral 
 
 V. Short, 20 Kan. 624 (1878). Point R. R., 24 Wis. 93 (1869). 
 
 • Brown v. Volkening, 64 N. Y. « Brown v. Volkening, 64 N. Y. 
 
 76, 84 (1876) ; Bank of Orleans v. 76, 84 (1876), per Allen, J. 
 8 Barb. Ch. (N. Y.) 316
 
 234: SENIOR MORTGAGEES DEFENDANTS. [§ 193. 
 
 the action. It is often necessary to bring additional parties 
 into the action for a complete determination of the questions 
 involved in the issue ; in such cases the application may be 
 made by the plaintiff or the defendant, or the court on its 
 own motion may order such parties as it deems necessary to 
 be brought within its jurisdiction, but it must be a fact in 
 each case that the party who is brought into court claims 
 some right or interest that is adverse to the claims of the 
 mortgagee foreclosing. The practice of making a defendant 
 to a foreclosure every party who claims an interest in the 
 mortgage or in the premises, in order to make a complete 
 determination or settlement of all questions affecting the 
 mortgage or the premises, is broadening and increasing in 
 its application by the courts of all our states. 
 
 In New York it is provided that " any person may be 
 made a defendant, who has or claims an interest in the 
 controversy, adverse to the plaintiff, or who is a necessary 
 party defendant, for the complete determination or settle- 
 ment of a question involved therein."' 
 
 Whenever the plaintiff desires to litigate questions of 
 priority, which may affect his mortgage, he must state his 
 claims specifically in his complaint and demand separately 
 the judgment of priority to which he believes himself 
 entitled. Likewise, the defendant must raise by answer all 
 of his claims to priority, or he will be deemed to have 
 waived them in the foreclosure. His silence, however, will 
 not necessarily prevent his maintaining an action as plaintiff 
 for affirmative relief. 
 
 ' N. T. Code Civ. Proc. §§ 447, enacted in the codes of some other 
 4.i6. The same principle has been states.
 
 CHAPTER X. 
 
 PARTIES DEFENDANT— LIABLE FOR THE MORTGAGE DEBT. 
 
 GENERAL PRINCIPLES-POINTS IN PRACTICE. 
 
 § 194. Introductory. 
 
 195. Greneral principles — At com- 
 
 mon-law. 
 
 196. General principles-Statutory. 
 
 197. Theory of the English and 
 
 common-law practice. 
 
 198. Common-law and chancery 
 
 practice opposed to judg- 
 ments for deficiency. 
 
 199. General principles— Statutory 
 
 provisions modifying the 
 common-law rule. 
 
 § 200. Points in practice— The com- 
 plaint. 
 
 201. Points in practice — Thedecree 
 
 of foreclosure. 
 
 202. Decree should fix order of 
 
 liability. 
 
 203. Decree must follow prayer of 
 
 the complaint. 
 
 204. Points In practice — The judg- 
 
 ment for deficiency. 
 
 PARTIES ORIGINALLY LIABLE. 
 
 § 205, Introductory. 
 
 206. Mortgagor, signing the bond 
 
 or note or covenanting in 
 the mortErage payment of the 
 debt, liable. 
 
 207. All persons signing the bond 
 
 or note which the mortgage 
 accompanies liable. 
 
 208. All persons guaranteeing the 
 
 bond and mortgage at its 
 inception liable. 
 
 209. A married woman signing 
 
 the bond or other obligation 
 liable — General principles. 
 
 210. A married woman signing 
 
 the bond or other obligation 
 liable— Act of 1884 in New 
 York. 
 
 211. A married woman signing 
 
 the bond or other obligation 
 liable — Rule in New York 
 
 prior to 1884, and in most 
 states at present. 
 § 212. Personal liability of married 
 woman mortgaging her sep- 
 arate estate. 
 
 213. Persons originally liable, 
 
 deceased, their estates lia- 
 ble — Personal representa- 
 tives proper parties. 
 
 214. Personal representat i ves prop- 
 
 er defendants under recent 
 decision in New York. 
 
 215. Persons originally liable, de- 
 
 ceased, their heirs and 
 devisees not proper parties. 
 
 216. Remedies against heirs and 
 
 devisees. 
 
 217. Person originally liable, mak- 
 
 ing an assignment in bank- 
 ruptcy or voluntarily, as- 
 signee proper. 
 
 § 194. Introductory. — In the consideration of parties 
 defendant to an action to foreclose a mortgage, attention has 
 been given in the foregoing pages to those parties alone who 
 were necessary to enable the plaintiff to exhaust his entire 
 
 235
 
 236 INTEODUCTORY. [§ 19-1. 
 
 remedy again jt the land in a perfect manner, — that is, to 
 those parties who were necessary, in order to wipe out the 
 entire interest of the mortgagee and the mortgagor in the 
 premises at the time of the execution of the mortgage, and 
 to offer a perfect title to a purchaser at the sale, or such a 
 title as the courts would compel a purchaser to accept. 
 
 The examination of questions affecting such parties has 
 been completed ; but now, after the plaintiff's remedy against 
 the mortgaged premises has been entirely exhausted, there 
 remains for investigation the interesting question, whether 
 he has any other remedy for the collection of his mortgage 
 debt, and if so, what and against whom. The statutes and 
 decisions affecting these questions are in their growth a 
 splendid historical illustration of the expansive and liberal 
 tendencies of our equity system. There was a time in the 
 law of mortgages when the mortgagee had no remedy for 
 the collection of his debt, except an action in rem against 
 the land ; even to-day, the general principle underlying that 
 old English law is preserved in part by our courts, in making 
 the land the primary fund for the payment of the debt. 
 
 At present, however, both in England and in America, the 
 plaintiff has generally a personal remedy by action at law 
 against all persons who have, in any way, made themselves 
 liable for the payment of the mortgage debt ; and most of 
 the states have made provisions for the enforcement of that 
 remedy in the action of foreclosure, obtaining as a result, if 
 the proceeds of the sale of the premises are insufficient to pay 
 the debt, what is commonly known as a judgment for 
 deficiency. 
 
 It is proposed in this chapter and in the following chapter 
 to consider those parties who may be made defendants in an 
 action to foreclose a mortgage, for the purpose of obtaining 
 u judgment for deficiency against them ; no particular con- 
 sideration need be given to parties against whom this personal 
 remedy may be enforced in a separate action at law. No 
 person who has merely become liable for the mortgage debt 
 and who has no interest in the mortgaged premises can, in 
 any sense, be said to be a necessary party to a foreclosure, 
 except for the purpose of exhausting in the same action
 
 § 195.] GEKERAL PRINCIPLES COMMON-LAW. 237 
 
 every remedy for collecting the debt. The use of the word 
 " necessary," with this meaning, is not common in the re- 
 ported cases; the word "proper " is more often used by the 
 courts, as it indicates an option on the part of the plaintiff 
 to make such a person a defendant. In the following pages, 
 then, clearness and accuracy will be better obtained, if parties 
 are considered as liable or not liable for the mortgage debt, 
 instead of being considered as " necessary " or " proper " to 
 the action ; for if it is once determined that a party is liable, 
 the plaintiff may make him a party or not, according to his 
 intention of pursuing his personal remedy against him, due 
 regard being had always to the relation of principal and 
 surety which the defendant may sustain to any other person 
 who is liable. 
 
 § 195. General principles — At common-law. — The pur- 
 suit of a remedy against the land for the collection of a 
 mortgage debt has always been equitable in its nature. In 
 early English law the land was the only source from which 
 payment could be enforced. As the law of mortgages was 
 developed, and it became thoroughly established that a 
 mortgage was only a security, there grew up the use of 
 a bond or note as the instrument of indebtedness, which the 
 mortgage accompanied merely as a collateral security; a 
 covenant of payment of the debt was sometimes incorpo- 
 rated into the mortgage and used instead of a bond. 
 
 With the introduction of the covenant of payment and 
 the use of a bond or note, there grew up a line of cases' in 
 English and in American law which sustained an action 
 at law for the recovery of the debt, independently of the 
 mortgaged premises, and also for the recovery of any balance 
 which might remain unpaid after applying the proceeds of 
 a sale of the land to the payment of the debt. In an early 
 action at law, brought on a bond to recover a deficiency 
 arising on a foreclosure and sale, the defense was interposed 
 that the bond and mortgage had been extinguished by the 
 
 ' Dunkley V. VanBuren, 3 Johns. sing, 5 Cow. (N. T.) 380 (1826); 3 
 Ch. (N. Y.) 330 (1818), citing Englisn Powell on Mortgages, 1003. 
 authorities; Globe Ins. Co. v. Lan-
 
 238 GENEEAL PRINCIPLES STATUTOEY. [§196. 
 
 foreclosure. The court said, "The question presented is, 
 whether a foreclosure and sale of the premises mortgaged as 
 a collateral security is an extinguishment of the debt due on 
 the bond. It most clearly is not, any further than to the 
 extent of the money produced by the sale of the mortgaged 
 premises."* 
 
 § 196. General principles — Statutory. — The practice at 
 law and in equity for the collection of a mortgage debt has 
 been modified and assisted, from time to time, in England 
 and in the various states, by statutory provisions. Under 
 the common-law foreclosure of a mortgage, the distinguish- 
 ing characteristic of the practice with reference to persons 
 liable for the mortgage debt was, that they could not be 
 made parties defendant for the purpose of obtaining a 
 judgment for deficiency against them ; a judgment for 
 deficiency could not be recovered against the mortgagor, 
 even where he was the sole defendant to the action." The 
 universal and only practice was for the plaintiff to sue at 
 law on the bond or other instrument of indebtedness, 
 which made the defendants liable for any deficiency which 
 might remain unpaid.' An action to foreclose under that 
 practice was in no sense in personam, but rather in rem.* In 
 those states where statutory provisions have not been made 
 for obtaining a judgment of deficiency in an action to 
 
 » Globe Ins. Co. v. Lansing, 5 Cow. (N. Y.) 381 (1826) ; Dunkley t. Van 
 
 (N. Y.) 381 (1826), per Savage, Ch. Buren, 3 Johns. Ch. (N. Y.) 330 
 
 J. As early as 1799, Lord Thurlow (1818) ; Hunt v. Lewin, 4 Stew. & 
 
 held in Aylet v. Hill, 2 Dick. 551, P. (Ala.) 138 (1833) ; Taylor v. 
 
 that "a mortgagee might proceed on Townsend, 6 Mass. 264 (1810); 
 
 his bond, notwithstanding he had Amory v. Fairbanks, 8 Mass. 563 
 
 obtained a decree of foreclosure." (1793). 
 
 See Dunkley v. VanBuren, 3 Johns. * White t. Williams, 3 N. J. Eq. 
 
 Ch. (N. Y.) 330 (1818) ; also South- (2 H. W. Gr.) 376 (1836). The 
 
 worth V. Scofleld 51 N. Y. 513 sdre facias practice of foreclosure in 
 
 (1873), where an action was main- Illinois gives only a judgment in 
 
 tained for an impaid balance, rem ; see Osgood v. Stevens, 25 HI. 
 
 ' Dunkley v. VanBuren, 3 Johns. 89 (1860), for an illustration. Statu- 
 
 Ch. (N, Y.) 330 (1818) ; Fleming v. tory foreclosures by advertisement 
 
 Sitton, 1 Dev. & B. (N. C.) Eq. 621 in New York accomplish only the 
 
 (1837). same result, 
 
 • Globe Ins. Co. v. Lansing, 5 Cow.
 
 § 197.J LIABILITY COMMON-LAW PKACTICE. 239 
 
 foreclose a mortgage, this same common-law practice of a 
 separate action at law on the instrument of indebtedness, 
 remains the only procedure that the plaintiff has. 
 
 In most of the states statutory provision is now made, 
 however, for joining all persons liable for the debt in the 
 action to foreclose, and for decreeing a personal judgment 
 of deficiency therein against them ; but even in those states 
 the common-law practice is not abolished but remains in 
 force, with the single condition that to exercise it, permission 
 to sue at law must first be obtained of the court in which 
 the mortgage was foreclosed.* But if the mortgagee 
 commences his action without first obtaining permission of the 
 court, he can afterwards without prejudice procure an order 
 ex parte, nunc pro tunc, granting permission." The court is 
 not bound to grant the permission as a matter of right ; and 
 it seems that where the mortgagee has voluntarily refrained 
 from asking a decree for any deficiency, some satisfactory 
 reason must be assigned for permitting him to institute a 
 separate action at law for its recovery.' 
 
 § 197. Theory of the English and common-law practice. 
 — When, in 1786, it was first decided that the mortgagee 
 after a foreclosure sale in chancery could bring an action at 
 law for the balance of the debt unpaid, it was a universal 
 principle of practice, and one which still remains in force in 
 some states, that relief in equity and also at law could not 
 
 ' N. T. Code Civ. Proc. § 1628 ; grantor who sues his grantee on 
 
 Equitable Life Ins. Co. v. Stevens, a contract ©f assumption of payment 
 
 63 N. Y. 341 (1875) ; Matter of of the mortgage debt ; Scofield v. 
 
 Collins, 17 Hun (N. Y.) 389 (1879). Doscher, 73 N. Y. 494 (1878), affg 
 
 See fost § 200. This permission is 10 Hun (N. Y.) 582 ; Campbell v. 
 
 not required in Ohio ; Avery v. Smith, 71 N. Y. 26 (1877), afE'g 8 
 
 Vansickle, 35 Ohio St. 270 (1879) ; Hun (N. Y.) 6. 
 
 nor in Iowa, but an action at law on * McKernan v. Robinson, 84 N. 
 
 the debt and one to foreclose the Y. 105 (1881), aff'g 23 Hun (N. Y.) 
 
 mortgage can not be maintained at 289 ; a nunc pro tunc order to 
 
 the same time ; Brown v. Cascaden, bring and continue an action was 
 
 43 Iowa, 103 (1876) ; County of granted and sustained in Earl v. 
 
 Dubuque v. Koch, 17 I»wa, 229 David, 20 Hun (N. Y.) 537 (1880) ; 
 
 (1864). The N. Y. Code Civ. Proc. aff'd 86 N. Y. 634 (1881). 
 
 § 1628 is prohibitory only to parties * Equitable Life Ins. Co. v. Stevens, 
 
 foreclosing, and does not apply to a 63 N. Y. 341 (1875), per Rapallo, J.
 
 24:0 NO DEFICIENCY JUDGllENTS FOUMERLY. [§ 198. 
 
 be decreed in the same action.* It was for this reason that 
 Chancellor Kent decided in an early case, that on a bill to 
 foreclose a mortgage the mortgagee was confined to his 
 remedy on the mortgaged premises, and that the suit could 
 not be extended to the mortgagor's other property nor 
 against his person, in case the property mortgaged was not 
 sufficient to pay the debt for which it was pledged, and that 
 the mortgagee's further remedy was at law.* 
 
 A court of equity could not ordinarily decree the payment 
 of the balance remaining unpaid after the foreclosure, unless 
 the debt, apart from the mortgage, was such as a court of 
 chancery would have jurisdiction of and could enforce. But 
 the courts in some states have departed from this rule so far 
 as to render a judgment for deficiency in an action to fore- 
 close, where the mortgagor is the sole defendant,* on the 
 ground that an action against him, in which a decree is 
 sought for the foreclosure of the title, as well as for a judg« 
 ment against him for deficiency, would not embrace different 
 causes of action, but different remedies for the same cause.* 
 
 § 198. Common-law and chancery practice opposed to 
 judgments for deficiency. — When, however, a judgment for 
 deficiency is sought against a third person who is liable 
 for the debt, another principle of law interferes and prevents 
 his being made a party to the foreclosure. It has always 
 been a rule of practice in chancery and in common-law, as 
 well as under most codes, that though actions arising out of 
 the same transactions or connected with the same subject- 
 matter may be united and different remedies demanded 
 therein, yet the causes of action must be so united and the 
 
 ' 2 Hilliard on Mortgages, 293 ; 4 » In Wightman v. Gray, 10 Rich. 
 
 Kent, 183, and English cases cited. (S. C.) Eq. 518,531 (1859), Chancellor 
 
 ^ Dunkley v. VauBuren, 3 Johns. Wardlaw reviews the history of this 
 
 Ch. (N. Y.) 330 (1818). See Stevens question in South Carolina, referring 
 
 V. Dufour, 1 Blackf. (Ind.) 387 to the act of 1840. 
 
 (1825) ; also the statute of 1824, and * In point, Fithian v. Monks, 43 
 
 Youse V. M'Creary, 2 Blackf. (Ind.) Mo. 502, 515 (1869), per Wagner, J., 
 
 243 (1829); Markle v. Rapp, 2 Blackf. collating and reviewing the authori> 
 
 (Tnd.) 2G8 (1829), holding that suit ties at length., 
 should first be brought on the bond.
 
 § 199.] DEFICIENCY JUDGMENTS NOW BY STATUTE. 241 
 
 remedies so demanded as to affect all parties to the action 
 in the same manner, and to bind them all to the performance 
 of the same judgment/ This rule is so fundamental and 
 essential that no system of law or practice can do without 
 it ; it can be departed from only with the sanction of statu- 
 tory provisions in special cases. 
 
 § 199. General principles — Statutory provisions modi- 
 fying the common-law rule. — The common-law rule of 
 procedure for the collection of an unpaid balance in a fore- 
 closure, as above explained, has been modified in most of 
 our states, as will be observed by reference to their statutory 
 provisions respecting foreclosures conducted by equitable 
 actions. The general result is, that in an action to foreclose 
 a mortgage a judgment in personam'' against the mortgagor 
 
 ' Jones on Mortgages, ( 3d ed. ) 
 § 1710. 
 
 » N. Y. Code Civ. Proc. § 1627 ; 
 Hunt V. Lewin, 4 Stew. & P. (Ala.) 
 138 (1833) ; Ala. Rev. Code, § 3479 ; 
 Hunt V. Dohrs, 39 Cal. 304 (1870) ; 
 Englund v. Lewis,-25 Cal. 337 (1864); 
 Cormerais v. Genella, 22 Cal. 116 
 (1863), citing the statutes of 1860 
 and 1861 ; Rowland v. Leiby. 14 
 Cal. 156 (1859); Rollins v. Forbes, 
 10 Cal. 299 (1858) ; Stevens v. Camp- 
 bell, 21 Iiid. 471 (1863); Duck v. 
 Wilson, 19 Ind. 190 (1862); 
 Grimmell v. Warner, 21 Iowa, 11 
 (1866); Cooley V. Hobart, 8 Iowa, 358 
 (1859), distinguishing Sands v. 
 Wood, 1 Iowa, 263 (1855), and Wilk- 
 erson v. Daniels, 1 G. Green (Iowa), 
 179, 188 (1848); Code of Iowa, § 2084; 
 Kentucky Code, §376; formerly 
 otherwise, Crutchfield v. Coke, 6 
 J. J. Marsh. (Ky.) 89 (1831) ; Mor- 
 gan V. Wilkins, 6 J. J. Marsh. (Ky.) 
 28 (1831) ; Johnson v. Sliepard, 35 
 Mich. 115 (1876) ; Fredman S. & T. 
 Co. V. Dodge, 3 McAr. C. C. 529 
 (1879). See also Fleming v. Kerken- 
 dall, 31 Ohio St. 568 (1877) ; Larimer 
 V. Clemmer, 31 Ohio St. 499 (1877) ; 
 
 Conn V. Rhodes, 26 Ohio St. 644 
 (1875); King v. Safford, 19 Ohio 
 St. 587 (1869); see tlie act of 
 February 19, 1864. In Missouri 
 a personal judgment for a defi- 
 ciency may be recovered against the 
 mortgagor, but not against third 
 parties who are liable for the mort- 
 gage debt, as a foreclosure in that 
 state is strictly an action, at lato, and 
 not in equity ; Fithian v. Monks, 43 
 Mo. 502 (1869), citing the statute. 
 In Wisconsin such a decree was not 
 allowable under the Revised Statutes 
 of 1858 ; Faesi v. Goetz, 15 Wis. 231 
 (1802,) stated the ground of the 
 objection to such a decree as a mis- 
 joinder of causes of action ; Bordeu 
 V. Gilbert, 13 Wis. 670 (1861) ; Wal- 
 ton v. Goodnow, 13 Wis. 661 (1861). 
 But the Laws of 1862, chap. 243, 
 made provisions for judgments of 
 deficiency similar to those of the New 
 York statute ; Bishop v. Douglass, 
 25 Wis. 696 (1870) ; Baird v. Mc- 
 Conkey, 20 Wis. 297 (1866) ; Bur- 
 dick V. Burdick, 20 Wis. 348 (1866). 
 In New Jersey the rule was for many 
 years the same as it now is in New 
 York ; Jarman v. Wiswall, 24 N. J. 
 
 (16)
 
 242 DEFICIENCY JUDGMENTS NOAV CY STATUTE. [§ 190. 
 
 and all parties liable for the mortgage debt may be decreed 
 for any residue of the debt remaining unsatisfied, after a sale 
 of the mortgaged property and the application of the pro- 
 ceeds pursuant to the directions contained in the decree. 
 
 This rule differs from the common-law rule in the two points 
 of allowing a remedy at law and in equity to Lj pursued in 
 the same action, and of allowing the joinder of parties who 
 are not interested equally or in the same manner in the 
 subject-matter. This innovation was first made in New 
 York by the adoption of the Revised Statutes ;' the original 
 statute was subsequently incorporated into the first Code, 
 and reads as follows, as amended in the Code of Civil Pro 
 cedure : " Any person who is liable to the plaintiff for the 
 payment of the debt secured by the mortgage, may be made 
 a defendant in the action ; and if he has appeared, or has 
 been personally served with the summons, the final judgment 
 may awarJ payment by him of the residue of the debt 
 remaining unsatisfied, after a sale of the mortgaged property, 
 and the application of the proceeds, pursuant to the direc- 
 tims contained therein.*" The statutory provisions of 
 Wisconsin, Nebraska, North Carolina, South Carolina,* 
 Florida, and many other states, are substantially the same. 
 
 The Supreme Court of the United States in 1864, in order 
 to assimilate the practice in the circuit courts to the general 
 practice in the state courts, adopted the rule that in all suits 
 in equity for the foreclosure of mortgages in the circuit 
 courts, or in any of the courts of the territories, a judgment 
 may be rendered for any deficiency found due after applying 
 
 Eq. (9 C. E. Gr.) 267 (1873), a Eq. (7 Stew.) Ill (1881); Newark 
 
 leading case ; but by the act of 1880, Savings Inst. v. Forman, 33 N. J. 
 
 chap. 255, it was provided that a Eq. (6 Stew.) 436 (1881). 
 
 decree for a deficiency should not * 2 N. Y. Eev. Stat. 191. 
 
 be entered in a foreclosure against ^ N. Y. Code Civ. Proc. § 1627. 
 
 parties who were personally liable See Schwinger v. Hickok, 53 N. Y. 
 
 for the mortgage debt. The com- 283 (1873) ; Bank of Rochester v. 
 
 mon-law practice of a separate action Emerson, 10 Paige Ch. (N. Y.) 359 
 
 at law is now the only procedure in (1843) ; McCarthy v. Graham, 8 
 
 that state ; Allen v. Allen, 34 N. J. Paige Ch. (N. Y.) 480 (1840). 
 
 Eq. (7 Stew.) 493 (1881) ; Naar v. » Gray v. Toomer, 5 Rich. (S. C.) 
 
 rnion and Essex Land Co., 34 N. J. L. 261, 266 (1852).
 
 § 200.] COMPLAINT DEFICIENCY. 243 
 
 the proceeds of the sale to the satisfaction of the mortgage 
 debt. This rule applies also to the courts of the District of 
 Columbia.' 
 
 § 200. Points in practice —The complaint. — When 
 statutory provisions first allowed a judgment for deficiency 
 to be rendered against all persons liable for the mortgage 
 debt in an action to foreclose, the courts, to protect persons 
 so liable, adopted a rule requiring the plaintiff to state his 
 cause of action fully in his complaint, and also to make a 
 specific demand that the decree of foreclosure adjudge that 
 the persons so liable pay any deficiency which might arise,' 
 and the order in which they should be severally liable. It 
 often occurs among practicing attorneys, that the demand 
 for a judgment of deficiency is made in the most general 
 way against the parties personally liable, but this practice is 
 not commendable ; it is much better and safer to make the 
 demand specifically, according to the order of liability of 
 the several persons who are holden for the mortgage 
 debt. 
 
 If no demand is made against a person who is liable 
 for the unpaid balance, judgment can not be taken against 
 him,' but the plaintiff may still have a separate action at 
 law ; not, however, without the leave of the court in which 
 the action to foreclose was brought. If the plaintiff intends 
 to exercise his right of action against any person so liable, it 
 is best to do so in the action to foreclose, — for, when appli- 
 cation is made for leave to bring a separate action at law, 
 the tendency of the courts is to require a good cause for the 
 
 » Cross V, DeValle, 68 U. S. (1 186 (1878) ; Manhattan Life Ins. Co. 
 
 Wall.) 5 (1863) ; bk. 17 L. ed. 515 ; v. Glover, 14 Hun (N. Y.) 153 (1878); 
 
 7 Wash. Law Rep. 2. Foote v. Sprague, 13 Kan. 155 
 
 » Equitable Life Ins. Co. v. Stev- (1874) ; Giddings v. Barney, 31 Ohio 
 
 ens, 1 N. Y. Wk. Dig. 465 (1875) ; St. 80(1876). Whenever a judgment 
 
 Luce V. Hinds, Clarke Ch. (N. Y.) for a deficiency is demanded against 
 
 453, 457 (1841) ; Leonard v. Morris, a married woman, facts must be 
 
 9 Paige Ch, (N. Y.) 90 (1841). In alleged showing the liability of her 
 
 point. Simonson v. Blake, 20 How. separate estate ; McGlaughlin v 
 
 (N. Y.) Pr. 484 (1861) ; s. c. 12 Abb. O'Rourke, 12 Iowa, 459 (1861). 
 (N. Y.) Pr. 831, citing the old Code, * Giddings v. Bai-uey, 31 Ohio St. 
 
 §275. See Tucker v.Leland, 75 KY. 80(1876).
 
 244 DEMAND FOR DEFICIENCY. [§§ 201-202. 
 
 same to be shown.' An action at law can also be maintained 
 on the note or bond, or the covenant in the mortgage, with- 
 out resorting to an equitable foreclosure, in order to obtain 
 a personal judgment against those liable for the payment of 
 the mortgage debt.' In, some states actions at law on the 
 bond, and for foreclosure in equity, can be maintained at the 
 same time.* 
 
 § 201. Points in practice— The decree of foreclosure. — 
 The judgment of foreclosure should provide in the first place, 
 if the proceeds of the sale are insufficient to pay the amount 
 reported due to the plaintiff, with the interest and expenses 
 of the sale and the costs of the action, that the referee specify 
 the amount of such deficiency in his report of sale, and the 
 defendants personally liable for the mortgage debt pay 
 the same to the plaintiff.* Under the New York Code of 
 Civil Procedure direction is also made for the payment 
 of taxes, assessments and water rates, which are liens upon 
 the property sold ;* and in ascertaining the amount of the 
 deficiency the taxes, assessments, etc., are to be deducted 
 as though they were part of the original debt.' 
 
 § 202. Decree should fix order of liability. — The judg- 
 ment should provide in the second place, when it is rendered 
 
 » See ante %% 195, 196, and the » Very v. Watkins, 18 Ark. 546 
 
 cases cited on this point ; McKernan (1857); Fairman v. Farmer, 4 Ind. 
 
 V. Robinson, 84 N. Y. 105 (1881); 436 (1853), based upon the statute 
 
 Scofield V. Doscher, 72 N. Y. 491 of 1831 ; Ely v. Ely. 73 Mass. (6 
 
 (1878), citing Suydam v. Bartle, 9 Gray), 439 (1856) ; Wilhelm v. Lee, 2 
 
 Paige Ch. (N. Y.) 294 (1841). Md. Oh. Dec. 323 (1849) ; Brown v. 
 
 «Burr V. Beers, 24 N. Y. 178 Stewart, 1 Md. Ch. Dec. 87 (1847). 
 
 (1861) ; Rosevelt v. Carpenter, 28 See Mayer v. Farmers' Bk., 44 
 
 Barb. (N. Y.) 426 (1858) ; Brown v. Iowa, 212, 214 (1876), and Code, 
 
 Cascaden, 43 Iowa, 103 (1876) ; §§ 3163, 3164 (1876), holding that a 
 
 Banta v. Wood, 32 Iowa, 469, 474 personal judgment recovered on the 
 
 (1871) ; Stephens v. Greene Co. Iron bond will be a lien on the mortgaged 
 
 Co., 11 Ileisk. (Tenn.) 71 (1872); premises from the date of the record- 
 
 Ober V. Gallagher, 93 U. S. (3 Otto), ing of the mortgage, and that the 
 
 199 (1876) ; bk. 23 L. ed. 829. The premises can be sold under execu- 
 
 action can also be maintained tion on the judgment, 
 
 against any person who has guaran- * N. Y. Code Civ. Proc. ^§ 1626, 
 
 teed the payment of the bond and 1627 ; Supreme Court Rule 61. 
 
 mortgage ; Hand v. Kennedy, 45 N. ^ N. Y. Code Civ. Pioc. § 1676. 
 
 Y. Supr. Ct. (13 J. & S.) 385 (1879). « See post % 204:.
 
 § 202.] DECREE FIXING LIABILITY. 245 
 
 against several persons, some of whom are primarily liable as 
 principals, and others are liable only secondarily as sureties, 
 that it be enforced first against the principal debtors, and 
 then, so far as it remains unsatisfied only, against the sure- 
 ties in the order of their liability, which should also be fixed ;' 
 upon the decree of foreclosure, as it fixes the order of the 
 liability of the sureties, will be based the judgment for 
 deficiency. 
 
 In a case where a mortgagee had assigned a bond and 
 mortgage, guaranteeing their payment, and an action was 
 brought against the mortgagor and guarantor, and the usual 
 decree of foreclosure and sale was demanded with a judg- 
 ment for deficiency against both, Chancellor Walworth held, 
 as to the proper form of decree, that " the proper decree, 
 where the mortgagor is himself a party to the suit, and is 
 primarily liable for the payment of the deficiency, and 
 a third person is made a party defendant who is only second- 
 arily liable, is to decree the payment of the deficiency by the 
 principal debtor in the first instance ; and to decree payment 
 of the am.ount of such deficiency against his co-defendant 
 who stands in the situation of his surety merely, only in 
 case it can not be collected of the principal debtor, aft«er the 
 return of an execution against such principal debtor unsatis- 
 fied. The decree in such cases should also direct that, in 
 case the amount of the deficiency is paid by the defen- 
 dant who is only secondarily liable for such deficiency, he 
 shall have the benefit of the decree, for the purpose of 
 obtaining satisfaction for the same amount, with the interest 
 thereon, from the defendant who is primarily liable. * * -^ 
 
 After the usual decree for the foreclosure and sale of the 
 mortgaged premises, and the payment of the debt and costs 
 out of the proceeds of such sale, and a decree over against 
 the mortgagor personally for the deficiency, if any, the 
 decree must further direct, that if the complainant is not 
 able to collect the amount of such deficiency out of the 
 estate of the mortgagor, upon the issuing of an execution, 
 
 ' In point, Hand v. Kennedy, 45 Youngs v. Tnistees, 31 N. J. Eq. (4 
 N.Y. Supr. Ct. (13 J. & S.) 385(1879); Stew.) 290 (1879).
 
 2iG DECREE ELKLNG LT ABILITY. [§ 203. 
 
 against his property, to the sheriff of the county in which he 
 resides, or of the county where he last resided in this state, 
 the defendants (assignors), upon the return of such execu- 
 tion unsatisfied, pay so much of such deficiency as remains 
 unpaid. * * * The decree must further direct that, if they 
 pay the amount thus decreed against them personally, or if 
 the same is collected out of their property, they shall have 
 the benefit of the decree against the mortgagor, for the 
 purpose of enabling them to obtain remuneration from him, 
 to the same extent."* 
 
 § 203. Decree must follow prayer of the complaint.— 
 
 The judgment for foreclosure, in fixing the order of liability, 
 must follow the demand in the complaint, if judgment is 
 taken by default or upon the report of a referee. This 
 judgment is not a personal one in any sense, but is more in 
 the nature of a judgment in rem; the plaintiff can not, 
 therefore, have a contingent personal judgment in the decree 
 of foreclosure against any of the defendants." Judgments of 
 foreclosure are too often entered without decreeing the 
 respective liabilities of the different parties to the action. 
 This may not render the judgment itself defective in any 
 way, -but it often causes litigation among the defendants in 
 order to determine their respective liabilities. 
 
 A judgment for deficiency can not be rendered against a 
 person liable for the debt, " unless he has appeared or has 
 been personally served with the summons " or has submitted 
 himself to the jurisdiction of the court.* Jurisdiction over 
 
 • Jones V. Stcinlierg, 1 Barb. Ch. decree acfiinst the obligor, TTind«, 
 
 (N. Y.) 252 (1845). In Luce v. for the deliciency, and in case an 
 
 Hinds, Clarke Ch. (N.Y.) 456 (1841), execution against Hinds does not 
 
 a case similar in all respects to realize the money, an execution must 
 
 Jones V. Steinberg, ViceChancellor afterwards go against Stow (guar&u- 
 
 Whittlesey says, " I shall be, there- tor) for any balance due after sale of 
 fore, compelled to decree against the ' the premises, and execution un^atis- 
 
 defendant, according to the prayer fied against the obligor Hinds." 
 
 of the complainant's bill. The order * Cobb v. Thornton, 8 How. (N. 
 
 must be a reference to a master to Y.) Pr. 66 (1852). See Welp v. 
 
 compute the amount due, —the final Guuther, 48 Wis. 54-3, (1819). 
 
 order will be for the sale of the » N. Y. Code Civ. Proc. §1627. 
 
 mortgaged premises, and a personal The same rule prevails in Ohio ;
 
 § 204.] JUDGMENT FOE DEFICIENCY. 247 
 
 the person is a prior requisite in New York practice, and 
 doubtless is in the practice of other states. Consequently 
 a personal judgment for deficiency can not be obtained 
 against a non-resident, unless he appears in the action ; and 
 though such a judgment be docketed against a non-resident 
 after service by publication or otherwise, it will be irregular 
 and void.* 
 
 § 204. Points in practice — The judgment for deficiency. 
 
 — The judgment for deficiency, which courts are now gener- 
 ally authorized to decree against parties personally liable for 
 the mortgage debt, is a judgment for the balance of the 
 debt remaining unsatisfied after a sale of the mortgaged 
 premises, and the application of the proceeds of the sale to 
 its payment.* . If part of the debt is due and part not due, 
 the judgment for deficiency can be rendered only for what 
 is due; a personal judgment can not be legally rendered for 
 a debt which has not matured.* The first step is to ascer- 
 tain the amount of the unpaid balance. The judgment 
 consequently can not be rendered even contingently, until 
 after the master in chancery or the referee appointed to sell 
 has made and filed his report.* It is the usual practice for 
 the referee to state the amount of deficiency in his report of 
 sale, and upon the confirmation of the report judgment for 
 the deficiency may be docketed.* It seems from recent 
 
 publication of the summons does * Cobb v. Thornton, 8 Ho-rr. (N. 
 
 not give jurisdiction for a personal Y.) Pr. 66 (1852). See Lipperd v. 
 
 judgment against a defendant ; Edwards, 39 Ind. 165 (1872). 
 
 Wood V. Stanberry, 21 Ohio St. 142 * Bank of Rochester v. Emerson, 
 
 (1871). ' 10 Paige Ch. (N. Y.) 359 (1848); 
 
 ' Gibbs V. Queen Ins. Co., 63 N. McCarthy v. Graham, 8 Paige Ch. 
 
 Y. 131 (1875); Schwinger v. Hickok, (N. Y.) 480 (1840); Bache v. Doscher. 
 
 58 N. Y. 280 (1873). 41 N. Y. Supr. Ct. (9 J. «& S.) 150 
 
 ■■! See Mutual Life Ins. Co. v. (1876) ; aflf'd 67 N. Y. 429. In Cali- 
 
 Southard, 25 N. J. Eq. (10 C. E. fornia there can be no judgment 
 
 Gr.) 337 (1874), for the practice in for a deficiency, till the referee has 
 
 New Jersey, which is very similar made his return that a balance 
 
 to that in New York. See the cases remains unpaid after the sale ; Hunt 
 
 cited below. v. Dohrs, 39 Cal. 304 (1870), citing 
 
 » Skelton ▼. Ward, 51 Ind. 46 the Practice Act, § 246. See also Cul- 
 
 (1875); Smith v. Osborn, 33 Mich. ver v. Rogers, 28 Cal. 520 (1865); 
 
 410(1876). Englund v. Lewis, 25 Cal. 337
 
 248 
 
 JUDGMENT FOR DEFICIENCY. 
 
 [§ 204. 
 
 decisions that a confirmation of the referee's report of sale is 
 not necessary prior to issuing execution.* 
 
 The sum paid for the premises at the foreclosure sale 
 must be taken as a conclusive determination of their value 
 as between the parties to the suit.' In determining the 
 amount of the judgment for deficiency, there must be 
 deducted from the proceeds of the sale the costs and 
 expenses of the plaintiff's attorney in conducting the action, 
 the expenses and fees of the referee making the sale, and all 
 taxes, ^ assessments and water rates* which are liens upon 
 the property sold ; the amount of the proceeds then remain- 
 ing is to be deducted from the amount of the debt and interest 
 as stated in the decree of foreclosure, and the balance will 
 furnish the amount for the judgment of deficiency. 
 
 It has been held erroneous to enter a judgment for defi- 
 ciency for a portion of the mortgage debt which has become 
 due, although, because the premises were so situated that 
 they could not be sold in parcels, the entire proceeds of the 
 foreclosure sale were applied to pay the debt due and to 
 become due.* 
 
 (1864) ; Cormerais v.^ Genella, 22 
 Cal. 116 (1863) ; Rowland v. Leiby, 
 14 Cal. 156 (1859). 
 
 ' Bache v. Doscher, 41 N. Y. 
 Supr. Ct. (9 J. & S.) 150 (1876); aff'd 
 67 N. Y. 429; Bicknell v. Byrnes, 23 
 How. (N. Y.) Pr. 486 (1862) ; Cobb 
 V. Thornton, 8 How. (N. Y.) Pr. 66 
 (1852); Springsteen v. Gillett, 30 
 Hun (N Y.) 260 (1883) ; Moore v. 
 Shaw, 15 Hun (N. Y.) 428 (1878); 
 ali'd 77 N. Y. 513 (1879). In 
 Wisconsin a prior order of con- 
 firmation is necessary ; Laws of 
 1862, chap. 243 ; Tormey v. Ger- 
 hart, 41 Wis. 54 (1876); also in 
 Nebraska, Clapp v. Maxwell, 13 
 Neb. 542 (1882). See White v. Zust, 
 28 N. J. Eq. (1 Stew.) 107 (1877). 
 In Michigan a special application 
 must be made to the court, before 
 execution can issue on a judgment 
 of deficiency ; McCricket v. Wilson, 
 
 50 Mich. 513 (1883); Gies v. 
 Green, 42 Mich. 107 (1879). In 
 Leviston v. Swan, 33 Cal. 480 (1867), 
 it was held that the clerk should 
 enter up judgment for the deficiency 
 on the filing of the referee's report 
 of sale without the further order of 
 the court. 
 
 * In point, Snyder v. Blair, 33 N. 
 J. Eq. (6 Stew.) 208 (1880), collating 
 and reviewing the cases. 
 
 3 N. Y. Code Civ. Proc. § 1676 ; 
 Cornell v. WoodrufE, 77 N. Y. 203 
 (1879); Fleishauer v. Doellner, 60 
 How. (N. Y.) Pr. 438 (1881). 
 
 * Marshall v. Davis, 78 N. Y. 414, 
 422 (1879), reversing 16 Ilun (N. Y.> 
 606; Argald v. Pitts, 78 N. Y. 
 239 (1879) ; Cornell v. Woodruff, 77 
 N. Y. 205 (1879). 
 
 * Taggert v. San Antonio, etc., 18 
 Cal. 460 (1861) ; Skelton v. Ward, 
 
 51 Ind. 46 (1875); Darrow T.
 
 §§ 205-206.J MOKTGAGOE LIABLE. 249 
 
 PARTIES ORIGINALLY LIABLE. 
 
 § 205. Introductory. — For the purpose of a logical 
 analysis, the subject-matter of this chapter and the following 
 chapter will be considered under the sub-divisions, Parties 
 Originally Liable and Parties Subsequently Liable. Some 
 writers have considered the following subject-matter under 
 the headings. Parties Primarily Liable and Parties Second- 
 arily Liable ; but this division is not logical except as 
 primary means original, and secondary means subsequent ; 
 furthermore, the words "primary" and "secondary" are too 
 suggestive of the relation of principal and surety, which 
 would certainly not be a logical division of this subject, as 
 the relation is so variable and subject to change, whenever 
 a new party becomes related to a bond and mortgage in 
 such a way as to make himself personally liable for the 
 debt. 
 
 The logical division, Original and Subsequent, also fur- 
 nishes an opportunity to consider the parties liable in 
 chronological order. In the following part of this chapter, 
 then, attention is to be given to parties who originally be- 
 came liable for the mortgage debt, — that is, to those who 
 became liable at the inception of the bond and mortgage. 
 It is to be remarked again, that parties are not considered 
 with reference to their being "necessary" or "proper," 
 but with reference to their liability, it remaining at the 
 option of the plaintiff whether he will make them parties or 
 not, due regard being had always to the relation of principal 
 and surety. 
 
 § 206. Mortgagor, signing the bond or note or cove- 
 nanting in the mortgage for payment of the debt, liable. — 
 
 The fact that a mortgagor who signs a bond or note, which 
 is accompanied by a mortgage, for the payment of a sum of 
 money, or who covenants in the mortgage without a bond 
 or note to pay the same, is liable for the payment of that 
 sum, rests upon the fundamental principle of law, that every 
 man must perform his contracts and is liable for any breach 
 
 Scullin, 19 Kan. 57 (1877) ; Smith v. forth v. Coleman, 23 Wis. 528 
 Osborn, 33 Mich. 410 (1876) ; Dan- (180«).
 
 150 
 
 MUJiiaAaOB PEKSOifALLy LIABLE. 
 
 [§ 207. 
 
 of them.* There is scarcely a case in which the question of 
 deficiency is considered that does not give an obiter dictum, 
 that the mortgagor is the first person to become liable for 
 the payment of the debt." That his relation as principal 
 may be changed to that of surety, will be seen hereafter ; but 
 his name once subscribed to the contract of indebtedness, 
 he will always remain liable. 
 
 If no note, bond or other legal obligation was given with 
 the mortgage, the plaintiff will be confined to the mortgaged 
 premises for his remedy,' unless the claim on which the 
 mortgage is founded was an equitable one, or there was a 
 debt existing independent of the mortgage.* The same is 
 true where the debt is barred by the statute of limitations, or 
 the obligor has been discharged in bankruptcy proceedings." 
 
 § 207. All persons signing the bond or note which the 
 mortgage accompanies liable. — In an action to foreclose 
 a bond and mortgage, where the bond has been executed by 
 
 » Schwinger v. Hickok, 53 N. Y. 
 280 (1873) ; Hunt v. Chapman, 51 
 N. Y. 555 (1873) ; Curtiss v. Tripp, 
 Clarke Ch. (N. Y.) 317 (1840) ; Marsh 
 V. Pike, 10 Paige Ch. (N. Y.) 595 
 (1844) ; Bank of Rochester v. Emer- 
 son, 10 Paige Ch. (N. Y.) 359 (1843); 
 Leonard v. Morris, 9 Paige Ch. (N. 
 Y.) 90 (1841). See National Fire 
 Ins. Co. V. McKay, 21 N. Y. 191, 
 193 (1860), where Comstock, Ch. J., 
 says oSiYer, ''S. was the mortgagor 
 and was personally bound for the 
 payment of the debt." See Wads- 
 worth V. Lyon, 93 N. Y. 201 (1883) ; 
 Price V. State Bank, 14 Ark. 50 
 (1853) ; Snell v. Stanley, 58 111. 31 
 (1871) ; Stevens v. Campbell, 21 lud. 
 471 (1863) ; Darrow v. Scullin, 19 
 Kan. 57 (1877) ; Foote v. Sprague, 
 13 Kan. 155 (1874), where the notes 
 were all due by the terms of an 
 interest clause and judgniciit for the 
 whole amount was held proper ; 
 Conn. Mat. Life Ins. Co. v. Tyler, 
 8 Biss. C. C. 369 (1878), holding that 
 the fact that a mortgagor has con- 
 
 veyed his equity of redemption in 
 the premises does not release him 
 from his personal liability on the 
 bond. See contra in New Jersey 
 since the act of 1880, which provides 
 that a judgment for deficiency shall 
 not be decreed in a foreclosure ; 
 Allen V. Allen, 34 N. J. Eq. (7 
 Stew.) 493 (1881) ; Naar v. Union & 
 E. L. Co., 34 N. J. Eq. (7 Stew.) 
 Ill (1881). 
 
 2 Calvo V. Davies, 73 N. Y. 211, 
 215 (1878) ; Birnie v. Main, 29 Ark. 
 591 (1874). 
 
 ^ Coleman v. VanT^enssdaer, 44 
 How. (N. Y.) Pr. 368 (1873) ; Hunt 
 V. Lewin, 4 Stew. & P. (Ala.) 138 
 (1833) ; Fletcher v. Holmes, 25 Ind. 
 458 (1865) ; VanCrunt v. Mismer, 8 
 Minn. 232 (1863). 
 
 * Gaylord v. Knapp, 15 Hun (N. 
 Y.) 87 (1878). "Every mortgage 
 implies a loan and every loan a 
 debt ;" Critcherv. Walker, 1 Murpli. 
 (N. C.) 488 (1810). 
 
 * Kiuloch V. Mordecai, 1 Speer's 
 (S. C.) Eq. 404 (1844).
 
 §207.] AT.T. PEESOlfS SIGNING BOND LIABLE. 251 
 
 persons other than the mortgagors, as well as by the mort- 
 gagors, it is proper to make such obligors parties to the 
 action and to demand against any or all of them a judgment 
 for deficiency, as they are all liable upon the bond for the 
 debt.' This is also true if the instrument of indebtedness 
 is a note' or other form of obligation.' The authority to 
 join such obligors in an action to foreclose a mortgage and 
 to demand a personal judgment for deficiency against them, 
 is derived from the codes and statutes of the several 
 states.* 
 
 In a recent foreclosure in New York, where the bond had 
 been signed by others than the mortgagors, the court held : 
 •'The Revised Statutes provide that if the mortgage debt be 
 secured by the obligation or other evidence of debt, of any 
 other person besides the mortgagor, the complainant may 
 make such person a party to the bill, and the court may de- 
 cree payment of the balance of such debt remaining 
 unsatisfied after a sale of the mortgaged premises, as well 
 against such other person as the mortgagor, and may enforce 
 such decree as in other cases. The same provision is, in 
 substance, continued in the Code. These authorities justify 
 the plaintiff in joining in this action all the parties to the 
 bond, the payment of which is secured by the mortgage 
 sought to be foreclosed, and in demanding a judgment 
 against all the obligors for any deficiency which may arise.'" 
 
 If a husband executes with his wife a bond, to secure which 
 a mortgage is given on her separate real estate, he will 
 be liable for a personal judgment in a foreclosure.* A 
 person who has signed the bond or note, but not the 
 
 > Scofield V. Doscher, 72 N. Y. » Thome v. Newby, 59 How. (N. 
 
 491 (1878) ; Bathgate v. Haskin, 59 T.) Pr. 120 (1880), i^er VanVorst, J.; 
 
 N. Y. 533 (1875) ; Thome v. Newby, Sprague v. Jones, 9 Paige Ch. (N. Y.) 
 
 59 How. (N. Y.) Pr. 120 (1880). In 395 (1842), was very similar, in that 
 
 point, Suydam v. Bartle, 9 Paige the bond was signed by two persons 
 
 Ch. (N. Y.) 294, 295 (1841). and the mortgage by only one ; both 
 
 ' Davenport Plow Co. v. Mewis, obligors on the bond were held liable 
 
 10 Neb. 317 (1880). for a judgment of deficiency. 
 
 * Fond du Lac Harrow Co. ▼. * Conde v. Shepard, 4 How. (N 
 Haskins, 51 Wis. 135 (1881). Y.) Pr. 75 (1849). 
 
 * N. Y. Code Civ. Proc, § 1627.
 
 252 PARTIES GUAEANTEELNG MORTGAGE LIABLE. [§208. 
 
 mortgage, is not an indispensable party to maintain the 
 action or to perfect the title, as he has no interest in the 
 premises.* 
 
 Where statutory provision has not been made for judg- 
 ments of deficiency, the obligation upon the bond can be 
 enforced only by a separate action at law. Folger, J., has 
 said, in considering this question, that the statute " was 
 enacted to give the court in which the foreclosure of the 
 mortgage was had full jurisdiction over the whole subject, 
 and to save the necessity of actions at law, and to allow one 
 court to dispose of the whole subject, instead of compelling 
 parties to resort to other tribunals ; * * * and is applicable 
 to every case where the owner of the mortgage has any 
 personal security for the mortgage debt, whether it be the 
 bond of the mortgagor or the covenant of another person.'"' 
 
 § 208. All persons guaranteeing the bond and mort- 
 gage at its inception liable. — All persons who guarantee 
 the payment or collection of a bond and mortgage by a 
 separate instrument, at the time of their execution or before 
 their transfer, are liable for the mortgage debt and may be 
 made parties to an action to foreclose, for the purpose of 
 recovering a judgment for deficiency against them as stated 
 in the preceding section.' 
 
 There are almost no cases ruling directly upon this question, 
 but from analogous cases* and the general principles of law 
 applicable to guarantors and sureties, the proposition of this 
 section is unquestionably true. In an action where it 
 appeared that the mortgagee had assigned his mortgage, 
 
 > Deland ▼. Mershon, 7 Clarke 6 Paige Ch. (N. T.) 43 (1836) ; Bur- 
 
 (lowa), 70 (1858). In Milroy v. dick v. Burdick, 20 Wis. 348 (1866). 
 
 Stockwell, 1 Cart. (Ind.) 35 (1848), it See Grant v. Griswold, 82 N. Y. 
 
 was held that such an obligor was a 569 (1880) ; Hunt v. Purdy, 82 N. 
 
 necessary party, and that upon his Y. 486 (1880). 
 
 death the action should be revived * Jones v. Steinbergh, 1 Barb. Ch. 
 
 against his personal representatives. (N. Y.) 250 (1845) ; Luce v. Hinds, 
 
 « Scofield V. Doscher, 72 N. Y. Clarke Ch. ( N. Y. ) 453 ( 1841 ) ; 
 
 491, 493 (1878). Bristol v. Morgan, 3 Edw. Ch. (N. 
 
 •Mathews v. Aikin, 1 N. Y. 595 Y. ) 142 (1837); Curtis v. Tyler, 
 
 (1848) ; Curtis v. Tyler, 9 Paige Ch. 9 Paige Ch. (N. Y.) 435 (1842). 
 (N. Y.) 435 (1842) ; Guion v. Kuapp,
 
 § 209.] MAKKIED WOMAN LIABLE. 253 
 
 guaranteeing its payment, and subsequently taken the bond 
 of a third person as a further security for the payment of 
 such mortgage, Chancellor Walworth held that the third 
 person was liable for a judgment of deficiency in the fore- 
 closure, saying, " It is well settled, however, that where a 
 surety, or a person standing in the situation of a surety, for 
 the payment of a debt, receives a security for his indemnity 
 and to discharge such indebtedness, the principal creditor is, 
 in equity, entitled to the full benefit of that security."* 
 
 § 209. A married woman signing the bond or other 
 obligation liable — General principles. — With the general 
 growth during the past century in England and in America 
 of legislation and decisions, enlarging the powers of married 
 women over the disposition of their property, there has been 
 developed a corresponding or correlative line of decisions in 
 the courts, holding them and their separate estates respon- 
 sible for any breach of their contracts. It is not within the 
 scope of this work to discuss the history or principles of this 
 very interesting branch of the law.' Our attention must be 
 confined simply to a general statement of the latest rulings 
 of the courts upon the question of a married woman's 
 liability for the payment of a mortgage debt, and to showing 
 that she is a proper party to a foreclosure, if a judgment for 
 deficiency is desired against her. The common-law doctrine, 
 which rendered a married woman totally incapable of making 
 contracts, practically remains in force in no state, but has 
 been modified by legislation or innovations of the courts. 
 
 • Curtis V. Tyler, 9 Paige Ch. (N. §§ 106-118. The history and prin- 
 T.) 435 (1842), giving citations in ciples of the same law in the state of 
 point. In Maure v. Harrison, 1 Eq. New York are given in greater 
 Ca. Abr. 93 (1692), it was held that detail by Abner C. Thomas in his 
 in equity a bond creditor was entitled Treatise on the Law of Mortgages 
 to the benefit of all counter-bonds (2d ed.), §§ 605-619. To the student 
 or collateral security given by the of equity jurisprudence, the develop- 
 principal debtor to his surety. ment of this branch of the law iu 
 
 * The history of the law affecting England and America is very inter- 
 married women's contracts and their esting, as its different stages can 
 control of their separate property is be so accurately traced in the 
 ably discussed by Leonard A. Jones legislation and decisions of the two 
 in his Treatise on Mortgages (3d ed.), countries
 
 254 
 
 MAIlillED WOMAjS^ LIABLE WHEN. 
 
 [§ 210. 
 
 until, at present, it is a universal rule that a married woman 
 can bind her separate estate for all purposes that may be 
 necessary to enable her to hold and enjoy the same. 
 
 § 210. A married woman signing the bond or other 
 obligation liable— Act of 1884 in New York. — The New 
 
 York act of 1 884 in relation to the rights and liabilities of mar- 
 ried women, has rendered obsolete a great majority of the 
 decisions adjudicating the liabilities of married women and 
 their separate estates for the performance of their contracts 
 under the acts of 1848-49 and 1860-62. That act provides 
 that "A married woman may contract to the same extent, 
 with like effect and in the same form as if unmarried, and 
 she and her separate estate shall be liable thereon, whether 
 such contract relates to her separate business or estate or 
 otherwise, and in no case shall a charge upon her separate 
 estate be necessary."* 
 
 > Laws of 1884, chap. 381. This 
 act was passed A[ay 28, 1884, and by 
 its provisions took effect immediate- 
 ly, so that all contracts made prior 
 to May 28, 1884, are to be adjudi- 
 cated according to the statutes and 
 decisions in force prior to that date. 
 It is also provided, "that this act 
 shall not affect nor apply to any 
 contract that sliall be made between 
 husband and wife." 
 
 The position of Sanf ord E. Church, 
 Chief Judge of the New York Court 
 of Appeals, in relation to questions 
 effecting a married woman's liability 
 for her contracts, must be recognized 
 here ; his opinions have, undoubted- 
 ly had a strong influence in effect- 
 ing the passage of this act. His de- 
 cisions have, at least, been almost 
 prophetic. In the leading case of 
 the Manhattan B, & M. Co. v. 
 Thompson, 58 N. Y. 84 (1874), he 
 said : "If, when the legislature 
 changed the common law in essential 
 particulars in regarding the interests 
 ia property of the husband and wife 
 
 to a considerable extent as distinct 
 and independent, and in recognizing 
 the capacity of the wife to judge and 
 provide for what her own welfare 
 requires in acquiring and holding 
 the legal title to property, and man- 
 aging and disposing of the same as if 
 unmarried and without subjection to 
 the control of her husband, the 
 courts had adopted as a reasonable 
 and legitimate sequence, the correla- 
 tive rule of capacity to contract debts 
 as if unmarried, restricted only to 
 their collection from separate prop- 
 erty, it might well be claimed that 
 the rights of married women would 
 have been as well if not better pro- 
 tected practically, sound public 
 policy, and business morality more 
 promoted, and a flood of expensive 
 and vexatious litigation prevented. 
 " Courts of equity in England 
 have uniformly exercised a power of 
 enforcing contracts of married 
 women against their separate estates, 
 which has practically produced this 
 result (2 P. Wms. 144 ; 1 Cr. & Ph.
 
 § 211. J FORMER RULE IN NEW YORK. 255 
 
 This law can, of course, have no ex post facto application 
 and for a decade, at least, the decisions under the old 
 statutes will be of importance, and must be applied to cases 
 arising on contracts made prior to 1884. All decisions which 
 have been rendered in New York upon the liability of a 
 person obligated for a mortgage debt, to have a judgment 
 for deficiency rendered against him, will, hereafter, apply 
 with equal force to a married woman. In Massachusetts* 
 and some other states, substantially the same law is in force, 
 while in England the courts of equity have never held other- 
 wise than that a married woman's separate estate was liable 
 for every debt she might contract in any way. Regarding 
 her separate estate she can contract as freely as a man ; and 
 her estate is equally liable for all her obligations, whatever 
 their form or nature.' At laWj however, she and her separate 
 estate are not liable. 
 
 §211. A married woman signing the bond or other 
 obligation liable — Rule in New^ York prior to 1884, and in 
 most states at present. — The decisions which make a 
 married woman who has signed a bond or other obligation, 
 to which a mortgage is collateral, liable for a judgment of 
 deficiency in an action to foreclose a mortgage, are, under 
 the same state of facts, precisely the same in their reasoning 
 and conclusions as those which establish her liability for the 
 performance of her other contracts. The cases are numerous 
 in fixing her liability upon ordinary contracts, and by analogy 
 are applicable to her liability in mortgage foreclosures where 
 a judgment for deficiency is sought against her.* 
 
 48). But our courts have adopted * Manhattan B. &M. Co, v. Thomp- 
 
 more conservative principles, and it son, 58 N. Y. 80, 85 (1874); Yale v. 
 
 is better to adhere to them until the Dederer, 22 N. Y. 450 (1860). 
 
 legislature in its wisdom and power *If the wife has signed the mort- 
 
 iMll see fit to change them." To the gage alone and not the bond, it will 
 
 same effect is his opinion in Yale v. be erroneous to demand a personal 
 
 Dederer, 68 N. Y. 334 (1877) ; this judgment against her ; Gebhart v. 
 
 case was three times before the Court Hadley, 19 Ind, 270 (1862); in Buell 
 
 of Appeals ; 18 N. Y. 265 (1858) ; 22 v. Shuman, 28 Ind. 464 ( 1867 ), 
 
 N. Y. 450 (1860); 68 N. Y. 334 (1877). she had signed the note also, but 
 
 > Nourse v. Henshaw, 123 Mass. was held not personally liable. In 
 
 96 (1877). Brick v. Scott, 47 Ind. 899 (1874),
 
 256 MAERIED woman's FORMER LIABILITY. [§211. 
 
 Church, Ch. J., who made a careful study of the liability 
 of the separate estate of a married woman for her contracts, 
 concluded that such liability may be enforced, — i. When 
 created in or about carrying on a separate trade or business of 
 the wife ;' 2. When the contract relates to, or is made for the 
 benefit of, her separate estate ;* 3. When the intention to 
 charge her separate estate is expressed in the instrument or 
 contract by which the liability is created.' These three propo- 
 sitions substantially embody the law as it exists in most of the 
 states ; some states follow the rule of the English courts of 
 equity as stated in the preceding section, and a few have gone 
 as far as New York in the act of 1884. "The general princi- 
 ples applicable to this subject have been too firmly settled by 
 repeated adjudications, to justify a reconsideration of the 
 grounds upon which they were arrived at. The most important 
 of these principles is, that the statutes of 1 848-49 and 1 860-62 
 did not operate to remove the general disability of married 
 women to bind themselves by their contracts, not even to 
 the extent of their separate estates. This made it necessary 
 to define specifically, in what cases and under what circum- 
 stances such contracts could or ought to be enforced against 
 
 the court went so far as to hold void suretyship, whether as indorser, 
 
 a mortgage given on her separate guarantor, or in any other manner ; 
 
 estate, the proceeds of which wen* and such contract, as to her, shall be 
 
 to the husband ; apparently over' void. Rev. Stat. (1881), chap. 71, 
 
 ruled, however, in Herron v. Herron, § 5119. 
 
 91 Ind. 278 (1883). See also McCarty ' Frecking v. Holland, 53 N. Y. 
 
 v. Tarr, 83 Ind. 444 (1882) ; Moffitt 422 (1873) ; Barton v. Beer, 35 Barb. 
 
 V. Roche, 77 Ind. 48 (1881) ; Martin (N. Y.) 78 (1861). 
 
 v. Caubie, 72 Ind. 67 (1880). In « Ballin v. Dillaye, 37 N. Y. 35 
 
 Sperry v. Dickinson, 82 Ind. 132 (1867) ; Owen v. Cawley, 36 N. Y. 
 
 (1882), the wife covenanted in the 600(1807). 
 
 mortgage to pay a note, and she was * Yale v. Dederer, 22 N. Y. 450 
 
 held liable. See Merchants' Nat. (1860); Yale v. Dederer, 18 N.Y. 265 
 
 Bk. V. Raymond, 27 Wis. 567 (1871), (1858) ; Mack v. Austin, 29 Hun 
 
 where no question seems raised but (N. Y.) 534 (1883). See Penn. Coal 
 
 that a feme covert is bound as much Co. v. Blake, 85 N. Y. 226 (1881) ; 
 
 by her contracts as a /(Sme sc>Ze. Rog- Layman v. Shultz, 60 Ind. 541 
 
 ers V. Weil, 12 Wis. 664(1860). The (1878) ; Brick v. Scott, 47 Ind. 299 
 
 statute of Indiana is peculiar in that (1874) ; McGlaughlin v. O'liourke, 
 
 it provides that a married woman 12 Iowa, 459 (1861). 
 fchall not enter into any contract of
 
 §212.J MARRIED WOMAN LIABLE. 257 
 
 their separate property, and the difficulty of accomplishing 
 this purpose has led to most of the Htigation on the 
 subject."* 
 
 § 212. Personal liability of married woman mortgaging 
 her separate estate. — To the above must be added a fourth 
 proposition that a mortgage given by a married woman on 
 her separate estate is always valid against her to the extent 
 of the value of the mortgaged lands, the reason for this 
 being that the mortgage is a specific charge upon a specific 
 part of her separate estate, — " an appropriation only of so 
 much of her estate as the mortgage covers."* This proposi- 
 tion is universally sustained in the English and American 
 courts, and for its reason relates back to the broad principle 
 that a married woman can mortgage her real estate.' 
 
 Payne v. Burnham,* in which also the opinion was written 
 by Church, Ch. J., is a leading case upon the question of a 
 married woman's liability for a judgment of deficiency in the 
 foreclosure of a bond and mortgage which she executed 
 jointly with her husband. The mortgage in that case was 
 executed on her separate estate, but she received no part of 
 the loan, the entire amount going to her husband ; she was 
 held not liable for a judgment of deficiency. If, however, 
 
 "Manhattan B. & M. Co. y. Hun (N. Y.) 154 (1878). See Spear v. 
 
 Thompson, 58 N. Y. 80, 83 (1874), Ward, 20 Cal. 660 (1S62) ; Eaton v. 
 
 per Church, Ch. J. ; Corn E. Ins. Nason, 47 Me. 132 (1860) ; Black 
 
 Co. 7. Babcock, 42 N. Y, 613 (1870); v. Galway, 24 Pa. St. 18 (1854) ; 
 
 s. c. 35 How. (N. Y.) Pr. 216 ; Voorhies v. Granberry, 5 Baxt. 
 
 Ballinv. Dillaye, 37 N.Y. 35(1867); ( Tenn. ) 704 (1875); Hollis v. 
 
 Owen V. Cawley, 36 N. Y. 600 Francois, 5 Tex. 195 (1849). See 
 
 (1867) ; Yale v. Dederer, 18 N. Y. Penn. act of 1848. 
 282 (1858) ; s. c. 22 N. Y. 460 (1860); » See ante § 134. 
 
 68 N. Y. 329 (1877) ; Vrooman v. ■* 62 N. Y. 69 (1875), reversing a 
 
 Turner, 8 Hun (N. Y.) 78 (1876) ; Hun (N. Y.) 143 ; 4 T. &. C. (N. Y.) 
 
 reversed in part, 69 N. Y. 280. 678. See Williamson v. Duffy, 19 
 
 Contra, Brown v. Herman, 14 Abb. Hun (N, Y.) 312 (1879) ; McKeon v. 
 
 <N. Y.) Pr. 394 (1863). Hagan, 18 Hun (N. Y.) 65 (1879) ; 
 
 * Payne v. Burnham, 62 N. Y. 74 Manhattan Life Ins. Co. v. Glover, 
 
 (1875) ; Corn E. Ins. Co. v. Babcock, 14 Hun (N. Y.) 153 (1878). In Rourk 
 
 42 N. Y. 613 (1870) ; Kidd v. Con- v. Murphy, 12 Abb. (N. Y.) N. C. 
 
 way, 65 Barb. (N. Y.) 158 (1873) ; 402 (1883), she bound her separate 
 
 MaoXattan L. Ins. Co. v. Glover, 14 estate expressly.
 
 258 decedents' estates liable. [§213. 
 
 she had received a part only of the consideration for which 
 the bond signed by her was given, she would have been held 
 liable for the deficiency.* In a case where a married woman 
 received the consideration of a mortgage upon her promise 
 to repay it, it was held that it was borrowed for the benefit 
 of her separate estate. She answered that she was a married 
 woman not carrying on any separate business ; a demurrer 
 to the answer by the complainant was sustained.* The 
 complaint must state specifically the grounds on which a 
 judgment for deficiency is demanded against a married 
 woman ; otherwise, a personal judgment taken upon default 
 will be held void.* 
 
 A bond and mortgage executed by a married woman to 
 secure part of the purchase money for premises conveyed 
 to her, will render her liable for a judgment of deficiency in 
 an action to foreclose, on the theory that the transaction 
 is for the benefit of her separate estate.* In an action to 
 foreclose a purchase money mortgage, Park, J., said, " I do 
 not understand how it can be said that a debt, contracted 
 on the purchase of property which the purchaser takes into 
 possession and enjoys, is not a debt contracted for the 
 benefit of the purchaser's estate." * 
 
 § 213. Persons originally liable, deceased, their estates 
 liable — Personal representatives proper parties. — Where 
 a mortgagor or other person who was personally liable for a 
 deficiency on the foreclosure of a mortgage is dead, his 
 personal representatives may be made parties to an action 
 
 • Jones V. Merritt, 23 Hun (N. T.) Shnyder v. Noble, 94 Pa. St. 286 
 
 184 (1880). (1880) ; Brunner's Appeal, 57 Pa. St. 
 
 » Williamson v. Duffy, 19 Hun 46 (1868). 
 (N. Y.) 312 (1879). » Ballin v. Dillaye. 87 N. T. 85 
 
 » Manhattan Life Ina. Co. v. (1867) ; Rogers v. Ward, 90 Mass. 
 
 Glover, 14 Hun (N. T.) 153 (1878). (8 Allen), 387 (1864) ; Basford v. 
 
 * Ballin v. Dillaye, 37 N. Y. 35 Pearson, 89 Mass. (7 Allen), 505 
 (1867); s. c. 35 How. (N. Y.) Pr. (1863); Stewart v. Jenkins, 88 Mass. 
 216 ; Flynn v. Powers, 35 How. (N. (6 Alleu), 300 (1863) ; Ames v. Fos- 
 Y.) Pr. 279 (1868) ; Vrooman v. Tur- ter, 85 Mass. (3 Allen), 541 (1862). 
 ner, 8 Hun (N. Y.) 78 (1876), re- But in Pemberton v. Johnson, 46 
 versed in part, 69 N. Y. 280 ; Chase Mo. 342 (1870), she waa held not 
 V. Hubbard, 99 Pa. St. 226 (1881) ; personally liable.
 
 § 213.] 
 
 DECEDENTS ESTATES LIABLE. 
 
 259 
 
 to foreclose the mortgage, and a decree may be rendered 
 therein that the deficiency be paid out of the estate in their 
 hands in the due course of its administration.' 
 
 This proposition was first advanced by Chancellor Wal- 
 worth in Leonard v. Morris,* and has never been seriously 
 questioned. He held, "Where the person who is thus 
 secondarily liable for such deficiency is dead, I can at present 
 see no legal objection to making his personal representatives 
 parties to the suit for the purpose of obtaining a decree 
 against them for the payment of such deficiency out of the 
 estate of the decedent in their hands, to be paid in a due 
 course of administration. * * * No decree can be made for 
 the payment of the deficiency out of the estate of the dece- 
 dent, so as to entitle the complainant to an execution 
 thereof in this court, until a full account of the administra- 
 tion of the estate has been taken ; except in those cases 
 where the executors and administrators admit assets suffi- 
 cient to pay the complainant's debt, and all other debts of an 
 equal and of a higher class which were due by the decedent.'* 
 
 > Fliess V. Buckle3^ 90 N. Y. 286 
 <1883) ; Glacius v. Fogel, 88 N. Y. 
 439 (1882) ; Lockwood v, Fawcett, 
 17 Hun (N. Y.) 147 (1879) ; Scofield 
 v. Dosclier, 10 Hun (N. Y.) 583 
 ^1877) ; aff'd 72 N. Y. 491. For the 
 practice in South Carolina, see Gray 
 V. Toomer, 5 Rich. (S. C.) L. 261 
 (1852), In Drayton v. Marshall, 
 Jllce's (S. C.) Eq. 373 (1839), per- 
 sonal representatives were held 
 proper parties ; and it was further 
 held that the balance of a mort- 
 gage debt was entitled to priority 
 of payment out of the general es- 
 tate over simple contract debts. See 
 Edwards v. Sanders, 6 S. C. 316 
 (1874). See Rodman v. Rodman, 
 64 Ind. 65 (1878), supporting the 
 text, and holding that there can be 
 no decree over for a deficiency unless 
 the personal representatives are 
 made parties. See the earlier case 
 oS Newkirk v. Burson, 21 Ind. 129 
 
 (1863), to the contrary. In Prieto 
 V. Duncan, 22 111. 26 (1859), a decree 
 for deficiency was taken against the 
 estate of a deceased mortgagor, none 
 of his personal representatives hav- 
 ing been made parties ; on appeal it 
 was held error, and the court fol- 
 lowed the New York rule in Leonard 
 V. Morris, 9 Paige Ch. (N. Y.) 90 
 (1841). In Bennett v. Spillars, 7 
 Tex. 600 (1852), the New York rule 
 was established for Texas, though no 
 authorities are cited in the opinion, 
 per Hemphill, Ch. J. Contra to the 
 text is Pechaud v. Rinquet. 21 Cal. 
 76 (1862), and Fallon v. Butler, 21 
 Cal. 24 (1862), holding that a judg- 
 ment for deficiency -can not be 
 rendered against personal represen- 
 tatives, but that the actual deficiency 
 can be presented to them for pay- 
 ment in the due course of adminis- 
 tration. 
 » 9 Paige Ch. (N. Y.) 90, 92 (1841).
 
 260 EXECUTORS DEFENDANTS DEFICIENCY. [§214. 
 
 § 214. Personal representatives proper defendants 
 under recent decision in New York. — Judge Miller of 
 the New York Court of Appeals cited this case with 
 approval in 1882, saying, "If the mortgaged premises were 
 inadequate and the security thus failed, the debt was still 
 existing for what was unpaid, and the remedy was perfect 
 against the mortgagor under the statute, which was evidently 
 designed for the purpose of avoiding the necessity of two 
 separate actions. If the mortgagor was alive, the judgment 
 would have been against him personally, and upon his 
 decease his estate would have been liable to pay the same, 
 and his executors or administrators could have been com- 
 pelled to apply funds in their hands in liquidation of the 
 judgment. That the action was brought after the mort- 
 gagor's death, and against the executors, can make no 
 difference, and does not relieve them from the liability 
 which the testator had incurred, and which they would be 
 obliged to meet, had the judgment preceded his death. The 
 foreclosure of the mortgage was in fact against the execu- 
 tors, who were standing in the place of the mortgagor, and 
 the judgment was against his representatives, who were 
 liable to satisfy the same out of any assets of the mortgagor 
 in their hands. It is very clear upon principle that the 
 representatives are liable to pay the debt of a deceased party 
 in any event. But if any doubt can properly arise, it is 
 settled by the statute which authorizes actions to be main- 
 tained by and against executors in all cases in which the 
 same might have been maintained by or against their 
 respective testators. The case of Leonard v. Morris holds 
 distinctly that when the mortgagor or other party person- 
 ally liable for the deficiency in a foreclosure case is dead, his 
 personal representatives may be parties to the suit, to enable 
 the complainant to obtain a decree that the deficiency be 
 paid out of the estate in their hands in a due course of 
 administration. The rule stated is well settled, and if any 
 different one was adopted, the execution of a bond would 
 be an idle ceremony in case of the maker's death."* 
 
 • Glacius V. Fogel, 88 N. Y. 439 (1882).
 
 § 214.] EXECUTORS DEFENDANTS DEFICIENCy. 261 
 
 In an action to foreclose, where judgment was demanded 
 against the survivor of two obligors, and further that on 
 the return of an execution against him unsatisfied the 
 balance be adjudged to be a debt against the estate of 
 the deceased obligor, to be paid by his administrator in the 
 due course of administration, the court held that a decree 
 could not be made against the estate of the decedent in the 
 same action.* But it is doubtful whether this is good law 
 
 ' Vice-Chancellor Whittlesey, in 
 writing the opinion in Rhoades v. 
 Evans, Clarke Ch. (N. Y.) 170 
 (1840), says: "These provisions 
 would authorize a personal decree 
 against Evans, and against Rochester 
 if he was living, for any such bal- 
 ance: but will it authorize such 
 decree against Rochester's adminis- 
 trator, he being dead ? Such decree 
 is authorized only when such bal- 
 ance is recoverable at law. This bill 
 is filed against Evans and the admin- 
 istrator, widow and heirs of Roches- 
 ter. For the purpose of obtaining 
 a sale of the land, all these are 
 rightly made parties ; but can they 
 be joined for the purpose of a per- 
 sonal decree against them jointly ? 
 This question is answered by an 
 answer to the question whether they 
 could be jointly sued upon the bond 
 at law. The decisions and well 
 settled principles of our coiu"ts clearly 
 and decidedly answer this question 
 in the negative. Evans and the 
 administrator of Rochester could 
 not be joined as defendants in a suit 
 at law upon the bond. Evans must 
 be sued as survivor. Then, this is 
 not a debt which is recoverable at 
 law, in the mode which the com- 
 plainant has sought to recover it in 
 thiscoxurt; and, consequently, there 
 can be no decree against the admin- 
 istrator of Rochester in this court. 
 
 But the complainant asks this court 
 to determine the amount due from 
 Rochester's estate upon this demand, 
 after the premises are sold, and after 
 an execution has been returned 
 unsatisfied against Evans. It seems 
 to me that this is a matter which 
 does not belong to the jurisdiction of 
 this court, at least in the present 
 shape of the cause. The surrogate 
 has jurisdiction to marshal Roches- 
 ter's assets, and direct how they 
 shall be paid. Other creditors have 
 an interest in the amount of this 
 debt, and in settling this amount, 
 and they are not before the court to 
 contest this claim ; and I doubt 
 whether a decision of this court 
 would be binding upon them in any 
 manner whatever. If they had 
 notice of this proceeding, they might 
 possibly contest this claim, or they 
 might see that the mortgaged prem- 
 ises produced enough to pay the 
 mortgage debt, so as to relieve the per- 
 sonal fund ; but they are not here, 
 and I can not make a decree which 
 shall bind them in any manner.' 
 This case is cited in no decision, and 
 it is plainly overruled in substance 
 by Glacius v. Fogel, 88 N. Y. 439 
 (1882) ; Lockwood v. Fawcett, 17 
 Hun (N. Y.) 147 (1879) ; Leonard v. 
 Morris, 9 Paige Ch. (N. Y.) 90, 92 
 (1841).
 
 262 HEIIIS NOT PROPEii PAKT1E8. [§§215-216. 
 
 under the more recent decisions.' If the plaintiff fails to make 
 the representatives of a deceased person, who was liable for the 
 mortgage debt, parties to the action or does not demand a 
 judgment of deficiency against them, he can present his 
 claim for an unpaid balance to the personal representatives, 
 and if payment is refused, an action can be maintained 
 against them to recover the deficiency, — only, however, by 
 leave of the court in which the mortgage was foreclosed.* 
 
 § 215. Persons originally liable, deceased, their heirs 
 and dfevisees not proper parties. — As has been seen from 
 the decisions cited in the preceding section, the personal 
 representatives of a deceased obligor are proper parties to an 
 action to foreclose a mortgage, for the purpose of determin- 
 ing the amount of any deficiency that may arise, and of 
 establishing a claim to be presented and paid in the due 
 course of the adn\inistration of the estate of the decedent. 
 Another line of decisions holds distinctly that the heirs 
 of a deceased person, who was liable for the mortgage 
 debt, are not proper parties to an action to foreclose a 
 mortgage, where a judgment for deficiency is sought 
 against his estate.* If the decedent owned the equity 
 of redemption and was at the time liable for the payment of 
 the mortgage debt, his heirs and devisees are, of course, 
 necessary parties for cutting off the equity of redemption 
 which descended to them ; but a judgment for deficiency 
 can, in no event, be demanded against them in the same 
 action.* 
 
 §216. Remedies against heirs and devisees. — The 
 remedy against the heirs and devisees must be exhausted in 
 
 ' See the cases, supra. In Trim- tors of the deceased obligor. See 
 
 mier v. Thomson, 10 Piich. (S. C.) Daniels v. Moses, 12 S. C. 130(1879). 
 
 N. S. 164, 178 (1877), an exhaustive ^ Glacius v. Fogel. 88 N. Y. 440 
 
 opinion was written by Haskells, A. (1882) ; ScoSeld v. Doscher, 72 N. Y. 
 
 J., who held, in an action upon a 491 (1878). See ante §§195, 196, 
 
 joint and several bond, where one of and the notes. 
 
 the obligors had died and the verdict ' See Alexander v. Frary, 9 Ind. 
 
 was generally for money, that sep- 481 (1857). 
 
 arate judgments could be rendered * Cundiff v. Brokaw, 7 111. App. 
 
 ayainst the survivor and the execu- 147(1881). See a7i<e g§ 141-144.
 
 § 216.] REPRKSENTATIVES OF DECEDENT. 263 
 
 a subsequent action to charge lands which have descended 
 to thern with the payment of the decedent's debts.' 
 
 In the case of Leonard v. Morris,* quoted in the preceding 
 section, this proposition was pointedly presented to Chan- 
 cellor Walworth, who said; "Admitting that it may l)e 
 proper to make the personal representatives of a deceased 
 mortgagor or guarantor parties to a bill of foreclosure, where 
 it is probable there may be a deficiency, there is no case in 
 which it is allowable to make heirs or devisees who have no 
 interest in the mortgaged premises parties to a bill of fore- 
 closure, with a view to reach the estate descended or'devised 
 to them, to satisfy an anticipated deficiency upon the sale of 
 the mortgaged premises. To authorize the filing of a bill 
 against heirs or devisees, to obtain satisfaction of a debt 
 which is not a specific lien upon the estate descended or 
 devised to them, the complainant must show by his bill that 
 the personal estate of the decedent was not sufficient to 
 pay the debt, or that the complainant has actually exhausted 
 his remedy against the personal estate and the personal repre- 
 sentatives and next of kin, etc. And it is impossible to do 
 this as to the deficiency in a mortgage case where, at the 
 time of filing the bill to foreclose the mortgage, it can not 
 be known that there will be any deficiency whatever. 
 
 In proceedings against heirs or devisees, the statute also 
 requires the complainant to state in his bill, with convenient 
 certainty, the real estate descended or devised. Again, the 
 Revised Statutes Jiave prohibited the bringing of any suit 
 against heirs or devisees of any real estate, in order to 
 charge them with a debt of a testator or intestate, within 
 three years from the time of granting letters testamentary 
 or of administration upon his estate. -^ * * The guardian 
 ad litem of the infant defendant, therefore, instead of putting 
 in a general answer, and consenting to a decree against such 
 infant, should have raised objection, either in his answer or 
 by demurrer, that the bill was improperly filed against the 
 heirs and devisees. The bill must be dismissed as to the heirs 
 
 1 Sutherland V. Rose, 47 Barb.(N. v. Hi n man, 15 How. (K Y.) Pr. 
 Y.) 144 (1866); Merchants' Ins. Co. 183 (1857). 
 
 2 9 Paige Ch. (N. Y.) 92 (1841).
 
 264 EEPEESENTATIVES OF DECEDENT. [§217. 
 
 and devisees of the obligor, but without prejudice to the 
 complainant's rights to proceed against them by a new suit 
 to charge them with the payment of any deficiency which 
 may exist after the sale of the mortgaged premises, and 
 which can not be collected from the estate of the mortgagor, 
 nor from the personal estate of the obligor, after due pro- 
 ceedings had before the surrogate,"* 
 
 § 217. Person originally liable, making an assignment 
 in bankruptcy or voluntarily, assignee proper. — It is 
 
 advanced here as an original proposition that an assignee in 
 bankruptcy, or by general assignment, of a person who was, 
 at the time of the assignment, liable for the mortgage debt, 
 is a proper party to an action to foreclose a mortgage, and 
 one against whom a judgment for deficiency can be demanded 
 and decreed, to be paid in the due course of his administration 
 upon the estate of the bankrupt. This proposition has been 
 presented to no court, as far as can be ascertained, but it is 
 believed that it would be sustained, as the cases cited in the 
 four preceding sections strongly support it by analogy. An 
 assignee is only a representative of the bankrupt, and a 
 creature of the law, the same as a personal representative is 
 of a decedent. The distinction should be made, however, 
 that the demand against an assignee must be made before 
 the final settlement of his accounts and his discharge, for 
 after his trust is performed his relations to and his duties 
 with the property of the bankrupt are completely ended. 
 
 » Leonard v. Morris, 9 Paige Ch. Dykman, J., said: " The plaintiffs 
 
 (N. Y.) 90, 92 (1841); Fliess V. Buck- must first resort to the decedent's 
 
 ley, 22 Hun (N. Y.) 551 (1880). In personal estate ; that failing, they 
 
 Fliess V. Buckley, 24 Hun (N. Y.) have their remedy against the heirs 
 
 515 (1881), aff'd 90 N. Y. 286 (1882), and devisees."
 
 CHAPTER XI. 
 
 PARTIES DEFENDANT— LIABLE FOR THE MORTGAGE DEBT. 
 
 PARTIES SUBSEQUENTLY LIABLE. 
 
 ^218. 
 219. 
 
 220. 
 
 221. 
 222. 
 
 223. 
 
 224. 
 225. 
 
 326. 
 237. 
 
 828. 
 
 Introductory. 
 
 Purchaser of mortgaged 
 premises subject to the 
 mortgage not liable. 
 
 Rule in New Jersey fixing 
 liability of purchaser sub- 
 ject to mortgage. 
 
 Rule in New York. 
 
 Purchaser of mortgaged 
 premises, assuming payment 
 of the mortgage, liable — 
 General principks. 
 
 Purchaser becomes principal 
 debtor and mortgagor only 
 a surety. 
 
 What words and acts of as- 
 sumption held binding. 
 
 Usury or defective title no 
 defence to contract of as- 
 sumption. 
 
 Theories of law upon v/liich 
 a mortgagee is allowed the 
 benefit of the contract of 
 assumption. 
 
 Purchaser not personally lia- 
 ble when his grantor is not 
 personally liable, though he 
 assumes payment of the 
 mortgage. 
 
 Assumption of mortgage by 
 subsequent mortgagee does 
 not make him personally 
 liable to prior mortgagee. 
 
 § 229. New York cases reviewed. 
 
 230. Grantor can not release his 
 
 grantee, assuming a mort- 
 gage, from his liability to 
 the mortgagee in New York. 
 
 231. Contrary ruling in New Jer- 
 
 sey. 
 
 232. Intermediate purchaser, hav- 
 
 ing assumed payment of 
 the mortgage, liable. 
 
 233. Assignor of a mortgage guar- 
 
 anteeing payment or collec- 
 tion liable. 
 
 234. Intermediate assignors of a 
 
 mortgage guaranteeing pay- 
 ment liable. 
 
 235. Assignors of a mortgage, 
 
 covenanting as to title and 
 against defences, liable. 
 
 236. All persons guaranteeing pay- 
 
 ment or collection of a bond 
 and mortgage by a separate 
 instrument liable. 
 
 287. Married women obligating 
 themselves in any of the 
 preceding ways generally 
 liable. 
 
 238. Persons subsequently liable 
 in any of preceding ways, 
 deceased, their estates liable 
 — Personal representatives 
 proper parties ; heirs and 
 devisees not proper parties. 
 
 § 2i8. Introductory. — Subsequent to the execution of a 
 bond and mortgage, and consequent upon the establishment 
 of the relation of mortgagor and mortgagee, with their 
 respective benefits and liabilities, the title of the mortgagor 
 to his lands, and of the mortgagee to his bond and mortgage, 
 may be so transferred as to change their respective relations ^ 
 and to bring persons who where strangers to the execution 
 
 265
 
 266 INTRODUCTORY. [§219. 
 
 of the mortgage into such a relation to it, or to the equity of 
 redemption, as to make them Hable for the mortgage debt. 
 
 In this chapter consideration will be given to such parties 
 as were strangers to the original transaction between the 
 mortgagee and the mortgagor, but who have subsequently 
 become Hable for the payment of the indebtedness secured. 
 The subject-matter of this chapter has been of constantly 
 increasing importance in the law, owing to the increased 
 number of conveyances in the Eastern States, and to the 
 facility with which mortgages and real estate titles are now 
 transferred. The whole general subject is intimately con- 
 nected with the law of principal and surety ; but it is without 
 the province of this work to give any attention to that branch 
 of the law, except indirectly, and reference must be had to 
 special treatises on that subject. 
 
 There are two principal ways in which this subsequent 
 liability for a mortgage debt may be created. The mort- 
 gagor may create it, by conveying his equity of redemption 
 in the mortgaged premises, and binding his grantee to assume 
 the payment of the mortgage ; or the mortgagee may create 
 it in an assignment, by guaranteeing the payment or collec- 
 tion of the mortgage, or by making other covenants in 
 respect to it. Questions affecting the contract of assumption 
 of the payment of a mortgage have grown into such impor- 
 tance from their frequency and variety, that they might well 
 be made the subject of a legal monograph ; but for the 
 purposes of this work, only the general and well established 
 principles of law affecting the subject need be stated. The 
 decisions in New York, however, are fully given in the 
 following pages. 
 
 § 219. Purchaser of mortgaged premises subject to 
 the mortgage not liable. — It is now well settled in all 
 courts, where a mortgagor conveys his equity of redemption 
 to a purchaser, without mentioning the mortgage in the 
 instrument of conveyance, or by stating therein that the deed 
 is made subject to the mortgage,' or by merely reciting 
 
 • Stebbins v. Hall, 29 Barb. (N. ing the cases ; Binsse v. Paige. 1 
 Y.) 534 (1859), collating and review- Keyes (N. Y.) 87 (1863) ; Collins v.
 
 ^ 219.J 
 
 PUECHASEE SUBJECT TO MOETGAGE. 
 
 267 
 
 the mortgage, that the grantee is not thereby made liable for 
 the mortgage debt ; and a judgment for deficiency can not be 
 demanded against him in an action to foreclose the mort- 
 gage.' A grantee who takes " subject " to a mortgage 
 simply contracts that the debt shall be paid out of the 
 mortgaged land.' The phrase " under and subject" is bind- 
 ing between the parties as a covenant of indemnity, but 
 it gives the mortgagee no rights against the purchaser. 
 
 A purchaser at a judicial sale, which is made subject to a 
 mortgage,* does not become personally obligated for the 
 mortgage debt.* There is no implied promise or covenant 
 of a personal obligation ; the premises are the primary fund 
 for the payment of the debt ; but beyond their value, the 
 purchaser is in no way liable. Even where a deed recited 
 that the mortgage had been estimated as a part of the con- 
 sideration money, and had been deducted therefrom, it has 
 been decided that the grantee assumed no personal liability 
 for its payment.* Wherethelanguage was, "subject * * * to 
 
 Rowe, 1 Abb. (K Y.) N. C. 97 
 (1876), and the note to the case, in 
 which are collated and analyzed the 
 cases interpreting and fixing the 
 meaning of the language employed 
 in various deeds to express and to 
 refer to the existence of a mortgage 
 on the premises. See Wadsworth 
 V. Lyon, 93 N. Y. 201 (1883) ; Car- 
 ter V. Holahan, 93 N. Y. 498 (1883); 
 Post V. Tradesmen's Bank, 28 Conn. 
 430, 432 (1859) ; Rapp v. Stoner, 104 
 111. 618 (1882) ; Lewis v. Day, 53 
 Iowa, 575, 579 (1880). collating and re- 
 viewing the cases ; Canfield v. Shear, 
 49 Mich. 313 (1882) ; Strohauer v. 
 Voltz, 42 Mich. 444 (1880) ; Slater v. 
 Breese, 36 Mich. 77 (1877) ; Wood- 
 bury V. Swan, 58 N. H. 380 (1878) ; 
 Merriman v. Moore, 90 Pa. St. 78 
 (1879) ; Samuel v. Peyton, 88 Pa. St. 
 465 ; Moore's Appeal, 88 Pa. St. 450 
 (1879) ; Girard Trust Co. v. Stewart, 
 86 Pa. St. 89 (1878) ; Ins. Co. v. 
 Addicks, 12 Phila. (Pa.) 490; 
 
 Moore's Estate, 12 Phila. (Pa.) 104 
 (1882) ; Weber v. Zeiment, 30 Wis. 
 283 (1872) ; Tanguay v. Felthousen, 
 45 Wis. 30 (1878) ; Cleveland v. 
 Southard, 25 Wis. 479 (1870). 
 
 > Belmont v. Coman, 23 N. Y. 438 
 (1860), a leading case ; Hull v. Alex- 
 ander, 26 Iowa, 569, 573 (1869); 
 Carleton v. Byington, 24 Iowa, 173 
 (1867) ; McLenahan v. McLeuahan, 
 18 K J. Eq. (3 C. E. Gr.) 101 (1866), 
 collating the English authorities. 
 
 * Ludiugton v. Harris, 21 Wis. 
 239 (1866). 
 
 « Taylor v. Mayer, 93 Pa. St. 42 
 (1880). 
 
 * Lenrng's Estate, 52 Pa. St, 135 
 (1866) ; Wager v. Chew, 15 Pa. St. 
 323 (1850) ; Price v. Cole, 35 Tex. 
 461 (1871). In Porter v. Parmley, 
 52 N. Y. 185 (1873), no mention was 
 made of a mortgage. 
 
 ^ Belmont v. Coman, 22 N. Y. 
 438 (1860). See Dingeldeiu v. Third 
 Ave. R. R. Co., 37 N. Y. 575(1868),
 
 268 LIABILITY m HKW JEKSEY. [§ 220. 
 
 a mortgage * * * which forms the consideration money of 
 this deed," the grantee was held not liable.' 
 
 § 220. Rule in New Jersey fixing liability of purchaser 
 subject to mortgage. — In New Jersey the rule is quite 
 dif^ferent, and the courts have held that equity raises upon 
 the conscience of the purchaser an obligation to indemnify 
 the mortgagor against the mortgage debt." Vice-Chancellor 
 VanFleet' very clearly distinguishes the rules in New York 
 and in New Jersey in reviewing Belmont v. Coman.* "It was 
 there held," he says, "that where lands are conveyed subject 
 to a mortgage, and the amount of the mortgage is deducted 
 from the purchase money agreed upon, no personal liability 
 is thereby created against the purchaser, but that the true 
 exposition of the intent of the parties under such an arrange- 
 ment is, that so much of the purchase money as is represented 
 by the mortgage is not to be paid by the purchaser to any- 
 body, but shall be paid out of the land, and in that manner 
 only. Such interpretation would undoubtedly carry into 
 effect the intention of the parties where the interest sold is 
 merely the equity of redemption, and the purchase money 
 agreed upon represents simply the value of the mortgagor's 
 interest in the mortgaged premises over the mortgage debt r 
 but where the purchase money agreed upon represents the 
 whole value of the premises free from the mortgage, and one 
 of the mortgagor's objects in selling is to relieve himself 
 from the mortgage debt, the vendor would seem, according 
 to the plain meaning of the arrangement, to have a clear 
 right to the whole sum agreed to be paid, or, if part is kept 
 back to pay the mortgage, that the purchaser shall be 
 required either so to apply it, or to indemnify the mortgagor 
 against the mortgage debt ; such I understand to be the 
 
 distinguishing Belmont v. Coman, ^ Tichenor v. Dodd, 2 N. J. Eq. 
 
 $upra. Inpoint, Fiskev.Tolman, 124 (3 H. W. Gr.) 454, 455 (1844); 
 
 Mass. 254 (1878), where tbe language Twichell v. Mears, 8 Biss. C. C. 211 
 
 ■was, "subject to a mortgage * * * (1878). 
 
 which is part of the above-named ' Held v. Vreeland, 30 N. J. Eq, 
 
 consideration." (3 Stew.) 591, 593 (1879) ; Belmont 
 
 1 Trotter v. Hughes, 12 N. Y. 74, v. Coman, 22 N. Y. 488 (I860). 
 78 (1854). * 22 N. Y. 438 (1860).
 
 §§ 22 1-2 2 2. J LIABILITY LN NEW YORK. 2GD 
 
 principle established by the adjudications of this state, and 
 in my view there can be no doubt it is founded on justice 
 and reason." 
 
 § 221. Rule in New York. — In the recent case of Smith 
 V. Truslow/ the court cited Belmont v. Coman* with 
 approval, but seemed to limit it by saying, " It would be 
 otherwise, and the contention of the appellant should prevail 
 if, as he assumes, the mortgage debt formed part of the 
 consideration of the purchase and was to be paid by 
 the purchasers, or if he retained its amount." This would 
 seem to indicate that the New York courts incline toward 
 the New Jersey rule as more equitable and just. Much 
 depends in each case upon the real intention of the parties. 
 If it could be shown that it was the intention of the grantee 
 to assume payment, then such language as has been given 
 above would be construed to bind him personally.' Again, 
 although a deed may expressly bind a purchaser with the 
 assumption and payment of prior mortgages, he would not 
 be holden if it could be shown that such contract of assump- 
 tion was inserted without his knowledge, and that he had no 
 intention of binding himself personally.* 
 
 § 222. Purchaser ofmortgaged premises, assuming pay- 
 ment of the mortgage, liable — General principles.— If the 
 purchaser of an equity of redemption assumes the payment of 
 an existing mortgage on the premises, he thereby becomes 
 personally liable for its payment, and may be made a defen- 
 dant for the purpose of obtaining a judgment for deficiency 
 against him.* If a purchaser assumes only a portion of the 
 
 ' 84 N. T. 660, 661 (1881), per » Calvo v. Davies, 73 N. Y. 213 
 
 Danforth, J. But see Bennett v. (1878) ; Trotter v. Hughes, 12 N. Y. 
 
 Bates, 94 N. Y. 354 (1884), per 74 (1854) ; Russell v. Pistor, 7 N. Y. 
 
 Ruger, Ch. J., in point. 171, 174(1852) ; Mutual Life Ins. Co. 
 
 » 22 N. Y. 438 (1860). v. Davies, 44 N. Y. Supr. Ct. (12 J. & 
 
 » Andrews v, Wolcott, 16 Barb. S.) 172 (1878), and the cases cited ; 
 
 (N. Y.) 21 (1852). Wales v. Sherwood, 52 How, 
 
 * Smith V. Truslow, 84 N. Y. 660 (N. Y.) Pr. 413 (1876) ; Drury v. 
 
 (1881) ; Kilmer v. Smith, 77 N. Y. Clark. 16 How. (N. Y.) Pr. 424 
 
 226 (1879). See the following sec- (1857) ; Mills v. Watson, 1 Sween. 
 
 tions and notes. (N. Y.) 374 (1869). See Bache v.
 
 270 
 
 GRANTEE ASSUMING PAYMENT. 
 
 [§ 222. 
 
 mortgage debt, he will be obligated for the payment of no 
 more than he assumes.' And where the conveyance is to 
 two or more tenants in common, they will be held jointly 
 and not severally liable, though their interests in the 
 property may not be proportionally the same.' If the grantee 
 purchases only a portion of the premises and assumes the* 
 entire mortgage, he will be liable for the whole debt.* 
 
 After the contract of assumption is made, the grantor 
 becomes a mere surety for the debt. It is queried whether 
 he can require the mortgagee to foreclose when the mortgage 
 becomes due, and whether he has any remedy by which he 
 
 Doscher, 67 N. Y. 429 (1876) ; Kapp 
 V. Stoner, 104 111. 618(1882); Rogers 
 V. Herron, 92 111. 583 (1879); Scarry v. 
 Eldridge. 63 Ind. 44 (1878) ; Price 
 V. Pollock, 47 Ind. 862 (1874) ; Ross 
 V. Kennison, 38 Iowa, 396 (1874) ; 
 Thompson v. Bertram, 14 Iowa, 476 
 (1863), citing Burr v. Beers, 24 N. 
 Y. 178 (1861), and relying upon 
 Moses V. The Clerk, 12 Iowa, 140 
 (1861), and Corbett v. Waterman, 
 11 Iowa, 87 (1860) ; Schmucker v. 
 Sibert, 18 Kan. 104 (1877) ; Unger 
 V Smith, 44 Mich. 22 (1880) ; Booth 
 v.Conn. Mut. Life Ins. Co., 43 Mich. 
 299 (1880) ; Miller v. Thompson, 34 
 Mich. 10 (1876) ; Follansbee v. John- 
 son, 28 Minn. 311 (1881) ; Vreeland 
 V. VanBlarcom, 35 N. J. Eq. (8 
 Stew.) 500 (1882); Brewer v. Maurer, 
 38 Ohio St. 543 (1883), an important 
 case ; Bishop v. Douglass, 25 Wis. 
 696 (1870). In the early cases of 
 Missouri a purchaser assuming pay- 
 ment was held not liable under the 
 statute; Codeof 1855, chap. 113, §11; 
 Fithian v. Monks, 43 Mo. 502, 515 
 (1869) ; but under a later statute a 
 purchaser has been held liable ; 
 Heim v. Vogel, 69 Mo. 529 (1879). 
 The liability must, however, be 
 enforced in an action apart from the 
 foreclosure ; Fitzgerald v. Barker, 
 70 Mo. 685 (1879). In Hand v. Ken- 
 
 nedy, 83 N. Y. 149 (1880), W. pur- 
 chased certain premises in his own 
 name, but in fact for himself, K. 
 and H. jointly, giving a purchase 
 money mortgage signed by himself 
 alone as part payment ; subsequently 
 W. conveyed to K. and H. undivided 
 interests in the property, they as- 
 suming to pay specified proportional 
 parts of the mortgage ; in an action 
 to recover a judgment for deficiency. 
 Earl, J., held K. and H. liable to 
 the mortgagee, and that there was a 
 sufficient consideration to sustain 
 their contract of assumption. See 
 Williams v. Gillies, 28 Hun (N. Y.) 
 175 (1882), where the agreement to 
 assume a part was oral, and the 
 court excluded evidence of the oral 
 agreement. 
 
 ' Bowne v. Lynda, 91 N. Y. 92 
 (1883); Harlem Savings Bank v. 
 Mickelsburgh, 57 How. (N. Y.) Pr. 
 106 (1878) ; Logan v. Smith, 70 Ind. 
 597 (1880) ; Snyder v. Robinson, 35 
 Ind. 311 (1871) ; Logan v. Smith, 62 
 Mo. 455 (1876). 
 
 « Fenton v. Lord, 138 Mass. 466 
 (1880). 
 
 » Wilcox V. Campbell, 106 N. Y. 
 325 (1887). See Higham v. Harris, 
 108 Ind. 246 ; s. c. 5 West. Rep. 643 
 (1886).
 
 § 222.] GEANTEE ASSUJVHNG PAYMENT. 271 
 
 can protect himself except that of paying his bond and 
 mortgage, and becoming thereby subrogated to the rights 
 of the mortgagee.' The bargain to assume payment being 
 made between the mortgagor and his grantee, the mortgagee 
 is a stranger to it; he is at first in privity with neither of the 
 parties to the contract ; yet he was, at an early day, held to 
 be entitled to seize its benefits and to compel the grantee 
 to perform his covenant. The debt becomes the grantee's 
 own debt, and constitutes a portion of the consideration for 
 the conveyance ; and the right to enforce the obligation is 
 not changed by the fact that payment is to be made to the 
 mortgagee, instead of to the vendor of the property. The 
 theories of law, on which this proposition has at different 
 times rested, will be mentioned in a following section. 
 
 The form of remedy in New York, New Jersey" and most 
 other states, is that the grantee is liable upon his covenant ; 
 while in Connecticut,* Massachusetts,* and Rhode Island,* 
 assumpsit is held to be the proper remedy. In an action 
 by the grantor against his grantee, on a contract of assump- 
 tion, the measure of damages is the unpaid amount of the 
 mortgage.* 
 
 ' Marshall v. Davies, 78 N. Y. 415 in a separate action at law ; Naar v. 
 
 (1879), per Rapallo, J.; Mills v. Wat- Union «& E. L. Co., 34 N. J. Eq. (7 
 
 son, 1 Sween. (N. Y.) 374 (1869). Stew.) Ill (1881); Allen v. Allen, 84 
 
 » Klapworth v. Dressier, 13 N. J. N, J. Eq. (7 Stew. ) 493 (1882) ; 
 
 Eq. (2 Beas.) 62 (1860), per Green, Newark Savings Inst. v. Forman, 33 
 
 Cliancellor, relying upon New York N. J. Eq. (6 Stew.) 436 (1881). 
 
 cases, and citing Green v. Crockett, • Chapman v. Eeardsley, 31 Conn. 
 
 2 Dev. & B. (N. C.) Eq. 390 (1839). 116 (1862). 
 
 See Stiger v. Mahone, 24 N. J. * Williams v. Fowle, 132 Mass. 
 
 Eq. (9 C. E. Gr.) 426 (1874), per 385 (1882) ; Lappen v. GiU, 129 
 
 Runyon, Chancellor ; limited in Mass. 349 (1880) ; Fenton v. Lord, 
 
 Crowell V. Currier, 27 N. J. Eq. 128 Mass. 466 (1880). See Drury v. 
 
 (12 C. E. Gr.) 152 (1876). See Tremont Imp. Co., 95 Mass. (13 
 
 Crowell V. Hospital, 27 N. J. Allen), 168(1866); Braman v. Dowse, 
 
 Eq. (12 C. E. Gr.) 650 (1876). The 66 Mass. (12 Cush.) 227 (1853). 
 
 above cases were superseded in part * Urquhart v. Brayton, 12 R. I. 
 
 hy chap. 255 of the laws of 1880, 169(1880). 
 
 providing that a judgment for defl- ' Reed v, Paul, 131 Mass. 129 
 
 ciency can not be recovered in an (1881); Locke v. Homer, 131 IMass. 93 
 
 action to foreclose. The contract of (1881); Furnas v. Durgin, 119 Mass. 
 
 assumption remains valid to the mort- 500 (1876). 
 gagee, but it can be enforced only
 
 272 GEANTEE ASSUMING PAYMENT. [§223. 
 
 § 223. Purchaser becomes principal debtor and mort- 
 gagor only a surety. — As between the mortgagor and his 
 grantee who assumes payment, the grantee becomes the 
 primary debtor while the mortgagor occupies the new 
 relation of a surety responsible to the mortgagee alone.* 
 The land stands as the primary fund out of which the debt 
 must be satisfied in the first instance ; if that is insufficient, 
 it will rest upon the purchaser to redeem his promise made 
 to the mortgagor to pay the obligation. Both the purchaser 
 and the mortgagor are, of course, proper parties to the 
 action to foreclose, as both are debtors liable to the plaintiff, 
 although they sustain to each other the relation of principal 
 and surety.' As a general rule the grantor as a surety will 
 be discharged from his liability by any alteration of the 
 obligation under which he is holden, according to the rules 
 which govern the relation of principal and surety. 
 
 Thus, a change of the terms of a bond and mortgage, 
 by agreement between the grantee assuming payment and 
 the mortgagee, made without the knowledge or consent 
 of the mortgagor, canceling a stipulation in the original 
 mortgage providing for releases of part of the mortgaged 
 premises when required, will discharge the mortgagor of all 
 liability for a judgment of deficiency." " That an agreement 
 by the creditor with the principal debtor, extending the 
 time for the payment of the debt, without the consent of 
 the surety, discharges the latter, is established by numerous 
 authorities."* 
 
 > Drury v. Clark, 16 How. (N. Y.) reversing 16 Hun (N. T.) 606 (1879). 
 
 Pr. 424 (1857) ; Mills v. Watson, 1 But in Woodruflf v. Stickle, 28 N. J. 
 
 Sween. (N. Y.) 374 (1869). Eq. (1 Stew.) 549 (1877), it was stip- 
 
 * Wadsworth v. Lyon, 93 N. Y. ulated in the mortgage that the 
 201 (1883) ; Flagg v. Thurber, 14 mortgagee should release lands at 
 Barb. (N. Y.) 196 (1851) ; modified the mortgagor's request when at 
 in 9 N. Y. 483 (1854) ; Crawford v. least $300 per acre was paid ; the 
 Edwards, 33 Mich. 354 ( 1876 ) ; fact that the mortgagor's grantee 
 Huyler v. Atwood, 26 N. J. Eq. (11 released at a less price, was held not 
 C. E. CJr.) 504 (1875). to discharge or relieve the mortgagor 
 
 * Paine v. Jones, 76 N. Y. 274 from his personal liability on the 
 (1879), aflf'g 14 Hun (N. Y.) 577 bond. 
 
 (1878), relying upon Calvo v. Davies, * Spencer v. Spencer, 95 N. Y. 853 
 
 73 N. Y. 211 (1878). See Marshall (1884) ; Murray v. Marshall, 94 N. 
 V. Davies, 78 N. Y. 414 (1879), Y. 611 (1884); Calvo v. Davies, 73
 
 22-i.] 
 
 ASSUMPTION — WHAT CONSTITUTES. 
 
 § 224. What words and acts of assumption held bind- 
 ing-. — Specific words are not necessary to bind the purchaser, 
 but the intent to assume the mortgage must be clear and 
 certain. The expression " subject to the payment " of a 
 mortgage has been repeatedly held to bind the purchaser ;' 
 so also " subject, however, to the assumption as part of the 
 consideration " of a mortgage, bound the grantee personally.' 
 And the expression "which the grantee assumes Snd agrees to 
 hold the grantor harmless from," was held to renderthe grantee 
 liable to the mortgagee.' In a mortgage where the assump- 
 tion clause read, " which the party of the first part hereby 
 agrees to pay," it was construed to mean the party of 
 the second part.* An agreement to assume payment of the 
 interest can not be construed so as to impose a hability for. 
 
 N. Y. 211, 216 (1878), aff'g 8 Hun (N. 
 Y.) 222, per Andrews, J.; Jester v. 
 Sterling, 25 Hun (N. Y.) 344 (1881). 
 See Meyer v. Lathrop, 10 Hun (N. 
 Y.) 66 (1877). to the contrary; but 
 overruled in Paine v. Jones, 14 Huu 
 (N. Y.) 577, 580 (1878). See Pen- 
 field V. Goodrich, 10 Hun (N. Y.)41 
 (1877), where there was no contract 
 of assumption and the mortgagor 
 was held not discharged from his 
 liability on the bond by an extension 
 of time by the mortgagee to the pur- 
 chaser. See Corbett v. Waterman, 
 11 Iowa, 86 (1860), holding the 
 mortgagor not discharged by an 
 extension of time. 
 
 1 Carley v. Fox. 38 Mich. 387 
 (1878) ; Samuel v. Peyton, 88 Pa. St. 
 465 (1879); Burke v. Gummey,49Pa. 
 St. 518 (1865) ; Woodwurd's Appeal, 
 38 Pa. St. 322 (1861). See Davis' 
 Appeal, 89 Pa. St. 272 (1879), which 
 seems to overrule Burke v. Gummey, 
 49 Pa. St. 518 (1865), on this lan- 
 guage. See Merriman v. Moore, 90 
 Pa. St. 78 (1879) ; in point, Dingel- 
 dein v. Third Ave. R. R. Co., 37 N. 
 Y. 575, 578 (1868), per Hunt, Ch. J., 
 considering the question at length ; 
 
 See 
 354 
 
 (N. 
 
 Collins V. Rowe, 1 Abb. (N. Y.) N. 
 C. 97 (1876), and the note, exhaus- 
 tively collating the cases on this 
 point and distinguishing them. 
 Bennett v. Bates, 94 N. Y. 
 (1884). 
 
 * Douglass V. Cross, 56 How. 
 Y.) Pr. 330 (1878), per VanVorst, J., 
 distinguishing Collins v. Rowe, 1 
 Abb. 1;N. Y.) N. C. 97 (1876), where 
 the language was, " subject, never- 
 theless, to the payment of one-eighth 
 of a certain mortgage now on the 
 premises," which was held not to 
 bind the grantee. And in Hoy v. 
 Bramhall, 19 N. J. Eq. (4 C. E. Gr.) 
 74, 78, 563, 568 (1868), Chancellor 
 Zabriskie says, " The clause in the 
 deed ' subject to the payment of all 
 liens now on said premises ' can not 
 be construed into a covenant to pay 
 the liens. It is only a limitation of 
 the covenants of warranty and 
 against incumbrances." 
 
 8 Muhlig v, Fiske, 131 Mass 110 
 (1881) ; Locke v. Homer, 131 Mass. 
 93 (1881). 
 
 * Fairchild v. Lynch, 42 N. Y. 
 Supr. Ct. (10 J. & S.) 265 (1877). 
 
 08)
 
 274 
 
 ASSUMPTION WHAT CONSTITUTES. 
 
 [§ 224. 
 
 the principal sum.' Even a parol promise by the purchaser 
 to assume a mortgage may be enforced, as the contract of 
 assumption is held to exist independent of and apart from 
 the deed, though nearly always engrossed upon it.' 
 
 It is not necessary for the grantee to sign the deed in 
 order to bind himself with the payment of the mortgage 
 debt which he assumes ; his acceptance of the deed, with 
 knowledge o'f its terms, imposes the obligation upon him as 
 effectually as though he signed it ;° if, however, there is no 
 actual acceptance or intention to assume the mortgage, the 
 grantee will not be holden for the debt, for the reason that 
 there has been no meeting of minds, and consequently no 
 contract. 
 
 Thus, if an assumption clause is inserted in an unusual 
 place in the deed, so that it escapes the notice of the grantee, 
 and he had no intention to assume payment, he will not be 
 held responsible to the mortgagee ;* so also if the scrivener 
 
 ' Manhattan Life Ins. Co. v. Craw- 
 ford, 9 Abb. (N. Y.) N. C. 365 
 (1879). 
 
 2 Taintor v. Hemingway, 18 Hun 
 (N. Y.) 458 (1879) ; aflf'd 83 N. Y. 
 610 (1880), where the deed was made 
 subject to the mortgage, and an oral 
 agreement to pay it was held to be 
 valid. See Harlem Sav. Bank v. 
 Mickelsburgh, 57 How. (N. Y.) Pr. 
 106 (1878). In point, Ely v. McNight, 
 30 How. (N. Y.) Pr. 97 (1864), 
 where the question of parol assump- 
 tion is considered at length. Slau- 
 son V. Watkins, 44 N. Y. Supr. 
 Ct. (12 J. «& S. ) 73 (1878). In 
 Pike V. Seiter, 15 Hun (N. Y. ) 
 402 (1878), a husband in a land con- 
 tract, and subsequently orally, as- 
 sumed the payment of a mortgage, 
 but he caused the deed to be made 
 in his wife's name; he, instead of his 
 wife, was held personally liable. See 
 Merriman v. Moore, 90 Pa. St. 78 
 (1879) ; McDill v. Gunn, 43 Ind. 315 
 (1873); Ream v. Jack, 44 Iowa, 325 
 
 (1876) ; Lamb v. Tucker, 42 Iowa, 
 118 (1875); Bowen v. Kurtz, 37 
 Iowa, 239 (1873) ; Miller v. Thomp- 
 son, 34 Mich. 10 (1876) ; Crowell v. 
 Hospital, 27 N. J. Eq. (12 C. E. Gr.) 
 650 (1876) ; Ketcham v. Brooks, 27 
 N. J. Eq. (12 C. E. Gr.) 347 
 (1876). See Wilson v. King, 27 
 N. J. Eq. (12 C. E. Gr.) 374 (1876), 
 where the proof was held insufficient, 
 and the case failed for that reason, 
 
 » Bowen v. Beck, 94 N. Y. 86 
 (1883) ; Ricard v. Sanderson, 41 N. 
 Y. 179, 181 (1869) ; Wales v. Sher- 
 wood, 52 How. (N. Y.) Pr. 413 
 (1876), and the cases cited. 
 
 * Deyermand v. Chamberlain, 88 
 N. Y. 658 (1882) ; Kilmer v. Smith, 
 77 N. Y. 226 (1879) ; Trustees of 
 Dispensary of N. Y. v. Merriman, 
 59 How. (N. Y.) Pr. 226 (1880) ; 
 Parker v. Jenks, 36 N. J. Eq. (9 
 Stew.) 398 (1883) ; Culver v. Badger, 
 29 N. J. Eq. (2 Stew.) 74 (1874); 
 Bull V. Titsworth, 29 K J. Eq. (2 
 Stew.) 73 (1878). In VanHorn v.
 
 !25.] 
 
 DEFENSES TO ASSUMPTION. 
 
 275 
 
 inserts an assumption clause without the knowledge of 
 either party, or if it be fraudulently inserted.' In a case 
 where a deed, containing an assumption clause, was executed 
 merely for the purpose of transferring the title, the grantee 
 was held not liable." But as against a bona fide purchaser of 
 a mortgage and notes before maturity, who relied in part 
 upon the contract of assulnption, such mistakes and frauds 
 could not be pleaded in defense, and the grantee would be 
 held personally liable.' It is not necessary for the mort- 
 gagee to be notified of the conveyance ; the purchaser 
 becomes, at once, liable to him for the debt. It is necessary 
 that the conveyance be absolute in its terms,* and t»hat it 
 transfer the whole, or an undivided part, of the premises. 
 
 § 225. Usury or defective title no defence to contract 
 of assumption. — A failure of title is held to be a good 
 defense for a purchaser, who assumed the payment of a 
 mortgage, against his personal liability, for the reason that 
 there is a failure of the consideration upon which the contract 
 of assumption was based.* Judge Miller, of the New York 
 
 Powers, 26 N. J. Eq. (11 C. E. Gr.) 
 257 (1875), a husband caused a deed 
 containing an assumption clause to 
 be executed to his wife without her 
 knowledge ; she was held not per- 
 sonally liable. Precisely the same 
 facts and ruling appear in Munson 
 V. Dyett, 56 How. (N. Y.) Pr. 333 
 (1878). See Albany City S. Inst. v. 
 Burdick, 87 N. Y. 40 (1881). In 
 Best V. Brown, 25 Hun (N. Y.) 223 
 (1881), the grantee refused accept- 
 ance of a deed containing an assump- 
 tion clause, yet the grantor recorded 
 the deed ; the grantee was held not 
 personally liable. 
 
 1 Fuller V. Lamar, 53 Iowa, 477 
 (1880). See Albany City S. Inst. v. 
 Burdick, 87 N. Y. 40 (1881), revers- 
 ing 20 Hun (N. Y.) 104 ; s. c. 56 
 How. (N. Y.) Pr. 500 (1878), as to 
 the amount of evidence of fraud 
 that is necessary. 
 
 ^ Deyermand v. Chamberlain, 22 
 Hun (N. Y.) 110 (1880) ; aff'd 88 N. 
 Y. 658 (1882). See Best v. Brown, 
 25 Hun (N. Y.) 223 (1881). 
 
 ^ Hayden v. Snow, 9 Biss. C. C. 
 511 (1880). 
 
 * Garnsey v. Rogers, 47 N. Y. 233 
 (1872). See Flagg v. Munger, 9 N. 
 Y. 483-499 (1854), where there was 
 an acceptance of the deed condition- 
 ally at first, but subsequently made 
 absolute on the giving by the vendor 
 of a conditional bond : a breach of 
 this was held to discharge the pur- 
 chaser from any personal liability 
 on the contract of assumption, 'per 
 Denio and Edwards, JJ. 
 
 ^ Dunning v. Leavitt, 85 N. Y. 30 
 (1881), reversing 20 Hun (N. Y.) 178; 
 Thorp V. Keokuk Coal Co., 48 N. 
 Y. 253 (1872) ; s. c. 47 Barb. (N. Y.) 
 439 (1866) ; Garnsey v. Rogers. 47 
 N. Y. 233 (1873) ; Curtiss v. Bush,
 
 276 ASSUMPTION BENEFITS TO MORTGAGEE. [§226. 
 
 Court of Appeals, limited this rule in 1878, by saying: " It 
 is held that where a grantee of mortgaged premises takes a 
 deed of the same subject to the mortgage, and thereby 
 assumes to pay the mortgage, he is estopped from contesting 
 the consideration and validity of the mortgage. * * * The 
 general rule is, that there must be an eviction before any 
 relief can be granted, on the ground of a failure of title or 
 consideration. So long as he remains in the peaceful and 
 quiet possession of the premises, or until he surrenders 
 possession of the same to a paramount title, the mortgagor 
 or the purchaser who assumes the payment of the mortgage, 
 has no defense to the same.'" After the contract of assump- 
 tion has been made the grantee can not plead the defense 
 of usury ;' nor can he ordinarily question the consideration 
 or validity of the mortgage.' 
 
 § 226. Theories of law upon which a mortgagee is 
 allowed the benefit of the contract of assumption.— 
 
 There are two theories of law upon which a mortgagee may 
 base his right to hold a purchaser, who has assumed the 
 payment of his mortgage, personally liable for the mortgage 
 debt ; first, the theory of equitable subrogation, by which a 
 creditor is entitled to all the collateral securities which his 
 debtor has obtained to re-enforce the primary obligation ;* 
 and second, the theory that if one person makes a promise 
 to another for the benefit of a third person, that third person 
 may maintain an action on the promise.' The first of these 
 
 39 Barb. (N. Y.) 661 (1863). In » Hartley v. Harrison, 24 N. Y. 
 
 point, Benedict v. Hunt, 32 Iowa, 170 (1861). 
 
 27, 30 (1871) ; Hulfish v. O'Brien, 20 " Freeman v. Auld, 44 N. Y. 50 
 
 N. J. Eq. (5 C. E. Gr.) 230 (1869) ; (1870). See Hartley v. Tatham, 1 
 
 Hile V. Davidson, 20 N. J. Eq. (5 Robt. (N. Y.) 246 (1863), on estoppel. 
 
 C. E. Gr.) 228 (1869). " Trotter v. Hughes, 12 N. Y. 74, 
 
 1 Parkinson v. Sherman, 74 N. Y. 79 (1854). See post § 230. 
 
 88, 92 ( 1878 ) ; Ritter v. Phillips, » Ross v. Kennison, 38 Iowa, 396 
 
 53 K Y. 586 (1873); Thorp v. (1874). For an exhaustive collection 
 
 Keokuk Coal Co. , 48 N. Y. 253 and explanation of cases in all the 
 
 (1872) ; Freeman v. Auld, 44 N. Y. English and American courts, apply- 
 
 50 (1870) ; Shadbolt v. Bassett, 1 ing this principle, see the note to 
 
 Lans. (N. Y.) 121 (1869). On the Cocker's Case, 17 Eng. Rep. 757,768 
 
 question of eviction, see Dunning v. (1876), Moak's notes. 
 Leavitt, 85 N. Y. 30 (1881).
 
 § 226.] ASSUMPTION BENEFITS TO MOETGAGEE, 277 
 
 is as old as English law itself, and was the earliest of the two 
 theories to be applied to mortgage foreclosures, when the 
 statute was passed authorizing the recovery of a personal 
 judgment for deficiency in an action to foreclose a mortgage.' 
 The doctrine of subrogation is still, in many states, the only 
 one upon which the mortgagee's right to hold the purchaser 
 responsible for the debt rests.' 
 
 But in New York Judge Denio of the Court of Appeals, 
 about 1861,' advanced, the second theory in application to 
 mortgage foreclosures, in a case where the doctrine of subro- 
 gation would not sustain the conclusions which he desired 
 to reach. This second theory has grown in strong favor with 
 New York courts wherever it has been possible to apply it ; 
 and there are only two cases (presented in the next two 
 sections) in which the doctrine of the right of a third party 
 to enforce such a promise made for his benefit, can not be 
 applied to mortgage foreclosures.* In Vrooman v. Turner* 
 Judge Allen distinguished and harmonized the cases based 
 upon these two theories, and showed that both were still in 
 force and applied by New York courts to mortgage cases. 
 The second theory, however, seems to be the favorite. 
 
 Under the theory of subrogation, a mortgagee could en- 
 force his rights against a purchaser only in the equitable 
 action of foreclosure and not in a separate action at law ;' 
 but with the adoption of the second theory, it was held that 
 a mortgagee could exercise his rights against a purchaser in 
 an action at law, and without foreclosure ;' the practice of 
 
 ' Garnsey v. Eogers, 47 N. T. 233 adopted the second theory ; Ross v. 
 
 (1872) ; Trotter v. Hughes, 12 N. Y. Kennison, 38 Iowa, 396 (1874). 
 
 74 (1854) ; Marsh v. Pike, 10 Paige * Dunning v. Leavitt, 85 N. Y. 39 
 
 Ch. (N. Y.) 595 (1844) ; Dias v. Bou- (1881) ; Hand v. Kennedy, 83 N. Y. 
 
 chaud, 10 Paige Ch. (N. Y.) 446 149, 154 (1880) ; Pardee v. Treat, 83 
 
 (1843) ; Curtis v. Tyler, 9 Paige Ch. N. Y. 385 (1880) ; Thorp v. Keokuk 
 
 (N. Y.) 432 (1842). Coal Co., 48 N. Y. 253 (1872). 
 
 2 See Crowell v. Hospital, 27 N. ' 69 N. Y. 282 (1877). 
 
 J. Eq. ( 12 C. E. Gr. ) 650, 657, « King v. Whiteley, 10 Paige Ch. 
 
 (1876), where the question is fully (N. Y.) 465 (1843). 
 
 discussed. ' Thorp v. Keokuk Coal Co 48 
 
 «Burr V. Beers, 24 N Y. 178 N. Y. 253 (1872); Burr v. Beers, 24 
 
 (1861) ; Lawrence v. Fox, 20 N. Y. N. Y. 178 (1861) ; Mechanics' Sav- 
 
 268 (1859). The courts of Iowa have ings Bank v. Goff, 13 R. I. 516 (1882);
 
 278 ' WHEN GRANTEE NOT LIABLE. [§227. 
 
 enforcing this right in an action at law is not, however, en- 
 couraged by the courts. 
 
 § 227. Purchaser not personally liable when his gran- 
 tor is not personally liable, though he assumes payment 
 of the mortgage. — A grantee of mortgaged premises, who 
 purchases subject to a mortgage which he assumes and 
 agrees to pay, will not be held liable for a deficiency arising 
 on a foreclosure and sale, unless his grantor was also person- 
 ally liable, legally or equitably, for the payment of the mort- 
 gage.* " It is well settled that to make a promise of this 
 nature effective, it must be made by a person personally 
 liable, legally or equitably, for the mortgage debt, and if 
 there is a break anywhere in the chain of liability, all the 
 subsequent promises are without obligation."^ 
 
 This proposition has been three times squarely before the 
 court of last resort in the state of New York,' and the result 
 has always been a judgment of affirmance. The rule was 
 first based, by Chancellor Walworth,^ in 1843, upon the doc- 
 trine of subrogation. Judge Denio applied the same doctrine 
 
 In point, Fitzgerald v. Barker, (N. Y.) Pr. 333 (1878) ; King v. 
 
 70 Mo. 685 (1881) ; Sparkman v. Whitely, 10 Paige Ch. (N. Y.) 465 
 
 Gove,44N.J. L.(15Vr.)252(1882); (1843). In point. Brewer v. Maurer, 
 
 the grantor may also sue the pur- 38 Ohio St. 543, 550 (1883), citing 
 
 chaser, Pigart v. Halderman, 75 Ind. the leading cases in New York and 
 
 564(1881). See also Meech v. En- other states. 
 
 sign, 49 Conn. 191 (1881). In New 2 Wise v. Fuller, 29 N. J. Eq. (2 
 
 Jersey, since the passage of chap. Stew.) 257, 266 (1878), in which the 
 
 255, laws of 1880, this right can be Chancellor relies upon the New York 
 
 exercised only in an action at law ; cases. See Crowell v. Currier, 27 
 
 Naar v. Union & E. L. Co., 34 N. N. J. Eq. (12 C. E. Gr.) 152, 155 
 
 J. Eq. (7 Stew.) Ill (1881) ; Allen v. (1876) ; reviewed on appeal in 27 N. 
 
 Allen, 34 N. J. Eq. (7 Stew.) 493 J. Eq. (12 C. E. Gr.) 650 (1876) ; 
 
 (1881). Norwood v. DeHart, 30 N. J. Eq. 
 
 ' Dunning v. Leavitt, 85 N. Y. 30 (3 Stew.) 412 (1879) ; Arnaud v. 
 
 (1881) ; Cashman v. Henry, 75 N. Grigg, 29 N. J. Eq. (2 Stew.) 482 
 
 Y. 103 (1878) ; s. c. 55 How. (N. Y.) (1878). 
 
 234; 8. c. 44 N. Y. Supr. Ct. (12 J. & * Vrooman v. Turner, 69 N. Y. 
 
 S.) 93 (1878) ; Vrooman v. Turner, 280 (1877) ; Trotter v. Hughes, 12 
 
 69 N. Y. 280 (1877) ; Thorp v. Keo- N. Y. 74 (1854) ; King v. Whitley, 
 
 kuk Coal Co., 48 N. Y. 253 (1872) ; 10 Paige Ch. (N. Y.) 465 (1843). 
 
 Trotter v. Hughes, 12 N. Y. 74 •* King v. Whitely, 10 Paige Ch. 
 
 (1854) ; Munson v. Dyett, 56 How. (N. Y.) 465 (1843).
 
 § 228.] ASSUMPTION BY JUNIOR MORTGAGEE. 279 
 
 in 1854 ; but in i86r, in the leading case of Burr v. Beers,' he 
 preferred the second doctrine, that if one person makes a 
 promise to another for the benefit of a third person, that 
 third person may maintain an action on the promise. In 
 1872* and in 1881' he sustained and appHed the same doctrine. 
 
 But Vrooman v. Turner^ is the leading case upon the 
 proposition of this section and harmonizes the two doctrines, 
 showing that the proposition can be based on either, and stat- 
 ing as the fundamental reason of the rule, that there is no 
 consideration to support the contract of assumption. If the. 
 promise of the grantee to the grantor is void for want of 
 consideration, a third party can, of course, claim no advan- 
 tage from it. " To give a third party who may derive a 
 benefit from the performance of the promise, an action, there 
 must be first, an intent by the promisee (purchaser) to secure 
 some benefit to the third party, and second, some privity 
 between the two, the promisee (purchaser) and the party to 
 be benefited, and some obligation or duty owing from the 
 former to the latter, which would give him a legal or equit- 
 able claim to the benefit of the promise, or an equivalent 
 from him personally."* 
 
 In Pennsylvania it has been held that the purchaser is 
 liable upon his assumption of a mortgage, although the 
 agreement to assume be contained in a deed from a grantor 
 who was under no personal liability to pay the mortgage ; 
 and contrary to the New York cases, it has been held that 
 the agreement could not be said to be without consideration 
 inasmuch as the price of the land was a consideration.' 
 
 § 228. Assumption of mortgage by subsequent mort- 
 gagee does not make him personally liable to prior 
 mortgagee. — A stipulation in a mortgage, whereby the 
 mortgagee assumes and agrees to pay a prior mortgage on 
 
 » 24 N. Y. 179 (1861). » Vrooman v. Turner. 69 N. Y. 
 
 « Thorp V. Keokuk Coal Co., 48 280, 283 (1877). 
 
 N. Y. 253 (1872). « Merriroan v. Moore, 90 Pa. St. 
 
 3 Dunning v. Leavitt, 85 N. Y. 37 78, 81 (1879), distinguisJiing Samuel 
 
 (1881). V. Peyton, 88 Pa. St. 465 (1879), 
 
 * 69 N. Y. 283 (1877), per Allen, -which is seemingly contrary to the 
 
 J., reversing 8 Hun (N. Y.) 78 (1876\ text.
 
 280 ASSUJVIPTION BY JUNIOR MORTGAGEE. [§229. 
 
 the premises, does not impose upon him such a personal 
 liabiHty for the prior mortgage debt, as can be enforced against 
 him by the prior mortgagee.' The stipulation in such cases 
 is not a promise made by the mortgagee to the mortgagor 
 for the benefit of the prior mortgagee, but is a promise for 
 the benefit of the mortgagor alone ; it is to protect his prop- 
 erty by advancing money to pay his debt.* But where a 
 senior mortgagee, in consideration of the conveyance to him 
 of the equity of redemption, assumes the payment of a junior 
 mortgage, he is personally bound to pay it and to relieve the 
 grantor and mortgagor from his liability.' The question 
 presented in this section first came before the Court of 
 Appeals of New York in 1869 in Ricard v. Sanderson,* when 
 the reverse of the above proposition was sustained, and a 
 person, who had taken a deed as a security merely and 
 assumed payment of the prior mortgage, was held personally 
 liable. 
 
 § 229. New York cases reviewed. — The proposition of 
 the preceding section was, however, pointedly sustained by 
 Judge Rapallo, in 1872, in the leading case of Garnsey v. 
 Rogers,* where a subsequent mortgagee, who had assumed 
 the payment of a prior mortgage, was held not liable to the 
 prior mortgagee, but to the mortgagor alone. Judge 
 Rapallo explains this conflict of opinion by the fact that in 
 Garnsey v. Rogers the subsequent mortgage, containing the 
 stipulation, was canceled and the mortgaged premises were 
 restored to the mortgagor, the stipulation becoming, as to 
 the parties to it, extinguished, while in Ricard v. Sanderson 
 it does not appear that the debt for which the deed was 
 
 ' Pardee v. Treat, 82 N. Y. 385 per Chancellor Runyon, distinguish- 
 
 (1880), reversing 18 Hun (N. Y.)298; ing Campbell v. Smith, 71 N. Y. 26 
 
 in point, Root v. Wright, 84 N. Y. 72 (1877), and relying upon Garnsey v. 
 
 (1881) ; Campbell v. Smith, 71 N. Y. Rogers, 47 N. Y. 233 (1872), say- 
 
 26 (1877), affirming 8 Hun (N. Y.) 6 ing that the contract of assumption 
 
 (1876). But see Babcock v. Jordan, is not for the benefit of the mort- 
 
 24 Ind. 14 (1865), and Racouillat v. gagee. 
 
 SanSevain, 32 Cal. 376 (1867), where ^ Huebsch v. Scheel, 81 Dl. 281 
 
 the opposite view seems to be held. (1876). 
 
 » In point, Arnaud v. Grigg, 29 * 41 N. Y. 179 (1869). 
 
 K. J. Eq. (2 Stew.) 482, 486 (1878), » 47 N. Y. 233 (1872).
 
 § 229. J ASSUMPTioisr by juistioe mortgagee. 281 
 
 given as a security had been extinguished at the time of the 
 foreclosure, or that the premises had been reconveyed in 
 pursuance of any condition or defeasance on which the deed 
 was given.* But Judge Andrews, who has written a majority 
 of the opinions in the Court of Appeals concerning questions 
 affecting the assumption of a mortgage, pointedly overruled 
 Ricard v. Sanderson, in 1880, in Pardee v. Treat,' although 
 he did not refer to the case in his opinion. 
 
 The distinguishing question as to whether a person, who 
 assumes the payment of a mortgage in a subsequent deed or 
 mortgage, is personally liable to a prior mortgagee, is, was 
 the contract of assumption in aid of the grantor alone ; or 
 was it also for the benefit of the mortgagee? Judge An- 
 drews says in the above case, " We think the true result of the 
 decisions upon the effect of an assumption clause in a deed 
 is, that it can only be enforced by a lienor, where in equity 
 the debt of the grantor secured by the lien becomes, by the 
 agreement between him and his grantee, who assumes the pay- 
 ment, the debt of the latter. On the other hand, if the 
 assumption is in aid of the grantor, upon the security of 
 the land, and not as between them, a substitution of the 
 liability of the grantee for that of the grantor, or in other 
 words, if, in equity as at law, the grantor remains the principal 
 debtor, then the assumption clause is a contract between the 
 parties to the deed alone, and the liability of the grantee for 
 any breach of his obligation, is to the grantor only."* 
 
 • See Campbell v. Smith, 71 N. debt owing by the grantor to Rogers, 
 Y. 26, 28 (1877), afE'g 8 Hun (N. Y.) upon a parol defeasance, that upon 
 6 (1876), per Church, Ch. J., distin- payment of the debt Rogers should 
 guishing Garnsey v. Rogers, 47 N. Y. reconvey the premises. The plaintiff 
 233 (1872), on the question of deeds was the owner of mortgages which 
 being merely a creditor's security. were liens on the premises when the 
 
 • 82 N. Y. 385 (1880). conveyance to Rogers was made. 
 
 • In further reviewing and distin- The question decided in King v. 
 guishing Garnsey v. Rogers, Judge Whitely, 10 Paige Ch. (N. Y.) 465 
 Andrews says, at page 388, " In (1843), did not arise. The grantor 
 that case the covenant was contained of Rogers was himself liable to pay 
 in a deed from Hermance to the the mortgage, and if Rogers had 
 defendant, Rogers, absolute in form, stood in the position of an absolute 
 ■which was in equity a mortgage, the purchaser of the land, his liability to 
 deed having been given to secure a the plaintiff, either in an equitable
 
 282 
 
 GRANTOR CAN NOT RELEASE GRANTEE. [§ 28C 
 
 § 230. Grantor can not release his grantee, assuming 
 a mortgage, from his liability to the mortgagee in New 
 York. — It is now settled in New York, that where a grantee 
 in an absolute conveyance of lands assumes and agrees to 
 pay a mortgage thereon, an absolute and irrevocable obliga- 
 tion is created in favor of the mortgagee, which can not be 
 released or affected by any act or agreement of the grantor 
 to which the mortgagee does not assent.' The contrary of 
 this proposition was held in Stephens v. Casbacker,* in the 
 Supreme Court. But Justice Bockes, in the later case of 
 Douglas V. Wells, ^ squarely overrules Stephens v. Casbacker, 
 and after an exhaustive review of all the cases upon the ques- 
 tion, concludes with an affirmance of the proposition of this 
 section, attaching great importance to the opinion of Rapallo, 
 J., in Garnsey v. Rogers :* " It must be considered that 
 when such an assumption is made on an absolute conveyance 
 of land, it is unconditional and irrevocable. The grantor 
 can not retract his conveyance, nor the grantee his promise 
 or undertaking ; but when contained in a mortgage, the 
 
 or legal action, could not upon the 
 authorities, have been questioned. 
 But the court held that the deed, 
 being in equity a mortgage, the 
 covenant by Rogers to pay the in- 
 cumbrances was, in legal eilect, a 
 covenant to make advances for the 
 benefit of his grantor upon the secur- 
 ity of tiie land. The promise was 
 not, therefore, a promise made for 
 the benefit of the plaintiff, although 
 he might be benefited by its perfor- 
 mance. It was not a case for equit- 
 able subrogation, because the mort- 
 gage debts remained the debts of the 
 grantor who continued, in equity at 
 least, the owner of the land. The 
 refusal to enforce the covenant did 
 not proceed upon the ground of 
 want of consideration." 
 
 1 Douglas V. Wells, 18 Hun (N. 
 Y.) 88 (1879). In point, Ranney v. 
 McMuUen, 5 Abb. (N. Y.) N. C. 
 246 (1878). See the opinion of the 
 
 referee in Ranney v. Peyser, 5 Abb. 
 (N.Y.) N. C. 259(1876), collatingand 
 reviewing the authorities. In Fair- 
 childs V. Lynch, 46 N.Y. Supr.Ct. (14 
 J. & S.) 1 (1880), the grantor (mort- 
 gagor) by mesne assignments became 
 the owner of the bond and mortgage; 
 on tlje doctrine of merger this was 
 held to release the grantee from his 
 personal covenant, though the mort- 
 gage had been assigned to a third 
 person. See also Talburt ▼. Berk- 
 shire, 80 Ind. 434 (1881). 
 
 2 8 Hun (N. Y.) 116 (1876). See 
 Hartley v. Harrison, 24 N. Y. 170 
 (1861). 
 
 3 57 How. (K Y.) Pr. 378 (1879) ; 
 Ranney v. McMuUen, 5 Abb. (N. 
 Y.) N. C. 246 (1878) ; Fleischauer 
 V. Doellner, 58 How. (N. Y.) Pr. 
 190 (1879); Devlin v. Murphy, 56 
 How. (N. Y.) Pr. 326 (1878). 
 
 * 47 N. Y. 242 (1872). See Judson 
 V. Dada, 79 N. Y. 379 (1880).
 
 § 231.] GKANTOli CAN EELEASE GEANTEE — WHEN. 283 
 
 conveyance is defeasible." This ruling is limited to those cases 
 where the grant is absolute and the promise unconditional. 
 
 If conditions are in any way connected with the contract 
 of assumption, the grantor may, sometimes, release his 
 grantee. Thus, where an oral agreement was made contem- 
 poraneous with the deed and contract of assumption, that 
 the grantor would take the land back at any time, should the 
 grantee become dissatisfied with the purchase, and release 
 the grantee from his covenant in the original deed, a 
 release by the grantor was held to discharge the grantee 
 from all liability to the mortgagee for a judgment of defi- 
 ciency.' It has been intimated that, if the mortgagee had 
 received no knowledge of the contract of assumption, the 
 grantor might then release his grantee." But Bockes, J., 
 has set aside that intimation as being without authority.' A 
 grantor can not release his grantee from liis contract of 
 assumption as against a purchaser of the mortgage, who has 
 relied upon the contract of assumption as it appeared on 
 record." The proposition of this section is best sustained 
 upon the second of the foregoing theories, that if one person 
 makes a promise to another, upon a valuable consideration 
 for the benefit of a third person, that third person can main- 
 tain an action on the promise.* 
 
 § 231. Contrary ruling in New Jersey. — In New Jersey, 
 however, the right of a mortgagee to take advantage of the 
 contract of assumption against a purchaser is based upon 
 
 > Devlin v. Murphy, 56 How. (N. * Paine v. Jones, 14 Hun (N. Y.) 
 
 T.) Pr. 326 (1878) ; s. c. 5 Abb. (N. 577 (1878); aff'd 76 N. Y. 274(1879); 
 
 Y.) N. C. 242 (1878), fer VanVorst, Whiting v. Geary, 14 Hun (N. 
 
 J., reviewing Stephens V. Casbacker, Y.) 498, 500 (1878). In point, Gil- 
 
 8 Hun (N. Y.) 116 (1876). See bert v. Sanderson, 56 Iowa, 349 
 
 Fleischauer v. Doellner, 58 How. (1881) ; Brewer v. Maurer, 38 Ohio 
 
 (N. Y.) Pr. 190 (1879), per VanVorst, St. 543 (1883). 
 J., distinguishing Devlin v. Murphy, » Douglass v. Wells, 18 Hun (N. 
 
 supra, under nearly the same state Y.) 88 (1879). 
 
 of facts. In Laing v. Byrne, 34 N. * Hayden v. Drury, 3 Fed. Rep. 
 
 J. Eq. (7 Stew.) 52(1881), the grantor 782, 789 (1880). 
 took a reconveyance of the land, re- ^ Douglass v. Wells, 18 Hun (N. 
 
 assuming the mortgage, and the Y.) 88, 92 (1879). See ante § 326. 
 grantee was held thereby discharged 
 from any liability.
 
 284 GEAin'OB CAN BELEASE GEANTEK [§231. 
 
 the doctrine of subrogation ; and contrary to the New York 
 decisions, it is held that the grantor may release his pur 
 chaser from his personal liability to the mortgagee, even after 
 the commencement of a foreclosure, and though the contract 
 be absolute and unconditional. Thus where a release of an 
 assumption was orally agreed upon before suit was brought 
 to foreclose the mortgage, but was not executed in writing 
 till after suit was brought, but was for a valuable consider- 
 ation and without the grantor's knowledge of the suit, it was 
 held to relieve the grantee from all liability to the mortgagee.' 
 But where the release was executed by an insolvent gran- 
 tor without consideration and after notice of foreclosure, for 
 the sole and admitted purpose of defeating the mortgagee's 
 claim in equity for a deficiency, it was held void. "This 
 act of release or discharge, to be effectual, must be done 
 bona fide, and not merely for the purpose of thwarting the 
 mortgagee and depriving him of an equity to which he is 
 entitled. Where a person in consideration of a debt due 
 from him agrees with his creditor that he will, in discharge 
 of it, pay the amount to the creditor of the latter, in 
 discharge or on account of a debt due from the latter to him, 
 though the agreement may be bo7ia fide rescinded by the 
 parties to it for consideration or reasons satisfactory to 
 themselves and without account or liability to the creditor, 
 who is not a party to it, yet if the promisee be insolvent, 
 and the rescission be merely a forgiving of the debt for the 
 mere purpose of defrauding the creditor of the promisee, or 
 protecting the promisor against his liability, the rescission 
 will not avail in equity." * In another case, where a mort- 
 gagor re-purchased of his grantee, who had assumed pay- 
 ment, he in turn assuming payment, the grantee of the 
 mortgagor was held discharged from all liability, for 
 
 « O'Neill V. Clarke, 33 N. J. Eq. Stew.) 290, 297 (1879), fer Depue, J., 
 
 (6 Stew.) 444 (1881). collating and reviewing the cases in a 
 
 ' Trustees for Public Schools v. long opinion, and holding that a 
 
 Anderson, 30 N. J. Eq. (3 Stew.) dona ^ release by the grantor will 
 
 866, 368 (1879). See also the same discharge the grantee from all lia- 
 
 caae reported on appeal sub nom. bility to the mortgagee. 
 Young V. Trustees, 31 N. J. Eq. (4
 
 § 232.] ]VIESNE PURCHASER LIABLE WHEN. 
 
 285 
 
 the reason that the mortgage had not become due and 
 that the mortgagee had suffered no injury.' 
 
 It is thus seen what an important part these two doctrines 
 of subrogation and of a contract for the benefit of a third 
 person, have played in the development of the law adjudging 
 the rights of parties interested in the contract of assumption 
 of a mortgage. Even to-day there is a lack of agreement 
 among the courts as to which doctrine should prevail in the 
 interpretation of the contract. But the theory of a benefit 
 for a third person is the broadest, most equitable and most 
 susceptible of application to the various cases that have 
 arisen, and it is in growing favor with the courts. 
 
 § 232. Intermediate purchaser, having assumed pay- 
 ment of the mortgage, liable. — It may be stated as a 
 general rule, that all intermediate purchasers who have in 
 succession from the original obligor, through mesne convey- 
 ances, assumed the payment of a bond and mortgage, are 
 personally liable as sureties for a judgment of deficiency in 
 an action to foreclose the mortgage brought by the mort- 
 gagee or his assignee." No reason presents itself why, if 
 the first purchaser from the mortgagor is liable, the succeed- 
 ing purchasers from the mortgagor's grantee should not also 
 be held personally liable for the mortgage debt, either on 
 the doctrine of subrogation or of liability for a contract made 
 for the benefit of a third person. This proposition has been 
 
 ' Crowell V. Currier, 27 N. J. Eq. Young v. Trustees Pub. Schools, 
 
 (13 C. E. Gr.) 152 (1876). See Laing 31 N. J. Eq. (4 Stew.) 290 (1879) ; 
 
 V. Byrne, 34 N. J. Eq. (7 Stew.) 52 Pruden v. Williams, 26 K J. Eq. 
 
 (1881), where nearly the same facts (11 C. E, Gr.) 210(1875) ; Jarman v. 
 
 are stated. See also Crowell v. Wiswall, 24 N. J. Eq. (9 C. E. Gr.) 
 
 Hospital, etc., 27 N. J. Eq. (12 C. 267 (1873), -per Chancellor Runyon, 
 
 E. Gr.) 650 (1876), per Depue, J., collating the cases and discussing 
 
 ■who at page 657 quotes the language the legal reasons upon which the 
 
 of Rapallo, J., as given above, calls practice rests, and stating that the 
 
 it an oMUr dictum, and rules con- decree should be the same as that 
 
 trary to it. directed in Luce v. Hinds, Clarke 
 
 « Cashman v. Henry, 75 N. T. 103 Ch. (N. Y.) 453 (1841), per Vice- 
 
 (1878) ; Flagg v. Geltmacher, 98 HI. Chancellor Whittlesey ; Brewer v. 
 
 293 (1881) ; Scarry v. Eldridge, 63 Maurer, 38 Ohio St. 543 (1883). See 
 
 Ind. 44 (1878). In point. Smith v. the following section. 
 Ostermeyer, 68 Ind. 432 (1879);
 
 286 ASSIGNOR GUARANTEEING LIABLE. [§ 233. 
 
 squarely before a court in New York only once, when Vice- 
 Chancellor McCoon/ in 1841, held the contrary, that inter- 
 mediate purchasers were not liable ; but this case is nowhere 
 referred to or cited, and from the obiter dicta in later cases' 
 it is believed that it is not good law, and will be overruled. 
 Furthermore, it is not consonant with the general principles 
 of the law of principal and surety. It is well settled that 
 the successive assignors of a mortgage, all of whom have 
 guaranteed its payment, are personally liable for the mort- 
 gage debt to the plaintiff foreclosing. By analogy the same 
 cases support the proposition of this section.^ 
 
 Intermediate purchasers, who have not assumed the pay- 
 ment of the mortgage, are, of course, not liable ; neither are 
 intermediate purchasers liable, though they may have 
 assumed the payment of the mortgage, if there is, prior to 
 their purchase, a break in the line of the several contracts of 
 assumption in the successive mesne conveyances.* 
 
 § 233. Assignor of a mortgage guaranteeing payment 
 or collection liable. — An assignor of a mortgage, who, in the 
 assignment or by a separate instrument, guarantees the pay- 
 ment or collection of the mortgage, is personally liable to 
 his assignee, and may be made a defendant to an action for 
 foreclosure, for the purpose of recovering against him a 
 judgment of deficiency.* In those states where no provision 
 is made for the recovery of a personal judgment in an action 
 
 > Lockwood V. Benedict, 3 Edw. * Hunt v. Purdy, 82 N. Y. 486 
 
 Ch. (N. Y.) 472 (1841). (1880) ; Craig v. Parkis, 40 N. Y. 
 
 s In Dunning v. Leavitt, 85 N. Y. 181 (1869) ; Officer v. Burchell, 44 
 
 30 (1881), intermediate purcliasers N.Y. Supr. Ct. (12 J. «&S.)575(1879); 
 
 who had assumed the payment of a Jones v. Steinbergh, 1 Barb. Ch. 
 
 mortgage were made parties in an (N. Y.) 250 (1845) ; Luce v. Hinds, 
 
 action to foreclose, and a personal Clarke Ch. (N. Y.) 453 (1841) ; 
 
 judgment for deficiency demanded Bristol v. Morgan, 3 Edw. Ch. (N. 
 
 against them. No objection was Y.) 142 (1887) ; Curtis v. Tyler, 9 
 
 raised by them, and Andrews, J., Paige Ch. (N. Y.) 432 (1842) ; Leon- 
 
 throughout his opinion, speaks of ard v. Morris, 9 Paige Ch. (N. Y.) 
 
 them as though they were personally 90 (1841); North American Fire Ins. 
 
 Uable. Co. v. Handy, 2 Sandf. Ch. (N. Y.) 
 
 » See the following section. 492 (1845) ; N. Y. Code Civ. Proc. 
 
 « Vrooman v. Turner, 69 N. Y. §1627. In Harlem Sav. Bk. v. Mick- 
 
 280(1877). elsburgh. 57 How. (N. Y.) Pr. 106
 
 § 233.] 
 
 ASSIGNOR GUARANTEELNG — LIABLE. 
 
 287 
 
 to foreclose a mortgage, such a guarantor can not, of course, 
 be made a party to the action ; the only remedy against him 
 is a separate action at law. 
 
 In New York an action at law can also be subsequently 
 maintained, but only by consent of the court in which the 
 mortgage was foreclosed. In actions at law, a distinction is 
 made between a guaranty oi payment and of collection;^ but 
 in the equitable action of foreclosure, if a party is in any way 
 liable for the debt, he can be made a defendant.' 
 
 The decree of foreclosure and judgment for deficiency 
 should specify in order the respective liabilities of the 
 parties who have guaranteed the payment or collection of 
 the debt, or who are otherwise obligated for it ;^ the decree 
 must always contain conclusions and directions in harmony 
 with the general law of principal and surety. Thus, Vice- 
 Chancellor Whittlesey in Luce v. Hinds* made the judg- 
 ment of foreclosure " for the sale of the mortgaged premises, 
 
 (1878), the order of liability between 
 guarantors and grantors assuming 
 payment is considered. In point. 
 Claflin V. Reese, 54 Iowa, 544 (1880); 
 also Jarman v. Wiswall, 24 N. J. 
 Eq. (9 C. E. Gr.) 267 (1873). In 
 Robertson v. Cauble, 57 Ind. 420 
 (1877), the indorser of a note secured 
 by a mortgage was made a defendant. 
 See Stark v. Fuller, 42 Pa. St. 320 
 (1862). In Fluck v. Hager, 51 Pa. 
 St. 459 (1866), the mortgage came 
 back into the hands of the first 
 guarantor, who foreclosed ; he was 
 not allowed to enforce the guaranty 
 against the intermediate guarantors. 
 Under the statute of 1858, in Wis- 
 consin, a guarantor could not be 
 made a defendant for the purpose 
 of recovering a personal judgment 
 against him ; Borden v. Gilbert. 13 
 Wis. 670 (1861). But by chap. 248 
 of the laws of 1862, the law was 
 changed so that a personal judgment 
 can now be recovered ; Burdick v. 
 Burdick, 20 Wis. 348 (1866). 
 
 ' In Johnson v. Shepard, 35 Mich. 
 115 (1876), it was held that a guaran- 
 tor of collection ought not to be 
 made a party defendant to a fore- 
 closure suit, for the reason that no 
 liability attaches to the guarantor till 
 every remedy against the principal 
 has been exhausted. Such a guar- 
 antor may be made a party under 
 the New York rule ; the fact of a 
 primary and a secondary liability 
 must, however, be recognized and 
 provided for in the decree ; Cady 
 v. Sheldon, 38 Barb. (N. Y.) 103 
 (1862). 
 
 2 N. Y. Code Civ. Proc. § 1627. 
 See Vanderbilt v. Schreyer, 91 N. 
 Y. 392, 396 (1883), and the able 
 opinion per Ruger, Ch. J. , reversing 
 21 Hun (N. Y.) 537 (1880.) 
 
 3 Jones V. Steinbergh, 1 Barb. Ch. 
 (N. Y.) 253 (1845) ; Luce v. Hinds, 
 Clarke Ch. (N. Y.) 453, 456 (1841) ; 
 Leonard v. Morris, 9 Paige Ch. (N. 
 Y.) 90 (1841). 
 
 * Clarke Ch. (N. Y.) 457 (1841).
 
 288 ASSIGNOR GUARANTEEING LIABLE. [§§ 234-235. 
 
 and a personal decree against the obligor (mortgagor) for 
 the deficiency, and in case an execution against him does 
 not realize the money, an execution must afterwards go 
 against the guarantor (assignor) of the mortgage, for any 
 balance due after sale of the premises, and execution unsatis- 
 fied against the obligor.'" The execution must not issue 
 against the guarantor in any case, until an execution against 
 the person primarily liable has been returned unsatisfied. 
 
 § 234. Intermediate assignors of a mortgage guaran- 
 teeing payment liable. — It is generally well established that 
 the transfer of a debt or obligation carries with it as an 
 incident all securities for its payment. Thus, the assignment 
 of a bond and mortgage gives to the assignee the benefit of, 
 and the right to sue upon, a guaranty by a previous assignor 
 for their collection ; and this proposition is sustained, 
 although such guaranty may not be in terms transferred 
 with the bond and mortgage." 
 
 This principle is in harmony with the proposition stated in 
 the second preceding section, that an intermediate purchaser 
 who has assumed the payment of a mortgage is personally 
 liable for the mortgage debt, providing his preceding 
 grantors were liable. It is suggested as a query, whether 
 the same principles of law that are applicable to intermediate 
 purchasers assuming the payment of a mortgage, are not also 
 applicable to intermediate assignors guaranteeing payment ; 
 but in the latter case it is not believed that an unbroken line 
 of guaranties is required in order to hold liable those who 
 have guaranteed payment. 
 
 § 235. Assignors of a mortgage, covenanting as to 
 title and against defences, liable. — The query is raised 
 here as to whether a person, who guarantees that the title to 
 a mortgage is perfect or that there are no defences against it, 
 
 * See also the quotation from the * Craig v. Parks, 40 N. T. 181 
 
 opinion of Chancellor Walworth in (1869) ; Ketchell v. Burns, 24 Wend. 
 
 Curtis V. Tyler, 9 Paige Ch. (N. Y.) (N. Y.) 456 (1840) ; First Nat. Bk. 
 
 435 (1842), in the note to g 208 ante; of Dubuque v. Carpenter, 41 Iowa, 
 
 Jones V. Steinbergh, 1 Barb. Ch. 518 (1875). See Fluck v. Hager, 51 
 
 (N. Y.) 253 (1845), and the note in Pa. St. 459 (1866), where the mort- 
 
 § 202 ante. gage came back into the hands of
 
 §§ 236-237.] MARRIED WOAIEJS- LIABLE. 289 
 
 can be made a defendant to an action to foreclose the mort- 
 gage, for the purpose of recovering a personal judgment 
 against him for a breach of such covenant. He might be 
 made a party, on the theory that he is interested in the 
 action and that a complete adjudication can be made only 
 by bringing him before the court. On the other hand, it can 
 scarcely be claimed that he "is liable to the plaintiff for the 
 payment of the debt secured by the mortgage."* In case of 
 such a guaranty it would certainly be safe for the plaintiff to 
 omit the guarantor as a party to the foreclosure,' and subse- 
 quently, by leave of the court, to commence an action at 
 law against him for a breach of his covenant.* 
 
 § 236. All persons guaranteeing payment or collection 
 of a bond and mortgage by a separate instrument liable. 
 — In the preceding sections it has been seen that the assignor 
 of a bond and mortgage, who guarantees its payment in the 
 same instrument, is personally liable to the assignee of the 
 mortgage foreclosing, for a judgment of deficiency. The 
 same rule and cases also apply if the guaranty is made by a 
 separate instrument, executed by persons in no way inter- 
 ested in the mortgage.* This is based upon the principle that 
 a creditor is entitled to the benefit of all pledges and securi- 
 ties given to, or in the hands of, a surety of the debtor for his 
 indemnity, and the rule is true whether the surety has been 
 injured or not, as it is a trust created for the benefit of the 
 surety of the debt and attaches to it.* 
 
 § 237. Married women obligating themselves in any 
 of the preceding ways generally liable. — A married woman 
 who purchases the equity of redemption in mortgaged prem- 
 ises, and assumes the payment of the mortgage in the deed 
 of conveyance, is personally liable to the mortgagee for a 
 
 the first" guarantor, who foreclosed ; * N. Y. Code Civ. Proc. § 1638. 
 
 he was not allowed to enforce their » Grant v. Griswold, 82 N. T. 569 
 
 guaranties against the intermediate (1880) ; Hunt v. Purdy, 82 N. Y. 
 
 guarantors. 486(1880). 
 
 » N. Y. Code Civ. Proc. § 1637. " Crow v. Vance, 4 Clarke aowa). 
 
 See Knickbocker Ice Co. v. Xelson, 442 (1857), citing Curtis v. Tyler, 9 
 
 8 Hun (N. Y.) 21 (1876). Paige Ch. (N. Y.) 431 (1843).
 
 290 MATRRIED WOMETT LIABLE. [§237. 
 
 Judgment of deficiency, if her grantor was also personally 
 liable, although she may not charge her separate estate with 
 the payment of the mortgage debt.' 
 
 This proposition was squarely before Andrews, J., in 
 Cashman v. Henry,* in 1878, and after referring to the 
 Massachusetts and New Jersey statutes, which are similar to 
 those of New York, he based his decision upon the fact that 
 a " married woman as incident to her right to acquire real 
 and personal property by purchase, and hold it to her 
 sole and separate use, may purchase property upon credit, 
 and bind herself by an executory contract to pay the 
 consideration money, and that her bond, note, or other 
 engagement given and entered into to secure the payment 
 of the purchase price of property acquired and held for her 
 separate use, may be enforced against her in the same 
 manner and to the same extent, as if she were 2, feme sole."* 
 If her grantor was not liable, she, of course, would not be 
 liable. 
 
 When a married woman assigns a mortgage owned by her, 
 guaranteeing its payment or collection, her liability will be 
 governed by the general rules affecting married women's 
 
 ' Cashman v. Henry, 75 N. Y. shown that she did not intend to 
 
 103 (1878) ; Vrooman v. Turner, 69 assume the mortgage by accepting 
 
 N. Y. 280 (1877), reversing 8 Hun the deed. 
 
 (N. Y.) 78 (1876) ; Ballin v. Dillaye, « 75 N. Y. 103, 115, (1878) ; 8. C 
 i57 N. Y. 35 (1867); Flynn v. Powers, 55 How. (N. Y.) Pr. 234. 
 35 How. (N. Y.) Pr. 279 (1868); afl'd » In Huyler v. Atwood, 26 N. J. 
 38 How. (K Y.) Pr. 289 (1868) ; s. Eq. (11 C. E. Gr.) 504 (1875), per 
 c. 54 Barb. (N. Y) 550 (1868) ; Bush Vice-Chancellor VanFleet, the same 
 V. Babbitt, 25 Hun (N. Y.) 213 (1881); question was pointedly before the 
 Scott V. Otis, 25 Hun (N. Y.) 35 court and the ruling was the same as 
 (1881). See Munson v. Dyett, 56 in Cashman v. Henry, 75 N. Y. 103 
 How. (N. Y.) Pr. 333 (1878). In (1878). At page 506 the Vice-Chan- 
 point, Coolidge V. Smith, 129 Mass. cellor says : " The law, in giving 
 554 (1880) ; also Brewer v. Maurer, married women the right to acquire 
 38 Ohio St. 543 (1883), citing the and hold land, did not intend that 
 leading cases in other states and hold- their capacity to make contracts to 
 ing with the New York decisons. secure the purchase money should 
 See Culver v. Badger, 29 N. J. Eq. be so limited and restricted, that 
 (2 Stew.) 74 (1878), where a married they could get the land without 
 woman, to whom a deed was exe- paying for it. Whether they se- 
 cuted with an assumption clause, cured the payment of the purchase 
 was held not liable on its being money by bond and mortgage, note,
 
 § 238.] LIABILITY OF DEUEDENt's ESTATE. 291 
 
 contracts stated in an early part of this work.* Under the 
 act of 1884 in New York, she is now, of course, personally 
 liable upon all of her contracts, whatever their form or 
 nature.* 
 
 § 238. Persons subsequently liable in any of preceding 
 ways, deceased, their estates liable — Personal represen- 
 tatives proper parties; heirs and devisees not proper 
 parties. — In a preceding section it has been seen that the 
 personal representatives, and not the heirs and devisees of 
 the deceased obligor, are proper parties defendant to an action 
 brought to foreclose a mortgage, for the purpose of obtaining 
 a decree determining the amount of any deficiency, and 
 directing the same to be paid by the personal representatives 
 in the due administration of the decedent's estate.* When 
 the liability is incurred subsequently to the inception of the 
 bond and mortgage by a contract of assumption,* or by 
 guaranteeing payment or collection, the rule is the same.* 
 
 or contract to assume the payment » See ante §§ 213-216. 
 
 of a mortgage, it is a contract they * Leonard v. Morris, 9 Paige Ch. 
 
 have a capacity to make, and must (N. Y.) 90 (1841). See ante %% 213- 
 
 be enforced." 216. 
 
 ' See Penn. Coal Co. v. Blake, 85 « Scofield v. Doscher, 72 N. Y. 
 
 N. Y. 226 (1881), where a married 491 (1878) ; Bache v. Doscher, 67 N. 
 
 •woman expressly charged her sep- Y. 429 (1876). See Mutual Benefit 
 
 arate estate. See ante § 211. Life Lis. Co. v. Howell, 32 N. J. 
 
 See ante §§ 209-211, and notes. Eq. (5 Stew.) 146 (1880).
 
 CHAPTER XII. 
 
 COMMENCEMENT OF ACTION. 
 
 239. How brought — Requisites of 
 
 summons. 
 
 240. Notice of object of action . 
 
 241. Notice of no personal claim. 
 
 242. Where some of the defendants 
 
 are non-residents or absen- 
 tees. 
 
 243. Requisites of affidavit to 
 
 secure order for service of 
 summons by publicatii/n. 
 
 244. Change of place of publication. 
 
 245. Notice to defendants— Proof 
 
 of publication. 
 
 246. "Where there are unknown 
 
 owners. 
 
 247. Service of summons on mar- 
 
 ried women. 
 
 248. Service of summons on infant 
 
 defendants. 
 
 249. Failure to appoint guardian 
 
 ad litem. 
 
 250. Service on lunatics and in- 
 
 competents. 
 
 251. Appearance of defendant. 
 
 252. Appearance by attorney with- 
 
 out authority. 
 
 258. Commencement of foreclos- 
 ure prevents action at law 
 on bond. 
 
 254. Action at law on bond by 
 
 consent of court. 
 
 255. Tender after suit brought. 
 
 256. What claims may be fore- 
 
 closed. 
 
 § 257. Removed fixtures. 
 
 258. Doctrine of merger. 
 
 259. Purchase of equity by mort- 
 
 gagee from mortgagor. 
 
 260. Conveyance after assignment 
 
 of notes. 
 
 261. Mortgage on undivided inter- 
 
 est in land. 
 
 262. Mortgages on separate pieces 
 
 of properly for the same 
 debt. 
 
 263. Where mortgagee has lien 
 
 on personal property sutfi- 
 cient to pay debt. 
 
 264. Mortgage with power of sale. 
 
 265. Breach of payment of install- 
 
 ment — xVccelerated matur- 
 ity of debt. 
 
 266. Failure to pay installment of 
 
 principal. 
 
 267. Failure to j)ay installment of 
 
 interest. 
 
 268. Equitable mortgage to repay 
 
 pvuchase money. 
 
 269. Equitable mortgage by de- 
 
 posit of title deeds. 
 
 270. Agreement to execute mort- 
 
 gage. 
 
 271. Junior mortgagee can not 
 
 compel foreclosure by sen- 
 ior mortgagee. 
 
 272. Joinder of actions. 
 
 273. Consolidation of actions. 
 
 § 239. How brought — Requisites of summons. — An 
 
 action to foreclose a mortgage is a civil action, and where all the 
 parties are known and reside within the state, it is commenced 
 by the personal service of a summons and complaint, or of a 
 summons alone, as in ordinary civil actions.* The surnmons 
 
 ' N. Y. Code Civ. Proc. § 416. T. 632 (1881) ; People v. Northern 
 See also IngersoU v. Mangam, 84 N. Pac. R. R. Co., 50 N. Y. Supr. Ct. 
 
 2Sti
 
 § 239.] 
 
 REQUISITES OF SUMMONS. 
 
 293 
 
 must contain the title of the action, specifying the court in 
 which the action is brought/ the names of the parties to the 
 action,* and, if it is brought in the supreme court, the name 
 of the county in which the plaintiff desires the trial.' It 
 must be subscribed by the plaintiff's attorney,* who is 
 required to add to his signature his office address, specifying 
 a place within the state where there is a post-office, and if 
 in a city, he must add the street, and street number, if any, 
 or other suitable designation of the particular locality of his 
 office.* 
 
 It should require the defendant to answer the complaint; 
 and to serve a copy of his answer on the person whose 
 name is subscribed to the summons at the place within 
 the state thereon specified, within twenty days after the 
 service of the summons, exclusive of the day of service.* 
 
 (18 J. & S.) 456 (1884) ; Putnam Co. 
 Chem. Works v, Jochen, 8 N. Y. 
 Civ. Proc. Rep. 424 (1886); Daris 
 V. Jones, 8 N. Y. Civ. Proc. Rep. 
 43 (1883) ; Acker v. Hauteman, 63 
 How. (N. Y.) Pr. 280 (1882) ; s. c. 
 27 Hun (N. Y.) 48 (1882) ; Kelly 
 V. Countryman, 15 Hun (N. Y.) 97 
 (1878) ; McCarthy v. McCarthy, 13 
 Hun (N. Y.) 579 (1878). 
 
 ' Croden v. Drew, 3 Duer (N. Y.) 
 652 (1854) ; Webb v. Mott, 6 How. 
 (N. Y.) Pr. 439 (1852) ; James v. 
 Kirkpatrick, 5 How. (N. Y.) Pr. 241 
 (1851) ; Dix v. Palmer, 5 How. (N. 
 Y.) Pr. 233 (1851) ; Walker v. Hub- 
 bard, 4 How. (N. Y.) Pr. 154 (1849). 
 
 2 Bank v. Magee, 20 N. Y. 355 
 (1859) ; Traver v. Eigth Ave. R. R. 
 Co., 6 Abb. (N. Y.) Pr. N. S. 46 
 (1867) ; Cooper v. Burr, 45 Barb. (N. 
 Y.) 10 (18G5) ; Miller v. Stettiner, 7 
 Bosw. (N. Y.) 692 (1862) ; Hill v. 
 Thacter, 3 How. (N. Y.) Pr. 407 
 (1848); Eaglfcston v. Son, 5 Robt. (N. 
 Y.) 640 (1866). 
 
 * Hotchkiss v. Crocker, 15 How. 
 (N. Y.) Pr. 336 (185^) ; Davison v. 
 Powell, 13 How. (N. Y.) Pr. 288 
 
 (1856) ; Merrill v. Grinnell, 10 How. 
 (N. Y.) Pr. 31 (1854). 
 
 * Mutual Life Ins. Co. v. Ross, 10 
 Abb. (N. Y.) Pr. 260 (1860), note. 
 Weir V. Slocum, 3 How. (N. Y.) Pr. 
 397 (1857); Johnston v. Winter, (N. 
 Y. Com. PI.) 7 Alb. L. J. 135 
 (1872). See also N. Y. Code Civ. 
 Proc. §§ 55, 417. 
 
 * Supreme Court Rules 1, 10 ; De- 
 melt v. Leonard. 19 How. (N. Y.) Pr. 
 182 (1860) ; Yorks v. Peck, 17 How. 
 (N. Y.) Pr. 192 (1859) ; Hurd v. 
 Davis, 13 How. (N.Y.) Pr. 57 (1856). 
 See also German American Bank 
 V. Champlin, 11 N. Y. Civ. Proc. 
 Rep. 452 (1887); Wadsworth v. 
 Georger, 18 Abb. (N. Y.) N. C. 199 
 (1887) ; Mayor of N. Y. v. Eisler, 10 
 Daly (N. Y.) 396 (1882) ; Wiggins v. 
 Richmond. 58 How. (N. Y.) Pr. 376 
 (1879); Osborn v. McCloskey, 55 
 How. (N. Y.) Pr. 345 (1878) ; Weil 
 v. Martin, 24 Hun (N. Y.) 645 
 (1881); Wallace v. Dimmick, 24 
 Hun (N. Y.) 635 (1881). 
 
 «N. Y. Code Civ. Proc. §§417, 
 418.
 
 294 NOTICE OF OBJECT OF ACTION. [§§ 240-241. 
 
 The summons should also contain a notice to the defendant 
 to the effect, that in case he fails to answer the complaint 
 within the time specified for the service of the answer, the 
 plaintiff will apply to the court for judgment on default and 
 for the relief demanded in the complaint. In New York the 
 exact form of the summons is prescribed by the Code.' 
 
 § 240. Notice of object of action. — When the summons 
 is served without the complaint, it is usually accompanied 
 by a notice of the object of the action. The form and 
 contents of this notice are prescribed by the code, which 
 provides that "where a personal claim is not made against 
 a defendant, a notice, subscribed by the plaintiff's attorney, 
 setting forth the general object of the action, a brief descrip- 
 tion of the property affected by it, if it affects specific real or 
 personal property, and that a personal claim is not made 
 against him, may be served with the summons. If the 
 defendant so served, unreasonably defends the action, costs 
 may be awarded agamst him."* Where such a notice is 
 served with the summons, the complaint need not be served 
 upon the defendant, unless he demands a copy of the same 
 in writing within the time for answering. 
 
 § 241. Notice of no personal claim. — The notice served 
 upon the defendant should describe correctly the object 
 of the action ; if it ooes not do so, and the defendant is 
 misled, the judgment will be irregular as against such 
 defendant, and may be set aside on motion. The object of 
 the notice in mortgage foreclosures is to relieve the com- 
 plainant of the expense of unnecessary disclaimers by 
 defendants, who are made parties to the suit solely for the 
 purpose of extinguishing their claims and of perfecting 
 the title, and against whom no personal judgment for defi- 
 ciency is sought.* But it has been said that even where a 
 defendant has not been served with a notice as permitted 
 
 ' N. T. Code Civ. Proc. § 418. (1857) ; Gallagher v. Egan, 2 Sandf. 
 
 « N. Y. Code Civ. Proc. § 423. (N. Y.) 742 (rSoO). 
 
 See O'Hara v. Brophy, 24 How. ^ Jay v. Ensign, 9 Paige Ch. (N. 
 
 (N. Y.) Pr. 379 (1863) ; Benedict v. Y.) 330 (1841). 
 Warriner, 14 How. (N. Y.) Pr. 0C8
 
 § 242.] SERVICE BY PUBLICATION. 295 
 
 by the code/ and he unreasonably defends, the court may- 
 award costs against him for making such defense.' The 
 question of costs, as affected by the service of such notice, 
 will be fully considered hereafter in the chapter on costs. 
 
 § 242. Where some of the defendants are non-resi- 
 dents or absentees. — In an action to foreclose a mortgage, 
 " where a defendant to be served is a foreign corporation ; 
 or, being a natural person, is not a resident of the state ; or 
 where, after diligent inquiry, the defendant remains un- 
 known to the plaintiff, or the plaintiff is unable to ascertain 
 whether the defendant is or is not a resident of the state ;* 
 or where the defendant, being a resident of the state, has 
 departed therefrom, with intent to defraud his creditors, or to 
 avoid the service of a summons ; or keeps himself concealed 
 therein, with like intent,"* such defendant may be brought 
 within the jurisdiction of the court by service of the sum- 
 mons upon him by publication, or personally without the 
 state, in the same manner as in other actions, as directed 
 in the Code.* 
 
 Service of the summons upon such a defendant may be 
 made in New York by the publication thereof in two news- 
 papers, designated in the order directing such service, for a 
 specified time, not less than once a week for six successive 
 weeks ; or, at the option of the plaintiff, by service of the 
 summons, and of a copy of the complaint and order, without 
 the state, upon the defendant personally, if he is of full age, 
 or an infant of the age of fourteen years or upwards ; or, if 
 the defendant is a corporation, upon an officer thereof. On 
 or before the day of the first publication, the plaintiff must 
 
 > N. Y. Code Civ. Proc. § 423. Barb. (N. Y.) 421 (1872) ; CoUins v. 
 
 » O'Hara v. Brophy, 24 How. (N. Ryan, 32 Barb. (N. Y.) 647 (1860) ; 
 
 Y.) Pr. 379 (1863). Towsley v. McDonald, 32 Barb. (N. 
 
 » Wortman v. Wortman, 17 Abb. Y.) 604 (1860) ; Bixby v. Smith, 49 
 
 (N. Y.) Pr. 66 (1863) ; Lefferts v. How. (N. Y.) Pr. 50 (1875) ; s. c. 5 
 
 Harris, 10 Abb. (N. Y.) Pr. K S. 2 T. &. C. (N. Y.) 279 ; 3 Hun (N. 
 
 (1866), note ; Hulbert v. Mutual Ins. Y.) 60 ; Rocbe v. Ward, 7 How. (N. 
 
 Co., 4 How. (N. Y.) Pr. 278 (1850). Y.) Pr. 416 (1853) ; VonRhade v. 
 
 * N. Y. Code Ciy. Proc. § 438. VonRhade, 2 T. & C. (N. Y.) 491 
 
 »Easlerbrook v, Easterbrook, 64 (1874).
 
 296 AFFIDAVIT FOE SERVICE BY PUBLICATION. [§243. 
 
 deposit in a specified post-office copies of the summons, 
 complaint and order, contained in a securely closed post-paid 
 wrapper, directed to the defendant at a place specified in 
 the order.' 
 
 § 243. Requisites of afifidavit to secure order for ser- 
 vice of summons by publication. — In order to obtain an 
 order for the service of the summons on a defendant absent 
 from the state, the plaintiff must show by af^davit the defen- 
 dant's absence and due diligence in seeking to obtain personal 
 service upon him, on which proof alone can be based an order 
 for the publication of the summons in an action for foreclosure. 
 The afifidavit should be based upon the applicant's own knowl- 
 edge, and not upon his information and belief.* Proof may 
 also be made by the affidavits of other parties. A fore- 
 closure will be invalid, where it is based upon an order 
 of publication, which is made upon the complainant's 
 affidavit that the defendant could not be found, where 
 the summons was returned before the return day as not 
 personally served/ 
 
 The affidavit for service of the summons by publication, 
 should be made by the plaintiff himself ; but if made by his 
 attorney, it should state why it is not made by the plaintiff, 
 and the sources from which the attorney derived his infor- 
 mation of the facts set forth in the affidavit.* After an 
 order of publication, which has an erroneous caption, has 
 been acted on, it may properly be amended by an order of 
 the court, striking out the erroneous caption and inserting the 
 correct one.' 
 
 ' N. T. Code Civ. Proc. § 440. quired, where the affidavit for the 
 
 * Carleton v. Carleton, 85 N. Y. order of publication is sufficient, 
 
 313 (1881) ; Belmont v. Cornen, 83 though contrary to the facts, quaere; 
 
 N. Y. 250(1880); Howe Mach. Co.v. Whitford v. Crooks, 50 Mich. 40 
 
 Pettibone, 74 N. Y. 68 (1878) ; s. c. (1883). 
 
 12 Hun (N. Y.) 657 ; Soule v. ■* Piser v. Lockwood, 30 Hun (N. 
 
 Hough, 45 Mich. 418 (1881). But see Y.) 6 (1883). 
 
 Smith v. Mahon, 27 Hun (N. Y.) 40 ^ Mojarrieta v. Saenz, 80 N. Y. 
 
 (1882). 553 (1880) ; Phinney v. Broschell, 
 
 » Soule V. Hough, 45 Mich. 418 80 N. Y. 544 (1880) ; Coffin v. Less- 
 
 (1881). Whether jurisdiction of a tor, 36 Hun (N. Y.) 347 (1885). 
 
 foreclosure proceeding is not ac-
 
 §§244-245.] PEOOF of publication. 297 
 
 § 244. Change of place of publication. — While the 
 statute, authorizing the service of a summons by pubHcation, 
 does not authorize such publication to be commenced in one 
 newspaper and to be finished in another ; yet in a recent 
 case such service was held not to be affected by the fact 
 that during the time which the notice was being published, 
 the name of the paper was changed.' The place of publica- 
 tion was not changed from one town to another in the same 
 jurisdiction f though the paper was merged in another and 
 its name and place of publication were changed, the identity 
 of the paper and the territory of its circulation remained the 
 same.' 
 
 § 245. Notice to defendants— Proof of publication. — 
 
 It is required in New York that there be subjoined to the 
 summons, which is published, a notice to the defendant, to 
 the effect that the summons is served upon him by publi- 
 cation pursuant to an order of the judge, specifying his 
 name and official title and the date of the order directing the 
 publication. The summons, complaint, order and papers 
 upon which it w^as granted, must be filed with the clerk of 
 the court on or before the day of the first publication.* 
 Proof of the service of the summons by publication should 
 be made in the form prescribed by the statute authorizing 
 the same ; but where the statute does not assume to fix the 
 exclusive mode of proof, proof made in a form other than 
 that prescribed by the statute will be sufificient to pass title 
 to the purchaser at a sale thereunder.* In New York proof 
 of the publication of the summons and notice must be 
 made by the afifidavit of the printer or publisher, or his fore- 
 man or principal clerk. Proof of deposit in the post-ofifice, 
 or of delivery, of a paper required to be deposited or 
 delivered by the provisions of the Code, must be made by 
 the affidavit of the person who deposited or delivered it.* 
 
 » Perkins v. Keller, 43 Mich. 53 99 U. S. (9 Otto), 334 (1878) ; bk. 25 
 
 (1880). L. ed. 394. 
 
 2 Perkins v. Keller, 43 Mich. 53 * N. Y. Code Civ. Proc. § 442. 
 
 (1880). » Brown v. Phillips, 40 Mich. 264 
 
 * Perkins v. Keller, 43 Mich. 53 (1879). 
 
 (1880) ; Sage v. Central R. R. Co., « N. Y. Code Civ. Proc. § 444.
 
 298 SERTIOE ON MARRIED WOMEN. [§§ 246-247. 
 
 §246. Where there are unknown owners. — Where 
 there are defendants unknown to the plaintiff, having a Hen 
 upon or an interest in the mortgaged premises, whose resi- 
 dence is unknown and can not with reasonable diligence be 
 ascertained, they may be served by publication of the sum- 
 mons in two newspapers published in the county where the 
 premises are situated.' Where in an action of foreclosure 
 unknown owners are made parties defendant, as author- 
 ized by the New York Code of Civil Procedure,' and are 
 properly described in the summons, the addition of the 
 words "if any" will not invalidate the process.' 
 
 Where service of the summons has been made upon 
 unknown heirs by publication, as prescribed by the Code, it 
 will bar all the parties in interest, although it may subse- 
 quently appear that one of the unknown parties was an 
 infant.* 
 
 § 247. Service of summons on married women. — The 
 wife of the mortgagor of land, whether she joins in the 
 execution of the mortgage or not, has an inchoate right of 
 dower in the equity of redemption, which will not be affected 
 by a foreclosure to which she is not made a defendant.' The 
 service of the summons upon the husband in a foreclosure, 
 was formerly held to be sufficient service upon the wife also, 
 unless the action was against her separate estate, in which case 
 service was required to be made upon her individually.* At 
 common-law the husband was authorized and required to 
 enter a joint appearance for himself and his wife upon 
 
 « N. T. Code Civ. Proc. | 438. rop, 53 Barb. (N. T.) 183 (1869) ; 
 
 »SeeN. Y, Code Civ. Proc.§§ 438, Watson v. Church, 3 Hun (N. Y.) 
 
 451. 80 (1874) ; 8. c. 5 T. & C. (N. Y.) 
 
 » Abbott V. Curran, 98 N. Y. 665 243 (1875) ; Ferguson v. Smith. 3 
 
 (1885). Johns. Ch. (N. Y.) 139 (1816) ; Lath- 
 
 * Wheeler v. Scully, 50 N. Y. 667 rop v. Heacock, 4 Laus. (N. Y.) 1 
 (1872). (1871). An inchoate right of dower 
 
 * Mills V. VanVoorhia, 10 Abb. is an interest, which results from 
 (N. Y.) Pr. 153 (1859) ; affi'd 20 N. the marital relation and does not 
 y. 412. See ante %% 135, 136. belong to the wife as her separate 
 
 * See Nagle v. Taggart, 4 Abb. (N. estate ; Eckerson v. VoUraer, 11 
 Y.) ^. C. 144 (1877) ; Foote v. Lath- How. (N. Y.) Pr. 42 (1855).
 
 § 247.] 
 
 SERVICE OK MARRIED WOMEN. 
 
 209 
 
 service of the summons upon him alone, if the action 
 concerned his property,* but the present Code of Civil Proced- 
 ure' provides that in an action or special proceeding, a mar- 
 ried woman shall appear, prosecute, or defend, alone, or joined 
 with other parties, as if she were single ; and it shall not be 
 necessary or proper to join her husband with her as a party 
 in any action or special proceeding affecting her separate 
 property.' It has been held under this provision of the Code 
 that in an action to foreclose a mortgage upon real property, 
 the wife of the owner of the equity of redemption may 
 appear and defend by her own attorney, although her hus- 
 band appears and defends by another attorney.* 
 
 > "Watson V. Church, 3 Hun (N. 
 Y.) 80 (1874) ; Lathrop v. Heacock, 
 4 Lans. (N. Y.) 1 (1871) ; Leavitt v. 
 Cruger, 1 Paige Ch. (N. Y.) 431 
 (1829). See ante %% 137, 138. 
 
 » N. Y. Code Civ. Proc. § 450. 
 
 ' Reynolds v. Robinson, 64 N. Y. 
 589 (1876) ; Scott v. Conway, 58 N. 
 Y. 619 (1874) ; Wright v. Wright, 
 54 N. Y. 437 (1873), aff'g 59 Barb. 
 (N. Y.) 505 (1871) ; Simar v. Cana- 
 day, 53 N. Y. 298 (1873) ; Stone- 
 man V. Erie R. R. Co., 52 N. Y. 
 429 (1873) ; Hincliley v. Smith, 51 
 N. Y. 21 (1872) ; Filer v. New York 
 Cent. R. R. Co., 49 N. Y. 47(1872) ; 
 Moore v. Moore, 47 N. Y. 407 (1872); 
 Rowe V. Smith, 45 N. Y. 230(1871); 
 HoflEman V. Tread well. 39 N.Y. Supr. 
 Ct. (7 J. & S.) 183 (1875) ; Cham- 
 bovet V. Cagney, 35 N. Y. Supr. Ct. 
 (3 J. &. S.) 474 (1873) ; Osborn v. 
 Nelson, 59 Barb. (N. Y.) 375 (1871) ; 
 Kamp V. Kamp, 46 How. (N. Y.) Pr. 
 143 (1873); Broome v. Taylor, 9 Hun 
 (N. Y.) 155 (1876); Spencer v. 
 Humiston, 9 Hun (N. Y.) 71 (1876); 
 Adams v. Curtis, 4 Lans. (N. Y.) 164 
 (1870) ; Beau v. Kiah, 6 T. & C. (:N. 
 Y.) 464 (1875) ; 8. c. 4 Hun (N. Y.) 
 171 ; Freeman v. Barber, 3 T. & (J. 
 (N. Y.) 574 (1874) ; s. c. 1 Hun (N. 
 
 T.) 433. See also Draper v. Stou- 
 venel, 35 N. Y. 507 (1866) ; Ackley 
 V. Tarbox, 31 N. Y. 564 (1864); 
 Palmer v. Davis, 28 N. Y. 242 
 (1863) ; Darby v. Callaghan, 16 N. 
 Y. 71 (1857) ; Morrell v. Cawley, 17 
 Abb. (N. Y.) Pr. 76 (1863) ; Harley 
 V. Ritter, 9 Abb. (N. Y.) Pr. 400 
 (1859) ; Gillies v. Lent, 2 Abb. (N. 
 Y.) Pr. N. S. 455 (1865) ; Rawson v. 
 Penn. R. R., 2 Abb. (N. Y.) Pr. N. S. 
 220 (1867); Foster v. Conger, 61 
 Barb. (N. Y.) 145 (1871) ; Ball v. 
 Bullard, 52 Barb. (N. Y.) 141 (1868); 
 Badgley v. Decker, 44 Barb. (N. Y.) 
 577 (1865) ; Barton v. Beer, 35 Barb. 
 (N. Y.) 81 (1861); Mann v. Marsh, 
 35 Barb. (N. Y.) 68 (1861); Merchants' 
 Ins. Co. v. Hinman, 34 Barb. 
 (N. Y.) 410 (1861); Newbery v. Gar- 
 land, 31 Barb. (N. Y.) 121 (1860) ; 
 Spies V. Acces. Trans. Co. 5 Duer 
 (N. Y.) 662 (1856) ; Rowe v. Smith, 
 88 How. (N. Y.) Pr. 37 (1869) ; Mann 
 ▼. Marsh, 21 How. (N. Y.) Pr. 373 
 (1861) ; Barton v. Beer, 21 How. (N. 
 Y.) Pr. 309 (1861) ; Francis v. Ross, 
 17 How. (N. Y.; Pr. 561 (1859). 
 
 ♦ Janjnski v. Heidelberg, 21 Hun 
 (N. Y .) 439 (1880). tjee ante §§ 137, 
 138.
 
 300 SERVICE ON INFANT DEFENDANTS. [§ 248. 
 
 § 248. Service of summons on infant defendants. — 
 
 Where infants are made parties or are necessary defendants 
 in an action to foreclose a mortgage, they must be served with 
 the summons ; and until service is made the court will have no 
 jurisdiction of them and the appointment of a guardian ad 
 litem will be void.' The court will not acquire jurisdiction of 
 such infants where, after the trial, they petition to intervene 
 and have a guardian ad litem appointed, and thereafter file 
 an answer by a guardian appointed upon such petition.* In 
 a case where substituted service had been defectively made 
 upon infants, but was confirmed by a subsequent order of 
 the court, and later personal service was also made upon 
 them for the purpose of removing any possible grounds of 
 alleged irregularity in the service of the summons, the judg- 
 ment and the sale under the decree were held to be valid 
 and binding, it appearing that the action was still pending 
 at the time of the personal service. 
 
 Under the provisions of the New York Code of Civil 
 Procedure,* where the defendant is an infant under the age of 
 fourteen years, service must be made by delivering a copy 
 of the summons within the state to the infant in person, and 
 also to his father, mother or guardian ; or, if there is none 
 within the state, to the person having the care and control 
 of such infant, or with whom he resides, or in whobC service 
 he is employed. Service on the infant alone or on the 
 father, mother, guardian, or other person mentioned alone, 
 does not constitute a personal service within the meaning of 
 the statute. Service must be made upon both to meet its 
 requirements.* 
 
 An infant defendant is required to appear and defend by a 
 guardian,* but a guardian ad litetn can be regularly appointed 
 only after such a defendant has been served with the summons 
 
 ' Johnston v. San Francisco Sav- ' N. Y. Code Civ. Proc. §§ 471, 
 
 ings Union, 63 Cal. 554 (1883). 473. See also Buermann v. Buer- 
 
 ^ Johnson v. San Francisco Sav- niann, 9 N. Y. Civ. Proc. Rep. 146 
 
 ings Union, 63 Cal. 554 (1883). (1886) ; s. c. 17 Abb. (N. Y.) N. C. 
 
 3 N. Y. Code Civ. Proc. § 426. 391 ; Mace v. Scott, 17 Abb. (N. Y.) 
 
 * Ingcrsoll v. Mangam, 84 N. Y. N. C. 100 (1885); Freund v. Wash- 
 
 622 (1881), affg 24 Hun (N. Y.) 202. burn, 17 Hun (N. Y.) 543 (1879).
 
 § 249.] APPOmXING GUAKDIAN AD LITEM. 301 
 
 personally or by the substituted mode prescribed by the 
 Code.* Such guardian must be appointed upon the applica- 
 tion of the infant, if he is of the age of fourteen years or 
 upwards and applies within twenty days after service of the 
 summons; if he is under that age or neglects so to apply, 
 upon the application of any other party to the action, or 
 upon the application of his general or testamentary guardian, 
 if he has one, or of a relative or friend, with notice thereof 
 to his general or testamentary guardian, if he has one within 
 the state, or if he has none, to the person with whom the 
 infant resides." Where an infant defendant resides within 
 the state, and is temporarily absent therefrom, the court may 
 in its discretion make an order designating a person to act 
 as guardian ad litem, unless he or some one in his behalf, 
 procures such a guardian to be appointed, as prescribed in 
 the Code,' within a specified time after service of a copy of the 
 order.* In case an appearance is made by a person appointed 
 guardian ad litem for an infant under fourteen years of 
 age who has not been served with the summons, the judg- 
 ment rendered in the action will not be binding upon such 
 infant.* 
 
 Where suit is brought to foreclose a mortgage against an 
 infant who resides in another state with his mother, a widow, 
 it will not be presumed that such infant has a guardian resid- 
 ing in the state where suit is brought, and service by 
 publication may be had on fihng an affidavit stating that he 
 and his mother are non-residents and that personal service 
 of the summons can not be made upon him in the state 
 where the action is brought.' 
 
 § 249. Failure to appoint guardian ad litem. — Where 
 an infant defendant has been properly served with process, 
 the omission of the court to appoint a guardian ad litem for 
 
 ' Ingersoll v. Mangam, 84 N. Y. N. C. 100 (1885) ; N. Y. Code Civ, 
 
 622 (1881), aff'g 24 Hun (N. Y.) 203. Proc. § 473. 
 
 2 K Y. Code Civ. Proc. § 471. « Ingersoll v. Mangam, 84 N. Y. 
 See also the cases cited supra. 622 (1881), aff'g 24 Hun (N. Y.) 203. 
 
 3 N. Y. Code Civ. Proc. §g 471, « Davis v. Huston, 15 Neb. 28 
 473. (1883). 
 
 * Mace V. Scott, 17 Abb. (N. Y.)
 
 302 SERVICE ON LUNATICS. [§250. 
 
 him will not render the judgment void, but only voidable; 
 it can be avoided, ho^^ever, by no one except the infant or 
 his privies in blood.' In such a case where judgment is 
 obtained by fraud or collusion, an action may be maintained 
 by the infant to set it aside.' The record of the judgment, 
 however, is prima facie evidence of the jurisdiction of the 
 court, and will be held conclusive until clearly and explicitly 
 disproved ; the recitals in the judgment may be used to 
 establish the jurisdiction of the court.* 
 
 § 250. Service on lunatics and incompetents. — In those 
 cases where the court has reasonable ground to believe that 
 the defendant, by reason of habitual drunkenness, or for any 
 other cause, is mentally incapable adequately to protect his 
 rights, although not judicially declared to be incompetent to 
 manage his affairs, it may, in its discretion, with or without 
 an application therefor, make an order requiring a copy of 
 the summons to be delivered also to a person whom it may 
 designate in the order; in which case service of the summons 
 will not be complete until it is so delivered.* But where the 
 defendant has been judicially declared to be incompetent to 
 manage his affairs in consequence of lunacy, and it appears 
 satisfactorily to the court by afifidavit, that the delivery of a 
 copy of the summons to him in person, will tend to aggra- 
 vate his disorder, or to lessen the probability of his recovery, 
 the court may make an order, dispensing with such delivery, 
 in which case the delivery of a copy of the summons to a 
 committee duly appointed for him will be sufficient personal 
 service upon the defendant.* 
 
 ' McMurray v. McMurray, 66 N. • IngersoU v. Mangam, 84 N. T. 
 
 Y. 175 (1876) ; Croghan v. Living- 622 (1881), aff'g 24 Hun. (N. Y.) 
 
 Eton, 17 N. Y. 218 (1858) ; Bloom v. 202 ; Bosworth v. Vandewalker, 53 
 
 Burdick, 1 Hill (N. Y.) 130, 143 K Y. 597 (1873). 
 
 (1841) ; Austin v. Trustees of *■ N. Y. Code Civ. Proc. § 427. 
 
 Charleston Female Seminary, 49 See Moulton v, Moulton, 47Hun (N. 
 
 Mass. (8 Mete.) 196 (1844) ; s. c. 41 Y.) 606 (1888) ; 8. 0. 17 N. Y. St. 
 
 Am. Dec. 497 ; Barber v. Graves, 18 Rep. 427. 
 
 Vt. 290 (1846). ' N. Y. Code Cir. Proc. § 429. 
 
 ' McMurray v. McMurray, 66 N. 
 
 Y. 175 (1876). . '}\
 
 §§ 2 5 1-2 5 2. J APPEARAlfCE BY ATTOKNEY. 303 
 
 § 251. Appearance of defendant. — The voluntary appear- 
 ance of a defendant is equivalent to a personal service of the 
 summons upon him.' because a voluntary appearance waives 
 all objections to the regularity or the sufficiency of the 
 service of the summons.' If a defendant in a mortgage 
 foreclosure enters an appearance by an attorney after judg- 
 ment has been entered, he will be entitled to notice of all 
 subsequent proceedings; the sufficiency of the notice of 
 appearance is to be determined by the trial court.* 
 
 § 252. Appearance by attorney without authority. — 
 A judgment recovered against a defendant, who has not been 
 served with process and who has no knowledge of the suit, 
 but for whom an attorney appeared without authority, will 
 be good, and can not be attacked collaterally for want of juris- 
 diction ;* but if there has been fraud or collusion between 
 the plaintiff's attorney and the attorney for the defendant, 
 or if the attorney for the defendant is not responsible and 
 perfectly competent to answer to his assumed client for 
 damages,* or if the signature of the attorney supposed to 
 have appeared was forged, the judgment will not be binding 
 on the defendant.* 
 
 > N. Y. Code Civ. Proc. 1 424. Lowenstein, 68 N. Y. 456 (1877) ; 
 
 See Ferguson v. Crawford, 70 N. Y, Phelps v. Phelps, 6 N. Y. Civ. 
 
 253 (1877), reversing 7 Hun (N. Y.) Proc. Rep. 117 (1883); Diossy v. 
 
 25 (1876); Mors v. Stanton, 51 N. Y. West, 8 N. Y. Week. Dig. 411 
 
 649 (1873) ; Wheelock v. Lee, 15 (1879) ; Dake v. Miller, 7 N. Y. 
 
 Abb. (N. Y.) Pr. N. S. 24 (1873) ; Week. Dig. 353 (1878) ; Markee v. 
 
 Brett V. Brown, 13 Abb. (N. Y.) Pr. City of Rochester, 6 K Y. Week. 
 
 N.S. 295 (1872) ; Allen v. Malcolm, Dig. 102 (1878) ; Wheelock v. Lee, 
 
 12 Abb. (N. Y.) Pr. K S. 335 (1872); 54 How. (N. Y.) Pr. 402 (1877). See 
 
 Tracy v. Reynolds, 7 How. (N. Y.) Supreme Court Rule 9. 
 
 Pr. 327 (1853). ♦ Brown v. Nichols, 42 N. Y. 26 
 
 * Ogdensburg & L. C. R. R. Co. (1870). See Ferguson v. Crawford, 70 
 
 ▼. Vermont & C. R. R. Co., 63 N. N. Y. 253 (1877), reversing 7 Hun 
 
 Y. 176 (1875). (N. Y.) 25 ; Denton v. Noyes, 6 
 
 « Tuller V. Beck, 108 N. Y. 355 Johns. (N. Y.) 296 (1810) ; 8. c. 5 
 
 (1888) ; s. c. 15 N. Y. St. Rep. 686 ; Am. Dec. 237. 
 
 Catlin V. Ricketts, 91 N. Y. 668 » Denton v. Noyes, 6 Johns. (N. 
 
 (1883) ; Ingersoll v. Mangam, 84 N. Y.) 296 (1810) ; s. c. 5 Am. Dec. 237. 
 
 Y. 622 (1881) ; Wheelock v. Lee, 74 * Ferguson v. Crawford, 70 N. Y. 
 
 N. Y. 495 (1878) ; Olcott v. Maclean, 253 (1S77). See Supreme Court 
 
 73 N. Y. 223 (1878); Martina v. Rule 10.
 
 304 FORECLOSURE PREVENTS ACTION ON BOND. [§ 253. 
 
 § 253. Commencement of foreclosure prevents action 
 at law on bond. — The effect of commencing an action to 
 foreclose a mortgage is to bar an action at law. on the note 
 or bond for the recovery of the mortgage debt, or any part 
 thereof, during the pendency of the action for tlie foreclosure 
 of the mortgage ;* neither can an action at law be maintained 
 later for any deficiency arising on a foreclosure sale, without 
 leave of the court in which the foreclosure was brought.* 
 
 And the owner of a debt secured by mortgage, who holds 
 an independent obligation or covenant for its payment given 
 by a person other than the mortgagor, can not enforce his 
 claim against such obligor by an action at law during the 
 pendency of a foreclosure ;' but it seems that where proceed- 
 ings for foreclosure and for a judgment of deficiency have 
 been ineffectual, an action at law can be instituted for the 
 debt without leave of the court in which the foreclosure was 
 brought.* This provision of the Code, however, does not 
 exclude such relief at law against the representatives of a 
 deceased mortgagor ;^ but an action upon a guaranty is within 
 
 ' This rule does not apply to an at the same time, without leave of 
 
 action begun -without leave of the the court. 
 
 probate court upon the bond of a ^ gcofield v. Doscher, 73 N. Y. 491 
 
 mortgagor's residuary legatee ; and (1878) ; Belmont v. Cornen, 48 Conn, 
 
 the omission to obtain leave from the 343 (1880). 
 
 court in chancery is a mere irregu- * Culver v. Judge of Superior 
 
 larity that may be waived by the Court, 57 Mich. 25 (1885). 
 
 defendants ; Culver v. Judge of * Glacius v. Fogel, 88 N. Y. 434 
 
 Superior Court, 57 Mich. 25 (1885). (1882). In re Collins, 17 Hun (N. 
 
 See N. Y. Code Civ. Proc. §1628. Y.) 289 (1879), after an action for fore- 
 
 * N. Y. Code Civ. Proc. § 1628. closure had been prosecuted to judg- 
 
 See also Scofield v. Doscher, 72 N. ment and sale, upon which a 
 
 Y. 49 (1878) ; Williamson v. Cham- deficiency had arisen, an application 
 
 plin, 8 Paige Ch. (N. Y.) 70 (1839) ; was made for leave to sue the repre- 
 
 e. c. Clarke Ch. (N. Y.) 9. The sentatives and next of kin of the 
 
 Supreme Court in Nebraska held in deceased grantor, they not having 
 
 Clapp V. Maxwell, 13 Neb. 542 been made parties to the foreclosure 
 
 (1882), that a leading principle of and no claim having been presented 
 
 the statute, relative to the foreclosure against the estate. It was held that 
 
 of mortgages upon real property, is such application was addressed to the 
 
 that a mortgagor shall not be sound discretion of the court, and it 
 
 answerable for the debt secured, would not be granted when the cir- 
 
 upon the mortgage and personally cumstances of the case would render
 
 § 254.] ACTION AT LAW ON BOND. S05 
 
 the proliibition of this provision, unless authorized by the 
 court.* 
 
 § 254. Action at law on bond by consent of court.— 
 
 Where an action at law has been commenced without leave 
 of the court in which the foreclosure was brought, and the facts 
 in the case are such that leave would have been granted had 
 a proper application been made to the court, the court may 
 grant leave nunc pro tunc upon such terms as may be just,* 
 and thus remove the impediment to maintaining the action.' 
 Where such leave is granted after suit has been brought, the 
 complaint should be so amended as to show that proper 
 leave has been granted.* It has been said that such an order 
 may be granted ex parte, even after the neglect to obtain 
 such leave has been set up as a defense.* If an action at 
 law is commenced on the bond, before an action in equity to 
 foreclose the mortgage is filed, it can not be prosecuted 
 further during the pendency of the foreclosure.* 
 
 The provision of the statute prohibiting an action at law 
 to recover the debt or any part of it during the pendency of 
 an action to foreclose, unless leave of the court has been 
 first duly obtained, has no application to an action by an 
 assignee against the mortgagee upon his guaranty of the 
 payment of the debt,^ and does not prohibit a junior mort- 
 gagee, who has filed a notice of claim to surplus moneys arising 
 upon the foreclosure of a prior mortgage, from bringing, with- 
 out leave of the court, an action to recover the debts secured 
 by his mortgage.* The pendency of an action on a promissory 
 
 it inequitable to permit such an * Earl v. David, 86 N. Y, 634 
 
 action. (1881). 
 
 ' McKernan v. Robinson, 84 N. Y, ' McKernan v. RobinsoD, 84 N. 
 
 105 (1881). Y. 105 (1881). 
 
 « Earl V. David, 86 N. Y. 634 « Suydam v. Eartle, 9 Paige Ch. 
 
 (1881), aff'g 20 Hun (N. Y.) 527 (K Y.) 294 (1841) ; Williamson v. 
 
 (1880); KY. Code Civ. Proc. §1623. Champlin, 8 Paige Ch. (N. Y.) 70 
 
 » Earl V. David, 86 N. Y. 634 (1839) ; s. o. Clarke Ch. (N. Y.) 9. 
 
 (1881) ; McKernan v. Robinson, 84 ' Schaaf v. O'Brien, 8 Daly (N. 
 
 N. Y. 105 ( 1881 ) ; Scofield v. Y.) 181 (1878). See Baxter v. Smack, 
 
 Doscher, 72 N. Y. 491 (1878) ; Equit- 17 How. (N. Y.) Pr. 183 (1859). 
 
 able Life Ins. Co. v. Stevens, 63 N. * Wyckoff v. Devlin, 13 Dalj (N. 
 
 Y. 341 (1875). Y.) 144 (1883). 
 
 (20)
 
 306 TENDER OF PAYMENT. [§255. 
 
 note, secured by mortgage, to have the amount due on 
 the note ascertained and for a decree for the sale of the 
 property described in the mortgage, but in which no per- 
 sonal judgment is sought, is not a bar to another action 
 upon the note against the maker for a personal judgment.* 
 A judgment in an action to foreclose a mortgage executed 
 by a husband and wife to secure the payment of the wife's 
 promissory note, constitutes no bar to a subsequent action 
 to subject the separate estate of the wife to the payment 
 of a deficiency arising upon the sale of the property 
 mortgaged.' 
 
 § 255. Tender after suit brought. — The New York 
 Code of Civil Procedure authorizes a tender after suit is 
 brought "where the complaint demands judgment for a sum 
 of money only ; and the action is brought to recover a 
 sum certain, or which may be reduced to certainty by calcu- 
 lation."* But an action to foreclose a mortgage, being a 
 proceeding purely m rem, can not properly be said to be 
 brought for the recovery of money only; and consequently, in 
 such an action, the defendant has no right to make and plead 
 a tender.* But where an action is brought to foreclose a 
 mortgage against real property, upon which a portion only of 
 the principal and interest is due and another portion of either 
 is to become due, the defendant can have the cause dismissed, 
 without costs as against the complainant, by payment into 
 court, at any time before a final judgment directing a sale is 
 rendered, the sum due together with the plaintiff's costs in 
 the action ;* and he may, after a final judgment directing a 
 sale has been rendered, but before the sale is made, pay 
 into court the amount due for the principal and interest and 
 
 ' Spence v. Union Cent. Ins. Co., ton v. Marsh, 14 How. (N, Y.) Pr. 
 
 40 Ohio St. 517 (1884). 572 (1857) ; s. c. 5 Abb. (N. Y.) Pr. 
 
 2 Avery v. Vansickle, 35 Ohio St. 389. 
 
 270 (1879). 6 N. Y. Code Civ. Proc. § 1684 ; 
 
 3 N. Y. Code Civ. Proc. § 731. Malcolm t. Allen, 49 N. Y. 448 
 * Astor V. Palache, 49 How. (N. (1873) ; 8. c. 5 Alb. L. J. 334 ; Long 
 
 Y.) Pr. 231 (1875) ; Bartow v. Cleve- v. Lyons, 54 How. (N. Y.) Pr. 12» 
 
 land, 16 How. (N. Y.) Pr. 364(1858); (1875). 
 8. C. 7 Abb. (N. Y.) Pr. 339 ; Thuvs-
 
 § 256.] WHAT CLARIS MAY CE FOEECLOSED. 307 
 
 the costs of the action, together with the expenses of the 
 proceedings to sell, if any, and have all proceedings upon 
 the judgment stayed.' 
 
 Should the plaintiff in a mortgage foreclosure accept 
 from the defendant the principal due, and the interest 
 thereon, together with the costs, he will thereby waive the 
 making of the payment into court, and the decree in the usual 
 form of foreclosure and sale, where subsequent installments 
 are to fall due, can not be entered.* The plaintiff is not 
 required to accept payment from the hands of the defen- 
 dant, after the decree has been entered. If the defendant 
 wishes a stay in the execution of the decree of foreclosure 
 and sale, he should apply to the court for leave to make the 
 payment into court, and procure an order for a stay of pro- 
 ceedings ; even then the plaintiff will be entitled to have a 
 provision inserted in the decree for its enforcement in case 
 of future defaults. An observance of the provisions of the 
 Code, regulating proceedings for the foreclosure of mort- 
 gages, where the whole sum is not due, should be strictly 
 pursued, in order that both parties may be made acquainted 
 with the terms of the decree, and have an opportunity to 
 know and to protect their rights.* 
 
 § 256. What claims may be foreclosed. — All valid 
 mortgages may be foreclosed, where the whole or a part of 
 the debt secured is due and default has been made in the 
 payment of the principal or of the interest. And where 
 a mortgage has been adjudged to be void for usury, the 
 mortgagee may enforce a parol mortgage, which was taken 
 up with the proceeds of such usurious loan.* 
 
 After the death of a mortgagor the mortgagee may insti- 
 tute an action to foreclose the mortgage against the heirs of 
 the mortgagor, and can not be compelled to relinquish his 
 lien on the real estate and to share in the general assets of 
 the estate ;* and the mortgagee is not bound to proceed 
 
 • N. T. Code Civ. Proc. § 1635. ter on Tender and Payment into 
 
 * Long V. Lyons, 54 How. (N. Y.) Court. 
 
 Fr. 129 (1875). * Allison v. Schmitz, 98 N. Y. 657 
 
 » Long V Lyons, 54 How. (N. (1885). See ante chap. iii. 
 
 Y. 1 Pr. 129 (1875). See post chap- » Jones v. Null, 9 Neb. 57 (1879).
 
 308 REMOVED FIXTUKES. [§ 257. 
 
 against the estate of the deceased mortgagor before bringing 
 his action to foreclose the mortgage.' 
 
 § 257. Removed fixtures. — A mortgagee can not enforce 
 his Hen against buildings or other fixtures which were upon 
 the land at the time the mortgage was executed, and which 
 have been removed and become a part of another free- 
 hold.' Thus, the severance and removal of a house from 
 mortgaged premises takes it out from under the operation 
 of the mortgage and frees it from the mortgage lien,' because 
 such severance and removal change the character of the 
 house from real to personal property, whether the act of 
 severance and removal is accidental or intentional.* Where a 
 piece of land and a dwelling house thereon were mortgaged, 
 and the mortgagor subsequently removed the house and 
 used a portion of the materials together with new materials 
 in erecting a house on another lot belonging to him, which 
 lot, together with the house thus erected, he afterwards, for 
 a valuable consideration, conveyed to a third person, the 
 court held in an action brought by the mortgagee for their 
 recovery, that the old materials used in the construction of the 
 new house became a part of the freehold, and that the right 
 of property therein vested in the purchaser and was free 
 from the lien of the mortgage.' And where a mortgage 
 was executed upon certain real estate upon which there was 
 a grist-mill, and the mortgagor sold the millstones in the 
 mill, which were removed by the purchaser, it was held, in an 
 action brought by the mortgagee to recover the property, 
 that the title to the millstones passed to the purchaser.* 
 
 This is in accordance with the general rule in equity, that 
 a mortgagor in possession has the right to cut timber on the 
 
 ' Bell V. Hobaugh, 65 Ind. 598 (1865). See Citizens' Bank v. Knapp, 
 
 (1879). 22 La. An. 117 (1870) ; Codrington 
 
 ^2 Harris V. Bannon, 78 Ky. 568 v. Johnstone, 1 Beav. 520 (1838). 
 
 (1880). » Peirce v. Goddard, 39 Mass. (22 
 
 » Buckout V. Swift, 27 Cal. 433 Pick.) 559 (1839) ; s. c. 32 Am. Dec. 
 
 (1865) ; Peirce v. Goddard, 39 Mass. 764. See Fryatt v. Sullivan Co., 5 
 
 (22 Pick.) 559 (1839) ; 8. c. 38 Am. Hill (N. Y.) 116 (1843). 
 
 Dec. 764. « Cooper v. Davis, 15 Conn. 556 
 
 ♦Buckout V. Swift, 27 Cal. 433 (1843).
 
 § 258.J DOCTELNE OF :HEKGEB. 309 
 
 mortgaged lands, and to do other similar acts, and that a court 
 of equity will not interfere to restrain him in the exercise 
 of such right, until it is made to appear that the cutting of 
 the timber and other like acts are being carried to an extent 
 which will render the land insufficient security for the 
 amount due upon the mortgage.* This right continues even 
 after the decree of foreclosure and sale, and until the expi- 
 ration of the period allowed for redemption.* 
 
 § 258. Doctrine of merger. — A merger takes place only 
 where the titles to the land and to the mortgage, equitable as 
 well as legal, unite in the same person.' Thus it has been held, 
 that if a mortgagor conveys the mortgaged premises to his 
 mortgagee and another, and the mortgagee afterwards con- 
 veys his interest to the other person, this will extinguish the 
 mortgage and unite the whole title in such purchaser.* And 
 where land subject to a mortgage was conveyed by the 
 mortgagor, the grantee assuming and agreeing to pay 
 the mortgage, and such grantee afterwards conveyed the 
 land to the mortgagee by a deed reciting that the conveyance 
 was subject to the mortgage assumed by him, the mort- 
 gage was thereby merged and the mortgagee was not allowed 
 to maintain an action against the mortgagor on the mortgage 
 note, although the value of the land at the time of the last 
 conveyance was less than the amount of the mortgage.' 
 
 And where a grantee of mortgaged premises assumes the 
 payment of the mortgage and afterwards takes an assign- 
 ment* of the mortgage, he thereby extinguishes the lien and 
 can not afterwards revive the right to foreclose the mortgage 
 by assigning it.* But it has been held that a conveyance to 
 the mortgagee by an assignee in bankrutcy of the mortgagor 
 
 » Buckout V. Swift, 27 Cal. 433 » Jordan v. Cheney, 74 Me. 359 
 
 (1865). ISee VanWyck v. Alliger, 6 (1883). 
 
 Barb (N. Y.) 511 (1849) ; Brady v. < Lyman v. Geciney, 114 HI. 388 
 
 Waldron, 2 Johns. Ch. (N. Y.) 147 (1885). 
 
 (1816) ; King v. Smith, 2 Hare, 239 ' Freer v. Lake, 115 HI. 662(1886); 
 
 (1843) ; Hampton v. Hodges, 8 Ves. Dickason v. Williams, 129 Mass. 182 
 
 105 (1803) ; Wright v. Atkyns. 1 (1880). 
 
 Ves. & B. 313, 314 (1813). * Winans v. Wilkie, 41 Mich. 2C4 
 
 « Cooper ▼. Davis, 15 Conn. 556 (1879). 
 (1843).
 
 310 MORTGAGEE POKCHASLNG OF MORTGAGOR. [§259. 
 
 does not, in equity, operate to satisfy the mortgage and will 
 not constitute a merger.' 
 
 § 259. Purchase of equity by mortgagee from mort- 
 gagor. — There is no legal restraint on a mortgagor's selling 
 the mortgaged property to the mortgagee in satisfaction of 
 his debt ;' but where the validity of such a sale is in issue, 
 the burden of proof is upon the mortgagee to show that the 
 sale of the mortgagor's equity was voluntarily made, that 
 his conduct in making the purchase was in all things fair, 
 and that he paid for the property what it was reasonably 
 worth." But the purchase by a mortgagee of the legal title 
 to the property covered by the mortgage will not operate 
 as a merger and extinguish the lien of his mortgage, unless 
 such was the intention of the parties, and this intention will 
 not be presumed where the interests of the mortgagee 
 require that the mortgage should remair in force.* In such 
 a case the law will regard the mortgage as a continuing 
 lien, which may be enforced against the land,' in the hands 
 of the mortgagee or his assignees, when it can be done 
 without prejudice to the rights of the mortgagor or third 
 parties.* 
 
 Where the assignee of a bankrupt, with the approval of 
 the court, conveyed mortgaged property to the mortgagees 
 in satisfaction of their claims, and the mortgage was there- 
 upon discharged of record, it was held that the conveyance 
 would not divest the property of other liens junior to the 
 mortgage, but that such liens would remain subject t6 that 
 
 • Haggerty v. Byrne, 75 lud. 499 mortgage. Rue v. Dole, 107 111. 
 (1881). ' 275(1883). 
 
 * A mortgagee has a perfect right ^ Jones v. Franks, 33 Kan. 497 
 to purchase the mortgaged premises, (1885). 
 
 and the mere fact that the deed to * Pike v. Gleason, 60 Iowa, 150 
 
 him is made in satisfaction and pay- (1882) ; First Nat. Bank of Waterloo 
 
 ment of the mortgage will not make v. Elmore, 52 Iowa, 541 (1879). 
 
 such deed a mortgage ; the surrender * Pike v. Gleason, 60 Iowa, 150 
 
 of the evidences of the mortgage (1882). 
 
 debt, and the failure to execute a * Hoffman v. Wilhelm, 68 Iowa, 
 
 new obligation to pay, are circum- 510 (1886) ; Vannice v. Bergen, 16 
 
 stances affording evidence that the Iowa, 555 (1864). 
 conveyance was not intended as a
 
 §260.] CONVEYANCE AFTER ASSIGNIIENT OF NOTES. 311 
 
 of the mortgage, which, as against them, would be presumed 
 not to have been discharged.' 
 
 A mortgage does not necessarily merge or become extinct 
 by being transferred to the person holding the fee title ; and 
 where a person becomes entitled to an estate, subject to a 
 charge for his own benefit, he may take the estate and keep 
 up the charge. The question in such cases rests upon the in- 
 tention, actual or presumed, of the person in whom the 
 estates are united. Thus a mortgagee, after the conveyance 
 to him of the mortgagor's equity of redemption, may keep a 
 mortgage alive in favor of one to whom he had assigned the 
 mortgage as collateral security prior to the conveyance to 
 him of the equity of redemption. He may also obtain further 
 advances on such an assignment, which fact will be evidence 
 of an intention to keep the mortgage alive ior the protec- 
 tion of his assignee ; and in such a case a merger will certainly 
 not take place." But where mortgaged premises are conveyed 
 by the mortgagor to the mortgagee in satisfaction of the 
 mortgage debt, so that a recovery could not be had upon 
 the original debt in an action at law, the transaction must 
 be regarded as an absolute sale and constitutes a merger, 
 although the grantee may execute a contract for reconvey- 
 ance upon the payment of the amount of the mortgage 
 within a limited time.* 
 
 § 260. Conveyance after assignment of notes. — A con- 
 veyance of real estate by a mortgagor to his mortgagee, 
 after a transfer of the notes secured together with the 
 mortgage to an assignee, who takes the same bona fide, 
 will not operate as a merger of the mortgage, nor affect the 
 assignee's rights. After the recording of the assignment of 
 the mortgage, a purchaser from the mortgagee as grantee 
 of the mortgagor, will take subject to the equitable rights of 
 the assigrnee.* 
 
 » Stimpson v. Pease, 53 Iowa, 573 » Rue v. Dole, 107 HI. 275 (1883). 
 <1880). * International Bank of Chicago 
 
 * International Bank of Chicago v. Wilshire, 108 111. 143 (1883). 
 V. Wilshire, 108 111. 143 (1883) ; Rue 
 V. Dole, 107 111. 275 (1883).
 
 312 FOEECLOsmG Tnn)iYn)ED interests. [§§261-26?. 
 
 § 261. Mortgage on undivided interest in land. — A 
 
 mortgage on an undivided interest in land may be foreclosed 
 and the interest sold.' Thus, where one member of a partner- 
 ship mortgages property belonging to the firm, using the 
 partnership name and reciting that he is a member of such 
 firm, the mortgage may be foreclosed as against him, and 
 his interest in the property sold ; but it can not be foreclosed 
 against the members who did not execute it, as the mortgage 
 does not bind their interests.' And where one of two co- 
 mortgagees has become the owner of the equity of redemp- 
 tion in the mortgaged property, the other can maintain a 
 bill for foreclosure to recover his proportionate share of the 
 mortgage fund.* 
 
 Where two tenants in common unite in executing a joint 
 mortgage for a joint and several debt, one of them can not 
 compel the mortgagee to accept his half of the debt, and to 
 proceed against his co-tenant's moiety for the collection of 
 the other half, although such tenant may tender a sufficient 
 bond of indemnity against final loss. In a foreclosure against 
 both mortgagors the court will not decree a sale of the 
 undivided moieties separately.* 
 
 § 262. Mortgages on separate pieces of property for 
 the same debt. — It has been said that a mortgagee may 
 legally hold two mortgages on different pieces ot land, as 
 security for the same debt, and that he may foredo=e the 
 mortgage on one piece without foreclosing that on the 
 other; and that whether a foreclosure on one will bar a fore- 
 closure on the other depends upon the value of the premises 
 foreclosed.' It seems that if the land sold under the fore- 
 closure of one of the mortgages, is equal in value to the 
 debt, the debt will be thereby paid and the remaining 
 premises will be relieved from the lien of the mortgage.* 
 
 1 Sutlive V. Jones, 61 Ga. 676 ^ pj-ogt y Prost, 3 Sandf . Ch. (N. 
 
 (1878); Baker v. Shepard, 30 Ga. Y.) IBS (1846). 
 
 706 (1860). 5 Burpee v. Parker, 34 Vt. 567 
 
 « Sutlive V. Jones, 61 Ga. 676 (1853). 
 
 (1878). « Burpee v. Parker, 24 Vt. 567 
 
 3 Sandford v. Bulkley, 30 Conn. (1853). See Case v. Boughton, U 
 
 844 (1862). Wend. (N. Y.) 106 (1833) ; West v.
 
 §§263-264.] DOUBLE MORTGAGES. 313 
 
 A mortgagee can not foreclose as to part of the mortgaged 
 premises, where they form a single tract, and not as to the 
 balance; because, if the mortgagor has a right to redeem any 
 part, he has a right to redeem the whole premises.^ The 
 foreclosure of a mortgage will not be barred by the existence 
 of another mortgage which is a prior security for the same 
 debt.' The giving of a bond and mortgage as collateral 
 security to an existing bond and mortgage does not, per se, 
 operate as a suspension of the right to foreclose such first 
 bond and mortgage.* 
 
 § 263. Where mortgagee has lien on personal prop- 
 erty sufficient to pay debt— An action to foreclose a 
 mortgage on real estate can not be maintained, where it 
 appears that the mortgage also covers personal property 
 sufificient to satisfy the mortgage debt, until the remedy 
 against the personal property has been exhausted.* And 
 where a mortgagee, who holds two mortgages, one on real 
 and the other on personal property, to secure the payment 
 of the same debt, forecloses the mortgage on the personal 
 property and converts it to his cwn use, it will operate as a 
 payment and satisfaction of the entire mortgage debt, if its 
 value is equal to or exceeds the amount of the debt 
 secured.* 
 
 § 264, Mortgage with power of sale.— A power given in 
 the mortgage ** ♦'O proceed to sell in the manner prescribed 
 by law," is in substance the same as any power to proceed to 
 sell by means of an action to foreclose.* The fact that a mort- 
 gage or deed of trust contains a power of sale,and contemplates 
 a foreclosure without the aid of the court, will not deprive the 
 
 Chamberlain, 25 Mass. (8 Pick.) 336 * Roger v. Weakly, 2 Port. (Ala.) 
 
 (1 829) ; Amory v. Fairbanks, 3 Mass. 516 (1835). 
 
 562 (1793) ; Omaly v. Swan, 3 Mason * Roger v. Weakly, 2 Port. (Ala.) 
 
 C. C. 474 (1824). 516 (1835) ; Androscoggin Sav. 
 
 ' Spring V. Haines, 21 Me. 126 Bank v. McRenny, 78 Me. 443 
 
 (1842). (1886). 
 
 * Connerton v. Millar, 41 Mich. « Brickell v. Batchelder, 62 Cal. 
 
 608 (1879). 623 (1882). See the chapter post on 
 
 ^ Fireman's Ins. Co. v. Wilkinson, Foreclosure by Advertisement and 
 
 S5 N. J. Eq. (8 Stew.) 160 (1882). Sale.
 
 314 
 
 MOBTGAGE WITH POWEll OF SALE. 
 
 [§ 264." 
 
 court of jurisdiction and preclude a foreclosure by action.' 
 The mortgage power of sale is simply a cumulative remedy 
 given to the mortgagee, and does not affect the jurisdiction 
 of the court ;' neither will it change or affect the mortgagor's 
 right to redeem so long as that power remains unexecuted.* 
 But after a sale made under such a power, the mortgagor's 
 interest will be entirely divested and he will have no right 
 to redeem.* And the fact that a judgment has been 
 recovered upon the debt secured by the mortgage, will not 
 impair the power of sale in the mortgage ;' but in New York, 
 while a foreclosure suit is pending, no judgment will 
 be rendered nor execution issued in a suit at law upon the 
 note or bond without leave of the court in which the fore- 
 closure is pending.' The acceptance of security in the form 
 of a mortgage will not prevent a creditor from pursuing any 
 other remedy on his debt ;' in some states he may proceed 
 
 ' Carrartine v. O'Connor, 81 Ala. 
 573 (1852); Marriott v. Givens, 8 
 Ala. 694 (1845); McGowan v. Branch 
 Bank of Mobile, 7 Ala. 823 (1845) ; 
 Butler V. Ladue, 12 Mich. 173(1863); 
 Heyward v. Judd, 4 Minn. 483 
 (1860); Green v. Gaston, 56 Miss. 
 748 (1879); Morrison v. Bean, 15 
 Tex. 267 (1855). In Massachusetts 
 there are special statutory provisions 
 regulating the foreclosing of mort- 
 gages containing a power of sale ; 
 Childs V. Dolan, 87 Mass. (5 Allen), 
 319 (1862). See Massachusetts Gen. 
 Stat., ch. 140, §§38-44. 
 
 - Cormerais v. Genella, 22 Cal. 
 116, 124, 125 (1863); Walton v. 
 Cody, 1 Wis. 420 (1853). Where 
 the holder of such a mortgage applies 
 to a court of equity for a foreclosure 
 thereof, he abandons the power of 
 sale contained in the mortgage, and 
 submits his cause to the court for 
 such relief as to the court may seem 
 just ; Heyward v. Judd, 4 Minn. 
 483, 495 (1860). 
 
 •Benham v. Kowe, 2 Cal. 387 
 
 (1852): 8. C. 56 Am. Dec. 343; 
 Turner v. Bouchell, 3 Har. &. J. 
 (Md.) 99 (1806). 
 
 * Kinsley t. Ames, 43 Mass. (2 
 Mete. ) 29 { 1840 ) ; Brisbane v. 
 Stoughton, 17 Ohio, 482 (1848); 
 Turner v. Johnson, 10 Ohio, 204 
 (1840). 
 
 » Hewitt V. Templeton, 48 El. 
 367, 370 (1868) ; Thornton v. Pigg, 
 24 Mo. 249 (1857); Tappan v. Evans, 
 11 N. H. 311 (1840) ; His Majesty's 
 Attorney-Gen. v. Winstanley, 5 
 Bligh. 130 (1831) ; Burnell v. Martin, 
 Doug. 417 (1780). 
 
 * Suydam v. Bartle, 9 Paige Ch. 
 (N. Y.) 294 (1841) ; Williamson v. 
 Champlin, 8 Paige Ch. (N. Y.) 70 
 (1839). See N. Y. Code Civ. Proc. 
 § 1628. See ante §§ 253, 254. 
 
 ' Downing v. Palmateer, 1 T. B. 
 Mon. (Ky.) 64 (1824) ; Ely v. Ely. 73 
 Mass. (6 Gray), 439 (1856); Long- 
 worth V. Flagg, 10 Ohio, 300 (1840); 
 Morrison v. Buckner, Hempst. C. 
 C. 442 (1843).
 
 §§ 265-266.] FAILURE TO PAY INSTALLMENTS. 315 
 
 at law and in equity for its recovery at one and the same 
 
 time, or successively.' 
 
 § 265. Breach of payment of installment— Accelerated 
 maturity of debt. — The parties to a mortgage may by their 
 contract make the time fixed for the payment of the prin- 
 cipal debt, depend upon the prompt payment of the several 
 installments of principal and interest, as they fall due ; and 
 may provide either in the note or mortgage that a failure to 
 pay an installment of principal or interest, when it becomes 
 due and payable, shall work a forfeiture of the credit and 
 make the entire debt due at once.' Such a stipulation 
 inserted in the mortgage is for the benefit and advantage of 
 the mortgagee or his assignee, and is of full force as to the 
 remedy on the mortgage ;' but it does not operate to vary or 
 extinguish the agreement expressed on the face of the notes 
 themselves for general purposes.* 
 
 Where the parties to a mortgage covenant that in case 
 of default in the payment of either principal or interest, 
 the whole of the principal and interest shall become due at the 
 option of the mortgagee, such stipulation should be inserted 
 in both th*; notes and the mortgage, in order that where 
 there are several notes falling due at different times, the 
 holder of any of them may bring suit to foreclose in case 
 of default.* 
 
 § 266. Failure to pay installment of principal. — Where 
 money secured by a mortgage is payable in installments, the 
 
 > Very v. vVatkins, 18 Ark. 546 Ohio St. 113, 123 (1884). See also 
 
 (1857) ; Delahay v. Clement, 4 111. ante chap. iii. 
 
 (3 Scam.) 201 (1840) ; Slaughter v. * Redman v. Purrington, 65 CaL 
 
 Foust, 4 Blackf. (Ind.) 379 (1837) ; 271 (1884) ; McClelland v. Bishop, 
 
 Andrews v. Scotton, 3 Bland Ch. 42 Ohio St. 118, 122 (1884). 
 
 (]Md.) 665 (1830) ; Ely v. Ely, 72 * Morgan v. Martien, 32 Mo. 438 
 
 Mass. (6 Gray), 439 (1856) ; McCall (1862) ; McClelland v. Bishop, 43 
 
 V. Lenox, 9 Serg. & R. (Pa.) 303 Ohio St. 113, 122 (1884). 
 
 (1823); Hughes v. Edwards, 22 U. » McClelland v. Bishop, 43 Ohio 
 
 S. (9 Wheat.) 48 (1824) ; bk. 6 L. St. 113, 123 (1884). See Mallory t. 
 
 ed. 143. See the cases cited supra West Shore, H. R. R. R. Co., 35 
 
 and in §§ 253, 254 a7i(«. N. Y. Sup. Ct. (3 J. & S. ) 174 
 
 « Hoodless V. Reid, 112 111. 105 (1873), and also NoeU y. Gaines, 68 
 
 (1885); McClelland v. Bishop, 42 Mo. 649 (1878).
 
 316 FAILURE TO PAY INSTALLMENTS. [§ 266. 
 
 mortgage may be foreclosed for an over-due installment of 
 principal or interest,' by entry or by a provisional decree 
 of judgment and sale.' And such an action or proceeding 
 will not bar another foreclosure for a subsequent installment;* 
 and the mortgage will thus continue in force as to all subse- 
 quently maturing contracts.* 
 
 Where there is a series of negotiable notes in the usual 
 form, for separate sums of money payable at specified times, 
 with a mortgage securing each according to its terms contain- 
 ing a stipulation, that if default be made in the payment 
 of any one of the notes or interest thereon, each and all of 
 them shall become due and payable, and the mortgage shall 
 become absolute as to " said notes remaining unpaid at 
 the happening of such default," such stipulation relates to the 
 remedy of foreclosure by an action or other proceeding under 
 the mortgage, and upon default the mortgage may be fore- 
 closed for the whole debt.* Such a covenant in the mortgage 
 also inures to the benefit of the assignee of the mortgage, 
 who may foreclose for the whole debt upon default in the 
 payment of an installment thereof.' 
 
 ' Mussina v. Bartlett, 8 Port. (Ala.) Hayward, 2 Pla. 27 (1848) ; Bobbins 
 277 (1838) ; Gibbons v. Hoag, 95 111. v. Swain, 68 111. 197 (1873) ; Skelton 
 45 (1880) ; Adams v. Essex, 1 Bibb v. Ward, 51 Ind. 46 (1875) ; Kemerer 
 (Ky.) 149(1808); s. c. 4 Am. Dec. 623; v. Bournes, 53 Iowa, 172 (1880); 
 Pepper v. Dunlap, 16 La. 163 (1840); Poweshiek County v. Dennison, 36 
 Salmon v. Clagett, 3 Bland Ch. (Md.) Iowa, 244 (1873) ; s. c. 16 Am. Rep. 
 125 (1833) ; Watkins v. Hackett, 20 521 ; Darrow v. Scullin, 19 Kan. 57 
 Minn. 106 (1873) ; Kennedy v. Ham- (1877); Hubbard v. Jarrell, 23 Md. 66 
 mond, 16 Mo. 341 (1852) ; Noyes v. (1865); Smith v. Osborn, 83 Mich. 410 
 Barnet, 57 N. H. 605 (187G) ; .John- (1876); Kimmel v. Willard, 1 Doug, 
 son V. Brown, 31 N. H. 405 (1855) ; (Mich.) 217 (1843) ; Fowler v. John- 
 American Life Ins. Co. v. Ryerson, son, 26 Minn. 338 (1880) ; Magruder 
 6 N. J. Eq. (2 Halst.) 9 (1846). v. Eggleston, 41 Miss. 284 (1866) ; 
 
 * Lansing v. Capron, 1 Johns. Ch. Buford v. Smith, 7 Mo. 489 (1842) ; 
 
 (N. Y.) 617 (1815) ; Robinson v. Allen v. Wood, 31 N. J. Eq. (4 
 
 Wilcox, 2 N.Y. Leg. Obs. 160(1843); Stew.) 103 (1879); West's Appeal, 
 
 Jones V. Lawrence, 18 Ga. 277 88 Pa. St. 341 (1879). 
 
 (1855) ; Hunt v. Harding, 11 Ind. * Bridgeman v. Johnson, 44 Mich. 
 
 245 (1858) ; Eastabrook v. Moulton, 491 (1880). 
 
 9 Miiss. 258 (1812). 6 McClelland v. Bishop, 42 Ohio 
 
 3 Cox V. Wheeler, 7 Paige Ch. (N. St. 113, 122 (1884). 
 
 Y.) 248 (1838); McDougal v. Dow- « Redman v. Purrington, 65 Cal. 
 
 ney. 45 Cal. 165 (1872) ; Wilson v. 271 (1884).
 
 § 267.J FAILUEE TO PAY INSTALLMENTS. 317 
 
 In the foreclosure of a mortgage, given to secure the pay- 
 ment of a sum of money in installments, the court may stay 
 proceedings in the action, if the defendant pays the install- 
 ments due and consents to a decree of foreclosure subject to 
 the future order of the court in case of a subsequent default.' 
 
 § 267. Failure to pay installment of interest. — It has 
 been said that a mortgage given as security for the payment 
 of a promissory note with interest, but containing no pro- 
 vision for foreclosure upon the non-payment of interest, can 
 not be foreclosed until the principal sum becomes due ;' but 
 the better and prevailing opmion is that a mortgage may be 
 foreclosed for interest due on the mortgage note, although 
 the principal of the note may not yet be due.' The practice 
 of foreclosing for small installments of interest, however, is 
 condemned as oppressive.* While in an action to fore- 
 close, brought for the non-payment of a small balance of 
 interest, the court may dismiss the complaint, it is not, in 
 the absence of any waiver of the default, bound to do so, and 
 its refusal will not be such an error as to authorize a reversal 
 on appeal.* Thus, where a debt is made payable at the end 
 of a term of years, with the interest payable annually, a bill 
 to foreclose the mortgage which secures it may be properly 
 filed at the expiration of the first year if the interest is not 
 paid.' 
 
 Where a mortgage is conditioned for the payment of a 
 certain sum with interest according to the terms of a note. 
 
 • Campbell /. Maoomb, 4 Johns. Conn. 159 (1877) ; Booknau v. Bur- 
 
 Ch. (N. Y.) 5iA (1820) ; Lansing v. net, 49 Iowa, 303 (1878) ; Stafford v. 
 
 Capron, 1 Johns. Ch. (N. Y.) 617 Maus, 38 Iowa, 133 (1874) ; Van 
 
 (1815) ; Robinson v. "Wilcox, 2 N. Y. Doren v. Dickerson, 33 N, J. Eq. (6 
 
 Leg. Obs. 160 (1843) ; Jones v. Law- Stew.) 388 (1881) ; Mahn v. Hussey, 
 
 rence, 18Ga.277(1855); Stanhope v. 28 N. J. Eq. (1 Stew.) 546 (1877); 
 
 Manners, 2 Eden, 197 (1763). See Glass v. Warwick, 40 Pa. St. 140 
 
 ante chap. iii. (1861); 8. o. 80 Am. Dec. 566. 
 
 « Brodribb v. Tibbets, 58 Cal. 6 * Mabie v. Hatinger, 48 Mich. 341 
 
 (1881). (1882). 
 
 « Valentine v. VanWagner, 37 6 House v. Eisenlord, 103 N. Y. 
 
 Barb. (N. Y.) 60 (1862); Bank of San 713 (1886). 
 
 Luis Obispo v. Johnson, 53 Cal. 99 * Dederick v. Barber, 44 Mich. 19 
 
 (1878) ; Hunt v. Dohrs, 39 Cal. 304 (1880) ; Scheibe v. Kennedy, 64 
 
 (1870) ; Butler v. Blackman, 45 Wis. 564 (1885).
 
 318 FAILUEE TO PAY INSTALLMENTS. [§267. 
 
 to secure which the mortgage was given, the terms of such 
 note will be imported into the mortgage, and a failure to pay 
 the interest, as provided in the note, will constitute a breach 
 of the contract for which the mortgage may be foreclosed/ 
 Some of the cases, however, hold that a failure to pay interest 
 as it becomes due, under such a clause in the note or mort- 
 gage, authorizes a foreclosure for such interest only, and not 
 for the principal, which is not yet due.' 
 
 Where a note or bond secured by a mortgage, provides 
 that on default in the payment of the interest thereon for a 
 specified number of days after the same becomes due and 
 payable, the principal shall, at the option of the obligee, 
 become payable after default, and the obligee ratifies several 
 parol extensions of the time for paying the interest made by 
 an agent, a subsequent similar extension will be deemed a 
 waiver of the forfeiture, and an action to foreclose for such 
 interest will not be permitted.* 
 
 Where a note contains a clause providing that " any 
 interest remaining due and unpaid shall be added monthly 
 to the principal and bear interest at the same rate," and the 
 mortgage securing such note provides that in case default 
 shall be made in the payment of the principal sum or of the 
 interest thereon, or any pari thereof, according to the terms 
 of the note, the mortgagee shall be empowered to proceed to 
 sell the mortgaged premises in the manner prescribed by law ; 
 the mortgagee will have the right, on default in the monthly 
 payment of interest, to commence an action to foreclose.* 
 But such a clause in the mortgage, giving the mortgagee 
 the right to sell in case of default, refers to a default in the 
 payment of interest, not to a default in adding it unpaid to 
 the principal ; the right to dispose of the interest due and 
 unpaid in the mode prescribed in the note, is given to the 
 mortgagee and not to the mortgagor; and the mortgagee 
 may delay exercising it, or waive it, but a delay in exercising 
 such right can not be so construed as to deprive him of it.* 
 
 » Scheibe v. Kennedy, 64 Wis. « Bell v. Bomaine, 30 N. J. Eq. (3 
 
 564(1885). Stew.) 34 (1878). 
 
 * Bank of San Luis Obispo v. ■* Bricknell v. Batchelder, 62 Cal. 
 
 Johnson, 58 Cal. 99 (1878). 623 (1882).
 
 §§ 2 68 -2 69. j EQUITABLE MORTGAGE. 319 
 
 Where a mortgage provides that upon failure to pay an 
 installment of interest or principal when due, the whole sum 
 shall become due and payable if the mortgagee so elects,' 
 a formal notice of election to foreclose the whole debt on 
 failure to pay an installment is unnecessary; a declaration 
 of such election in the complaint will be sufficient.' 
 
 § 268. Equitable mortgage to repay purchase money. 
 
 — An instrument designated as a "memoranda of contract," 
 signed by the parties to be charged, recited that the party 
 for whose benefit the instrument was given had advanced 
 the money with which to purchase a certain piece of land, 
 which was described in the instrument, the use and control 
 of which was to be turned over to such party until sold, and 
 when sold the purchase price was to be returned to him with 
 one half of the profit. On the death of the parties purchas- 
 ing, an action was brought on the contract with a demand in 
 the complaint that the land be ordered sold and that the 
 claim for the purchase money advanced be paid out of 
 the proceeds. The court held that the instrument was an 
 equitable mortgage, and that the plaintiff was entitled to 
 have the land sold to pay the debt evidenced by it. No 
 time having been fixed in which the purchase money was to 
 be repaid, the law required that it should be paid within a 
 reasonable time.* 
 
 § 269. Equitable mortgage by deposit of title deeds. — 
 In England it has long been held that a deposit of title deeds 
 with a creditor by his debtor is evidence of a valid agreement 
 to give a mortgage, which agreement may be enforced by 
 treating the transaction as an equitable mortgage.* Some of 
 the American courts, however, have repudiated this doctrine 
 and refused to recognize this species of mortgage ;* but in 
 
 » BrickneU v. Batchelder, 62 Cal. * See Stoddard v. Hart, 23 N. Y. 
 
 623 (1882). 556, 560 (1861). 
 
 > Loweastein v. Phelan, 17 Neb, * See Stoddard v. Hart, 23 N. Y. 
 
 429 (1885). 556, 561 (1861) ; Berrj v. Mutual 
 
 « Johnson v. VanVelsor, 43 Mich. Ins. Co., 2 Johns. Ch. (N. Y.) 603 
 
 208 (188C). See ante chap. iii. (1817) ; Vanmeter v. McFadden, 8 
 
 3 Brown v. Brown, 103 Ind. 23 B. Hon. (Ky.) 435 (1848) ; Shitz v. 
 
 (1885). Dieffenbach, 3 Pa. St. 233 (1846) ;
 
 320 MORTGAGE BY DEPOSIT OF TITLE DEEDS. [§270. 
 
 many states such mortgages are valid, although not a com- 
 mon form of security.' In those states where equitable 
 mortgages by deposit of title deeds are valid, they may be 
 foreclosed by an equitable action. In New York a mere 
 parol agreement to make a mortgage, or a deposit of a 
 deed, does not create an equitable lien ; the doctrine is said 
 to be almost unknown, because there is no practice of creat- 
 ing liens in that manner.* It is very questionable whether 
 the doctrine of an equitable mortgage by a deposit of title 
 deeds could be maintained under the New York statutes. 
 It has been held in Tennessee that a mortgage by parol 
 and a deposit of title deeds, is not valid under the statute ;' and 
 the same doctrine, it seems, prevails in Massachusetts.* 
 
 § 270. Agreement to execute mortgai^e.— An agree- 
 ment to execute a mortgage on land is in equity a specific lien 
 upon such land ;' and a mortgage thus created, is entitled to 
 preference over subsequent judgments.* But the agreement 
 to execute a mortgage must be in writing, the mere advance- 
 ment of money not being such a part performance as will 
 take the contract out of the statute of frauds.^ 
 
 BickneU v. Bicknell, 31 Vt. 498 v. Carpenter, 2 Paige Ch. (N. T.) 
 
 (1859). 217, 264 (1830) ; In re Howe, 1 Paige 
 
 > See Mounce v. Byars, 16 Ga. 469 Ch. fN. Y.) 125, 129, 130 (1828) ; s. 
 
 (1854) ; Gotliard v. Flynn, 25 Miss. c. 19 Am. Dec. 395 ; Bloom v. 
 
 68 (1852) ; Gale v. Morris, 29 N. J. Noggle, 4 Ohio St. 45 (1854). 
 Eq. (2 Stew.) 222 (1878) ; Hackett v. « Payne v. Wilson, 74 N. Y. 348, 
 
 Reynolds, 4 R. I. 512 (1857) ; Jarvis 352 (1878) ; Robinson v. Williams, 
 
 V. Butcher, 16 Wis. 307 (1862). See 22 N. Y. 380, 386 (1860) ; In re 
 
 also Chase v. Peck, 21 N. Y. 581, Howe, 1 Paige Ch. (N. Y.) 125, 129 
 
 684 (1860). (1830) ; s. c. 19 Am. Dec. 395 ; 
 
 « Stoddard v. Hart, 23 N. Y. 556, Rockwell v. Hobby, 2 Sandf. Ch. 
 
 661 (1861). See Berry v. Mutual Ins. (N. Y.) 9 (1844). 
 Co., 2 Johns. Ch. (N. Y.) 603 (1817). ^ Marquat v. Marquat, 7 How. (N. 
 
 8 Meador v. Meador, 3 Heisk. Y.) Pr. 417 (1853) ; Dean v. Ander- 
 
 (Tenn.) 562 (1871). son, 34 N. J. Eq, (7 Stew.) 496 
 
 * Ahrend v. Odiorne, 118 Mass. (1881), and note. There is an excep- 
 
 261 (1875). tion to this rule where an accident. 
 
 ' See Payne v. Wilson, 74 N. Y. fraud or mistake is shown, and 
 
 348, 351 (1878) ; Chase v. Peck, 21 where, upon the well established 
 
 N. Y. 581 (1860) ; Seymour v. principles of equity, such relief 
 
 Canandaigua & N. F. R. R. Co., 14 would be permissible. See Ray v. 
 
 How. (N. Y.) Pr. 531 (1857) ; White Adams, 4 Hun (N. Y.) 332 (1875).
 
 §270.] EQUITABLE MORTGAGE. 321 
 
 It is a general principle in equity jurisprudence that an 
 agreement in writing to execute a mortgage, or a mortgage 
 defectively executed, or an imperfect attempt to create a 
 mortgage, or an apportionment of specific property to the 
 discharge of a particular debt, will create a mortgage in 
 equity which will have preference over subsequent judgments. 
 This rule is founded on the principle that a court of equity 
 looks upon things agreed to be done as actually performed.* 
 An agreement in writing to execute a mortgage will be 
 enforced, where it is plain that the parties intended to impose 
 a charge upon specified lands as a security for the payment 
 of a sum of money ; and the agreement will be treated as 
 conferring rights similar to those inherent in mortgages.' 
 And this is true also where the parties do not explicitly con- 
 tract for the giving of a mortgage, but it is manifestly equita- 
 ble that the land should be charged with the indebtedness.' 
 [ It has been held that an attempt to execute a mortgage, 
 which fails for want of some of the formalities required by 
 statute, will constitute a valid mortgage in equity,* even 
 against judgment creditors.* But an instrument in the form 
 of a mortgage, which contains the name of no mortgagee, 
 will not become operative by its delivery to one who advances 
 money upon the agreement that he shall hold the paper as 
 security for his loan.* And it is questionable whether such 
 an instrument could be made effectual by parol authority 
 from a mortgagor to insert the lender's name as mortgagee.^ 
 
 > National Bank of Norwalk v. Hutchins, 6 Hill (N. T.) 143 (1843) ; 
 
 Lanier, 7 Hun (N. Y.) 623 (1876) ; Seymour v. Canandaigua & N. F. 
 
 Burger v. Hughes, 5 Hun (N. Y.) R. R. Co., 14 How. (N. Y.) Pr. 531 
 
 180 (1875). See Siemon v. Schurck, (1857). 
 
 29 N. Y, 598 (1864) ; Wadswortli v. « Hoyt v. Doughty, 4 Sandf . (N. 
 
 Wendell, 5 Johns. Ch. (N. Y.) 230 Y.) 463 (1851). 
 
 (1821) ; Arnold v. Patrick, 6 Paige * Payne v. Wilson, 74 N. Y. 343 
 
 Ch. (N. Y.) 310 (1837) ; White v. (1878). 
 
 Carpenter, 2 Paige Ch. (N. Y.) 217 * Delaire v. Keenan, 3 Desaus. (S. 
 
 (1830) ; Morse v. Faulkner, 1 Anst. C.) Eq. 74 (1809). Contra, Price v. 
 
 11, 14 (1792) ; Burn v. Burn, 3 Ves. Cutts, 29 Ga. 142 (1859;. 
 
 582 (1798). « Chauncey v. Arnold, 24 N. Y. 
 
 « See Chase v. Peck, 21 N. Y. 581 330 (1862) ; s. c. 2 Am. L. Reg. 317. 
 
 (1860) ; DePierres v. Thorn, 4 Bosw. '' Chauncey v. Arnold, 24 N. Y. 
 
 <N. Y.) 266 (1859) ; Stewart v. 330 (1862) ; s. c. 2 Am, L. Keg. 317. 
 
 (2U
 
 322 JOINDER OF ACTIONS. [§§ 271-272. 
 
 § 271. Junior mortgagee can not compel foreclosure 
 by senior mortgagee.— It rests with the holder of a mort- 
 gagee to select for himself the time and manner of enforcing 
 his security, so long as he does not prosecute it unlawfully 
 or unjustly as against a subordinate interest.' And the 
 principle is well established that a junior mortgagee, in an 
 action to foreclose his mortgage, can not make the prior 
 mortgagee a party to the suit, and compel the foreclosure 
 of such prior mortgage.' But the plaintiff may make a prior 
 incumbrancer a party to the suit for the purpose of having 
 the amount of his incumbrance ascertained and paid out of the 
 proceeds.* And where a prior mortgagee has been made a 
 party to an action to foreclose by the junior mortgagee, he 
 may in his answer set up the prior mortgage and ask to 
 have it paid in its priority, before any of the proceeds of the 
 sale are applied to the payment of the plaintiff's mortgage ; 
 and the court may render judgment to that effect;* but it is 
 improper to insert such a clause in the judgment, where it 
 may operate to the prejudice of other defendants who have 
 no opportunity for contesting the priority claimed.* The 
 prior mortgagee is not obliged, however, to take this course 
 to protect his rights.* 
 
 §272. Joinder of actions. — The Code permits the 
 plaintiff to unite in the same complaint two or more causes 
 of action, whether they are such as have heretofore been 
 denominated legal or equitable, or both, where they arise out 
 of the same transaction, or transactions connected with the 
 same subject matter.* Where the plaintiff has other liens 
 upon the property besides his mortgage lien, he may set 
 them out in the complaint and have them established ; or 
 
 • Adams v. McPartlin, 11 Abb. • Emigrant Industrial Savings 
 
 (N. Y.) N. 0. 369 (1882). Bank v. Goldman, 75 N. T. 127 
 
 •Adams v. McPartlin, 11 Abb. (1878). 
 
 (N. Y.) N. C. 369 (1882); McReynolds * Doctor v. Smith, 16 Hun (N. Y.) 
 
 V. Munns, 2 Keyes (N. Y.) 214 245 (1878). See ante chap. ix. 
 
 (1865). See Emigrant Industrial » Payn v. Grant, 23 Hun (K Y.) 
 
 Savings Bank v. Goldman, 75 N. Y. 1-34 (1880). 
 
 127 (1878) ; Frost v. Koon, 30 N. Y. « Payn v. Grant, 23 Hun (N. Y.> 
 
 428 (1864) ; Coming v. Smith, 6 N. 134 (1880). 
 
 Y. 82 ^1851). See ante chap. ix. ■» N. Y. Code Civ. Proc. § 484.
 
 § 272.] JOESTDEK OF ACnONS. 323 
 
 after the sale of the premises he may present and establish a 
 claim to the surplus, the same as any other person holding 
 a lien subsequent to the mortgage.' 
 
 Where a mortgagee holds two or more mortgages upon 
 the same premises they should both be set out in the com- 
 plaint and foreclosed in the same action, only one suit to 
 foreclose both being proper; if the mortgagee brings two suits 
 he will be allowed costs in but one of them.' And the 
 assignee of two mortgages on the same land executed by 
 the same mortgagor at different times to different mort- 
 gagees may unite them in one action to foreclose.' So also 
 two mortgages given by different persons to secure the same 
 debt may be foreclosed in one and the same suit.* And a 
 single mortgage given to secure two debts may be foreclosed 
 in favor of both creditors in the same action.' Only one 
 foreclosure being permissible on a single mortgage to secure 
 different debts due to different creditors, if more than one 
 action is commenced they will be consolidated.* 
 
 If a person holds two mortgages on the same property to 
 secure different debts, one of which is due, and the other is 
 not due, he may file his complaint for. the foreclosure of 
 both mortgages, although the second may not be due, pro- 
 viding it will become due before the decree for the sale of 
 the property is entered ; the defendant can not defeat the 
 action as to the second mortgage by tendering the amount 
 due on the first mortgage after the maturity of the second/ 
 And where the whole of the junior mortgage has become 
 due and payable, and a part only of the senior mortgage is due, 
 the complainant will be entitled to a decree to sell sufficient 
 of the mortgaged premises to pay the amount of both 
 
 ' Field V. Hawxhurst, 9 How. (N. •* McGoTvan v. Branch Bank of 
 
 T. ) Pr. 75 (1853) ; Tower v. White, MobUe, 7 Ala. 823 (1845). 
 
 10 Paige Ch. (N. Y.) 395 (1843). * Chambeilin v. Beck, 68 Ga. 346 
 
 » Roosevelt v. Ellithrop, 10 Paige (1883). 
 
 Ch. (N. Y.) 415 (1843) ; Demarest v. s Benton v. Barnet, 59 N. H. 249 
 
 Berry, 16 N. J. Eq. (1 C. E. Gr.) (1879). 
 
 481 (1864) ; Oconto Co. v. Hall, 42 i Hawkins v. Hni, 15 Cal. 499 
 
 Wis. 59 (1877). (1860) ; s. c. 76 Am. Dec. 499. See 
 
 3 Pierce v. Balkam, 56 Mass. (2 Campbell v. Macomb, 4 Johns. Ch. 
 
 Cush.) 374 (1848). (N. Y.) 534 (1820).
 
 324 CONSOLIDATION OF ACTIONS. [§ 273. 
 
 mortgages, unless the defendant, previous to the sale, pays 
 the junior mortgage and the costs of foreclosure, together 
 with the portion of the senior mortgage which has become 
 due." 
 
 Where a mortgagee is the holder of two mortgages upon 
 the same property, but one of them covers only a portion 
 of the premises included in the other, suit should be brought 
 in the first place for the foreclosure of the mortgage 
 covering the entire premises, for an action upon the other 
 mortgage would then be unnecessary." But a person who is 
 the holder of two mortgages upon separate pieces of prop- 
 erty securing the same debt, or securing different debts, can 
 not foreclose both of such mortgages in one action. 
 
 § 273. Consolidation of actions. — The Code provides, 
 that where two or more actions, in favor of the same plaintiff 
 against the same defendant, for causes of action which may 
 be joined, are pending in the same court, the court may, in 
 its discretion, by order, consolidate any or all of them, into one 
 action.' And where one of the actions is pending in the 
 supreme court, and another is pending in another court, 
 the supreme court may, by order, remove to itself the action 
 in the inferior court, and consolidate it with that in the 
 supreme court.* 
 
 The power of the court to consolidate several actions 
 pending in such court, exists only where it would have been 
 proper to join the several causes of action in the same com- 
 plaint under the provisions of the Code ;" even where the 
 power exists the court may, in its discretion, refuse to exercise 
 it. It has been held that the power conferred by these sections 
 of the Code is confined exclusively to the consolidation of 
 actions at law, and is not applicable to cases in equity." It 
 was held, however, under a former statute, that suits in 
 
 > Hall V. Bamber, 10 Paige Ch. • Selkirk v. Wood, 9 N. Y. Civ. 
 
 (N. Y.) 296 (1843). Proc. Rep. 141 (1886) ; Bech v. Rug- 
 
 » Demarest v. Berry, 16 N. J. Eq. gles, 6 Abb. (N. Y.) N. C. 69 (1878) ; 
 
 (1 C. E. Gr.) 481 (1864). Lockwood v. Fox, 8 Daly (N. Y.) 11, 
 
 * N. Y. Code Civ. Proc. § 817. 27 (1878) ; Kipp v. Delamater, 58 
 
 * N. Y. Code Civ. Proc. § 818. How. (N. Y.) Pr. 183 (1879); Grant v. 
 
 * N. Y. Code Civ. Proc. § 484. Spencer, Voorhies Code (1864); 336 f.
 
 §273.] CONSOLIDATION OF ACTIONS. 325 
 
 equity, such as foreclosures of mortgages, may be consoli- 
 dated as well as actions at law, but that the granting or 
 denying of the application is discretionary.' 
 
 It has been said, where two actions were brought to fore- 
 close two mortgages on separate adjoining parcels of land, 
 both of which were executed by the defendant to the 
 plaintiff for the same debt, and the parties in both actions 
 were the same and the defences identical, that the actions 
 could not be consohdated ;' because actions for the fore- 
 closure of mortgages are not actions on contract within the 
 meaning of the Code of Civil Procedure," which provides for 
 the joinder in the same complaint of such actions alone. 
 Foreclosures are actions in rem against parcels of land, and 
 such actions can not be consolidated where they do not arise 
 out of the same transaction or subject-matter." But where 
 several notes secured by a single mortgage are held by 
 different parties, if each holder brings a foreclosure suit, the 
 actions may be consolidated.* 
 
 • Eleventh Ward Savings Bank v. * Selkirk v. Wood, 9 N. Y. Civ. 
 Hay, 55 How. (N. Y.)Pr. 438 (1877). Proc. Rep. 141 (1886). 
 
 « Selkirk v. Wood, 9 N. Y. Civ. <* Benton v. Barnet, 59 N. H. 249 
 
 Proc. Rep. 141 (1886). (1879). 
 
 * N. Y. Code Civ. Proc. § 484.
 
 CHAPTER Xlli. 
 
 THE COMPLAINT. 
 
 § 274. Form of complaint. 
 
 275. Allegation as to claim. 
 
 276. Allegation as to title and 
 
 ownership of mortgage. 
 
 277. Allegation of execution and 
 
 delivery of mortgage. 
 
 278. Description of note or bond. 
 
 279. Allegation against mortgagor, 
 
 siil)sequent purchasers and 
 co-deft.'udants. 
 
 280. Complaint under New York 
 
 practice. 
 
 281. Allegation by or against ad- 
 
 ministrator, executor or 
 trustee. 
 
 282. Allegation where money due 
 
 on demand. 
 
 283. Allegation as to assignment 
 
 of mortgage. 
 
 284. Allegation on mortgage secur- 
 
 ing several notes. 
 
 285. Allegation as to proceedings 
 
 at law — Rules in New York 
 and Wisconsin. 
 
 286. Allegation where there are 
 I infant defendants. 
 
 287. Allegation where mortgage 
 
 collaterally assigned. 
 
 § 288. Allegation as to recording 
 mortgage and subsequent 
 deeds. 
 
 289. Allegation to bar dower. 
 
 290. Allegation as to defendants' 
 
 interests. 
 
 291. Default in answering by prior 
 
 incuinbraucer. 
 293. Prayer of complaint. 
 
 293. Demand for judgment of 
 
 deticieucy. 
 
 294. Allegation for personal judg- 
 
 ment against grantee assum- 
 ing payment. 
 
 295. Allegation as to property 
 
 mortgaged. 
 
 296. Referring to mortgage or 
 
 other instruments for de- 
 scription. 
 
 297. Defective description. 
 
 298. Allegation as to breach of 
 
 contract and right of action. 
 
 299. Allegation in foreclosure of 
 
 indemnity mortgage. 
 
 300. Allegation as to defendant's 
 
 interest. 
 
 301. Dismissal of complaint on 
 
 payment before judgment. 
 
 § 274. Form of complaint. — The complaint in an action 
 for the foreclosure of a mortgage, in respect to its form and 
 other matters, is regulated by the Code of Civil Procedure.' 
 The complaint under the New York Code is the same in 
 substance as the former bill in equity, and must, as in other 
 actions, contain the title of the action, and state in plain and 
 concise language the facts constituting the cause of action, 
 ''without unnecessary repetition." It must also contain a 
 demand for the judgment to which the plaintiff believes 
 
 » N. Y. Code Civ. Proc. § 518, et seq. 
 326
 
 §275.] FORM OF COMPLAINT. o27 
 
 himself entitled.' It is also required that "the complaint, in 
 an action to foreclose a mortgage upon real property, must 
 state, whether any other action has been brought to recover 
 any part of the mortgage debt, and if so, whether any part 
 thereof has been collected."* 
 
 In an action for foreclosure the mortgage and the bond or 
 note secured thereby must, in some manner, be made a part 
 of the complaint or bill ;' but if the substance of the mort- 
 gage is set out, it will be sufficient/ The plaintiff in a suit 
 to foreclose a mortgage can recover upon default only on the 
 cause stated in his complaint or bill ;' and where a personal 
 judgment is desired for any deficiency that may arise, facts 
 sufficient to support it must be set out in the complaint, and 
 such relief specially demanded. 
 
 § 275. Allegation as to claim. — In an action to foreclose 
 a mortgage, the claim which the mortgage was given to 
 secure, and upon which the action is founded, should be 
 fully set out, and it must appear that the debt secured is due 
 and owing to the complainant ;' if the obligation secured 
 
 ' N. Y. Code Civ. Proc. § 481, Ind. 494 (1862) ; Brown v, Shearon, 
 Similar provisions are made by the 17 Ind. 239 (1861) ; Mickle v. Max- 
 codes of the various states in which field, 42 Mich. 304 (1879). 
 codes of procedure have been * Emeric v, Tams, 6 Cal. 155 
 adopted. See California Code Civ, (1856) ; ^tnaLife Ins. Co. v. Finch, 
 Proc. § 426 ; Dakota Code Civ. Proc. 84 Ind. 301 (1882); Sturgeon v. 
 §111 ; Florida Code Civ. Proc. §93; Board of Commissioners, 65 Ind. 
 Iowa Code Proc. § 2646 ; North 302 (1879) ; Cecil v. Dynes, 2 Ind, 
 Carolina Code Civ. Proc. § 93 ; Ohio 266 (1850). 
 
 Code Civ. Proc. § 85. See also « See Simonson v. Blake, 12 Abb. 
 
 Wa Ching v. Constantine, 1 Idalio (N. Y.) Pr. 331 (1861) ; s. c. 20 How. 
 
 (N. S.) 266 (1883). (N. Y.) Pr. 484 ; Shoaf v. Joray, 
 
 » N, Y. Code Civ. Proc. § 1629 ; 86 Ind. 70 (1882) ; Knowles v. Rab- 
 
 Lovettv, German Reformed Church, lin, 20 Iowa, 101 (1865); Hansford 
 
 12 Barb. (N. Y.) 67 (1851) ; North v. Holdam, 14 Bush (Ky.) 210(1878); 
 
 River Bank v. Rogers, 8 Paige Ch, Converse v. Blumrich, 14 Mich. 109 
 
 (N. Y.) 649 (1841). (1866). 
 
 * See Whitney v. Buckman, 13 ® See Cornelius v. Ilalsey, 11 N. 
 
 Cal. 536 (1859) ; Harlan v. Smith, 6 J. Eq. (3 Stockt.) 27 (1855). But 
 
 Cal. 173 (1856) ; Shoaf v. Joray, 86 see Chesterraan v. Eyland, 81 N. Y. 
 
 Ind. 70 (1882) ; Buck v, Axt, 85 Ind. 401 (1880); Brown v. Kahnweiler, 
 
 512 (1882) ; Ogborn v. Eliason. 77 28 N. J. Eq. (12 C. E. Gr.) 311 
 
 Ind. 393 (1881) ; Hiatt v. Goblt, 18 (1877).
 
 323 ALLEGIN-G OWNERSHIP OF [MORTGAGE. [§276. 
 
 is a bond, default in the performance of its conditions must 
 be shown.' Where the complainant is the assignee of the 
 claim, the assignment of the note and mortgage should be 
 averred, but it is not necessary to set out a copy of the 
 assi^-nment," because under such an averment the complainant 
 may prove an indorsement, and the transfer and delivery of 
 the note and mortgage to him in that manner.* 
 
 Whatever can be claimed by virtue of the mortgage must 
 be set out in the complaint in foreclosure, for a demand can 
 not be split and made the basis of separate suits.* In those 
 cases, however, where the indebtedness is not the foundation 
 of the action, it need not be separately described.* Where 
 there is a stipulation in a mortgage for the payment of taxes 
 and assessments, the complaint in foreclosure must set forth 
 the amount of taxes and assessments paid by the plaintiff 
 for which judgment will be asked.' If any payments have 
 been indorsed upon the mortgage, they should be fuHv set 
 out in the complaint, because w^here no reference is m<ide to 
 them the averments can not be aided by proof of such 
 indorsements.' 
 
 § 276. Allegation as to title and ownership of mort- 
 gage. — In a complaint to foreclose a mortgage, the plaintiff 
 should show ownership of it either as mortgagee, assignee or 
 otherwise. It is not necessary to aver in so many words that 
 the defendant has title to the mortgaged premises; ft is 
 sufficient to aver the making of the mortgage ;* neither is it 
 necessary to anticipate any defence.' A complaint by A. in 
 
 ' Coulter V. Bower, 64 How. (N. « Hibernia Savings an.l Loan 
 
 Y.) Pr. 132 (1882). Society v. Conlin, 67 Cal. 178(1885). 
 
 * See Green v. Marble, 37 Iowa, '' Xicliol v. Henry, 89 Jnd. 54 
 
 95 (1873); Barlbol v. Blakin, 34 (1883). 
 
 Iowa, 452 (1872) ; Nichol v. Henry, * Bull v. ]\reloney, 27 Conn. 560 
 
 99 Ind. 54 (1883) ; Kurtz v. Spon- (^§58) ; Frink v. Branch, 16 Conn, 
 
 able, 6 Kan. 395 (1870) ; Andrews v. ^^^' ^^^ (1844). 
 
 McDaniel, 68 N. C. 385 (1873). " ^""'^ v. Branch, 16 Conn. 260, 
 
 s Mundy v. Whittemore, 15 Neb. ^^^ ^^^^^ ' Palmer v. Mead, 7 Conn. 
 
 647 (1884). 149, 157 (1828) ; Spear v. Hadden, 
 
 < Vincent V. Moore, 51 Mich. 618 31 Mich. 205 (1875); Cornelius v. 
 
 (1883). Rahcy, 11 N. J. Eq. (3 Stockt.) 27 
 
 ' Risk V. Hoffman, 69 Ind. 133 (1855). 
 (1879).
 
 § 277.] ALLEGING OWj^ESHIP OF MOETGAGE. 329 
 
 the usual form, to foreclose a mortgage given to A. and B. to 
 secure a note payable to A., is not bad for want of sufficient 
 allegations, because, if objectionable at all, it is for want oi 
 proper parties plaintiff.' In an action to foreclose a mort- 
 gage given to secure the performance of the conditions 
 of a bond, one of which conditions was that the obligor 
 should pay the sum for which a note had previously been 
 given to the plaintiff, it is not necessary to allege in the 
 complaint that the plaintiff is still the holder of the note.* 
 
 The statute of Vermont providing for foreclosure by peti- 
 tion does not require the fullness required in a bill. A 
 general and comprehensive statement of facts, constituting 
 the ground of right and liability, is sufificient. Thus, where a 
 petition for foreclosure by an assignee of a mortgage, 
 after alleging the assignment to the petitioner and delivery 
 to him of the note and mortgage, alleged that the note and 
 mortgage had ever since been and still were his property, 
 and that he was the holder, owner and bearer of the note, 
 it was held that there was a sufficient allegation of title to 
 present it for litigation on answer.* 
 
 Where by a clerical error the name of the mortgagee is 
 incorrectly given in the mortgage and in the notes secured 
 thereby, it is not necessary to set out such error in the com- 
 plaint and to ask to have the instrument reformed, because 
 the mistake may be explained by evidence or disregarded as 
 immaterial.* 
 
 § 277. Allegation of execution and delivery of mort- 
 gage. — The complaint should show the execution and deliv- 
 ery of the mortgage,* its date and the amount due thereon, 
 the parties to it and the place of record,* together with a 
 description of the premises mortgaged. An allegation that 
 
 » Chrismanv. Chenoweth, 81 Ind. » See Bull v. Meloney, 27 Conn. 
 
 401(1882). 560 (1858); Frink v. Branch, 16 
 
 « I^Iatteson v. Matteson, 65 Wis. Conn. 260, 268 (1844). 
 
 450 (1882). * It has been held that the com- 
 
 * Sprague v. Rockwell, 51 Vt. 401 plaint should allege that the mort- 
 (1879). gage was properly recorded at the 
 
 * Germantown Farmers' Mut. Ins. proper oflBce ; Magee v. Sanderson, 
 Co. V. Dhein, 57 Wis. 521 (1883). 10 Ind. 261 (1858); but that a failure
 
 330 ALLEGING EXECUTION OF IMORTGAGE. [§ 278. 
 
 the defendant executed the instrument sued upon, settint^ 
 it out in full, is equivalent to an allegation that he made all 
 the covenants and promises therein contained, and assumed 
 all the liabilities thereby created.' And it has been held 
 that an allegation in a complaint to foreclose, that the 
 defendant " made, executed, acknowledged and delivered 
 a certain deed of mortgage," is sufficient and can only be 
 construed to mean that the mortgage was properly made 
 and valid in its operation ;* but that an allegation that " the 
 defendant gave a mortgage " is simply a conclusion of law. 
 If the mortgage is not set out in, or made a part of, the 
 complaint, it will be insufficient to authorize a decree for 
 the sale of the premises upon default in answering.* 
 
 In an action by a mortgagee, against the mortgagor and a 
 subsequent purchaser, to foreclose a mortgage on real estate, 
 the complaint alleged that the mortgage had been duly exe- 
 cuted and recorded, setting out a copy of the mortgage, 
 which did not show a certificate of acknowledgment. On 
 demurrer it was held that the acknowledgment was no part 
 of the cause of action, and a copy thereof was not necessary, 
 and that the reasonable inference from the averments of 
 the complaint was, that the mortgage had been duly acknowl- 
 edged. If such was not the case, the want of an acknowl- 
 edgment should have been set up affirmatively as a 
 defence.* 
 
 § 278. Description of note or bond. — If a bond has been 
 given with the mortgage, it should be briefly set out in the 
 complaint, together with the terms and conditions of both 
 instruments. If the note set out in the complaint does not 
 correspond with that described in the mortgage, but the 
 complaint shows that this is a mere error in description, and 
 that the mortgage was designed to secure the note described 
 
 to allege such recording of the mort- (1864) ; McAllister v. Plant, 54 Miss, 
 
 gage will be cured by proof thereof 106 (1876). 
 
 at the trial without objection ; Lyon ^ Hussey v. Hussey, 1 Utah, 241 
 
 V. Perry, 14 Ind. 515 (1860). (1875). 
 
 ' Budd V. Kramer, 14 Kan. 101 ■* Sturgeon v. Board of Commis- 
 
 (1874). sioners, 65 Ind. 302 (1879). 
 
 « Moore v Titman. 33 III. 358
 
 § 278.] DESCRIBING NOTE OE BOND. 831 
 
 in such complaint, it states a good cause of action.* And 
 where the note secured by the mortgage is imperfectly- 
 described in the complaint, if such note be filed with the 
 complaint, and alleged to be the note which the mortgage 
 was given to secure, and this allegation is proved on the 
 trial, the defective description will thereby be cured.' Where 
 the variance between the note described in the mortgage 
 and the note introduced in the suit is not due to a misdescrip- 
 tion, but only to an imperfect description, the note will be 
 sufficiently identified,* and such variance will be no objection 
 to the introduction of the note in evidence.* 
 
 The note or bond and the mortgage securing the same, 
 are usually made parts of the complaint in some manner. 
 Copies of them may be set out in the complaint or annexed 
 thereto. It is not sufficient merely to file the originals or 
 copies thereof with the complaint without referring to them 
 and making them a part of it ;* it will be sufficient, however, 
 if the bill sets out the substance of the mortgage debt ;* it 
 should show that the mortgage was executed for a valuable 
 consideration,^ although it is not necessary that there be 
 literal exactness in describing the debt secured. A statement 
 that the mortgage was given to secure notes amounting to a 
 specified sum, drawing a certain named interest, and held by 
 designated individuals, upon which notes persons named are 
 sureties, has been said to be a sufficient description.* And 
 where the plaintiffs have a joint or a several interest in the 
 money advanced upon the mortgage, that fact should be 
 alleged in the complaint and the decree should be made to 
 
 • Dorsch V. RosenthaU, 39 Ind. 209 23 Ind. 397 (1864) ; Hiatt v. Goblt, 
 (1872); Merchants' Nat. Bank v. 18 Ind. 494 (1862); Triplett v. 
 Raymond, 27 Wis. 567 (1871). Sayre, 3 Dana (Ky.) 590 (1885) ; 
 
 2 Cleavenger v. Beath, 53 Ind. 172 Harlan v. Murrell, 3 Dana (Ky.) 180 
 (1876). See Hadley v. Chapin, 11 (1835). 
 
 Paige Ch. (N. Y.) 245 (1844). • Cecil v. Dynes, 2 Ind. 266 (1850). 
 
 3 Boyd V. Parker, 43 Md. 182 ' Withers v. Little, 56 Cal. 870 
 (1875). (1880). 
 
 * Hough V. Bailey, 82 Conn. 288 « ^tna Life Ins. Co. v. Finch, 84 
 (1864). Ind. 301 (1882). See Ogbom v. 
 
 " Brown v. Shearon, 17 Ind. 239 Eliason, 77 Ind. 393 (1881). 
 (1861). See Dumell v. Terstegge,
 
 332 INTEREST OF SUBSEQUENT PURCHASERS. [§279. 
 
 conform therewith.' So, where a mortgage describes the 
 note it secures by giving the date, the amount, the time of 
 payment, and the rate of interest thereof, it seems that such 
 description in the complaint will be sufficient without giving 
 the name of the maker.' But a failure to set out the note 
 or bond and the mortgage properly in the complaint, is a 
 defect which will be cured by the verdict of a jury or the 
 findings of a court.* 
 
 § 279. Allegation against mortgagor, subsequent 
 purchasers and co-defendants. — In a suit against the mort- 
 gagor alone, the complaint need not allege that such 
 mortgagor has not conveyed the land, or that the mortgage 
 has been duly acknowledged and recorded ;* neither is it 
 necessary to allege title to the mortgage, for the mortgagor 
 is estopped as to title, as the only purpose of the action is 
 to foreclose.' But where an action in foreclosure is brought 
 against a subsequent purchaser of the fee, if the complaint 
 fails to allege either that the mortgage was on record at the 
 time of the defendant's purchase, or that he had actual notice 
 of such mortgage, it will be defective,* unless it is averred 
 that such subsequent purchaser assumed and agreed to pay 
 the mortgage debt as a part of the purchase money.' In a 
 foreclosure against a subsequent purchaser, a failure to allege 
 the recording of the mortgage will be cured by proof thereof 
 at the hearing without objection.* 
 
 Where in an action to foreclose a mortgage parties other 
 than the mortgagor or his grantee are made co-defendants, if 
 the complaint contains an allegation that such co-defendants 
 
 » Higgs V. Hanson, 13 Nev. 356 290 (1862) ; Culph v. Phillips, 17 
 
 (1878). Ind. 209 (1861). 
 
 * Ogborn v. Eliason, 77 Ind. 393 ^ shed v. Garfield, 5 Vt. 39 
 (1881). (1838). 
 
 * Martin t. Holland, 87 Ind. 105 « Peru Bridge Co. v. Hendricks, 
 (1882) ; Galvin v. Woollen, 66 Ind. 18 Ind. 11 (1862). 
 
 464 (1879). ■> Scarry v. Eldridge, 63 Ind. 44 
 
 * St. Marks Ins. Co. v. Harris, 13 (1878). 
 
 How. (N. Y.) Pr. 95 (1856): Mar- • Lyon v. Perry, 14 Ind. 515 (1860). 
 
 tens V. Rawdon, 78 Ind. 85 (1881) ; See Martens v. Rawdon, 78 Ind. 85 
 
 Snyder v, Bunnell, 64 Ind. 403 (1881); Faulkner v. Overturf, 49 
 
 (1878) ; Perdue v. Aldridge, 19 Ind. Ind. 265 (1874)
 
 §.280.] COMPLAINT i:X Is^EW YORK. 833 
 
 have or claim to have some interest in or lien upon the 
 mortgaged premises, which, if any, is subsequent to the 
 plaintiff's mortgage, a cause of action will be sufficiently 
 stated without averring the character of the interests claimed.' 
 But a mere averment in a complaint to foreclose against a 
 person other than the mortgagor, that " he is now the owner 
 of the land," has been held not to be sufficient to show that 
 the mortgage constitutes a lien upon the land as against 
 him, because he may have acquired title to the land by 
 purchase before the mortgage was executed.* Where any 
 of the defendants are infants, the complaint should allege 
 the requisite facts to show the interests of such defendants.' 
 An allegation in a complaint that a mortgagor was seized 
 or pretended to be seized in fee simple of the land when he 
 executed the mortgage, is held a sufficient allegation that 
 he was in possession.* And where the complaint to foreclose 
 does not state the real consideration for, or the exact 
 amount due upon, the mortgage, a decree of foreclosure 
 will be authorized, although the proofs may show a less sum 
 to be due than that which was claimed, or a state of facts not 
 averred in the complaint, if the facts shown are not incom- 
 patible with the allegations in the complaint.* 
 
 § 280. Complaint under New York practice.— Under 
 the rules prescribed by the New York Code of Civil Pro- 
 cedure the facts constituting the cause of action, and not the 
 evidence of the facts, should be stated in the complaint.* 
 Under this rule it is improper to set out the mortgage and 
 
 » Frost V. Koon, 30 N. T. 428, 448 » Nichol v. Henry, 89 Ind. 54 
 
 (1864) ; Drury v. Clark, 16 How. (N. (1883). 
 
 Y.) Pr. 424 (1857) ; Anthony v. Nye, » AUlrich v. Lapham, 6 How. (K 
 
 30 Cal. 401 (1866) ; Poett v. Stearns, Y.) Pr. 129 (1850) ; s. c. 1 Code Rep. 
 
 28 Cal. 226 (1865); Woodworth v. (N. S.) 408. See post %286. 
 
 Zimmerman, 92 Ind. 349 (1883) ; * Holman v. Bank of Norfolk, 12 
 
 Marot V. Germania Assoc, 54 Ind. Ala. 369 (1847). 
 
 37 (1876) ; Bowen v. Wood, 35 " Collins v. Carlile, 13 III. 254 
 
 Ind. 268 (1871) ; Case v. Bartholow, (1851). 
 
 21 Kan. 300 (1878) ; Nooner v. ^ Floyd v. Dearborn, 2 X. Y. Code 
 
 Short, 20 Kan. 624 (1878) ; Seager v. Ecp. 17 (1849). See N. Y. Code Civ. 
 
 Burns, 4 Jlinn. 141 (1860) ; Rice v. Proc. § 481. 
 Hall. 41 Wis. 453 (1877).
 
 334 ACTION BY OR AGAINST EXECUTOR. [§ 28],. 
 
 the bond or note it secures at length ; and while the bond 
 and mortgage should be correctly described in the complaint, 
 a merely technical variance will be disregarded.* The breach 
 of condition, which gives the right to foreclose the mort- 
 gage, as well as the amount of the plaintiff's debt due, 
 must be fully alleged.' The assignment of a mortgage, 
 which was executed without a bond or note, passes the title 
 to the debt; and the complaint in an action to foreclose such 
 a mortgage will be sufficient, if it alleges that the mortgage 
 was given to secure the mortgage debt and sets out the con- 
 ditions of the mortgage and its assignment to the plaintiff.* 
 
 § 281. Allegation by or against administrator, execu- 
 tor or trustee. — The complaint in an action against an 
 executor to enforce the lien of a mortgage executed by his 
 decedent, need not aver that notice has been given to the 
 creditors of the deceased, but it must aver that the mortgage 
 claim has been duly presented to the administrator for 
 allowance.* Where the mortgage sought to be foreclosed 
 purports to be executed by an executor and trustee in his 
 representative capacity,* the complaint need not allege that 
 the defendant was in fact such executor and trustee, nor the 
 facts relating to his appointment and authority to execute 
 the mortgage,* because such executor and his grantees are 
 estopped from denying his appointment and authority.'' 
 
 But the rule is different where one sues as executor or 
 administrator, in which case he must set forth in full his 
 appointment and authority to bring the foreclosure.* 
 
 > See Hadley v. Champin, 11 Paige » Kingsland v. Stokes, 25 Hun (N. 
 
 Ch. (N. y.) 245 (1844). T.) 107 (1881). 
 
 « Second American Building Asso- « White v. Joy, 13 N. Y. 87 (1855); 
 
 ciation v. Piatt, 5 Duer (N. Y.) 675 Skelton v. Scott, 18 Hun (N. Y.) 
 
 (1856) ; Cornelius v. Halsey, UN. 375 (1879). 
 
 J. Eq. (3 Stockt.) 27 (1855). ' Tefft v. Munson, 57 N. Y. 97 
 
 » Severance v. Griffith, 2 Lans. (N. (1874) ; Kingsland v. Stokes, 25 Hun 
 
 Y.) 38 (1870). See Coleman v. Van (N. Y.) 107 (1881) ; Skelton v. Scott, 
 
 Rensselaer, 44 How. (N. Y.) Pr. 368 18 Hun (N. Y.) 375 (1879) ; Jackson 
 
 (1873) ; Caryl v. Williams, 7 Lans. v. Parkhurst, 9 Wend. (N Y ) 209 
 
 (N. Y.) 416 (1873). (1832). 
 
 * Harp V. Calahan, 46 Cal. 223 « Kingsland v. Stokes, 58 How. 
 
 (1S73). (N. Y.) Pr. 1 (1879); s. c. aff'd 25 Hun
 
 282.] 
 
 MORTGAGE DUE ON DEMAND. 
 
 335 
 
 § 282. Allegation where money due on demand.— In a 
 
 complaint to foreclose a mortgage securing a note payable 
 on demand generally, and not at a particular place, the mort- 
 cra^ee having a right to foreclose the mortgage at any time 
 need not allege a previous demand before commencement of 
 the suit; the filing of the complaint is a sufficient demand 
 
 It is well settled where a demand note is made payable at 
 a particular place and secured by mortgage, that in an action 
 to foreclose such mortgage, it is not necessary to make or 
 allege a demand of payment at the place designated for pay- 
 ment.* This rule is based upon the principle that where 
 
 (N. Y.) 107 (1881) ; 61 How. (N. Y.) 
 Pr. 494. See also White v. Joy, 13 
 N. Y. 83 (1855) ; Peck v. Mallams, 
 10 N. Y. 509 (1853); Forrest v. 
 Mayor of N. Y., 13 Abb. (N. Y.) Pr. 
 350 (1861) ; Wheeler v. Dakin, 12 
 How. (N. Y.) Pr. 537 (1856) ; Shel- 
 don V. Hoy, 11 How. (N. Y.) Pr. 11 
 (1855) ; Beach v. King, 17 Wend. 
 (N. Y.) 197 (1837). As to forms in 
 pleading by an executor, see Moir 
 V. Dodson, 14 Wis. 279 (1861). 
 
 1 Wright V. Shumway, 1 Biss. C. 
 C. 23 (1853) ; 8. c. 2 Am. L. Reg. 
 (O. S.) 20. 
 
 « Haxtun v. Bishop, 3 Wend. (N. 
 Y.) 13 (1829). See Locklin v. Moore, 
 57 N. Y. 360 (1874) ; Gillett v. Bal- 
 colm, 6 Barb. (N. Y.) 370 (1849) ; 
 Harris v. Mulock, 9 How. (N. Y.) 
 Pr. 402 (1853) ; Bank of Niagara v. 
 McCracken, 18 Johns. (N. Y.) 493 
 (1821) ; Gammon v. Everett, 25 Me. 
 66 (1845) ; 8. c. 43 Am. Dec. 255 ; 
 McKenney v. Whipple, 21 Me. 98 
 (1842) ; Bryant v. Damariscotta 
 Bank, 18 Me. 241 (1841) ; State Bank 
 V. VanHorn, 4 N. J. L. (1 South.) 
 382 (1817) ; Union Cent. Life Ins, 
 Co. V. Curtis, 35 Ohio St. 343, 357 
 (1880) ; Smith v, Bythewood, Rice 
 (S. C.) L. 245 (1839) ; s. C. 33 Am. 
 Dec. Ill ; Rumball v. Ball, 10 Mod. 
 38 (1712). See also Henley v. Bush, 
 
 33 Ala. 636 (1859); Niemeyer v. 
 Brooks, 44111. 77(1867) ; Pennington 
 V. Clifton, 10 Ind. 172 (1858) ; Ros3 
 V. Lafayette & I. R. Co., 6 Ind. 297 
 (1855) ; Wood v. Barstow, 27 Mass. 
 (10 Pick.) 368 (1830); Ilolden v. 
 Eaton, 24 Mass. (7 Pick.) 15 (1828) ; 
 Lent V. Padelford, 10 Mass. 230 
 (1813); 8. c. 6 Am. Dec. 119 ; Wat- 
 son V. Walker, 23 N. H. (3 Fost.) 471 
 (1851); Thurston v. Wolfborough 
 Bank, 18 N.H. 391 (1846); s.c. 45 Am. 
 Dec. 382; Darling v. Wooster, 9 
 Ohio St. 517 (1859) ; Hill v. Henry, 
 17 Ohio, 9 (1848); White v. Swift, 1 
 Cr. C. C. 442 (1807) ; AVyman v. 
 Fowler, 3 McL. C. C. 467 (1844). 
 
 » See Wolcott v. VanSantvoord, 
 17 Johns. (N. Y.) 248 (1819) ; s. c. 8 
 Am. Dec. 396 ; Foden v. Sharp, 4 
 Johns. (N. Y.) 183 (1809) ; Ilaxtun 
 V. Bishop, 3 Wend. (N. Y.) 13 (1829); 
 Butterfield v. Kinzie, 2111. (1 Scam.) 
 445 (1837) ; Gammon v. Everett, 25 
 Me. 66 (1845) ; s. c. 43 Am. Dec. 
 255 ; Bacon v. Dyer, 12 Me. (3 
 Fairf .) 19 (1835) ; Carley v. Vance, 
 17 Mass. 389 (1821) ; Washington v. 
 Planters' Bank, 2 [Miss. (1 How.) 230 
 (1835) ; 8. c. 28 Am. Dec. 333 ; East- 
 man V. Fifield, 3 N. H. 333 (1826) ; 
 s. C. 14 Am. Dec. 371 ; Adams v. 
 Hackensack Improvement Co., 44 
 N. J. L. (15 Vr.) 638 (1882) ; s. C. 43
 
 336 
 
 ALLEGING ASSIGNMENT OF MORTGAGE. [§283. 
 
 money is made payable by the agreement of the parties, 
 upon demand, or at a specified time at a particular place, a 
 demand at the time or place, prior to the commencement of 
 the suit, is not necessary. The commencement of the suit is 
 itself a sufficient demand.' But where the defendant was at 
 the place designated, and was ready and offered to pay the 
 money, he may plead such fact in exoneration of interest 
 and the costs of the suit, provided he makes his tender good 
 by payment of the amount of the debt into court.* 
 
 §283. Allegation as to assignment of mortgage.— 
 Where the assignee of a mortgage brings an action for fore- 
 closure he should set out in the complaint all the assignments 
 thereof. A mere allegation, " that the plaintiff, by several 
 mesne assignments, is the owner and holder of the note and 
 mortgage," without other allegations showing title in the 
 plaintiff, is defective, because it does not sufficiently show 
 the assignments of the mortgage.* Where a complaint 
 
 Am. Rep. 406 ; Wallace v. McCon- 
 nel, 38 U. S. (13 Pet.) 186 (1839) ; 
 bk. 10 L, ed. 95 ; Bank of United 
 States V. Smith, 24 U. S. (11 Wheat.) 
 171 (1836); bk. 6 L. ed. 443; 
 Nicholls V. Bowes, 2 Campb. 498 
 (1810) ; Lyons v. Sundius, 1 Campb. 
 423 (1808). 
 
 ' Locklin v. Moore, 57 N. Y. 360 
 (1874) ; Hills v. Place, 48 N. Y. 520 
 (1873) ; Caldwell v. Cassidy, 8 Cow. 
 (N. Y.) 271 (1828) ; Nelson v. Bost- 
 "tv'ick, 5 Hill (N. Y.) 37 (1843); 
 Wolcott V. VanSantvoord, 17 Johns 
 (N. Y.) 248 (1819) ; s. c. 8 Am. Dec. 
 890 ; Haxtun v. Bishop, 3 Wend. 
 (N. Y.) 13, 15 (1829); WatkLus v. 
 Crouch. 5 Leigh (Va.) 522 (1834). 
 
 * Adams v. Hackensack Improve- 
 ment Co., 44 N. J. L. (15 Vr.) 638 
 (1882) ; s. c. 43 Am. Rep. 406. See 
 also Caldwell v. Cassidy, 8 Cow. (N. 
 Y.) 271 (1828) ; Haxtun v. Bishop, 3 
 Wend. (N. Y.) 13 (1829) ; Wood v. 
 llerchants' Saving, Loan and Trust 
 Co., 41 111. 26'i (1S66) , s. c. 1 Am. 
 
 Lead. Cas. 478 ; Carley v. Vance, 17 
 Mass. 389 (1821) ; Ward v. Smith, 
 74 U. S. (7 Wall.) 447 (1868) ; bk. 19 
 L. ed. 207. See ante § 39. 
 
 2 See Rose v. Meyer, 7 N. Y. Cir. 
 Proc. Rep. 219 (1885) ; s. c. 1 How. 
 (N. Y.) Pr. N. S. 274 ; Thomas v. 
 Desmond, 12 How. (N. Y.) Pr. 321 
 (1855) ; Pattie v. Wilson, 25 Kan. 
 326(1881); Lashbrooksv. Hatheway, 
 52 Mich. 124(1883) ; Denton v. Cole, 
 30 K J. Eq. (3 Stew.) 244 (1878). It 
 is held in some cases that in an 
 action by the assignee to foreclose a 
 mortgage, it is not necessary to set 
 out the assignments whereby he 
 acquired the title to the instrument, 
 and that it is sufficient to allege in 
 the complaint that the plaintiff is the 
 assignee ; Ercanbrack v. Rich, 2 
 Chand. (Wis.) 100 (1850) ; s. c. 2Pin. 
 (Wis.) 441. Yet it has been said that 
 a complaint by an assignee to fore- 
 close a mortgage, which merely avers 
 that the mortgage was endorsed to 
 him, withoui slating by whom, is not
 
 § 283.] ALLEGmG ASSIG2fMENT OF MOETGAGE. 33^ 
 
 sets forth the indebtedness of the defendants to the com- 
 plainant's assignor for the purchase money of lands, and the 
 execution by them of a mortgage to secure the payment 
 thereof in installments, and its assignment to the plaintiff, it 
 sufficiently shows the plaintiff to be the owner of the mort- 
 gage debt and entitled to maintain an action to foreclose/ 
 It has also been held, where the assignee of a mortgage 
 files a complaint for foreclosure, alleging that the debt is due 
 and owing to him and that he is ready to produce the note 
 or obiigation, which is the evidence of the debt the mortgage 
 was given to secure, that this is sufficient without stating that 
 the note or obligation has been assigned to the plaintiff.' 
 As a mortgage given to secure a note, is regarded as an inci- 
 dent thereto, and passes with every transfer of such note 
 ■without a specific assignment of the mortgage, it is not neces- 
 sary to aver an assignment of such mortgage in a foreclosure 
 thereof.' The complaint need not aver the record of the 
 assignment," because the record of such assignment is not 
 necessary to the validity of the plaintiff's claim." The fact 
 that the assignee holds the mortgage merely as a collateral 
 security, does not affect his right to recover ; it simply limits 
 his interest in the proceeds of the sale.' A mortgage given 
 to indemnify the mortgagee against a contingent liability is 
 assignable, and an action thereon may be maintained by 
 
 good as against a demurrer for defect (1859) ; McMillan v. Richards, 9 Cal. 
 
 of parties, because the mortgagee is 365 (1858) ; s. c. 70 Am. Dec. 655 ; 
 
 not made a defendant; Kichol v. Bennett v. Solomon, 6 Cal. 134 
 
 Henry, 89 Ind. 54 (1883). (1856). See Hagerman v. Sutton. 91 
 
 ' Severance v. Griffith, 2 Lans. (N. Mo. 519 (1887) ; Bell v. Simpson, 75 
 
 Y.) 38 (1870). See also Ercanbrack Mo. 485 (1882) ; Child v. Singleton, 
 
 V. Rich, 2 Chand. (Wis.) 100 (1850) ; 15 Nev. 461 (1880). The indorsement 
 
 B. c. 2 Pin. (Wis.) 441. without recourse of a note secured 
 
 *Corneliusv. Halsey, UN. J. Eq. by a deed of trust, carries with 
 
 (3 Stockt.) 27 (1855). See Buckner it the trust deed as a security ; Bell 
 
 V. Sessions, 27 Ark. 219 (1871) ; Bab- v. Simpson, 75 Mo. 485 (1882). 
 
 bitt V. Bowen, 32 Yt. 437 (1859). * King v. Harrington, 2 Aik. (Vt.) 
 
 * Johnson v. Johnson, 81 Mo. 331 33 (1826). 
 
 (1884) ; Ord v. McKee, 5 Cal. 515 « Fryer v. Rockefeller, 63 N. Y. 
 
 (1855). See Koch v. Briggs, 14 Cal. 268 (1875). 
 
 256 (1859) ; 8. c. 73 Am. Dec. « McKinney v. Miller, 19 Mich, 
 
 651 ; Haffley v, Maier, 13 Cal. 13 142 (1869).
 
 ooS MORTGAGE SEGURmG SEVERAL l^^OTES. [^ 284. 
 
 the assignee, in his own name, upon the accruing of such 
 liabiHty.* 
 
 Where upon the settlement of an estate the residue con- 
 sists in part of a note and mortgage, it may be assigned in 
 that form to the persons entitled thereto.' The assignment 
 will have the effect of an order of distribution, and transfer 
 the title to the persons named, and they may foreclose the 
 mortgage.' 
 
 § 284. Allegation on mortgage securing several notes. 
 
 — A mortgage constitutes a single cause of action, however 
 many notes or installments it may secure.* It is said that in an 
 action to foreclose such a mortgage, it is proper to embrace 
 in a single paragraph of the complaint the mortgage and all 
 the notes secured by it ; and if a copy of one note only is 
 given, the complaint will nevertheless be good upon demurrer.* 
 The joinder, in one paragraph of the complaint, of several 
 matured and unmatured promissory notes, secured by a 
 mortgage on real estate, in an action on the notes and to fore- 
 close the mortgage, is not an error that can be taken advan- 
 tage of after judgment.* 
 
 Where the holder of one of several notes secured by a 
 mortgage, brings an action to foreclose for the payment of 
 his note alone, he should state in his complaint whether the 
 other notes have been paid, and if they have not been paid, 
 he should give the names of the persons by whom they are 
 held and the time when they mature, in order that the rights 
 of such holders of other notes may be determined and 
 protected by the court.' The foreclosure of such a mortgage 
 by the holder of one note will not be a bar to a separate 
 action and decree by the holder of other notes.* And it has 
 been said, where a person holds all of the notes secured by a 
 
 1 Carper v. Munger, 63 Ind. 481 • Firestone v. Klick, 67 Ind. 309 
 
 (1878). (1879). 
 
 ■' See Ind. Rev. Stat. §§ 3940, 3942. ' Hartwell v. Blocker, 6 Ala. 581 
 
 2 Ford V. Smith, 60 Wis. 222 (1S44) ; Levert v. Redwood, 9 Port. 
 (1884). (Ala.) 79 (1839). 
 
 * Hannoii v. Hilliard, 101 Ind. 310 « Moffitt v. Roche, 76 Ind. 75 
 
 (18S4). (1881). 
 ^ Luck V. Axt, 85 Ind. 512 (1882).
 
 § 285.] ALLEGING ACTION AT LAW ON BOND. 339 
 
 mortgage, that he will not be obliged to foreclose for all of 
 them ; but that he may enter a decree of foreclosure as to 
 part of them, and recover in a suit at law on the others.' 
 
 Where a plaintiff holds several notes secured by the same 
 mortgage, only a portion of which are due, he should ask in 
 his complaint that so much of the debt as may become due 
 before the final decree shall be entered in the case, shall be 
 included in such decree.' It will be error to adjudge in favor 
 of the plaintiff the foreclosure of a mortgage for the pay- 
 ment of a note which matures after the filing of the com- 
 plaint, without some foundation being laid in the pleadings 
 therefor.* 
 
 An action can not be commenced to foreclose a mortgage 
 securing several notes where none of them are yet due ;* but 
 where one or more are due and an action has been properly 
 commenced, additional relief may be had under the decree 
 for rights that may accrue after the commencement of the 
 action.* 
 
 § 285. Allegation as to proceedings at law— Rules in 
 New York and Wisconsin.— The New York Code of Civil 
 Procedure requires that the complaint in an action to foreclose 
 a mortgage upon real property, must state whether any other 
 action has been brought to recover any part of the mortgage 
 debt, and if such an action has been brought, whether any 
 part thereof has been collected ;' and that " where final judg- 
 ment for the plaintiff has been rendered, in an action to re- 
 cover any part' of the mortgage debt, an action shall not be 
 commenced or maintained to foreclose the mortgage, unless 
 an execution against the property of the defendant has been 
 issued, upon the judgment, to the sheriff of the county where 
 he resides, if he resides within the state, or, if he resides with- 
 out the state, to the sheriff of the county where the judgment 
 
 ' Langdon v. Paul, 20 Vt. 217 * McCollough v. Colby, 4 Bosw. 
 
 (1848). (N. Y.) 603 (1859). 
 
 » Malcolm v. Allen, 49 N. Y. 448 ^ Bostwick v. Menck, 8 Abb (N 
 
 (1872) ; Williams v. Creswell, 51 T.) Pr. N. S. 169 (1869)'; Candler v' 
 
 Miss. 817 (1876). Pettit, 1 Paige Cli. (N. Y.) 168 
 
 •Williams v. Creswell, 51 Miss. (1828). 
 
 817(1876X • N. Y. Code Civ. Proc. § 1629.
 
 340 ALLEGIXa ACTION AT- LAW ON BOND. |_§ 1*85. 
 
 roll is filed ; and has been returned wholly or partly unsatis- 
 fied."* An averment in a petition that no other proceedings 
 have been had for the recovery of the debt secured by the 
 mortgage, is a sufificient allegation to show that no action at 
 law has been commenced.' 
 
 Where proceedings have been instituted for the collection 
 of the debt, independent of the action for foreclosure, the 
 complaint should state what those proceedings were and 
 against whom instituted ; and should show further that such 
 proceedings have been discontinued, or that the remedy 
 thereby has been exhausted.* But the proceedings to foreclose 
 a mortgage will not be stayed because a suit at law has been 
 commenced upon the bond, even though it appears that such 
 suit has not been discontinued.* If it appears from the com- 
 plaint in a foreclosure suit that judgment has been recovered 
 for the mortgage debt, or that the mortgage was given as 
 collateral security for the payment of a note whiclj was 
 already in judgment, the plaintiff must show that he has 
 exhausted his remedy at law upon the judgment ; otherwise 
 the defendant in the foreclosure suit may demur to the 
 complaint, or may raise the objection by his answer.* 
 
 The Wisconsin doctrine, however, would seem to be that 
 a bill to foreclose a mortgage, which states that no proceed- 
 ings have been had to collect the debt, will be held good on 
 demurrer for failure to state what part of the debt has been 
 collected, because an allegation in that behalf is necessary 
 only where proceedings have been had at law.* In this case 
 the bill stated that the bond and collateral mortgage had 
 been, for a valuable consideration, assigned to the com- 
 plainant, and were held and owned by him. The court say: 
 
 ' K Y. Code Civ. Proc. § 1630. » Lovett v. German Reform 
 
 * Mundy v. Whittemore, 15 Neb. Church, 12 Barb. (N. Y.) 67 (1851) ; 
 647 (1884). Shufelt v. Shufelt, 9 Paige Ch. (N. Y.) 
 
 » Lovett V. German Reform 137 (1841) ; s. c. 37 Am. Dec. 389 ; 
 
 Church, 12 Barb. (N. Y.) 67 (1851) ; North River Bank v. Rogers, 8 
 
 Williamson v. Champlin, Clarke Ch. Paige Ch. (N. Y.) 648 (1841). 
 
 (N. Y.) 9 (1839) ; Pattison V. Powers, « Ercanbrack v. Rich, 2 Chand. 
 
 4 Paige Ch. (N. Y.) 549 (1834). (Wis.) 100 (1850); s. c. 2 Pin. (Wis.) 
 
 * Williamson v. Champlin, Clarke 441. 
 Ch. (N. Y.) 9 (1839).
 
 §§286-287.] COLLATERAL ASSIGNMENT. 341 
 
 "This was enough to entitle liim to sue. He was not bound 
 to set forth the evidence of his right. The objection that it 
 does not appear, that no part of the debt has been coljectcd, 
 is not appHcable, as the bill states that no proceedings had 
 been had at law, and it is only when such proceedings have 
 been had, that it is necessary to show what has been col- 
 lected.'" 
 
 § 286. Allegation where there are infant defendants. — 
 In an action to foreclose a mortgage, where some of the 
 defendants are infants, the complaint must allege the requi- 
 site facts to show what the interests of such infant defendants 
 in the premises are; and the facts entitling the complainant 
 to a judgment for foreclosure and sale must be set up in the 
 complaint and established by the proof, because they are 
 never deemed admitted where there are infant defendants.' 
 
 § 287. Allegation where mortgage collaterally as- 
 signed. — In the foreclosure of a mortgage by a plaintiff to 
 whom the mortgage has been assigned as collateral security, 
 the complaint should set forth all the circumstances of such 
 assignment and the respective interests of all parties; and 
 in case of the sale of the mortgagee's interest in such action, 
 the surplus, if any remains after satisfying the interest of the 
 plaintiff, must be refunded to the mortgagee.' Any arrange- 
 ment between the mortgagor and the collateral assignee of 
 the mortgage, to discharge the mortgage of record to the 
 injury of the mortgagee, will be void as to him, and he will 
 be entitled to recover the balance of the mortgage debt due 
 him after deducting the amount for which the mortgage 
 was pledged.* The foreclosure of the mortgage by the 
 
 > Ercanbrack v. Eich, 2 Chand. 7 Johns. Ch. (N. T.) 40 (1823) ; s. c. 
 
 (Wis.) 100 (1850); s. c. 2 Pin. (Wis.) aff'd in Clark v. Henry, 2 Cow. (N. 
 
 441. Y.) 324 (1823) ; Coffin v. Loring, 91 
 
 » Aldrich v. Lapham, 6 How. (N. Mass. (9 Allen), 154 (1864); Graydon 
 
 T.) Pr. 129 (1850) ; s. c. 1 N. Y. v. Church, 7 Mich. 36 (1859). See 
 
 Code Rep. K S. 408. See alfeo an^e §^87-89, 181, 182. 
 Livingston v. Tanner, 12 Barb. (N. * jjoyt v. Martense, 16 ]SI. Y. 231 
 
 Y.^ 481 (1852). (1857); Slee v. Manhattan Co., 1 
 
 'See Johnson v. Blydenburgh, Paige Ch. (N. Y.) 48, 78 (1828); 
 
 31 N. Y. 427 (1865) ; Henry v. Davis, Cutts v. New York Manuf. Co.. 18
 
 34:2 ALLEGIJSG COLLATERAL ASSIGNMENT. [§287. 
 
 collateral assignee thereof will not affect the relation 
 existing between tiie mortgagor and the mortgagee, in re- 
 spect to the debt between them.' 
 
 Where a mortgage has been assigned as collateral security 
 for the debt of a third person, it may be foreclosed by 
 the pledgee.' In a foreclosure by the assignee of the mort- 
 gage, the complaint should set out the fact of the assign- 
 ment of {he mortgage to him as collateral security for the debt 
 of a third person, designating the person, and aver that the 
 debt is due and has not been paid. The prayer should be for 
 the sale of the mortgaged premises to pay the debt, which the 
 mortgage was assigned to secure, and the costs of suit ; and 
 the decree should direct, after the payment of the debt set 
 out and the costs of the suit, that the balance, if any, be 
 brought into court to be disposed of as the interests and 
 rights of the parties may require. Such foreclosure of a 
 mortgage, by the party holding the same as collateral security 
 for the payment of the debt of a third person, does not, as 
 between the assignee and the party placing the mortgage in 
 his hands, necessarily operate as a payment of the debt for 
 which the mortgage was pledged. The debt, as between 
 the pledgor and the pledgee, will not be considered paid until 
 the property mortgaged has been actually sold and con- 
 verted into money;' because on such foreclosures the land is 
 substituted for the notes and mortgage as collateral security.* 
 
 In an action brought to foreclose a mortgage, given to 
 secure a bond made by one of the mortgagors to secure the 
 payment of certain notes, which notes were held by the mort- 
 gagees as collateral security for an over due indebtedness, it 
 is not necessary for the complaint to allege that the notes 
 held as collateral security have become due, for a failure to 
 
 Me. (6 Shep.) 190, 201 (1841) ; Solo- Gray), 135 (1857) ; 8. c. 69 Am. 
 
 mon V. Wilson, 1 Whart. (Pa.) 241 Dec. 239. See Stevens v. Denham 
 
 (1836). See ante %% 87, 181. Institution for Savings, 129 Mass. 
 
 ' Brown v. Tyler. 74 Mass. (8 547, 549 (1880); Montague v. Barton 
 
 Gray), 135, 138 (1857) ; s. c. 69 Am. & A. R. R. Co., 124 Mass. 242(1878); 
 
 Dec. 239. Whipple v. Blackington, 97 Mass. 
 
 * See Stevens v. Dedham Inst, for 476, 478 (1867). 
 
 Savings, 129 Mass. 547 (1880). * Montague v. Barton & A. R. R. 
 
 « Brown v. Tylei, 74 Mass. (8 Co., 124 Mass. 242, 245 (1878).
 
 §§ 288-289.] ALLEGING EJECOED OF MOKTGAGE. 343 
 
 comply with the conditions of the bond creates a sufficient 
 cause of action.' 
 
 § 288. Allegation as to recordingf mortgage and 
 subsequent deeds. — The complaint in an action to foreclose 
 a mortgage need not aver that the mortgage has been 
 recorded," where the action is between the original parties to 
 the mortgage, or their assignees or legal representatives;' but 
 generally, in an action to foreclose a mortgage against a 
 subsequent purchaser from the mortgagor, the complaint 
 must allege that the mortgage was recorded at the time and 
 place prescribed by the statute.* 
 
 In the foreclosure of a mortgage, where a party is made 
 a defendant, who claims the mortgaged premises as a dona 
 fide purchaser under a deed given subsequent to the mort- 
 gage, but recorded first, and the plaintiff claims that such 
 deed is fraudulent, he must set forth in the complaint the 
 facts and allegations which show the fraud ; and in such a 
 case, where the only allegation was that the defendant 
 claimed an interest in the premises "as subsequent purchaser, 
 incumbrancer or otherwise," it was held that the court could 
 not consider the evidence taken to show the fraudulent 
 character of the deed, as such an allegation did not place the 
 defendant's rights in issue.' 
 
 § 289. Allegation to bar dower. — In an action to fore- 
 close a mortgage executed by the husband alone, during 
 coverture, the widow's dower will not be barred where she is 
 made a defendant, and the complaint simply alleges that 
 she claims some interest in the premises "as a subsequent 
 purchaser, or incumbrancer or otherwise," for in such a case 
 the record bars only whatever interest, if any, she acquired 
 subsequent to the mortgage ;' a prior right of dower in such a 
 
 > Troy City Bank v. Bowman, 19 " Wurcherer v. Hewitt, 10 Mich. 
 
 Abb. (N. Y.) Pr. 18 (1865). 453 (1862). See also Peck v. Mal- 
 
 2 See ante % 279. lams, 10 N. Y. 509 (1853) ; Thomas 
 
 * Snyder v. Bunnell, 64 Ind. 403 v. Stone, Walk. Ch. (Mich.) 117 
 
 (1878). See South Side Planing (1843) ; Godfroy v. Disbrow, Walk. 
 
 Mill Assoc. V. Cutler & Savage Ch. (Mich.) 260 (1848). 
 
 Lumber Co., 64 Ind. 560 (1878). « Lewis v. Smith, 9 K Y. 503 
 
 •» StockweU V. State, 101 Ind. 1 (1854) ; s. c. 61 Am. Dec. 706 ; 11 
 
 (1884) Barb. (N. T.) 152 ; 12 Leg. Obs. 193.
 
 Sii ALLEGmG defendants' INTERESTS. [§ 290. 
 
 case will not be cut off, if the complaint merely alleges that 
 her interest is subsequent to the mortgage, and an objection 
 is properly taken.' The dower 'provided by law in behalf 
 of the wife who survives her husband is paramount to all 
 conveyances, contracts, incumbrances, debts or liabilities of 
 the husband executed or incurred by him during coverture,* 
 unless there has been some forfeiture, release, bar or satis- 
 faction thereof by the wife.' 
 
 If the plaintiff desires to cut off the widow's dower by 
 foreclosure of .the mortgage and sale of the property, the 
 complaint should state the facts upon which the question 
 arises, as he believes they exist, according to the rules of 
 equity pleading.* 
 
 § 290. Allegation as to defendants' interests. — Where 
 parties other than those directly liable for the mortgage debt 
 are made defendants to a foreclosure, it is necessary for the 
 plaintiff to show that they have some interest in the equity 
 of redemption which makes them proper parties to the action. 
 This may be done by the general allegation that such 
 defendants have or claim some interest in, or lien upon, 
 the mortgaged premises which is subsequent to the plaintiff's 
 The fact that the interests of such defendants 
 
 See Lee v. Parker, 43 Barb. (N. Y.) s. c. 43 Am. Dec. 754 ; Hitchcock v. 
 
 611, 614 (1865). Harrington, 6 Johns. (N. Y.) 290 
 
 1 Jordan v. VanEpps, 85 N. Y. (1810) ; s. c. 5 Am. Dec. 229 ; Cat- 
 
 427, 436 (1881). See Emigrant In- lin v. Ware, 9 Mass. 218 (1812) ; s. 
 
 dustrial Sav. Bank v. Goldman, 75 c. 6 Am. Dec. 57 ; Popkin v. Bum- 
 
 N. Y. 127 (1878); Frost v. Koon, stead, 8 Mass. 491 (1812); s. c. 5 
 
 30 N. Y. 428, 448 (1864) ; Lewis v. Am. Dec. 491 ; English v. English, 
 
 Smith, 9 N. Y. 502 (1854) ; 61 Am. 3 N. J. Eq. (2 H. W. Gr.) 504 
 
 Dec. 706 ; Keeler v. McNierney, 6 (1836) ; s. c. 29 Am. Dec. 730 ; 
 
 N. Y. Civ. Proc. Rep. 363 (1883); Gordon v. Stevens, 2 Hill (S. C.) 
 
 Payn v. Grant, 23 Hun (N. Y.) 134 Eq. 46 (1834) ; s. c. 27 Am. Dec. 
 
 (1880). See ante %% 135, 136. 445. 
 
 * Higginbotham v. Cornwcll, 8 ■* Lewis v. Smith, 9 N. Y. 502, 
 
 Gratt. (Va.) 83 (1851) ; s. c. 56 Am. 515 (1854) ; s. c. 61 Am. Dec. 706. 
 Dec. leo. 5 Drury y. Clark, 16 How. (N. Y.) 
 
 3 O'Brien v. Elliott, 15 Me. 125 Pr. 424 (1857) ; Aldrich v. Lapham, 
 
 (1838) ; s. c. 32 Am. Dec. 137. As 6 How. (N. Y.) Pr. 129 (1850) ; 
 
 to when dower is barred, see Church s. c. 1 N. Y. Code Rep. N. S. 408 ; 
 
 V. Bull, 2 Den. (N. Y.) 430 (1845) ; Woodworth v. Zimmerman, 92 Ind.
 
 § 291.] ALLEGLN-G INTEEEST OF PEIOB MOETGAGEB. 345 
 
 are in separate portions of the mortgaged premises, or that 
 the relief asked for does not affect all of them alike, is 
 immaterial and will not invalidate the general allegation of 
 a subsequent interest in the mortgaged premises.' 
 
 Where subsequent incumbrancers are made parties, the 
 general practice is to aver that they have or claim some 
 interest in the premises sought to be foreclosed, by mort- 
 gage, judgment or otherwise, as the case may be, which 
 interest, if any, is junior and subordinate to the claim of the 
 plaintiff; but the more correct practice is to allege, on infor- 
 mation and belief if preferred, the nature of the interest of 
 each defendant, as, for instance, that he claims to have an 
 incumbrance by mortgage, judgment or otherwise, setting 
 forth all of the particulars of the same. If, however, the 
 plaintiff in his complaint misstates the interests or rights of 
 the different defendants, who are by reason thereof unneces- 
 sarily compelled to answer in order to protect their interests, 
 the costs of such defendants will be charged against the 
 plaintiff personally." 
 
 § 291. Default in answering by prior incumbrancer.— 
 Where a prior incumbrancer by judgment or otherwise, on 
 being made a party to a foreclosure suit, under an allegation 
 in the complaint that he has or claims an interest in the prem- 
 ises subsequent to the mortgage, makes no defence to the fore- 
 closure, but allows judgment to be taken against him by 
 default, and permits the surplus moneys to be distributed to 
 other claimants, his neglect will not be deemed equivalent to 
 an admission upon the report, that he has no lien upon the 
 premises older than, or superior to, that of the mortgage, so 
 as to be an estoppel upon him in another action, brought 
 by a different plaintiff, for the foreclosure of a prior mortgage, 
 and will not prevent him from asserting in the latter suit a 
 legal priority to the surplus moneys to which he is apparently 
 
 349 (1883) ; Ulrich v. DrischeU, 88 (1877) ; s. c. 79 Am. Dec. 250 ; 
 
 Ind 354 (1882) ; Clay v. Hildebrand, Wells v. Bridgeport Hydraulic Co., 
 
 34 Kan. 694 (1886). 30 Conn. 316 (1862) ; Mix v. Hotch- 
 
 1 See Middletown Savings Bank kiss, 14 Conn. 32 (1840). 
 
 V Bacharach, 46 Conn. 513 (1879); 'Union Ins. Co. v. VanRensse- 
 
 Waters v. Hubbard, 44 Conn. 340 laer, 4 Paige Ch. (N. Y.) 85 (1833).
 
 BiQ ALLEGmti INTEPwEST OF PRIOR MORTGAGEE. [§ 292. 
 
 entitled by virtue of his lien ; the parties to the record 
 not being identical nor the subject in controversy the 
 same.' 
 
 Where the plaintiff in an action to foreclose a mortgage 
 makes a prior judgment creditor, or a prior mortgagee whose 
 mortgage is due, a party to the action, he should set forth in 
 his complaint the date and the amount of the incumbrance and 
 state that it is a prior incumbrance. In a case where the 
 prior incumbrance is a mortgage, the plaintiff should aver that 
 it is due and payable, in order that the judgment may make 
 proper provision for its payment." In a case where a junior 
 mortgagee filed a bill of foreclosure, making the holder of a 
 prior mortgage a party defendant and requiring him to answer 
 as to the amount due upon such prior mortgage, the prior 
 mortgagee was held entitled to the costs of his answer as well 
 as other costs to be first paid out of the proceeds of the sale, 
 or to be charged upon the plaintiff personally in the discre- 
 tion of the court.' 
 
 § 292. Prayer of complaint. — The relief to which the 
 plaintiff believes himself entitled must be fully set out in the 
 complaint, for the reason that the judgment, in case of default, 
 can not be more favorable to the plaintiff than the relief 
 demanded in the prayer of the complaint,* although in 
 
 > Frost V. Koon, 30 N. Y. 428 mortgagee, and the mortgagor 
 
 (1864). See also Lewis v. Smith, 9 thereupon executed another mort- 
 
 N. Y. 503 (1854) ; s. c. 11 Barb. (N. gage on the same property to secure 
 
 Y.) 156 ; Bank of Orleans v. Flagg, an antecedent debt, which latter 
 
 3 Barb. Ch. (N. Y.) 318 ; Holcomb mortgage was transferred to a bona 
 
 V. Holcomb, 3 Barb. (N. Y.) 30 fide purchaser for value, who in 
 
 (1847) ; Elliott v. Pell, 1 Paige Ch. time procured a decree of fore- 
 
 (N. Y.) 263 (1828). closure and sale against the mort- 
 
 ^ Holcomb V. Holcomb, 3 Barb. gagor and a judgment for deficiency 
 
 (N. Y.) 20 (1847). against his assignor, it was held in a 
 
 ^ Boyd V. Dodge, 10 Paige Ch. (N. foreclosure by the first mortgagee 
 
 Y.) 42 (1843). See ante ij 190. that while the second mortgage was 
 
 * BuUwinker v. Ryker, 12 Abb. entitled to priority, yet the plaintiflE 
 
 (N. Y.) Pr. 311 (1861); N. Y. Code was entitled to be subrogated to the 
 
 Civ. Proc. § 1207. But where a mort- rights of the assignee thereof, and 
 
 gage, which had been assigned by an that it was not essential to the 
 
 assignment that wjis not recorded, granting of such relief that it should 
 
 was subbe(iueutly discliurged by the be demanded in the complaint ; nor
 
 §293.] DEilAND m COMPLAINT. ^^^ 
 
 nearly every other kind of an -^''°" *e court may grant ^y 
 relief consistent with the cause of action set forth w the 
 complaint and embraced within its issues. 
 
 Thus, where the plaintiff is entitled to ^f '~ '° 
 move f;r an injunction, this relief should be asked fo in the 
 prayer of the complaint;' otherwise the court will not gran 
 The restraint desired, except in those f-^'^'^f^^l'^^^^ 
 rendering such restraint necessary arise after the suit h^ 
 been commenced. Where the cause for "s'— -'-"«' ,^ 
 the commencement of the action, an '"J"."f °" "''^^ 
 ^ranted on the presentation of affidavits setting forth facts 
 which render the restraint necessary or proper 
 
 And where there are taxes which are unpaid, <>' "K"* "^ 
 thf terms of the mortgage the mortgagee was to pay the 
 
 taxes and to be reimbursed by the --'^ Yunodd" or' P^d 
 must set out the amount of taxes due and ^^P^'f-^ P^^. 
 by the mortgagee, or the plaintiff will not be entitled to a 
 findina of such amount in the decree. 
 
 In an action to foreclose a mortgage, the comfaamt .f 
 
 sufficient to maintain the action, is not demurrable because 
 
 hfrelief demanded is greater than, or different fron^, hat 
 
 is required in a complaint, which seeKS lu & 
 
 1 Simonson v. Blake, 12 Abb^ (N. ^S^^^Y Code Civ. Proc. §608. 
 Y.) Pr. 331 (1861) ; s. a 20 How. J- J' j^ g How. (N. Y.) 
 
 V. Ryker. 12 Abb. (N. Y.) Pr dU ^ ^^ ^^ 43^^ 
 
 (1861); Edson v. Girvan. 29 Hun How^ t code Civ. Proc. § 604 
 
 (N. Y.) 425 (1888). A prayer for ^J-^ McCrossen, 31 Kan. 
 
 'foreclosure and sale, as an indepen- Harm 
 
 dent remedy, bowever, is mconsis- 402 a8H4). ^ ^^_ ^ 
 
 tent with a bill framed to aid ^^''l^^ J^^ in Scheibe r. 
 
 ' proceedings in ejectment and makes f^^^^^ ^^^ 564 (i885). 
 
 the bill multifarious and demurrable; Kennedy. ^ 
 and if it contains no other requisites
 
 348 DEMANDLNG JUDGMENT FOK DEFICIENCY. [§ 2'Jo. 
 
 personal representatives of a deceased mortgagor with any 
 deficiency.' 
 
 § 293. Demand for judgment of deficiency. — A personal 
 judgment for deficiency can be rendered only when it is 
 demanded in the complaint.' But where the complaint 
 asks for a judgment on the note, that the mortgage be fore- 
 closed, that the mortgaged property be sold to pay the debts 
 and costs of the action, and that execution issue for the 
 balance, it will be sufficient to sustain a personal judgment 
 for deficiency,' and is sufficient to authorize any relief to 
 which the facts pleaded may entitle the plaintiff.* If the 
 complaint to foreclose a mortgage does not contain a prayer 
 for the sale of the premises, it will be held insufficient, upon 
 the coming in and confirmation of the report of the amount 
 due, to authorize a sale, and is clearly demurrable.' 
 
 Under a statute which provides for the entry of a judg- 
 ment for deficiency, only where the complaint contains a 
 demand therefor, a prayer in the complaint "that the 
 plaintiff may have execution for any balance remaining 
 unpaid," should, under a liberal construction, be held 
 sufficient to authorize the entry of a judgment for any 
 deficiency.' Ordinarily the relief demanded by the plaintiff 
 is, that the mortgaged premises be sold for the payment of 
 the debt ; that the defendants and all persons claiming under 
 them subsequent to the commencement of the suit, be 
 barred and foreclosed of all right, claim, lien and equity of 
 redemption in the mortgaged premises ; that on sale of the 
 premises the moneys arising therefrom be brought into 
 
 ' Glacius V. Fogel, 88 N. Y. 434 considered as amended ; Foote v. 
 
 (1885)- Sprague, 13 Kan. 155 (1874). See 
 
 ' Eichbredt v. Angerman, 80 Ind. also Armstrong v, Ross, 20 N. J. 
 
 208 (1881). Eq. (5 C. E. Gr.) 109 (1869) ; Iowa 
 
 « Foote V. Sprague, 13 Kan. 155 Co. v. Mineral Point R. R. Co., 24 
 
 (1874). See Shotts v. Boyd, 77 Ind. Wis. 93 (1869). 
 
 223 (1881). Where the complaint * Shotts v. Boyd, 77 Ind. 223 
 
 contains no graver defect than the (1881). 
 
 one set forth in the text, it may be ^ Santacruz v. Santacruz, 44 Miss, 
 
 amended at any time without costs, 714 (1870). 
 
 so as to make it formally perfect ; « dinger v. Liddle, 55 Wis. 621 
 
 and upon petition in error, it will be (1882).
 
 § 29i.] DlLVIAifDlNG JUDGMENT FOK DEFIOLENCY. 349 
 
 court ; that the plaintiff be paid his debt, interest and costs 
 out of such moneys, and that the mortgagor and all other 
 parties personally liable for its payment, specifying their 
 names, be adjudged to pay the deficiency, if any. In a 
 recent case, where judgment for deficiency was entered upon 
 the default of the defendants, although the complaint did 
 not ask for such relief, it was held that the judgment was 
 unauthorized and void.* 
 
 In an action to foreclose a mortgage, where one of the 
 defendants is not personally liable for the debt, the complaint 
 should demand a decree of foreclosure and sale of the land 
 against both mortgagors, and a judgment for deficiency 
 against that debtor only who is personally liable for the debt.'' 
 Thus, where a wife joins her husband in the execution of a 
 mortgage to secure the husband's debt, on complaint in 
 foreclosure the court may properly render a personal judg- 
 ment against the husband alone on the note, and a decree of 
 foreclosure and sale against both.* The entry of a personal 
 judgment against the wife would be a great error and 
 absolutely void.* The only reason for making a wife, who 
 joined her husband in the execution of a mortgage, a party 
 to proceedings for foreclosure, is to bar her right of dower 
 in the equity of redemption, or to give her an opportunity, 
 before foreclosure, to redeem and prevent a sale of the 
 property.* 
 
 § 294. Allegation for personal judgment against 
 grantee assuming payment. — Where the purchaser of land 
 subject to a mortgage covenants with the vendor to ^ay the 
 mortgage debt, the mortgagee is, in equity, entitled to a 
 personal decree against such purchaser for any deficiency 
 upon foreclosure and sale of the mortgaged premises.* An 
 
 > Peck V. New York & N. J. R. ' Rollins v. Forbes, 10 Cal. 909 
 
 R. Co., 85 N. Y. 246 (1881). See (1858) ; Wright v. Langly, 36 111. 
 
 Simonson v. Blake, 12 Abb. (N. Y.) 381 (1865). 
 
 Pr. 331 (1861) ; a c. 20 How. (N. Y.) * See Brown v. Orr, 29 Cal. 120 
 
 Pr. 484; Swart v. Boughton, 35 (1865). 
 
 Hun (N. Y.) 281 (1885) ; Hansford ' Wright v. Langly, 36 Dl. 381 
 
 V. Holdam, 14 Bush (Ky.) 210 (1878). (1865). 
 
 « Rollins V. Forbes, 10 Cal. 299 " Halsey v. Reed, 9 Paige Ch. (N. 
 
 (1858). Y.) 446 (1842). See aiUe § 223.
 
 350 ALLEGING ASSUMPTION OF MORTGAGE. [§ 295. 
 
 allegation In the complaint that the grantee of the mortgaged 
 premises, at the time of his purchase, covenanted and 
 agreed to pay the mortgage debt, and to discharge the mort- 
 gage lien, is sufficient to sustain a personal judgment against 
 such grantee for the deficiency.* While it is true in some 
 states, that the privies to a contract of assumption may rescind 
 it at any time before notice of its acceptance by the holder 
 of the mortgage debt, yet after notice or knowledge of such 
 acceptance there can be no rescission.' Although such accept- 
 ance must, in equity as in law, precede the bringing of an 
 action upon the promise by the holder of the debt, yet the 
 complaint need not contain an averment either of the accept- 
 ance or notice thereof to the defendant ; neither is it neces- 
 sary to aver against such a grantee, that he still holds the 
 mortgaged land or any part thereof. The mortgagor, his 
 grantee and successive grantees, who have agreed to pay the 
 debt, may be sued upon their respective promises in the same 
 action ; in such a case, they will be held severally liable in 
 the inverse order of their respective promises.* 
 
 § 295. Allegation as to property mortgaged. — The 
 
 complaint and decree in a mortgage foreclosure should accu- 
 rately describe the mortgaged property which it is sought to 
 sell. This may be done by setting out the description in 
 full in the complaint, or by referring to the mortgage or 
 other paper annexed and filed therewith, which contains a 
 full description; but it would seem that any other descrip- 
 tion will not be sufficient. Thus, in a case where the mort- 
 gage, instead of describing the lands covered, referred for a 
 description to a deed, and the complaint and decree in 
 foreclosure followed the description in the mortgage, referring 
 also to the deed for a fuller description, the court held that 
 the description was insufficient, and that no title was 
 acquired at a sale made in the foreclosure proceedings.* The 
 
 • Pellicr V. Gillespie, 67 Cal. 583 * Crosby v. Dowd, 61 CaJ. 557, 
 
 (1885). 603 (1882). See Emeric v. Tarns. 6 
 
 ^ See ante %% 230, 231. Cal. 155 (1856) ; Buck v. Axt, 85 Ind. 
 
 3 Carnahan v. Tousey, 93 Ind. 561 512 (1882) ; Hosford v. Johnson, 74 
 
 (1883). But see a7iie §§280, 231, Ind. 479(1881) ; White v. Hyatt, 40 
 
 and llie cases cited. Ind. 385 (1872) ; Whittelsey v. Beall,
 
 § 296.] DESCEIBING MORTGAGED PREMISES. 351 
 
 purpose of a description in a complaint in a mortgage fore- 
 closure is to furnish the means of identifying the property, 
 and a complaint which does this will be sufficient.' There 
 is as much necessity for a correct description of mortgaged 
 property in a complaint for foreclosure, as there is in the com- 
 plaint in an action, the object of which is to recover possession 
 of property.' In an action to foreclose a mortgage on a home- 
 stead, it seems that the complaint need not describe the 
 property as a homestead.* 
 
 Where the description of the mortgaged premises is 
 correct in the complaint, a decree entered by default can not 
 be avoided by the defendant's showing that the mortgage, as 
 recorded, described the premises incorrectly.* And where 
 the complaint in an action to foreclose a mortgage, covering 
 several distinct parcels of land, describes some of such tracts 
 insufficiently, if the remaining tracts are sufficiently described, 
 such insufficient description of some of the tracts will not 
 render the complaint defective.* 
 
 § 296. Referring to mortgage or other instruments 
 for description. — The complaint should so describe the 
 property mortgaged, that in case a sale is ordered the officer 
 may know upon what lands to execute the order of the 
 court.* If the complaint does not contain a sufficient 
 description of the property, but refers to an annexed copy of 
 the mortgage for such description, and such mortgage in 
 turn refers therefor to another instrument, the complaint 
 
 5 Blackf. and.) 143 (1839) ; Triplett * Crosby v. Dowd, 61 Cal. 608 
 
 V. Sayre, 8 Dana (Ky.) 590 (1835). (1882). 
 
 Compa/re Deitricli v. Lang, 11 Kan. ' VanSickles v. Town, 63 Iowa, 
 
 636 (1873); Howo v. Towner, 55 259(1880). 
 
 Yt. 315 (1883). A mistake in the * Deitrich v. Lang, 11 Kan. 638 
 
 complaint in describing the mort- (1873). 
 
 gaged property may be corrected, " Rapp v, Thie, 61 Ind. 373 (1878). 
 
 and a decree of foreclosure may be See Buck v. Axt, 85 Ind. 512 (1882). 
 
 entered in the same action after the « Struble v. Neighbert, 41 Ind. 
 
 correction ; Davis v. Cox, 6 Ind. 481 344 (1872) ; White t. Hyatt, 40 Ind. 
 
 (1855); Palmer v. Windrom, 12 Neb. 385 (1872) ; Nolte v. Libbert, 34 Ind. 
 
 494 (1882). 163 (1870) ; Davis v. Cox, 6 Ind. 481 
 
 1 Thompson v. Madison Build, and (1855); Whittelsey v. Beall, 5 Blackf. 
 
 Aid Asso., 103 Ind. 279 (1885). See and.) 143 a839) ; Triplett v. Sayie, 
 
 Crosby v. Dowd, 61 Cal. 603 (1882). 3 Dana (Ky.) 590 (1835).
 
 352 DESCKII3IXG JIORTGAGED PEEMISES. [§297. 
 
 will be fatally defective. It has been held, however, that it 
 is generally sufficient to describe the premises as they are 
 described in the mortgage itself : and that the inaccuracy of 
 such a description is no ground for refusing a decree of sale, 
 although it may affect the title to the premises when sold ;* 
 but it is believed that this is bad practice and not to be 
 encouraged. It is certain that if a purchaser should object 
 to the title offered, because of a defective and insufficient 
 description in the complaint and decree, he would not be 
 compelled to complete the purchase. 
 
 While it is generally sufficient to describe the premises as 
 they are described in the mortgage itself, this proposition is 
 true only when the mortgage contains a description, and not 
 a mere reference therefor to other instruments from which a 
 description may or may not be obtained.' 
 
 A reference in a complaint to maps on file or to public 
 records for a full description of the mortgaged premises has 
 been held to be sufficient. Thus, where a complaint alleged 
 that the mortgage was duly recorded in the office of the 
 recorder of the county, and described the mortgaged prem- 
 ises as lot G, in block number 93, in Horton's addition to 
 San Diego, as per maps on file in the county recorder's 
 office, made by James Pascoe, the court held that this 
 sufficiently described the property as situated in San Diego 
 county ; and that. Judicial notice being taken of the fact that 
 there is but one county of San Diego in the state, the 
 superior court of that county had jurisdiction of the subject 
 of the action.* 
 
 § 297. Defective description. — The description of real 
 estate in a mortgage may be sufficiently correct to make a 
 valid conveyance as against the mortgagor, but, unaided by 
 proper averments in a complaint for foreclosure, be insuffi- 
 cient to authorize a decree and order of sale.* Where such 
 
 ' Struble v. Neigbbert, 41 Ind. 344 ^ Crosby v. Dowd, 61 Cal. 6C3 
 
 (1872). But see Emeric v. Tarns, (1882). 
 
 6 Cal. 155 (1856). See also ante * Graham v. Stewart, 68 Cal. 374 
 
 § 395. ■ (1886). 
 
 = See Schmidt v. Mackey, 31 Tex. " Halstead v. Board of Commis- 
 
 659 (1869). sionersof Lake Co., 56 Ind. 863 (1877).
 
 § 297.] DEFECTIVE DESCRIPTION OF PEEMISES. 353 
 
 a description is so defective as to render the mortgage void, 
 no averments in the complaint can make valid a decree 
 rendered thereon.* 
 
 Where it appeared from the allegations in a complaint 
 for the foreclosure of a mortgage, that certain pieces of real 
 estate, together with two mills and " all and singular the 
 ' hereditaments and appurtenances thereunto belonging," were 
 mortgaged, and it also appeared from the pleadings and the 
 admission of the defendants and mortgagors, that a certain 
 mill-dam and water-power were appurtenant to said mills 
 and real estate, but it did not appear whether such dam and 
 water-power were situated on said real estate or not, such 
 allegations were held to support a judgment that the mort- 
 gage was a lien upon such dam and water-power, as well as 
 upon the real estate more particularly described in the 
 mortgage.' A description of the land in a school-fund 
 mortgage, as "the north-east part" of a specified tract "con- 
 taining ninety acres," has been held to be insufficient, and 
 to render invalid an auditor's sale made thereunder.' But a 
 description as "lots 9 and 10 in block 51, in Rice and 
 Irvine's addition," has been held to describe the whole of 
 the lots sufficiently, though lying partly in "Dayton and 
 Irvine's addition."* And in describing a parcel of land as 
 being north of the "ground of the C, C, C. & I. R. R.," the 
 use of the word "ground" instead of the words "right of 
 way," does not render such description void.' 
 
 Where lands are described by section, township and range, 
 not giving the county or state where situated, it will be 
 presumed that the lands are in the state where the court is 
 located, and from the description the court will judicially 
 know the county.' The fact that a complaint in foreclosure 
 describes the premises mortgaged in different terms from 
 
 .» Halstead v. Board of Commis- * Rochat v. Emmett, 35 Minn. 420 
 
 sioners of Lake Co.. 56 Ind. 363 (1886). 
 
 (1877) ; Slater v. Breese, 36 Mich. « Pence v. Armstrong, 95 Ind. 191 
 
 77 (1877). (1883). 
 
 «Lanouev. McKinnon, 19 Kan. » Brown v. Ogg, 85 Ind. 234(1882). 
 
 408 (1877). See Parker v. Teas, 79 Ind. 235 
 
 3 Buck V. Axt, 85 Ind. 512 (1882). (1881). 
 
 (23)
 
 354 ALLEGLNG BREACH OF CONTRACT. [g 2y8. 
 
 those used in the mortgage itself, is of no consequence 
 where the mortgage is sufficiently well identified, and the 
 premises described in the complaint are the same as those 
 described in the mortgage.' 
 
 § 298. Allegation as to breach of contract and right of 
 action. — The allegations in a complaint must set out a 
 breach of the conditions of the mortgage, in order to give 
 the court jurisdiction to foreclose the mortgage and to sell the 
 property." Thus, where it appears from the complaint that 
 the personal estate of a deceased mortgagor is liable for the 
 payment of the mortgage debt, and that the suit was 
 brought before the expiration of the time allowed for the 
 payment of the debt after the issuing of letters of adminis- 
 tration, and the giving of notice thereof, the complaint is 
 defective and must be dismissed on demurrer for want of 
 sufficient facts.* And where the complaint alleges the giving 
 of a bond, conditioned for the payment of a sum of money, 
 and that the mortgage was given as collateral security there- 
 for and contained the same condition, it must also allege a 
 default in the performance of the condition of the bond.* 
 Thus, in an action to foreclose a mortgage given to secure the 
 performance of a bond, conditioned for the payment of certain 
 
 ' Shepard v. Shepard, 36 Mich. in any form requested to pay them, 
 
 173 (1877). nor that it had neglected to comply 
 
 « Davies v. New York Concert Co. , with any such request, nor that it was 
 
 41 Hun (N. Y.) 492 (1886). In In any manner in default. The 
 
 this case the allegations of the com- court held that it was apparent 
 
 plaint, as to the default of the def en- from the provisions contained in the 
 
 dant, stated that among the interest mortgage, that more than the mere 
 
 coupons which were held and owned fact of the non-payment of the cou- 
 
 by the plaintiff's assignor, were pons was required to be shown to 
 
 twelve coupons for fifteen dollars authorize an action to be brought for 
 
 each, payable on January 1, 1884, its foreclosure, and that a demurrer 
 
 and twelve coupons for fifteen dol- interposed to the complaint upon the 
 
 hirs each, payable on April 1, 1884, gi-ound that it did not state facts 
 
 and that said coupons were not paid sufficient to constitute a cause of 
 
 at maturity, nor were any of them action, should be sustained, 
 paid, or any part thereof. It was s Lovering v. King, 97 Ind. 130 
 
 not alleged that the company had (1884). 
 
 neglected or refused to pay them, at * Coulter v. Bower, 11 Daly (N. 
 
 the place or in the manner provided Y.) 203 (1882). 
 in the mortgage, nor that it had beeu
 
 § 298.] ALLEGING BKEACH OF CONTKACT. 356 
 
 indebtedness of a suspended bank out of its assets, the com- 
 plaint which failed to show the character of such indebtedness, 
 the several amounts constituting it, the persons to whom it 
 was due, the nominal value of the assets of the bank, the 
 amount realized out of them and applicable to such payment, 
 or in what respect or particulars, or in what specific sum the 
 obligors were in default, was held bad on demurrer.' 
 
 The right to foreclose accrues upon any breach of the 
 conditions of a mortgage ;* and if there are several breaches, 
 it is necessary to prove only one of them to be entitled to a 
 decree.* Where suit is brought to foreclose a mortgage 
 given to secure a bond for the support of a husband and 
 wife during their natural lives, a breach of such bond must be 
 shown, but such breach need not be shown to have occurred 
 during the life-time of the husband, who died first. If there 
 has been a breach of the bond since the death of the husband, 
 and before the commencement of the suit, it will be sufificient 
 to maintain the action ;* because in such a case the mortgage 
 was given as a security for the support not only of the 
 deceased mortgagor, but of his wife also, and constitutes an 
 obligation continuing as long as either lives,* for a bond and 
 mortgage given to a husband and wife belongs to the 
 survivor.' 
 
 Where the mortgagee's right to foreclose is dependent 
 upon a condition precedent, the complaint should distinctly 
 aver the performance of such condition.' But where the 
 action is founded upon a note payable on demand, a demand 
 need not be alleged in the complaint.' If no particular 
 time for payment is mentioned in a mortgage, it is to be paid 
 
 1 Seely v. HiUs, 49 "Wis. 473 • Pike v. Collins, 33 Me. 38, 43 
 
 (1880). (1851); Draper v. Jackson, 16 Mass. 
 
 « See Davies v. New York Con- 480 (1820). See ante § 81. 
 
 cert Co., 41 Hun (N. Y.) 492 (1886). ' Curtis v. Goodenow, 24 Mich. 
 
 8 Beckwith v. Windsor Mauuf. Co. , IS (1871). 
 
 14 Conn. 594 (1842). * See ante %% 89, 40, 282. See also 
 
 * Plummer v. Doughty, 78 Me. Gillett v. Balcom, 6 Barb. (N. Y.) 
 
 841 (1886). 370 (1819) ; Haxtun v. Bishop, 3 
 
 ' See Plummer v. Doughty, 78 Wend. (X. Y.) 13 (1829) ; Austin v. 
 
 Me. 341, 344 (1886); Merrill v. Burbank, 2Day (Conn.)474(1807); 8. 
 
 Bickford, 65 I^Ie. 119 (1876) ; Pike c. 2 Am. Dec. 119 ; RumbaU v. Ball, 
 
 V. Collins, 33 Me. 38. 43 (1851). 10 Mod. 38 (1712).
 
 356 LNDEMNITY MORTGAGE. [§§299-300. 
 
 within a reasonable time, and if not so paid the mortgagee 
 will be entitled to foreclose/ although the interest may have 
 been paid regularly." The same is true where the debt 
 secured is past due.* 
 
 § 299. Allegation in foreclosure of indemnity mort- 
 gage. — Although a mortgage may purport to have been given 
 to secure the payment of a note, it may be shown to have 
 been given for indemnity only.* In an action to foreclose a 
 mortgage given as an indemnity merely, the complaint must 
 allege a payment on account of the liability for which the 
 mortgage was given as security ; because a surety who has 
 taken a mortgage to indemnify him is not entitled to a fore- 
 closure thereof, until he has paid the debt of the principal or 
 otherwise suffered an injury.* The complaint must set out the 
 exact amount paid on account of the liability ;* and where 
 an indemnity mortgage is given to secure more than one 
 note, it must specifically state on which note the payment 
 was made.^ But where the aggregate sum paid is stated in 
 the complaint, it is not necessary to set up in detail the 
 several distinct sums constituting such amount.* 
 
 Where a mortgage is given to secure the sureties on an 
 official bond, it is immaterial that a bill to foreclose it does 
 not correctly state the date of the appointment of the offi- 
 cer, if it correctly recites the mortgage and the breach, and 
 the evidence makes out a full cause of action.* 
 
 § 300. Allegation as to defendant's interest. — A com- 
 plaint in foreclosure necessarily puts the defendant's title in 
 controversy ; he can be impleaded only on the ground that 
 
 » Triebert v. Burgess, 11 Md. 453 (1855) ; Lewis v. Richey, 5 Ind. 153 
 
 (1857) ; FarreU v. Bean, 10 Md. 233 (1854). See Collier v. Ervin, 3 
 
 (1856). Mont. T. 335 (1875). See ante § 50. 
 
 2 Austin v.Burbank, 2 Day (Conn.) « Seely v. Hills, 44 Wis. 484, 488 
 
 474 (1807) ; 8. c. 3 Am. Dec. 119. (1878) ; s. c. 49 Wis. 473, 483 (1880). 
 
 * Wright V. Shumway, 1 Biss. C. ' Shepard v. Shepard, 6 Conn. 37 
 C. 23 (1853) ; s. c. 3 Am. L. Reg. (1825). 
 
 (O. S.) 30. 8 Shepard v. Shepard, 6 Conn. 37 
 
 * Morrill v. Morrill, 53 Vt. 74 (1825) ; Dye v. Mann, 10 Mich. 291 
 (1880). (1862). 
 
 ' Shepard v. Shepard, 6 Conn. 37 » Shelden v. Warner, 45 Mich. 
 
 (1825) ; Francis v. Porter, 7 Ind. 213 638 (1881).
 
 § 300.] ALLEGmo defendant's interests. 357 
 
 he has or claims title. The foreclosure would fail of its pur- 
 pose, if one who claims title should be omitted as a defen- 
 dant.' And where the complaint to foreclose a mortgage 
 joins a third party as a co-defendant, it should state the 
 interest of such third party, and show that his interest is 
 inferior to the mortgage lien of the plaintiff." 
 
 An allegation in a complaint for the foreclosure of a 
 mortgage, that a defendant has or claims to have some 
 interest in the premises, by mortgage, judgment, tax lie« 
 or otherwise, but that such interest or lien, if any, has 
 accrued subsequent to the lien of the mortgage, is not an 
 admission of any claim or lien paramount to the mortgage.' 
 A general allegation that such third party has or claims an 
 interest in the mortgaged premises, which, if any, is subse- 
 quent to the plaintiff's mortgage, sufficiently shows that he 
 is a proper defendant,* although his interest is not set 
 out specifically,' and is sufificient on demurrer;' it is not 
 necessary, in a complaint for the foreclosure of a mortgage, 
 to describe specifically the interest which each defendant has, 
 or may claim to have, in the real estate covered by the 
 mortgage.^ The mere averment, however, in a complaint 
 to foreclose a mortgage against a person other than the 
 mortgagor, that " he is now the owner of the land," is not 
 sufificient to show that the mortgage constitutes a lien upon 
 the land as against him, as he may have acquired the land 
 before the mortgage was executed.* 
 
 Where a third party is joined as a defendant upon the 
 allegation that he has or claims some interest adverse to 
 the plaintiff, of the nature and amount of which the plaintiff 
 
 " McDonald V. McDonald, 45 Micb. (1871). See Aldrich v. Lapham, 6 
 
 44 (1880). See ante %% 70, 116. How. (N. Y.) Pr. 129 (1850). 
 
 * Frost V. Koon, 30 N. Y, 428, * Woodworth v. Zimmerman, 93 
 448 (1864); Drury v. Clark, 16 How. Ind. 349 (1883). 
 
 (N. Y.) Pr. 424 (1857) ; Neitzel v. « Bradford v. Russell, 79 Ind. 64 
 
 Hunter, 19 Kan. 221 (1877) ; Short (1881). 
 
 V. Nooner, 16 Kan. 220 (1876) ; s. c. ' Hoes v. Boyer, 108 Ind. 494 
 
 20 Kan. 624 (1878). (1886). 
 
 * Newton v. Marshall, 62 Wis. 8 » Nichol v. Henry, 89 Ind. 54 
 (1884). (1883). 
 
 <Bowen v. Wood, 35 Ind. 268
 
 358 DISMISSAL OjS^ PAyjIENT. [§301. 
 
 is ignorant, and he demands in his complaint that the defen- 
 dant may be compelled to disclose such interest to the court, 
 a judgment barring and foreclosing all the right, title and 
 interest of such defendant in and to the mortgaged premises, 
 adverse to the plaintiff, will be binding upon him if he files 
 only a general answer.' 
 
 § 301. Dismissal of complaint on payment before 
 judgment. — The Code provides that where an action is 
 brought to foreclose a mortgage upon real property upon 
 which a portion of the principal or interest is due, and 
 another portion of either is to become due, the complaint 
 must be dismissed without costs against the plaintiff, upon 
 the defendants paying into court, at any time before the 
 final judgment directing a sale is rendered, the sum due. 
 together with the plaintiff's costs.* Where money is paid 
 into court, unless the court otherwise directs, it must be paid 
 either directly, or by the officer who is required by law first 
 to receive it, to the county treasurer of the county where 
 the action is triable ; and if the case is pending in New York 
 city, it must be paid to the chamberlain.* 
 
 * Blandin v. Wade, 20 Kan. 251 (1872). Payment to the referee upon 
 (1878). trial before him is not payment into 
 
 * N. Y. Code Civ. Proc. § 1634. court ; the referee is not a court for 
 See Long v. Lyons, 54 How. (N. Y.) that purpose. Becker v. Boon, 16 
 Pr. 129 (1875) ; Malcolm v. Allen. N. Y. 317 (1874). 
 
 (N. y. Supr. Ct.) 5 Alb. L. J. 334 » N. Y. Code Civ. Proc. § 745.
 
 CHAPTER XrV. 
 
 LIS PENDENS— NOTICE OF PENDENCY OP ACTION. 
 
 303. Definition and Bacon's ordi- 
 nances. 
 
 303. Nature and functions of a lis 
 
 pendens. 
 804. When lis pendens becomes 
 
 operative. 
 
 305. Duration and extent of a lis 
 
 pendens. 
 
 306. History of the doctrine in 
 
 New York. 
 
 307. Contents of notice of lis 
 
 pendens. 
 
 308. Description of premises. 
 
 309. "Wlien notice of lis pendens 
 
 to be filed. 
 
 310. Who may file notice of lis 
 
 pendens. 
 
 811. Recording and indexing Ut 
 
 pendens. 
 813. Effect of notice of Zw^WMforw, 
 
 313. Who regarded as subsequent 
 
 incumbrancers. 
 
 314. Effect of lis pendens on hold- 
 
 ers of unrecorded convey- 
 ances. 
 
 815. Effect of omission to file 
 
 notice of lis pendens. 
 
 816. Proof of filing notice of lis 
 
 pendens. 
 
 817. Defective and amended no- 
 
 tice of lis pendens. 
 
 318. Dormant lis pendens. 
 
 319. Cancelling notice of lis pen- 
 
 dens. 
 
 % 302. Definition and Bacon's ordinances. — The phrase 
 lis pe7idens means literally "suit pending;'" the phrase, as 
 well as its legal doctrine, comes to us from the civil law,* where 
 a suit was not considered as pending until it had reached 
 the stage called litis contestatio.* By some, however, it has 
 been supposed that the rule of lis pendens v/2iS zdo^i^d hy 
 analogy from a proceeding at common-law ; thus, in an early 
 realty case,* the court said : " This is in imitation of the 
 proceedings in a real action at common-law, where, if 
 the defendant aliens after the pendency of the writ, the 
 judgment in the action will over-reach such alienation." 
 
 Lord Chancellor Bacon, while a member of the early 
 English court of chancery, promulgated a number of ordi- 
 nances or rules' "for the better and more regular adminis- 
 tration of justice in the chancery, to be daily observed, 
 
 1 2 Kent, 122 ; 2 Bouv. L. Diet, 
 (loth ed.) 120. 
 ' See Bennett on Lis Pendens, § 9. 
 » 1 Mack. C. L. 205, § 203. 
 
 * Sorrell v. Carpenter, 3 P. Wma. 
 
 482 (1728). 
 » Adopted 1618.
 
 360 DEFINITION OF LIS PENDENS. [§ 302. 
 
 saving the prerogative of the court." In these ordinances 
 we ha\'e many rules which originated with Bacon, but the 
 main body of them, it is thought, previously existed in some 
 form, written or unwritten ; but it is beyond the scope 
 and ambition of this work to settle the much discussed 
 questions of the extent to which Bacon altered the existing 
 practice, or for the first time established it, and how far he 
 merely collated and published rules previously in force. 
 
 The twelfth of Bacon's ordinances or rules was as follows: 
 " No decree bindeth any that cometh in bona fide by convey- 
 ance from the defendant before the bill exhibited, and is 
 made no party, neither by bill nor the order ; but where he 
 comes in pendente lite, and while the suit is in full prosecu- 
 tion, and without any color of allowance or privity of the 
 court, there regularly the decree bindeth ; but if there were 
 any intermission of suit, or the court made acquainted with 
 the conveyance, the court is to give order upon the special 
 matter according to justice.'" 
 
 The correct doctrine of lis pendens has been said to be, 
 that the law will not allow a defendant to transfer to others 
 pending a litigation rights to the property in dispute, so 
 as to prejudice a recovery by the plaintiff.' Another 
 form of statement is, that where a litigation is pending 
 between a plaintiff and a defendant, as to the ownership of a 
 particular estate, the necessities of mankind require that the 
 decision of the court shall be binding, not only on the litiga- 
 ting parties, but also on those who derive title under them 
 by transfers made pending the suit. If this were not true, 
 there could be no certainty that a litigation would ever 
 come to an end. The rule had its roots largely in public 
 poHcy, and does not rest, as is sometimes supposed, on the 
 equitable doctrine of notice binding on the conscience. The 
 doctrine is not peculiar to courts of equity. In actions in 
 rem the judgment bound the lands, notwithstanding an 
 alienation by the defendant pendente lite. Were it not for 
 
 ' See vii. Bacon's Works, 761 « Bellamy v. Sabine, 1 DeG. «& J. 
 
 (1859), (ed. of Spedding, Ellis & 566(1857). 
 Heath, London.) See also BenueU 
 on Li» Pendens, appx. 446.
 
 § 303.] NATUEE AXD FUNCTIONS OF LIS PENDENS. oGl 
 
 the doctrine in question, the plaintiff in every action would 
 be liable to be defeated in his recovery by the defendant's 
 alienating the property in litigation before judgment or 
 decree, so that he would be compelled to commence pro- 
 ceedings de novo, subject to be defeated again by similar 
 conduct of the defendant.' 
 
 § 303. Nature and functions of a lis pendens. — Under 
 the methods of legal procedure and practice of the present 
 day, a lis pendens is a notice of the actual pendency of a suit 
 or other judicial proceeding.' It has been said that the sole 
 object of a lis pendens is, to keep the subject in controversy 
 within the jurisdiction of the court until the judgment has 
 been entered, so that it will be effective and binding on the 
 parties to the action and on all parties dealing with them, 
 and on the subject-matter of the controversy." The principal 
 doctrine of a notice of pendency of action is, that a pur- 
 chaser or assignee of the subject-matter of a litigation will 
 be as fully bound by the final judgment in the action or 
 proceeding, though not made a party thereto, as would the 
 original owner and party to the action, if he had continued 
 to own the subject-matter in dispute. 
 
 The modern doctrine of lis pendens is based, not upon the 
 theory that a pending suit is constructive notice to all 
 the world, like a recorded deed, but upon the ground that the 
 law will not allow litigant parties to give to others, pending 
 the litigation, rights to the property in dispute, so as to 
 prejudice the rights of contesting parties and to defeat the 
 execution of the decree to be entered in the cause.* 
 
 The function of a lis pendens has been said to be the 
 enforcement of the well known legal maxim pendente lite 
 nihil innovetur. The rule rested in its origin upon the pre- 
 sumption that every man was attentive to what was passing 
 
 ' See Lament r. Cheshire, 65 N. Walden, 1 La. An. 46 (1846) ; Ben- 
 
 T. 30, 36 (1875); Murray v.Lylbum, nett v. Chase, 21 N. H. (1 Post.) 
 
 2 Johns. Ch. (N. T.) 441 (1817) ; 582 (1850). 
 
 Hayden v. Bucklin. 9 Paige Ch. (N. » See Co. Litt. 344 b. 
 
 T.) 513 (1842) ; Gaskell v. Durdin, 3 * Dovey's Appeal, 97 Pa. St 158 
 
 Ball & B. 167 (1812). (1881). 
 
 ' City Bank of New Orleans v.
 
 362 NATURE AND FUNCTIONS OF LIS PENDENS. [§ 304. 
 
 in the courts of his country, and is founded upon the broad 
 principle of public policy. It was necessary in order to 
 prevent the fraudulent alienation and transfer of property, 
 pending the adjudication of rights which might be affected 
 thereby.* In the growth of the procedure and practice of 
 the courts it was early found necessary, to the effectual 
 administration of justice, that the decisions of courts of 
 equity should in some way be made binding, not only on the 
 litigant parties, but also on all parties who might derive title 
 from them pendente lite, whether with or without actual 
 notice of the suit.* The notice of pendency of action or Hi 
 ffudens thus came into use as a matter of necessity. It is 
 purely a rule of practice and is designed to make the decrees 
 of a court binding upon all parties who may acquire rights 
 from or under the parties to the suit pending the action.* 
 
 § 304. When lis pendens becomes operative. — A notice 
 of pendency of action does not become operative until the 
 summons has been served in some manner ;* neither will 
 the notice become effective until the filing of the complaint.* 
 A subsequent order directing the filing of a lis pendens nunc 
 pro tunc will not affect the rights of an intervening creditor.* 
 A lis pendens becomes effective as to third persons from the 
 earliest service of the process on any defendant ;' and service 
 
 « See Leitch v. Wells, 48 N. Y. (14 Pet.) 323 (1840) ; bk. 10 L. ed. 
 
 608 (1872) ; Hopkins v. M'Laren, 4 476. 
 
 Cow. (N. Y.) 667 (1825) ; Murray v, « Sherman v. Bemis, 58 Wis. 343 
 
 Eallou, 1 Johns. Ch. (N. Y.) 566 (1883). See Grant v. Bennett, 96 
 
 (1815) ; White v. Carpenter, 2 Paige 111. 513 (1880). 
 
 Ch. (N. Y.) 217 (1830) ; Jackson v. 6 Weeks v. Tomes, 16 Hun (N. Y.) 
 
 Losee, 4 Sandf. Ch. (N. Y.) 381 349(1878). 
 
 (1846) ; Jackson v. Andrews, 7 ' Hayden v. Bucklin, 9 Paige Ch. 
 
 Wend. (N. Y.) 153 (1831) ; Murray (N. Y.) 513 (1842). In this case the 
 
 V. Blatcliford, 1 Wend. (N. Y.) 583 court held, that personal service of 
 
 (1828) ; Swett v. Poor, 11 Mass. 549 the subpojna is not necessary to 
 
 (1814). create a lis pendens, which is con- 
 
 - Lamont v. Cheshire, 65 N. Y. slructive notice to third persons of 
 
 30, 36 (1875). the commencement of a suit in 
 
 * Bishop of Winchester v. Paine, chancery ; and where the subpoena 
 11 Ves. 194 (1805). can not be served personally, a ser- 
 
 * Grant v. Bennett, CO 111. 513 vice upon the defendant's wife or 
 (1830) ; Games v. Slilcs, 39 U. S, other member of his family, of
 
 § 305.] DUEATION AlO) EXTENT OP LIS PENDENS. 363 
 
 on one of two defendants is sufficient to create a lis pendens} 
 But the notice provided for by statute will be of no effect 
 until filed.' Yet where a party appears and is heard, notice 
 will be presumed.* 
 
 Notice in a foreclosure suit will be good from the service 
 of the summons in the action on any of the defendants, 
 although the owner of the equity of redemption may not yet 
 have been served.* A lis pendens filed in an original suit to 
 foreclose a mortgage affords, as to all defendants, construc- 
 tive notice of all cross-suits.' A writ of error is a new suit, 
 and a lis pendens therein will not become effective until the 
 service of the summons.* 
 
 § 305. Duration and extent of a lis pendens. — The 
 
 operation of a lis pendens as a notice continues, if the suit is 
 not abandoned, until it is closed by a final decree, provided 
 it is prosecuted with reasonable diligence and in good faith ; 
 otherwise, a purchaser who has no actual notice, will not be 
 bound by it.* A notice of lis pendens has in no case an 
 extra territorial application, and is not effective beyond 
 the jurisdiction of the court in which the venue of the action 
 is laid.* 
 
 A notice of lis pendens relates only to the voluntary alien- 
 ation and incumbrance of the property by a defendant 
 pending a suit in respect to it, and does not affect other 
 parties asserting rights adverse to the defendant ;* nor is it 
 
 suitable age and discretion, at the ^ Hammond v. Paxton, 68 Mich. 
 
 defendant's place of residence, will 893 (1885). See Durand v. Lord, 
 
 be sufficient. See Williamson v. Wil- 115 111. 610 (1886). 
 
 liams, 11 Lea (Tenn.) 355 (1883). » Holbrook v. New Jersey Zinc 
 
 » Myrick v. Selden, 36 Barb. (N. Co., 57 N. Y. 616 (1874). See 
 
 T.) 15. 22 (1861). Jeff res v. Cochrane. 48 N. Y. 671 
 
 * Leitch V. Wells, 48 N. Y. 585 (1872) ; Shelton v. Johnson, 4 Sneed 
 
 (1872). (Tenn.) 672 (1857). 
 
 » See Odell v. DeWitt, 58 N. Y. » Becker v. Howard, 4Hun(N. Y.) 
 
 643 (1873). 359 ( 1875 ) ; 8. 0. 6 T. & C. ( N. Y. ) 
 
 « Fuller V. Scribner, 76 N. Y. 190 603 ; aff'd 66 N. Y. 5 ; Stuyvesant 
 
 (1879), affirming 16 Hun (N. Y.) 130. v. Hall, 2 Barb. Ch. (N. Y.) 151 
 
 *Hall Lumber Co. v. Gustin, 54 (1847); Harrington v. Slade, 22 Barb. 
 
 Mich. 624(1884). (N. Y.) 161 (1856). See Sears r. 
 
 MVooldridge v. Boyd, 13 Lea Hyer, 1 Paige Ch. (N. Y.) 483 (1829). 
 (Tenn.) 151 (1884).
 
 364: DURATIOiV AND EXTENT OF LIS PENDENS. [§ 305. 
 
 notice to one who rents the premises from a person not 
 a party to the suit.' The notice of lis pendens, after the 
 complaint has been filed and the summons has been issued 
 in an action, is notice only of what those papers contain. It 
 can not extend beyond, nor in any way affect property not 
 tiie subject of the action, which must be specifically 
 described.* 
 
 It is now generally conceded that, independent of statutory 
 regulations, the mere commencement of an action in a court of 
 law, or the filing of a bill in equity affecting the title to real 
 estate, is notice to all the world' and creates a lis pendens;* any 
 one purchasing property, pending a litigation, takes the title 
 charged with notice of the suit,* and subject to the determin- 
 ation thereof.' Such an action is usually deemed commenced 
 
 ' Thompson v. Clark, 4 Hun (N. 
 Y.) 164 (1875) ; 8. c. 6 T. & C. (N. 
 Y.) 510. 
 
 'Griffith V. Griffith, Hoff. Ch. 
 (N. Y.) 155 (1839), affirming 9 Paige 
 Ch. (N. Y.) 315. See Fitzgerald v. 
 Blake, 42 Barb. (N. Y.) 513 (1864) ; 
 B. c. 28 How. (N. Y.) Pr. 110. 
 
 * One is not charged with notice 
 of a suit concerning a collateral 
 matter not necessarily appearing to 
 affect his rights, especially where 
 the complaint has not been filed. 
 Zoeller v. Riley, 100 N. Y. 102 
 (1885). 
 
 < See Stern v. O'Connell, 35 N. Y. 
 104, 106, (1866) ; Jackson y. Dicken- 
 son, 15 Johns. (N. Y.) 309, 315 
 (1818); 8. c. 8 Am. Dec. 236; 
 Murray v. Ballou, 1 Johns. Ch. (N. 
 Y.) 566, 576 (1815); Hayden v. 
 Bucklin, 9 Paige Ch. (N. Y.) 512 
 (1842); Center v. Planters' and 
 Merchants' Bank, 23 Ala. 743 (1853); 
 Green v. White, 7 Blackf. (Ind.) 
 242 (1844) ; Allen v. Mandaville, 26 
 Miss. 399 (1853); Herrington v, 
 Herrington, 27 Mo. 560 (1858); 
 Shelton v. Johnson, 4 Sneed (Tenn.) 
 672 a857) ; 8. c. 70 Am. Dec. 265. 
 
 * Although a purchaser pendent* 
 lite is chargeable with notice of the 
 rights of a party claiming adversely 
 to his vendor, yet the purchaser is 
 not l)ound by a judgment rendered 
 in a subsequent suit, based on thn 
 same cause of action, to which h« 
 was not made a party. Randall v. 
 Snyder, 64 Tex. 350 (1885). 
 
 • Cleveland v. Boerum, 23 Barb. 
 (N. Y.) 201 (1856) ; s. c. 27 Barb. 
 (N. Y.) 252 ; 3 Abb. (N. Y.) Pr. 294; 
 Harrington v. Slade, 22 Barb. (N. 
 Y.) 161, 166 (1856); Griswold v. 
 Miller. 15 Barb. (N. Y.) 520 (1851) ; 
 Zeiter v. Bowman, 6 Barb. (N. Y.) 
 133 (1849) ; Murray v. Lylburn, 2 
 Johns. Ch. (N. Y.) 441 (1817); 
 Murray v. Ballou, 1 Johns. Ch. (N. 
 Y.) 566 (1815) ; Hayden v. Bucklia, 
 9 Paige Ch. (N. Y.) 512 (1842); 
 Jackson v. Losee, 4 Sandf . Ch. (N. 
 Y.) 381 (1846) ; Fash v. Ravesies, 33 
 Ala. 451 (1858) ; Gil man v. Hamil- 
 ton, 16 111. 225 (1854); Kern t. 
 Hazlerigg, 11 Ind. 443 (1858) ; s. C. 
 71 Am. Dec. 360 ; Watson v. Wil- 
 son, 2 Dana (Ky.) 406 (1834) ; 8. C. 
 26 Am. Dec. 459; Debell v. Fox- 
 worthy s Heirs, 9 B Hon. (Ky.) 228
 
 § 306.] 
 
 filSTOEY OF — LN NEW YOKK. 
 
 365 
 
 from the service of the summons,* but a lis pendens does 
 not operate so as to affect the conscience or legal rights of 
 a purchaser, until the court has acquired jurisdiction of the 
 subject-matter of the action.' A pending suit is not notice 
 of anything beyond the matters that can be tried therein.' 
 
 § 306. History of the doctrine in New York.— The 
 history and principles of the general doctrine of lis pendens 
 are fully set forth by Chancellor Kent in Murray v. Ballou,* 
 and in Murray v. Lylburn.* The whole law on the subject, it 
 has been said, may be found in these two cases, subsequent 
 cases having merely exemplified and applied the law as 
 there expounded by the learned chancellor.* 
 
 Prior to the enactment of any statute in New York, the 
 pendency of an action in equity was, of itself, notice to all 
 
 (1848) ; TalboU's Exi-s. v. Bell's 
 Heirs, 5 B. Mon. (Ky.) 320 (1845) ; 
 B. c. 43 Am. Dec. 126 ; Masson v. 
 Saloy, 12 La. An. 776 (1857) ; Shot- 
 well V. LawsoD. 30 Miss. 27 (1855); 
 B. c. 64 Am. Dec. 145 ; Hersey v. 
 Turbett, 27 Pa. St. 418 (1856). 
 
 ' Harrington v. Slade, 22 Barb. 
 (N. Y.) 161 (1856) ; Murray v. Ballou, 
 1 Johns. Ch. (N. Y.) 566, 576 (1815); 
 Griffith V. Griffith, Hoff. Ch. (N. 
 'Y.) 153 (1839) ; Weber v. Fowler, 11 
 How. (N. Y.) Pr. 458 (1854) ; Hovey 
 V. Hill, 3 Lans. (N. Y.) 167. 170 
 (1870); Parks v. Jackson, 11 Wend. 
 (:N. Y.) 442 (1833). 
 
 In Michigan it is held that a suit 
 and a cross-suit constitute but one 
 action, and that notice of the suit is 
 notice of the cross-suit also. Thus, 
 where in an original action to fore- 
 close, a lis pendens was filed, but was 
 not filed with a cross-complaint, it was 
 held that the lis pendens in the origi- 
 nal action was constructive notice to 
 all of the defendants under the 
 cross-complaint also ; The Hall liUm- 
 ber Co. v. Gustin, 54 Mich. 625 
 (1884). But it is held in Kentucky 
 that where a mortgagee has sued to 
 
 foreclose his mortgage, and made 
 another mortgagee a defendant, an 
 action by the latter will not constitute 
 a lis pendens until he files his cross- 
 petition and causes a process to be 
 issued. Hart v. Hayden, 79 Ky. 346 
 (1881). 
 
 * Carrington v. Brents, 1 McL. C. 
 C. 167 (1832). See Murray v. Ballou, 
 1 Johns. Ch. (N. Y.) 566 (1815); 
 Worsley v. Scarborough, 3 Atk. 
 392 (1746); Bishop of Winchester 
 V. Payne, 11 Ves. 194 (1805); Sorrell 
 V. Carpenter, 2 P. Wms. 482 (1728). 
 
 * Weilei- V. Dreufus, 26 Fed. Rep. 
 824 (1886). 
 
 * 1 Johns. Ch. (K Y.) 566 (1815). 
 » 2 Johns. Ch. (N. Y.) 441 (1817). 
 « See Leitch v. Wells, 48 N. Y. 
 
 585 (1872) ; Winston v. Westfeldt, 
 22 Ala. 760 (1858); s. c. 58 Am. 
 Dec. 278 ; ]Mims v. West, 38 Ga. 18 
 (1868) ; Stone v. Elliott, 11 Ohio St. 
 252 (1860) ; Diamond v. Lawrence 
 Co., 37 Pu. St. 353 (1860); s. c. 78 
 Am. Dec. 429 ; Kieffer v. Ehler, 18 
 Pa. St. 388 (1852); City of Lexington 
 V. Butler, 81 U. S. (14 Wall.) 283 
 (1871) ; bk. 20 L. ed. 809 ; Durrant 
 V. Iowa Co., Woolw. C. C. 69 (1864).
 
 366 HISTOllY UF LIS PE]yDi:XS LN 2iEW YOltK. [^ uU7. 
 
 parties who had any interest in it, or in the subject- 
 matter of the controversy. Since the adoption of the Code 
 the time of filing the notice has been frequently changed. 
 Prior to 1 85 1 the notice of lis pendens could be filed only at 
 the time of commencing the action ; by an amendment of 
 that year the time of filing the notice was made to depend 
 upon the time of filing the complaint, and another amend- 
 ment in 1862 provided that the action should be deemed 
 commenced, for the purposes of that section only, from the 
 time of filing the notice of the pendency of the action. 
 
 The early doctrine and practice of lis pendens, though 
 seemingly necessary to give effect to chancery decrees and 
 to obviate the inconvenience of a constant change of parties, 
 at times worked great injustice to innocent persons. To 
 remedy this evil many of the states early passed statutes,' 
 which generally provided in substance, that, in order to 
 render the filing of a bill in chancery constructive notice 
 to a purchaser of real estate pending a suit affecting it, the 
 complainant must at the same time file with the clerk of 
 the court in the coynty in which the land was situated, a 
 notice of the pendency of the suit." The notice is always 
 required to be filed with the officer who is charged by law 
 with the duty of keeping the records of transfers, whether 
 that officer be the " clerk of the court," as in New York • 
 the " register of deeds," as in Wisconsin, or the " county 
 recorder," as in Ohio. 
 
 § 307* Contents of notice of lis pendens.— The notice of 
 lis pendens in New York must contain (i) the names of the 
 parties to the action; (2) a statement of the object of the action; 
 (3) a description of the property in the county where the notice 
 is filed, affected by the action ; (4) the date of the mortgage ; 
 (5) the parties to the mortgage ; (6) the time of recording 
 the mortgage, and (7) the place where the mortgage is 
 recorded." But it is not absolutely necessary to the vahdity 
 of the notice that all these particulars, where required. 
 
 » See N. T. Act, 1823 (L. 1823, chap. 182. § 11). 
 
 ' See N, Y. Code Civ. Proc. §§ 1670, 1673. 
 
 » N. y. Code Civ. Proc. §§ 1G31, 1670 ; N. T. Supreme Court Rule 60.
 
 § 307.] CONTENTS OF LIS PENDENS. 367 
 
 should be given with minuteness and entire accuracy. 
 For instance, the names of the parties are always required, 
 yet if the name of a defendant should be misspelled, or if 
 a middle letter should be erroneously inserted in his name,' 
 the notice would not be affected thereby, because of the 
 well settled and well known rule of law that middle letters, 
 although descriptive, are not essential parts of a name;' even 
 the addition or omission of the whole middle name would 
 not vary the rule.* 
 
 One of the requisites of a lis pendens is that it shall state 
 where the mortgage is recorded ; but if the notice describes 
 the premises, giving the ward and county in which they are 
 situated, and states that the mortgage was recorded, without 
 stating in what county, it would seem to be a sufficient 
 compliance with the statute,* because the statutes of the 
 various states, regulating the recording of transfers and 
 incumbrances, designate where all such instruments shall 
 be recorded, which is always in the county where the prem- 
 ises are situated ; and since every person is bound to take 
 notice of public statutes, the notice being filed in the office 
 where the mortgage is recorded, no one reading the notice 
 and having a knowledge of the statute can be misled. 
 The New York Court of Appeals say,* that the object of the 
 
 ' In the case of Weber v. Fowler, 306 (1818) ; Benson v, Heathorn, 1 
 
 11 How. (N. Y.) Pr. 458 (1854). the Younge «fe Col. Ch. 328 (1842). 
 
 name of a defendant was indexed ' Roosevelt v. Gardinier, 2 Cow. 
 
 ' 'John F. Fowler" in the notice of lia (N. Y.) 463 (1824) ; Milk v. Christie, 
 
 2)endens, instead of "John Fowler," 1 Hill (N. Y.) 102 (1841) ; Weber v. 
 
 his true name ; the court held that Fowler, 11 How. (N. Y.) Pr. 458 
 
 the notice was sufficient to put the (1854) ; People v. Collins, 7 Johns, 
 
 purchaser pendente lite on inquiry, (N. Y.) 549 (1811) ; Franklin v. Tal- 
 
 and to charge him with all knowl- madge, 5 Johns. (N. Y.) 84 (1809). 
 
 edge to which the inquiry, if made, « Roosevelt v. Gardinier, 2 Cow. 
 
 would have led, and therefore to be (N. Y.) 403 (1824) ; Milk v. Christie, 
 
 a substantial compliance with the 1 Hill (N. Y.) 102 (1841) ; Franklin 
 
 requirements of the statute. See v. Talmadge, 6 Johns. (N. Y.) 84 
 
 also Reed v. Gannon, 50 N. Y. 345 (1809). 
 
 (1872) ; Williamson v. Brown, 15 * Potter v. Rowland. 8 N. Y. 448 
 
 N. Y. 362 (1857); Brumfield v. (1853). 
 
 Boutall, 24 Hun (K Y.) 451 (1881) ; » See Potter v. Rowland, 8 N. T. 
 
 Jones V. Smith, 1 Hare. 43, 55 448,450(1853). 
 (1841) ; Taylor v. Baker, 5 Price,
 
 36S DESCKIPTIOJN- OF PIIEMISES. [§§ 308-309. 
 
 statute was to require such a description of the mortgage as 
 to apprise individuals, having liens by judgment on the 
 mortgaged premises, where they could find the record of 
 the mortgage, and that, this being effectually done, the notice 
 was sufficient, although it did not follow the prescribed form, 
 which is said to be merely directory. 
 
 § 308. Description of premises. — The mortgaged prem- 
 ises should be fully and properly described in a lis pendens ; 
 there will not even be a constructive notice, where the 
 property is not specified in the proceedings.* A notice 
 which describes the premises simply as "all the real property 
 of the defendant Brown, or in which she may have an 
 interest, situated in Chenango county, New York," has been 
 held void for indefiniteness.* If the notice of lis pendens, 
 filed in a mortgage foreclosure suit, describes the premises 
 incorrectly, the mortgagor, it has been said, will be entitled 
 to have a judgment rendered against him on default set 
 aside.' The notice of lis pendens should describe only the 
 property actually to be affected by the judgment.* 
 
 § 309. When notice of lis pendens to be filed. — The 
 
 New York Code provides that a notice of lis pendens may 
 be filed by the plaintiff when he files his complaint or at any 
 time afterwards, but at least twenty days before final judg- 
 ment.' Where the notice is required to be filed at, or 
 subsequently to, the time of filing the complaint and issuing 
 the summons thereon, as in New York, a notice filed before the 
 issuance or service of the summons has been said to be 
 a nullity;' the better opinion, however, seems to be that a 
 notice so filed is not a nullity, but that it will simply be 
 
 > Gardner V. Peckham, 13 R. I. 103 (N. Y.) Pr. 110 (1864) ; Griffith v. 
 
 (1880) ; Russell v. Kirkbride. 62 Grffiith, Hoff. Ch. (N. Y.) 153 ; s. 
 
 Tex. 455 (1884). c. aflf'd 9 Paige Ch. (N. Y.) 315 
 
 ^.Jaffray v. Brown, 17 Hun (N. (1841). 
 
 Y.) 575 (1879). « K Y. Code Civ. Proc. §§ 1631. 
 
 * Spraggon v. McGreer, 14 "Wis. 1670. 
 
 439 (1861) ; ISIanning v. McClurg, 14 « Benson v. Sayre, 7 Abb. (K Y.) 
 
 Wis. 350 (1861). Pr. 472 (1858), note ; Burroughs v. 
 
 "Fitzgerald v. Blake, 42 Barb. Reiger, 12 How. (N. Y.) Pr. 171 
 
 ^N. Y.) 513 (1864) ; s. c. 28 How. (1856).
 
 § 310.] WHEN NOHOE TO BE FILED. 369 
 
 inoperative until the summons is actually served, at which 
 time it will become operative.* 
 
 The court say, in Tate v. Jordan,' that "to hold the notice 
 invalid forever, because there may have been some interval 
 of time, however short, when it was not true in point of fact, 
 and was therefore null, is to make a rule of law superior 
 to and independent of the reason on which it is founded. 
 The maxim, cessante rations, cessat quoque lex, applies." And 
 where a notice is filed without the complaint, even though 
 the action has been previously commenced by service of the 
 summons, it is not valid,' but will become operative when 
 the complaint is filed.* 
 
 Where a notice of lis pendens is not filed within the time 
 required, it may be filed nujic pro tunc ; but inasmuch as the 
 notice is effective only from the date when it is actually filed, 
 such nunc pro tunc filing will not affect the rights of third 
 parties acquired prior to the date of actual filing.* 
 
 § 310. Who may file notice of lis pendens.— The right 
 to file a lis pendens, being statutory, is an absolute right and 
 not in any way dependent on judicial discretion,' and can 
 not be impaired by the order of any court.^ A notice of lis 
 pendens in a foreclosure suit is required, under the statute, 
 to be filed by the plaintiff, and may be filed by a defendant, 
 
 > Farmers' Loan «fe Trust Co. v. v. Tomlinson, 38 Barb. (N. Y.) 641 
 
 Dickson, 9 Abb. (N. Y.) Pr. 61 (1863); Burroughs v. Reiger, 13 
 
 (1859) ; Waring v. Waring, 7 Abb. How. (N. Y.) Pr. 171 (1856). 
 
 (N. Y.) Pr. 472 (1858) ; Tate v. Jor- » Weeks v. Tomes, 76 N. Y. 601 
 
 dan, 3 Abb. (N. Y.) Pr. 392 (1856). (1879), aff'g 16 Hun (N. Y.) 349. 
 
 » 3 Abb. (N. Y.) Pr. 392 (1856). « Mills v. Bliss, 55 N. Y. 139 
 
 » Weeks v. Tomes, 76 N. Y. 601 (1873) ; Niebur v. Schreyer, 10 N. 
 
 (1879), aff'g 16 Hun (N. Y.) 349 ; Y. Civ. Proc. Rep. 72 (1886). 
 
 Leitch V. Wells, 48 N. Y. 585 (1872); » Piatt v. Mathews, 13 Rep. (TJ. 
 
 Btem V. O'Connell, 35 N. Y. 104 8. C. C. 2d Ct. N. Y.) 581 (1882). 
 
 (1866) ; Burroughs v. Reiger, 12 The right to file and to cancel a 
 
 How. (N. Y.) Pr. 171 (1856). notice of Us pendens being statu- 
 
 * Benson v. Sayre, 7 Abb. (N. Y.) tory, the court can not direct it to 
 
 Pr. 472 (1858), note. See Farmers' be canceled unless some one of the 
 
 Loan & Trust Co. v. Dickson, 9 Abb. events specified in the statute has 
 
 (K Y.) Pr. 61 (1859); 8. c. 17 How. taken place. Willis v. Bellamy, 53 
 
 (N. Y.) Pr. 477 ; Tate v. Jordan, 3 N. Y. Supr. Ct. (31 J. & 8.) 94 
 
 Abb. (N. Y.) Pr. 392 (1856) ; Butler (1886). 
 
 (Si)
 
 370 BECORDING AXD INDEXING LIS PENDENS. [^'311. 
 
 Avhere he sets up in his answer a counter-claim, alleging a 
 joint interest of parties in certain real property, and demands 
 a judgment affecting the title thereto.' In such a case the 
 defendant filing the notice is regarded as a plaintiff, and the 
 plaintiff as a defendant.'' And where the defendant sets out 
 and claims the protection of certain rights in the land 
 involved in the suit, it becomes necessary for him to file a 
 lis pendens, in order to protect or to preserve such rights as he 
 may be adjudged to have ; because a purchaser is not charge- 
 able with constructive notice of infirmities in his vendor's 
 title, by reason of an equitable owner's assertion of his rights 
 in his answer in a foreclosure suit, if by the judgment therein 
 it appeared that a sale of the premises had been regularly 
 authorized, and title in that manner acquired by his vendor, 
 who was the purchaser of the premises on the foreclosure sale. 
 The purchaser is not bound to look so far into the pleadings 
 as to inform himself of the contents of such answer, but is 
 only required to consult the judgment itself.* 
 
 § 311. Recording and indexing lis pendens. — The New 
 
 York Code of Civil Procedure,* requires each county clerk, 
 with whom a notice of lis pendens is filed, on the payment of 
 his fee, to record and index such notice immediately, in 
 <i book kept in his office for that purpose. The party filing a 
 notice of pendency of action is required to indicate at the 
 toot thereof, the names of the defendants against whom he 
 wishes to have the notice indexed.* Some attorneys require 
 the notice to be indexed only against the names of the owners 
 of the fee title ; but the safer practice is thought to be to 
 require it to be indexed against the names of all the 
 defendants. 
 
 Where a defendant sets up in his answer a counter-claim, 
 upon which he demands an affirmative judgment affecting 
 the title to, or the possession, use or enjoyment of, real 
 
 ' N. Y. Code Civ. Proc. § 1G31, « Miller v. McGuckin, 15 Abb. (N. 
 
 1673. See Niebur v. Schreyer, 10 T.) N, C. 204 (1884). 
 
 N. Y. Civ. Proc. Rep. 73 (1886) ; * N. Y. Code Civ. Proc. § 1672. 
 
 s. c. 1 N. Y. St. Rep. 626. See Isaacs v. Isaacs, 61 How. (N. 
 
 * New York Code Civ. Proc. Y.) Pr. 369 (1881). 
 
 § 1673. t See N. Y. Code Civ. Proc. § 1672.
 
 § 312.] EFFECT OF LIS PENDENS. 371 
 
 property, he may, at the time of filing his answer, or at any 
 time afterwards before final judgment, file a notice of the 
 pendency of the suit similar to that filed by the plaintiff in 
 such action. The rules governing the filing of a /is pen- 
 dens by a defendant, are the same as those applicable 
 to a like notice filed by a plaintiff. For the purpose 
 of such an application, the defendant filing a notice 
 is regarded as a plaintiff, and the plaintiff is regarded 
 as a defendant.' 
 
 § 312. Effect of notice of lis pendens. — The proper 
 filing of a notice of lis pendens is constructive notice of the 
 pendency of the action to all subsequent purchasers or 
 incumbrancers of the land affected thereby, and is a substi- 
 tute for actual notice ;" it is as effective against a valid 
 transfer or incumbrance' of the property described in it as 
 an injunction would be.* Any subsequent sale or incum- 
 brance of the property pending the suit, will be invalid as 
 against the party filing the notice,' because any one pur- 
 chasing after the notice becomes operative, takes the property 
 subject to the claims of the plaintiff.' The effect of filing a 
 notice of lis pendens will not be defeated by its having been 
 lost from the files, or not having been properly entered, 
 through no fault of the plaintiff.^ The notice of lis pendens 
 binds all parties to the action, together with all purchasers 
 from them, and all parties claiming under them, subsequently 
 
 ' See Niebuhr v. Schreyer, 10 N. mortgat^ee ; Hards v. Connecticut 
 
 Y. Civ. Proc. Rep. 72 (1886); 8. c. Mut. L. Ins. Co., 8 Biss. 0. C. 234 
 
 1 N. Y. St. Rep. 626 ; N. Y. Code (1878) ; s. c. 6 Rep. 420. 
 
 Civ. Proc. § 1673. "• Stevenson v. Fayerweather, 21 
 
 2 Chapman v. West, 17 N. Y. 125 How. (N. Y.) Pr. 449 (1860). 
 
 (1858) ; 8. c. 10 How. (N. Y.) Pr. " Grider v. Payne, 9 Dana (Ky.) 
 
 367 ; Hall v. Nelson, 14 How. (N. 190 (1839). 
 
 Y.) Pr. 32 (1856) ; s. c. 23 Barb. (N. « Chapman v. West, 17 N. Y. 125 
 
 Y.) 88. (1858) ; Zeiter v. Bowman, 6 Barb. 
 
 •Pending a bill of foreclosure (N. Y.) 133 (1849); Edmonds v. 
 
 filed by the mortgagee, the mort- Crenshaw, 1 McC. (S. C.) Eq. 264 
 
 gagor can not, by a contract with a (1826). 
 
 mechanic, not sanctioned by the ' Heim v. Ellis, 49 Mich. 241 
 
 mortgagee, create a lien which shall (1882). 
 be detrimental to the interests of the
 
 372 WHO AEE INCUAIBEAXCERS PENDEiiTE LITE. [§313. 
 
 to the filing of the same.' All who are in privity with the 
 parties to the action will also be bound." 
 
 A lis pendens binds a purchaser with constructive notice 
 of all the facts which are apparent on the face of the plead- 
 ings at the time he takes his deed, and of such other facts as 
 those facts necessarily put him upon inquiry for, and as such 
 inquiry, pursued with ordinary diligence and prudence, 
 would bring to his knowledge.* 
 
 § 313. Who regarded as subsequent incumbrancers. — 
 An assignee in bankruptcy of a mortgagor pending a fore- 
 closure is an incumbrancer within the meaning of the 
 statute, and will be bound by a notice of lis pendens ;^ 
 so also is an assignee in bankruptcy in a suit commenced 
 subsequently to filing the notice, and he will be bound 
 thereby.* Likewise, a judgment creditor will be bound by 
 the notice, where his judgment was entered after filing the 
 lis pendens, although the summons was served before the lis 
 pendens was filed ;* and in a suit to reform and to foreclose 
 an unsealed mortgage, a notice of lis pendens, filed prior to 
 the recording of a deed by the mortgagor to a grantee, 
 against whom a judgment had been docketed, will save the 
 plaintiff his prior lien as against such judgment.* It will be 
 
 • Cleveland v. Boerum, 23 Barb. ' Jones v. McNarrin, 68 Me. 334 
 
 (N. Y.) 201 (1856) ; s. c. 3 Abb. (N. (1878). 
 
 Y.) Pr. 294 ; aff'd 27 Barb. (N. Y.) < Hovey v. Hill, 8 Lans. (N. Y.) 
 
 252 ; 24 N. Y. 613 ; Harrington v. 167 (1870). See Lamont v. Cheshire, 
 
 Slade, 22 Barb, (N. Y.) 162 (1856). 65 N. Y, 30 (1875), aff'g 6 Lans. (N. 
 
 See Patterson v. Brown, 32 N. Y.) 234 (1872). 
 
 Y. 81 (1865) ; Chapman v. West, 17 » Cleveland v. Boerum,23 Barb.(N. 
 
 N. Y. 125 (1858), aff'g 10 How. (N. Y.) 201 (1856) ; afl'd 24 N. Y. 613 
 
 Y.) Pr. 367 ; People ex rel. v. Con- (1862). See Griswold v. Fowler, 6 
 
 nolly, 8 Abb. (N. Y.) Pr. 128 (1858) ; Abb. (N. Y.) Pr. 113 (1857). 
 
 Griswold v. Miller, 15 Barb. (N. Y.) « See Fuller v. Scribner, 76 N. Y. 
 
 520 (1851); Zeiter v. Bowman, 6 190(1879). 
 
 Barb. (N. Y.) 133 (1849) ; Thompson ^ Lebanon Savings Bank v. Hol- 
 
 V. Clark, 4 Hun (N. Y.) 164 (1875) ; lenbeck, 29 Minn. 322 (1882). The 
 
 s. c. 6 T. «& C. (N. Y.) 510. effect of properly filing a lis pendens 
 
 " Craig V. Ward, 1 Abb. Ct. App. will be avoided by proof of actual 
 
 Dec. (N. Y.) 454 (1867), aff'g 36 notice of the unrecorded deed. See 
 
 Barb. (N. Y.) 377 (1862) ; s. c. 3 Slattery v. Schwanuecke, 44 Hun 
 
 ADb. (N. Y.) Pr. N. S. 235 ; 3 Keyes (N. Y.) 75 (1887). 
 (N. Y.) 387.
 
 § 314.J LIS PENDENS UNRECOEDED DEEDS. 373 
 
 Otherwise, however, where the judgment is docketed after 
 the fih'ng of a lis pendens, but before the filing of the com- 
 plaint in a foreclosure suit, because notice of the pendency 
 of an action to foreclose a mortgage, though duly filed, is 
 inoperative before the filing of the complaint, and judgment 
 can not be entered in the action until twenty days after the 
 complaint has been filed.' A notice of lis pendens, filed in an 
 equitable action for the dissolution of a partnership, is ineffec- 
 tive as against a mortgagee whose mortgage ante-dated the 
 notice, though it was not recorded until after the notice 
 was filed.' 
 
 It was held in an early case' in New York, that a judgment 
 lien is not a subsequent incumbrance within the meaning of 
 the New York Code ;* but in a later case" it was said, that a 
 judgment creditor is a subsequent incumbrancer within the 
 meaning of the Code, and that where a judgment is docketed 
 subsequently to the filing of a lis pendens in a foreclosure 
 suit, and to the service of the summons on one of the defen- 
 dants, the judgment creditor will be bound by the decree, 
 although not made a party to the action. 
 
 § 314. Effect of lis pendens on holders of unrecorded 
 conveyances.— Every party whose conveyance is executed 
 or recorded subsequently to the operation of a nqtice of 
 lis pendens, is considered a subsequent purchaser or incum- 
 brancer. Thus, it has been held, that where the purchaser 
 of mortgaged premises omitted to record his deed, although 
 previously executed, until after the filing of the notice of lis 
 pendens in a foreclosure suit, he was precluded from all 
 rights under such deed, as against the purchaser under the 
 judgment in the foreclosure suit, to the same extent as 
 
 ' Olson V. Paul, 56 Wis. 30 (1882). irrespective of any knowledge of the 
 
 * Hammond v. Paxton, 58 Mich. judgment creditor as to the existence 
 
 394 (1885). of such liens. 
 « Rodgers v. Bonner. 45 N. Y. 379 * N. Y. Code Civ. Proc. § 1671. 
 
 (1871). In this case the court say » Fuller v. Scribner, 76 N. Y. 190 
 
 that a judgment is not a specific lien (1879), aff'g 16 Hun (K Y.) 130. 
 
 upon any specific real estate of the See Prescott v, Trueman, 4 Mass. 
 
 judgment debtor, but a general lien 627, 630 (1808) ; s. c. 3 Am. Dec. 
 
 upon all his real estate, subject to all 246. 
 
 prior liens, both legal and equitable.
 
 374 EFFECT OF LIS PENDENS. [§314. 
 
 though he had been a party to the action.* And a mortgage 
 given before, but recorded after, a lis pendens is filed, will be 
 barred thereby.* 
 
 In a case where A. commenced an action to foreclose a 
 mortgage on the 23d of July, and at 12:30 o'clock on that 
 day filed his summons and complaint and notice of lis pendens 
 in the clerk's office, copies of the summons and complaint 
 were delivered to the sheriff within an hour thereafter, for 
 service upon the defendant, and were actually served upon 
 him on the 25th day of the same month. B. made a loan to 
 the defendant and received a mortgage on the same premises 
 on the same 23d day of July, between the hours of two 
 and four o'clock P. M,, which was put on record at five 
 o'clock of that day. The court held that B.'s lien was 
 cut off and barred by the notice of lis pendens in A.'s suit.* 
 
 The filing of a notice of lis pendens can have no greater 
 effect against the holder of an unrecorded conveyance or 
 incumbrance than making him a party to the suit would have 
 had, and where no relief could be obtained against him in the 
 action, had he been made a party, no rights will be acquired 
 against him by filing such a notice.* The notice of a suit 
 affects only proper parties to the suit and those claiming 
 under them, and no act of the plaintiff in improperly inserting 
 other names and in filing the notice so framed can affect the 
 rights of prior purchasers or incumbrancers not properly 
 parties to the action.* Thus, where a purchaser by contract 
 is in possession of the land, he is not chargeable with a notice 
 of lis pendens, and payments made by him to the vendor will 
 be held valid." Neither will a person who claims title under 
 a sale for taxes be bound by the notice.^ 
 
 ' Ostrom V. McCann, 21 How. (N. " People ea; rei. v. Connolly, 8 Abb. 
 
 T.) Pr. 431 (1860). (N. Y.) Pr. 128 (1858), aflf'g s. c. mb 
 
 ' Ayrault v. Murphy, 54 N. Y. nom. Chapman v. Draper, 10 How. 
 
 203 (1873) ; Kindberg v. Freeman, (N. Y.) Pr. 367 (1854) ; Stuyvesant 
 
 39 Hun (N. Y.) 466 (1886). v. Hone, 1 Sandl". Ch. (N. Y.) 419 
 
 * Stern v. O'Connell, 35 N. Y. 104 (1844) ; s. c. aff'd sub nom. Stuy- 
 ^1866). vesant v. Hall, 2 Barb. Ch. (N. Y.) 
 
 * Lamont v. Cheshire, 65 N. Y. 30 151 (1847). 
 
 (1875), aff'g 6 Lans. (N. Y.) 234 « Moyer v. Hinman, 13 N. Y. 180 
 
 (1872). See Porter v. Pico, 55 Cal. (1855) ; Dwight v. Phillips, 48 Barb. 
 
 165, 175 (1880). (N. Y.) 116 (1865) ; Smith v. Gage,
 
 § 315.] EFFECT OF OMISSION TO FILE NOTICE. 375 
 
 § 315. Effect of omission to file notice of lis pendens. — 
 
 Where a notice of lis pendens is required by statute, its object 
 is to give constructive notice of the pendency of the suit to 
 all parties dealing with the defendant in regard to the land, 
 the title to, or the possession of, which is to be affected 
 by the suit, and to bind them by the judgment in the same 
 manner as though they had originally been made parties to 
 the action. Failure to file such a notice will simply render the 
 judgment inoperative to bind subsequent purchasers or 
 incumbrancers ; and since the rights of such persons only can 
 be affected, they alone may be heard to take advantage of 
 the omission to file a notice of lis pendens^ 
 
 A person who parts with nothing of value on receiving a 
 conveyance of real property, pending an action affecting the 
 title thereto, can not be injured by not receiving notice of 
 the existence of such an action, and he will be bound by the 
 results of the action without notice either actual or construc- 
 tive of its pendency." 
 
 It was held by the supreme court of Wisconsin in i860,'* 
 that a failure to file a notice of lis pendens, where required 
 by the statute, is not such an irregularity as will vitiate the 
 judgment or cause it to be reversed on appeal. The same 
 court said in another case* of that year that "the purpose and 
 object of filing a lis pendens manifestly is, to give to all persons 
 not parties to the suit, notice of the pendency of the same, 
 and to make it operate as constructive notice to any one who 
 may become interested in the property during the litigation. 
 
 41 Barb. (K Y.) 61 (1863) ; Parks v. N. Y. 589, 595 (1854) ; Ogden v. 
 
 Jackson, 11 Wend. (N. Y.) 443 Jackson, IJohns. (N. Y.) 370 (1806); 
 
 (1833). Gorham v. Stearns, 43 Mass. (1 
 
 ' Becker v. Howard, 4 Hun (N. Mete.) 366 (1840) ; Gibson v. Mus- 
 
 Y.) 359 (1875). kett, 3 Man. «& G. 158 (1841) ; Floo': 
 
 > Potter V. Rowland, 8 N. Y. 448 v. Jones, 4 Bing. 20 (1826). 
 
 (1854) ; White v. Coulter, 1 Hun (N. » Boyd v. Weil, 11 Wis. 58 (18GC). 
 
 Y.) 357 (1874) ; s. c. 3 T. & C. (N. •* Boyd v. Weil, 11 Wis. 58, 60 
 
 Y.) 608; Curtis v. Hitchcock, 10 (1860). See Potter v. Rowland, 8 N. 
 
 Paige Ch. (N. Y.) 399 (1843). Y. 448(1854); Curtis v. Hitchcock, 10 
 
 «Leavitt v. Tylee, 1 Sandf. Ch. Paige Ch. (N. Y.) 399 (1843); 
 
 (N. Y.) 207 (1843); aff'd in Shaw v. Houghton v. Manner, 7 Wis. 244 
 
 Leavitt, 8 Sandf. Ch. (N. Y.) 163 (1850). 
 (1845). See Brouwer v. Harbeck, 9
 
 376 PEOOF OF FILING NOTICE. [§316. 
 
 But we can see no good reason for holding that the judgment 
 is void as to the mortgagors, because this notice was not filed, 
 or proof thereof duly made to the circuit court." But the 
 following year the same court reached an opposite conclusion,* 
 overruling Boyd v. Weil, in so far as that case may be sup- 
 posed to sanction a contrary doctrine,' and holding that when 
 it appears from the record in a foreclosure suit that no notice 
 of lis pendens was filed as required by the statute, it will be an 
 irregularity, for which the judgment will be reversed on the 
 application of the mortgagor, or of any one interested in 
 the funds arising from the sale of the premises. 
 
 § 316. Proof of filing notice of lis pendens. — Under 
 the New York practice in all foreclosure cases, the plaintiff, 
 when he moves for judgment, must show that a proper notice 
 of the pendency of the action was filed at the time of filing 
 the complaint, or afterwards, and at least twenty days 
 before the motion for judgment is made, as required by the 
 Code.' The Wisconsin statute and practice are substantially 
 the same.* The proof of filing the notice may be made by 
 the affidavit of the plaintiff's attorney, or by the certificate 
 of the clerk of the court in the county in which the mort- 
 gaged premises are situated.' 
 
 The language of the New York Code is imperative, and 
 the filing of the proper notice in foreclosure proceedings is 
 an indispensable prerequisite to obtaining judgment." And 
 the supreme court requires the plaintiff, when he moves for 
 judgment, to show by affidavit or the certificate of the clerk 
 of the county in which the mortgaged premises are situated, 
 that a proper notice of the pendency of the action has been 
 duly filed as directed by its rules.^ But this requirement is 
 
 ' See Manning v. McClurg, 14 88 (1863) ; Spraggon v. McGreer, 14 
 
 Wis. 350 (1861); Spraggon v. Wis. 439 (1861); Manning v. 
 
 McGreer, 14 Wis. 439 (1861). See McCIurg, 14 Wis. 350 (1861). 
 
 also Catlin v. Pedricls, 17 Wis. 88 « In Wisconsin proof may be 
 
 (1863). made by tiie certificate of the register 
 
 "^ See Catlin v. Pedrick, 17 Wis. of deeds ; Manning v. McClurg, 14 
 
 88 (1863). Wis. 350 (1861) ; Boyd v. Weil, 11 
 
 3 N. Y. Code Civ. Proc. § 1631. Wis. 58 (1860). 
 
 N. Y. Supreme Court Rule 60. « N. Y. Code Civ. Proc. § 1631. 
 
 * See Catlin v. Pedrick, 17 Wis. ^ N. Y. Supreme Court Rule 60.
 
 § 317.] DEFECTIVE AND AMENDED LIS PENDENS. 377 
 
 merely a rule of practice and does not affect the validity of 
 the judgment. If no proof of filing the notice of the 
 pendency of the suit is furnished, the judgment will be 
 irregular, but not void ;' yet the irregularity is such as will 
 vitiate the judgment or cause it to be reversed on appeal.' 
 Where a proper notice of lis pendens has been duly filed, and 
 there is no objection to the proof of such filing, the fact that 
 the affidavit of filing is defective, will not render the judgment 
 void ; it is a mere irregularity which may be disregarded or 
 amended,* in the absence of any wrong to the defendant.* 
 Proof of the filing of a notice of lis pendens may be permitted 
 by the court to be made nunc pro twic." 
 
 § 317. Defective and amended notice of lis pendens. — 
 A substantial compliance with the statute will be sufficient 
 in a notice of lis pendens* But the property must be 
 sufficiently and correctly described -^ it has been held that if 
 a notice of lis pendens describes the premises incorrectly, the 
 mortgagor will be entitled to have a judgment rendered 
 against him on default set aside.* But where all the parties 
 having an interest in the property are before the court, and 
 have been properly made parties to the action, it is said that 
 there can be no objection to a defective lis pendens, because 
 no one can be prejudiced thereby." Where the original notice 
 of lis pendens is defective and ineffectual, and an amended 
 lis pendens is filed with or after the filing of an authorized 
 amended summons and complaint, it will be good.'" 
 
 » Potter V. Rowland, 8 K Y. 448 » "White v. Coulter, 1 Hun (]Sr. Y.) 
 
 (1853) ; White v. Coulter, 1 Hun (N. 357, 365 (1874) ; B. c. 3 T. & C. (N. Y.) 
 
 Y.) 357 (1874) ; s. c. 3 T. «& C. (N. 608. 
 
 Y.) 608 ; Curtis v. Hitchcock, 10 « Potter v. Rowland, 8 N. Y. 448 
 
 Paige Ch.(N.Y.) 399 (1848); Catlinv. (1854) ; Weber v. Fowler, 11 How. 
 
 Pedrick, 17 Wis. 88 (1863). (N. Y.) Pr. 458 (1854). 
 
 « Spraggon V. McGreer, 14 Wis. ■> Jaffrey v. Brown, 17Hun (N. Y.) 
 
 439 (1861), overruling Boyd v. Weil, 575 (1879). 
 
 11 Wis. 58 (1860); Manning v. » Spraggon v. McGreer, 14 Wis. 
 
 McClurg, 14 Wis. 350 (1861). 439 (1861). 
 
 8 N. Y. Code Civ. Proc. g 723. « Totten v. Stuyvesant, 3 Edw. 
 
 * White V. Coulter, 1 Hun (N. Y.) Ch. (N. Y.) 500, 505 (1841). 
 
 857 (1874) ; s. c. 3 T. «& C. (N. Y.) "> Daly v. Burchell, 13 Abb. (K. 
 
 608. Y.) Pr. N. S. 264 (1872).
 
 378 DEFECTIVE AND AJIEXDED LIS PENDEJJJS. [§318. 
 
 The court has power to amend a notice of lis pendens by 
 inserting therein a specific description of a portion of the 
 premises which was omitted by mistake/ or by striking out 
 portions thereof descriptive of property not properly 
 included in such notice." 
 
 Where, after filing a notice of lis pendens, the complaint is 
 amended by striking out or adding parties, altering the 
 description of the premises, or extending the claim, a new 
 notice of lis pendens will be absolutely necessary to conform 
 the notice to the complaint in order to enable proof of its 
 proper filing to be made, and to cut off the rights of judgment 
 creditors of such new parties, as Vv^ell as to make the amended 
 bill constructive notice to subsequent purchasers and incum- 
 brancers dealing with such new parties in relation to the 
 mortgaged premises.* But where the amendment consists 
 simply in adding new parties to the action, without extending 
 the claim or varying the description, a new or amended 
 notice will be necessary only to charge such new parties and 
 those claiming under them with notice ; the grantees of the 
 original parties will be bound by the first notice.* 
 
 Should the complaint be amended by making new parties 
 or by striking out those already parties, or by adding a new 
 description of the premises, the attorney for the plaintiff 
 will not be able to make the necessary proof of the proper 
 filing of a notice of lis pendens, as required by the Code and 
 practice, unless a new or an amended notice is filed.* 
 
 § 318. Dormant lis pendens.— Where a party is to be 
 alTected by a pending suit, there should be a "close and 
 continued prosecution" of the same to a final determination ;* 
 
 » Vanderheyden v. Gary, 38 How. cock, 10 Paige Ch. (N. Y.) 399 
 
 (N. Y.) Pr. 367 (1869). (1843). 
 
 * Fitzgerald v. Blake, 42 Barb. (N. » N. Y. Code Civ. Proc. §§ 1631, 
 Y.) 518 (1864) ; s. o. 28 How. (N. Y.) 1670 ; N. Y. Supreme Court Rule 60. 
 I'r. 110. 6 Preston v. Tubbin, 1 Vern. 286 
 
 " Clark V. Havens, Clarke Ch. (N. (1684). In order to constitute a 
 
 Y.) 560, 563 (1841) ; Curtis v. Hitch- litis pendentia, it is said, there must 
 
 cock, 10 Paige Ch. (N. Y.) 399 be a continuance of litis contestatio, 
 
 (1843) ; s. c. 2 N. Y. Leg. Obs. 363. and something must be done to keep 
 
 * Waring v. Waring, 7 Abb. (N. it alive and in force. Kinsman v. 
 Y.) Pr. 475 (1858) ; Curtis v. Hitch- Kinsman, 1 Russ. & Myl. 617(1830).
 
 § 319.] CANCEIxDfG LIS PEifDEUS. 379 
 
 the lis pendens becomes void or dormant, if the action is not 
 diligently pursued.' But only unreasonable or unusual negli- 
 gence in the prosecution of a suit will take away the benefit 
 of a lis pendens. * 
 
 § 319. Canceling notice of lis pendens. — A notice of 
 lis pendens properly filed under the provisions of the Code, 
 in an action to foreclose a mortgage on real property, can 
 not be removed or canceled until after the action has been 
 settled, discontinued or abated.' After the action has 
 been settled, discontinued or abated, or a final judgment 
 has been rendered therein against the party filing the notice, 
 and the time within which to appeal therefrom has expired, 
 or if the plaintiff unreasonably neglects to proceed, then the 
 cancellation rests in the discretion of the court.* 
 
 The provisions of the Code of Civil Procedure relating to 
 the cancellation of notices of lis pendens, confer that power 
 only upon the court in which the action is pending ; the court 
 of common pleas has no power to order the cancellation of a 
 lis petidens filed in a district court, where no judgment has 
 been rendered nor transcript filed, so as to make the district 
 court judgment a judgment of the court of common pleas.* 
 The question whether an action is sustainable can not be 
 considered on a motion to cancel a lis pendens* 
 
 » See Sheridan v. Andrews, 49 N. 253, 259 (1880), and note ; Pratt v. 
 
 Y. 478 (1872) ; Myrick v. Selden, 36 Hoag, 5 Duer (N. Y.) 631 (1856) ; 
 
 Barb. (N. Y.) 15 (1861) ; Kinsman v. s. c. 12 How. (N. Y.) Pr. 215. 
 
 Kinsman, 1 Russ. «& Myl. 617 (1880). * N. Y. Code Civ. Proc. § 1674 ; 
 
 » Gossom V. Donaldson, 18 B. Willis v. Bellamy, 53 N. Y. 
 
 Mon. (Ky.) 230, 237 (1857) ; 3. c. Supr. Ct. (21 J. & S.) 94 (1886) ; 
 
 68 Am. Dec. 723. Lyle v. Smith, 13 How. (N. Y.) Pr. 
 
 » Mills V. Bliss, 55 N. Y. 139 104 (1856) ; N. Y. Code Civ. Proc. 
 
 (1873) ; Parks v. Murray, 2 N. Y. § 1674. 
 
 St. Rep. 135 (1886) ; Willis v. Bell- ' » Matter of Barnum, (N. Y. City 
 
 amy, 53 N. Y. Supr. Ct. (21 J. & S.) Com. PI. Sp. T.) N. Y. Daily Reg. 
 
 94 (1886) ; Wilmont v. Meserole, 41 May 29, (1884). 
 
 N. Y. Supr. Ct. (9 J. & S.) 274 « Mills v. Bliss, 55 N. Y. 139 
 
 (1876); Niebuhr v. Schreyer, 10 N. (1873). See Pratt v. Hoag, 5 Duer (N. 
 
 Y. Civ. Proc. Rep. 72 (1886) ; Little Y.) 631 (1856); s. c. 12 How. (N. Y.) 
 
 V. Rawson, 8 Abb. (N. Y.) N. C. Pr. 215.
 
 CHAPTER XV. 
 
 ANSWERS AND DEFENCES. 
 
 AVHO MAY ANSWER— DEFECT IN PARTIES— ACTION AT LAW ON BOND— 
 
 DEFECTIVE EXECUTION OP MORTGAGE— INFANCY, INSANITY, 
 
 IGNORANCE, ALTERATION. 
 
 § 320. Generally. 
 
 321. Right of prior incumbrancers 
 
 to answer. ' 
 
 322. Claimants of interest in equity 
 
 of redemption may answer. 
 
 323. When action ready for trial. 
 
 324. Insufficiency of service on 
 
 another defendant. 
 
 325. Objection of defect in parties 
 
 — How made. 
 
 326. Parties personally liable for 
 
 debt may object to defect in 
 parties. 
 
 327. Objection of pendency of 
 
 action at law on note or 
 bond. 
 
 328. Objection of recovery of 
 
 judgment on note or bond. 
 
 329. Objection under the codes. 
 
 330. Denial of execution of mort- 
 
 gage. 
 
 331. Allegation of infancy. 
 
 332. Foreclosure of infants' pur- 
 
 chase money mortgage. 
 
 833. Allegation of insanity of 
 mortgagor. 
 
 334. Defect in execution and 
 
 record of mortgage. 
 
 335. Allegation of alteration of 
 
 instrument. 
 
 336. Illiteracy and negligence. 
 
 § 320. Generally. — The answer of a defendant in an 
 action brought to foreclose a mortgage, is regulated in respect 
 to its form by the provisions of the Code of Civil Procedure, 
 the same as an answer in any other civil action.' In such an 
 action a defendant may plead the same matters in defence 
 against the mortgage, except only the statute of limitations, 
 that he could against the note or bond which the mortgage 
 was given to secure." A defendant should not serve a 
 general answer, merely admitting that the several rights and 
 interests alleged in the complaint are correctly set forth, 
 without at the same time setting up new matter constituting 
 a defence, counter-claim or set-off. Where the defence 
 
 ' N. Y. Code Civ. Proc. § 500. 
 
 » Vinton v. King, 86 Mass. (4 Allen), 
 562 (1862). See Hannan v. Han- 
 nan, 123 Mass. 441 (1877) ; Freeland 
 
 V. Freeland, 102 Mass. 475 (1869) ; 
 Holbrook v. Bliss, 91 Mass. (9 Allen), 
 69 (1864). 
 
 380
 
 § 321.] PfilOE INCUMBKAlfCEES ANSWEBINQ. 381 
 
 consists of new matters, by way of avoidance, the defendant 
 must set forth the facts of his defence in full and prove them 
 as alleged.' 
 
 Where an answer setting up no new matter constituting a 
 defence, counter-claim or set-off is filed, the plaintiff may 
 move at a special term of the court to strike it out as sham or 
 frivolous, and at the same time apply for judgment; or he 
 may, upon previous notice, apply to the court for judgment 
 upon the pleadings as they stand.* 
 
 A mortgagor or his grantee may defend a foreclosure, and 
 is entitled, moreover, to reply to the affirmative matt«r set up 
 in the respective answers of his co-defendants, showing liens in 
 their favor upon the mortgaged property, and to have the 
 validity of the same determined. As to such matter his co- 
 defendants are to be deemed plaintiffs and their answers as 
 complaints.* 
 
 § 321. Right of prior incumbrancers to answer. — Where 
 the rights of prior incumbrancers are correctly stated in the 
 complaint, it is not necessary for them to appear and answer 
 in order to protect their rights;* but where one holds a 
 mortgage upon property which is of insufficient value to 
 satisfy all the liens upon it, he is entitled to contest the exis- 
 tence or the validity of prior mortgage liens asserted by 
 others, although his debt may not be due, and although his 
 mortgage may not have been executed until after the prior 
 mortgagees had instituted suit to enforce their liens.* Where 
 prior incumbrancers are made parties defendant, it is not 
 necessary for them to answer and to set up the priority of 
 their respective liens, because the entry of the usual judg- 
 ment of foreclosure and sale will not cut off nor in any way 
 affect their liens, if they are actually prior to the mortgage 
 under foreclosure.' 
 
 > Post V. Springsted, 49 Mich. 90 (1882). See N. T. Code Civ. Proa 
 
 (1882). § 521. 
 
 * Bowman v. Marshall, 9 Paige * Merchants' Ins. Co. v, Marvin, 1 
 
 Ch. (N. Y.) 78 (1841) ; N. T. Code Paige Ch. (N. Y.) 557 (1829). 
 
 Civ. Proc. §§ 537, 545; N. Y. » Hart v. Hayden, 79 Ky. 346(1881). 
 
 Supreme Court Rule 60. • Payn v. Grant, 23 Hun (N. Y.) 
 
 •Ladd V. Mason, 10 Greg. 308 134(1880). See an<e ^§ 188-190.
 
 382 CLAEMANTS OF INTEREST LN EQUITY. [§322. 
 
 § 322. Claimants of interest in equity of redemption 
 may answer. — Defendants whose claims are against the 
 equity of redemption only, can not file answers and litigate 
 their claims to the surplus as between themselves, until it is 
 ascertained that there will be a surplus; unless their liens 
 are upon different parcels of the mortgaged premises, or 
 their rights are of such a nature as to require them to be 
 passed upon previous to the entry of a decree of sale.* But 
 such defendants will always be permitted to set out their 
 respective rights in their answers, so far as may be neces- 
 sary to, enable the court to make a proper decree for 
 the sale of the mortgaged premises in parcels, so as to pro- 
 tect the rights of the several defendants upon the sale and 
 upon the reference for the distribution of the surplus moneys.* 
 And they may also set up in their answers any claims they 
 have to the equity of redemption, as incumbrancers or other- 
 wise, as against the complainant.* 
 
 Where a conveyance of mortgaged premises is not made 
 by its terms subject to a mortgage, but purports to convey 
 the whole title, and especially if it contains full covenants of 
 warranty, the grantee, not having assumed the payment 
 of the mortgage debt and the amount thereof not having 
 been deducted from the purchase money, may interpose the 
 same defences to the mortgage that the mortgagor might 
 have interposed.* 
 
 A defendant who is entitled to relief against the complainant 
 or a co-defendant, can obtain it only by filing a cross-bill for 
 
 ' Union Ins. Co. v. VanRensselaer, Renwick v. Macomb, Hopk. Ch. (N. 
 
 4 Paige Ch. (N. Y.) 85 (1833). See Y.) 277 (1834) ; Tower v. White, 10 
 
 N. Y. Code Civ. Proc. § 521 ; Far- Paige Ch. (N. Y.) 395, 397 (1843). 
 
 iners' Loan & Trust Co. v. Seymour, * Tower v. "White, 10 Paige Ch. 
 
 9 Paige Ch. (N. Y.) 538 (1842). (N. Y.) 397 (1843). 
 
 Prior to the adoption of rules 132 » Tower v. White, 10 Paige Ch. 
 
 and 136 by the Court of Chancery in (N. Y.) 395 (1843). 
 
 1830, defendants who were junior * Bennett v. Keehn, 57 Wis. 582 
 
 incumbrancers were not only author- (1883), distinguishing Bensley v. 
 
 ized to litigate their claims with the Homier, 42 Wis. 631 (1877), Crocker 
 
 complainant, but also with their v. Bellangee, 6 Wis. 645 (1854), and 
 
 several co-defendants previous to a Milwaukee M. & M. R. R. Co. v. 
 
 decree of sale. And as a general Milwaukee &W. R. R. Co., 20 Wia 
 
 rule they were required to do so ; 174 (1865).
 
 § 323.] WHEN ACTION READY FOR TRIAL. 383 
 
 that purpose.* As a general rule a defendant will not be 
 allowed by his answer to assail the subsequent mortgage 
 of a co-defendant, although he alleges in his answer that such 
 mortgage is fraudulent and void ; and his co-defendant, to 
 whom such subsequent mortgage belongs, will not be required 
 to reply to such answer ; nor will such answer be taken as 
 confessed by him because of his failure to reply. If one 
 defendant wishes to assail the mortgage of another, he must 
 file a cross-bill for that purpose.' 
 
 § 323- When action ready for trial. — Where a defen- 
 dant raises substantial objections to a complaint by 
 demurrer, or where his answer sets up any matter which 
 raises an issue, the plaintiff will not be permitted to proceed 
 against the other defendants until the issue is ready for trial. 
 A foreclosure is noticed for trial, placed upon the calendar and 
 brought on for trial, the same as any other equity cause. To 
 entitle the cause to be placed upon the calendar, the demurrer 
 or answer to the complaint must have been interposed in 
 good faith. If it is frivolous, the plaintiff may apply for 
 judgment on motion, without noticing the case for trial.* 
 A defendant in a suit to foreclose a mortgage can defend 
 only on the grounds set up in his answer.* 
 
 Besides special defences or such defences as arise out of the 
 circumstances of each particular case, there are a number of 
 general defences to an action for foreclosure which will 
 be considered separately in this and in the following four 
 chapters. 
 
 » BrinkerhofE v. Franklin, 21 N. 6 Johns. (N. T.) 548, 565 (1810) ; 
 
 J. Eq. (6 C. E. Gr.) 334 (1871) ; Beach v. Fulton, 8 Wend. (N. Y.) 
 
 Vanderveer'3 Admrs. v. Holcomb, 573, 584 (1829) ; Philbrooks v. Mc 
 
 21 N. J. Eq. (6 C. E. Gr. ) 105 Ewen, 29 Ind. 347 (1868) ; Matteson 
 
 (1870). V. Morris, 40 Mich. 52 (1879) ; Van 
 
 « BrinckerhofE v. Franklin, 21 N. Dyke v. Davis, 2 Mich. 144 (1851) ; 
 
 J. Eq. (6 C. E. Gr.) 334 (1871). Hendrix v. Gore, 8 Oreg. 406 (1880); 
 
 » Bowman v. Marshall, 9 Paige Imham v. Child, 1 Bro. Ch. 92, 94 
 
 Ch. (N. Y.) 78 (1841) ; N. Y. Code (1781) ; Smith v. Clarke, 12 Ves. 
 
 Civ. Proc. § 537 ; N. Y. Supreme 477, 480 (1806) ; Clarke v. Turton, 
 
 Court Rule 60. 11 Ves. 240 (1805) ; GUbert's Roman 
 
 * Higman v. Stewart, 38 Mich. Forum, 218. 
 513 (1878). See James v. McKernon,
 
 384 ANSWEK OF DEFECT Uf PARTIES. [§§ 32i-325. 
 
 § 324. Insufficiency of service on another defendant. — 
 
 While a defendant may take advantage of a want of service or 
 of a defective service of the summons upon himself, by a special 
 appearance and plea in the suit, or while he may in such a case 
 take no notice of the suit, because he will not be bound by 
 the decree ; yet, as a general rule, he can not object to a want 
 of service or to a defective service of the summons upon 
 another defendant, who is not a necessary party to the suit.' 
 But the rule is otherwise, if the defendant who was defec- 
 tively served, is a necessary defendant." And a junior 
 incumbrancer, who is a co-defendant with the mortgagor in a 
 foreclosure, can not, on appeal, complain of the judgment 
 against such mortgagor, on the ground that it was rendered 
 without sufificient notice or service upon him.* 
 
 But a person, who stands in the relation of a surety for the 
 mortgage debt, is entitled to have the entire equity of redemp- 
 tion applied in the first place to the payment of the debt, and 
 may require all persons claiming an interest in the mortgaged 
 premises to be made parties defendant, in order to make the 
 title offered at the sale perfect against all equities, and may 
 therefore object to a want of service, or to a defective or 
 insufficient service, upon any of such parties.* 
 
 § 325- Objection of defect in parties— How made.— It 
 
 is the right of every person, who is liable for any deficiency that 
 may arise upon the sale of the premises on foreclosure, to 
 require that the whole equity of redemption be sold, and 
 to demand that all persons necessary to be joined to accom- 
 plish that object be made parties to the action, because his 
 ultimate liability for any deficiency makes it of the highest 
 importance to him that the whole title to the premises be 
 sold, in order that the largest sum possible may be realized.* 
 And the objection that there is a want of proper parties 
 defendant is available to the mortgagor who is liable for any 
 
 ' Mims V. Mims, 35 Ala. 23 (1859); * Kortright v. Smith, 3 Edw. Ch. 
 
 Semple v. Lee, 13 Iowa, 304 (1862). (N. T.) 40a, 404 (1840). 
 
 See ante § 128. s HaU v. Nelson, 28 Barb. (N.T.; 
 
 * See ante § 128. 88, 91 (1856) ; s. c. 14 How. (N. Y.) 
 
 « Semple v. Lee, 13 Iowa, 804 Pr. 32. See ante §8 128, 160. 
 
 (1862).
 
 § 326.] 
 
 OBJECTIOI^ OF DEFECT m PARTIES. 
 
 385 
 
 deficiency that may arise on the sale of the premises, even 
 though he may have parted with his interest in the equity of 
 redemption.* 
 
 Where there is a defect of parties apparent upon the face 
 of the complaint, the objection may be taken by demurrer, 
 but where the defect does not appear upon the face of the 
 complaint, the objection must be taken by answer." In 
 those cases where the objection of a want of parties is made 
 out of season,' the want of parties may be supplied by a 
 supplemental bill.* 
 
 § 326. Parties personally liable for debt may object to 
 defect in parties. — Every party personally liable for a debt is 
 entitled to have all persons who have, or claim, an interest in 
 the mortgage, made parties to the suit. In those cases 
 where the ownership appears doubtful, the court will order 
 all parties appearing to be interested, to be brought within 
 its jurisdiction.' And where a complaint makes a mere 
 surety of the mortgagor for the payment of the debt, a 
 
 » HaU V. Nelson, 23 Barb. (N. Y.) 
 88 (1856) ; B. c. 14 How. (N. Y.) Pr. 
 32. 
 
 « N. Y. Code Civ. Proc. § 498 ; 
 Dawley v. Brown. 79 N. Y. 397 
 (1880) ; Fox v. Moyer, 54 K Y. 125 
 (1873) ; Morris v. Wheeler, 45 N. Y. 
 708 (1871) ; Fulton Ins. Co. v. Bald- 
 win, 37 N. Y. 648 (1868) ; Pittman 
 V. Johnson, 15 Abb. (N. Y.) N. C. 477 
 (1885) ; Dillaye v. Parks, 31 Barb. 
 (N. Y.) 132 (1860) ; Scofield v. Van 
 Syckle, 23 How. (N. Y.) Pr. 97 
 (1862) ; Browning v. Marvin, 22 
 Hun (N. Y.) 547, 551 (1880); Hall v. 
 Richardson, 22 Hun (N. Y.) 446 
 (1880); Remington v. Walker, 21 
 Hun (N.Y.) 326(1880) ; Holbrook v. 
 Baker, 16 Hun (N. Y.) 176 (1878) ; 
 Marshall v. Lippman, 16 Hun (N. 
 Y.) Ill (1879) ; Barclay v. Quick- 
 silver Mining Co., 6 Lans. (N. Y.) 
 25 (1872); Kittle v. VanDyck, 1 
 Sandf. Ch. (N. Y.) 76 (1843) ; Zim- 
 
 merman V. Schoenfeldt, 6 T. & C. 
 (N. Y.) 142 (1875) ; 8. c. 3 Hun (N. 
 Y.) 692 ; Hees v. Nellis, 1 T. & C. 
 (N. Y.) 118 (1873) ; Biden v. James, 
 25 Week. Dig. (N. Y.) 141 (1886) ; 
 Hamburger v. Baker, 21 Week. Dig. 
 (N. Y.) 213 (1885). See ante % 128. 
 
 * As in Jones v. Jones, 3 Atk. 110, 
 217 (1744), where the case had been 
 once heard, and was brought on again 
 upon the equity reserved, when the 
 objection was raised. See also Holds- 
 worth v. Holdsworth, 2 Dick. 799 
 (1783), where parties appeared to be 
 wanting on an appeal from the 
 decree at the Rolls, and the case was 
 ordered to stand over with liberty 
 for the plaintiffs to file a supple- 
 mental bill, merely to add parties. 
 
 * Ensworth v. Lambert, 4 Johns. 
 Ch. (N. Y.) 605 (1820). 
 
 » See Kortright v. Smith, 3 Edw 
 Ch. (N. Y.) 402, 404 (1840). 
 
 &5)
 
 386 OBJECTION OF PENDENCY OF ACTION. [§ 327. 
 
 party to the bill to foreclose, for the purpose of obtaining 
 a decree against such surety or his property, in the event the 
 proceeds of the mortgaged premises are found to be 
 insufficient to satisfy the debt and costs, such surety will 
 have a rjght to insist that the principal debtor shall be 
 made a party to the suit, if he is within the jurisdiction of 
 the court ; but where the principal debtor is an absentee, 
 and has assigned all his right and interest in the equity of 
 redemption in the mortgaged premises, such facts will be 
 a sufficient reason for not making him a party to the fore- 
 closure, even where the surety is made a party for the 
 purpose of obtaining a decree over against him for any 
 deficiency.' Where the mortgagor conveys the equity of 
 redemption absolutely, without warranty, the mortgaged 
 premises thereby become the primary fund for the payment 
 of the mortgage debt, and the grantee thereof will have no 
 right to object that the mortgagor is not made a party to a 
 bill to foreclose." 
 
 The real party in interest must be plaintiff in an action 
 to foreclose a mortgage. Where the mortgagee has parted 
 with his title to the mortgage before suit, or disposed of 
 his interest therein after suit is instituted, the defendant 
 will have a right to object that the proper party in interest is 
 not before the court, and if this objection is sustained, it 
 will be a bar to the action.* 
 
 § 327. Objection of pendency of action at law on note 
 or bond. — The pendency of an action at law for the recovery 
 of a debt secured by a mortgage, if no judgment has been 
 recovered in such action, will not prevent the filing of a 
 complaint to foreclose the mortgage.* But the filing of 
 
 > Bigelow V. Bush, 6 Paige Ch. (1844) ; Smith v. Bartholomew, 42 
 
 (N. Y.) 343 (1837). Vt. 356 (1869). 
 
 » Bigelow V. Bush, 6 Paige Ch. ■• Williamson v. Champlin, Clarke 
 
 (N. Y.) 343 (1837). Ch. (N. Y.) 9 (1839) ; Suydam 
 
 ' See MiUs v. Hoag, 7 Paige Ch. v. Bartle, 9 Paige Ch. (N. Y.) 294 
 
 (N. Y.) 18 (1837) ; 8. c. 31 Am. Dec. (1841) ; Guest v. Byington, 14 Iowa, 
 
 271 ; Field v. Maghee, 5 Paige Ch. 30 (1862) ; Tappan v. Evans, 11 N. 
 
 (N. Y.) 539 (1836) ; Wallace v. H. 311 (1840). 
 Dunning, Walk. Ch. (Mich.) 416
 
 § 328.J OBJECTION OF JUDGMENT AT LAW ON NOTE. 387 
 
 such complaint for foreclosure will prevent the plaintiff from 
 proceeding in his action at law, without the permission of 
 the court.' The fact that a suit at law has been instituted 
 by another party on the note, will not be a bar to the filing 
 of a complaint in foreclosure by the holder of the mortgage. 
 Thus, where a respondent answered among other things, 
 that an action at law was pending in the name of the 
 original payee of the notes mentioned in the mortgage, 
 which the complainant, as the assignee thereof and the 
 holder of the legal title, was seeking to foreclose, a demurrer 
 to the answer was sustained. The court said : " The simple 
 pendency of an action in the name of another plaintiff was 
 no bar to the complainant's recovery.'" 
 
 § 328. Objection of recovery of judgment on note or 
 bond.— The recovery of a judgment on a note secured by 
 mortgage can not be set up as a defence to an action of fore- 
 closure, if the judgment has not been satisfied,' because 
 the merger of a note in a judgment does not extinguish the 
 debt ;* the land is liable, and the lien of the mortgage will 
 continue until the debt is paid, or the judgment is barred by 
 the statute of limitations.' And this is true, whether the note 
 upon which the judgment was obtained, is secured by a 
 
 ' Suydam v. Bartle, 9 Paige Ch. Haines, 18Ind. 496(1862); Jenkinson 
 
 (N. Y.) 294(1841). V. Ewing, 17 Ind. 505 (1861); 
 
 » Guest V. Byington, 14 Iowa, 30, O'Leary v. Snediker, 16 Ind. 404 
 
 32 (1862). (1861) ; Hensicker v. Lamborn, 13 
 
 3 Vansant v. Allmon, 23 111. 30 Ind. 468 (1859); Applegate v. Mason, 
 
 (1859) ; Severson v. Moore, 17 Ind. 13 Ind. 75 (1859) ; ]Markle v. Rapp, 
 
 231 (1861) ; Jenkinson v. Ewing, 17 2 Blackf. (Ind.) 26'^ (1829) ; Morrison 
 
 Ind. 505(1861); Goenenv.Schroeder, v. Morrison, 38 Iowa, 73 (1874); 
 
 18 Minn. 66 (1871). Shearer v. Mills, 35 Iowa, 499 (1872); 
 
 * Priest V. Wheelock, 58 111. 114 Jordan v. Smith, 30 Iowa, 500 
 
 (1871). (1870); Hendershott v. Ping, 24 
 
 " See Butler v. Miller, 1 N. Y. 490 Iowa, 134 (1867) ; State v. Lake, 17 
 
 (1848), questioning s. c. 1 Den. (N. Iowa, 215 (1864) ;' Wahl v. Phillips, 
 
 Y.) 407 ; Peck's Appeal, 31 Conn. 12 Iowa, 81 (1861) ; Jewett v. Ham- 
 
 215 (1862) ; Darst v. Bates, 51 111. lim, 68 Me. 172 (1878) ; Torrey v. 
 
 439 (1869) ; Hewitt v. Templeton, 48 Cook, 116 Mass. 163 (1874) ; Ely v. 
 
 111. 367(1868); Hamilton v. Quimby, Ely, 72 Mass. (6 Gray), 439 (1856) ; 
 
 46 III. 90 (1867) ; Wayman v. Coch- Thornton v. Pigg, 24 Mo. 249 (1857); 
 
 rane, 35 lU. 152 (1864); Vansant v. Eiley v. McCord, 21 Mo. 2S5 (,1855); 
 
 AUmon, 23 111. 30 (1859) ; Cissna v. Lewis v. Conover, 21 N. J. Eq. (6
 
 objectio:n^ of judgment at law on note. [§328. 
 
 mortgage or a trust deed,' and whether the judgment be for 
 the whole or only a part of the mortgage debt.* 
 
 It has been held in New York, that a decree for the fore- 
 closure of a mortgage extinguishes the lien of the mortgage, 
 although such decree is merely enrolled and not docketed ;* 
 but the prevailing doctrine is that the mortgage lien is not 
 impaired either by a decree in foreclosure/ a judgment on 
 scire facias* or the taking of a recognizance in the place of 
 the sum due on the mortgage note," for even after the taking 
 of such recognizance the mortgagee may foreclose his mort- 
 gage/ Where a judgment has been taken on a note, its only 
 effect is to establish the validity of the note, and that of the 
 mortgage securing it.* But satisfaction of the judgment 
 may be set up as a defence ;* the fact that the premises have 
 been taken on execution,'* and sold in satisfaction of the 
 judgment, will also be a good defence." 
 
 The effect of the commencement of a foreclosure is to 
 work the discontinuance of every other action or proceeding 
 on the note, except by leave of the court in which the fore- 
 closure is pending.'' Under the former New York practice, 
 
 C. E. Gr.) 230 (18 TO); Flanagan v. 
 Westxjott, 11 N. J. Eq. (3 Stockt.) 
 264 (1856). 
 
 ' Hamilton v. Quimby, 46 HI. 90 
 (1867). 
 
 "^ Applegate v. Mason, 18 Ind. 75 
 (18.59). 
 
 3 People V. Beebe, 1 Barb. (N. Y.) 
 879 (1847). See Gage v. Brewster, 
 31 N. Y. 218 (1865). 
 
 '' Peck's Appeal, 81 Conn. 215 
 (1862) ; Priest v. Wheelock, 58 111. 
 114 (1871); Evansville Gas Light 
 Co. V. State, 73 Ind. 219 (1881); 
 s. c. 38 Am. Rep. 129; Teal v. 
 Hinchman, 69 Ind. 379 (1879); 
 Lapping v. Duffy, 47 Ind. 51 (1874); 
 Stahl V. Roost, 34 Iowa, 475 (1872) ; 
 Hendershott v. Ping, 24 Iowa. 134 
 (1867) ; Riley v. McCord, 21 Mo. 285 
 (1855) ; Helrabold v. Man, 4 Whart. 
 (Pa.) 410 (1839). 
 
 » Rockwell V. Servant. 63 111. 424 
 
 (1872) ; Helmbold v. Man, 4 Whart. 
 (Pa.) 410 (1839). 
 
 * Davis V. Maynard, 9 Mass. 242 
 (1812). 
 
 ' Thornton v. Pigg, 24 Mo. 249 
 (1857). 
 
 8 'Morris t. Floyd, 5 Barb. (N. Y.) 
 130 (1849); Hosford v. Nichols, 1 
 Paige Ch. (N. Y.) 220 (1828); Clarke 
 V. Bancroft, 13 Iowa, 320 (1862). 
 
 * Farmers' Loan and Trust Co. v. 
 Reid, 3 Edw. Ch. (N. Y.) 414 (1840). 
 
 '" Applegate v. Mason, 13 Ind. 75 
 (1859). 
 
 " People V. Beebe, 1 Barb, (N. Y.) 
 379, 388 (1847). 
 
 " Williamson v, Champlin, Clarke 
 Ch. (X. Y.) 9 (1839); s. c. aff'd 
 8 Paige Ch. (N. Y.) 70 ; Suydam 
 v. Bartle, 9 Paige Ch. (N. Y.) 294 
 (1841). See N. Y. Code Civ. Proc. 
 §§ 1628-1630.
 
 § 329.] OBJECTION OF JUDGMENT AT LAW ON NOTE. 3S9 
 
 however, where an action at law was brought for the collec- 
 tion of a debt secured b}' mortgage, whether against a 
 party to the action for foreclosure or against a third party, 
 all proceedings in the foreclosure suit were stayed until the 
 remedy in the action at law had been exhausted.* 
 
 § 329. Objection under the codes. — Under the New 
 York Code, and under all codes modeled after it, the pen- 
 dency of proceedings on a note or bond for the recovery of 
 a mortgage debt, will constitute no objection and can not be 
 set up as a defence to the prosecution of a foreclosure, pro- 
 viding a judgment has not been obtained ; but if a judgment 
 on the note has been obtained, the remedy upon such judg- 
 ment must be first exhausted by execution,' An action on 
 the note will be suspended by the proceedings to foreclose," 
 andean not be proceeded with further, without leave first 
 obtained from the court in which the foreclosure proceedings 
 are pending.* 
 
 If it appears from the complaint to foreclose a mortgage, 
 that the plaintiff has recovered a judgment for the mortgage 
 debt, or that the mortgage was given as a collateral security 
 for a demand which was already in judgment, it must also 
 appear that an execution has been issued upon the judgment 
 and returned unsatisfied, or it will be defective ; the objec- 
 tion that such fact does not appear may be taken by answer 
 or demurrer ; or the defendant, without answering, may 
 oppose the application for judgment.' If the defect does 
 not appear upon the face of the complaint, it may be set up 
 by answer.* 
 
 » Pattison v. Powers, 4 Paige Ch. Champlin, Clarke Ch. (N. Y.) 9 
 
 (N. Y.) 549 (1834). (1839) ; 8. c. aff'd 8 Paige Ch. (N. 
 
 2 Shufelt V. Shufelt, 9 Paige Ch. Y.) 70 ; N. Y. Code Civ. Proc. 
 
 (N. Y.) 137 (1841) ; s. c. 37 Am. Dec. § 1628. 
 
 381 ; North River Bank v. Rogers, * Grosvenor v. Day, Clarke Ch. 
 
 8 Paige Ch. (N. Y.) 648 (1841) ; N. (N.Y.) 109(1839); Shufelt v. Shufelt, 
 
 Y. Code Civ. Proc. §§ 1628, 1629, 9 Paige Ch. (N. Y.) 137 (1841) ; s. c. 
 
 1630. 37 Am. Dec. 381 ; N. Y. Code Civ. 
 
 * Williamson v. Champlin, Clarke §§ 488, 1630. 
 
 Ch. (N. Y.) 9 (1839) ; s. c. aff'd 8 « North River Bank v. Rogers. S 
 
 Paige Ch. (N. Y.) 70. Paige Ch. (N. Y.) 648 (1841) ; N. Y. 
 
 ♦ Suydam v. Bartle, 9 Paige Ch. Code Civ. Proc. g 498. 
 (N. Y.) 294 (1841) ; Williamson v.
 
 390 
 
 DENYING EXECUTION. [§§ 330-331. 
 
 § 330. Denial of execution of mortgage.— In his answer 
 to a bill filed to foreclose a mortgage, the defendant may 
 deny the execution and delivery of the mortgage. But the 
 answer of a mortgagor, denying the execution and delivery 
 of the mortgage, will not be sufificient to overcome the pre- 
 sumption of delivery, arising from the mortgagee's possession 
 of the mortgage duly executed, acknowledged and recorded.' 
 Where a mortgage has not been acknowledged, that fact 
 must be set up affirmatively as a defence, if the party 
 wishes to avail himself of the defect.* In an action to 
 enforce a written instrument, in the form of a real estate 
 mortgage purporting to have been executed and acknowl- 
 edged as required by statute, an answer alleging that the 
 defendant never acknowledged the execution of such instru- 
 ment, will plead a good defence.* 
 
 § 331, Allegation of infancy. — A mortgage executed by 
 an infant is not void,* but merely voidable at his election.* 
 If the infant has committed some act, within a reasonable time 
 
 » Long V. Kinkel, 36 N. J. Eq. (9 
 Stew.) 359 (1883) ; Commercial Bank 
 of N. J. V. Reckless, 5 N. J. Eq. (1 
 Halst.) 650 (1847). 
 
 * Sturgeon v. Board of Commis- 
 sioners, 65 Ind. 302 (1879). 
 
 * Williamson v. Carskadden, 36 
 Ohio St. 664 (1881). In this case the 
 court say : "If it is true, as alleged 
 by the defendants joining in the 
 answer, that they never appeared 
 before the officer or acknowledged 
 the execution of such mortgage, the 
 certificate of acknowledgment is, 
 as to them, fraudulent ; and in avail- 
 ing themselves of that defence, it is 
 not necessary to show tliat the mort- 
 gagee had notice of such fraud. In 
 fact the governing principle is very 
 broad. Thus it has been held that 
 in an action on the recognizance, 
 which is regarded as a record, a plea 
 in bar that the defendant did not 
 acknowledge the recognizance is 
 sufficient." State v. Daily, 14 Ohio, 
 
 91 (1846) ; and see Callen v. Ellison, 
 13 Ohio St. 446, 454 (1862). 
 
 ♦ Chapin v. Shafer, 49 N. Y. 407 
 (1872). See Randall v. Sweet, 1 Den. 
 (N. Y.) 460(1845) ; Flynn v. Powers, 
 86 How. (N. Y.) Pr. 289 (1868); 
 Green v. Wilding, 59 Iowa, 679 
 (1882); s. c. 44 Am. Rep. 696; 
 Roberts v, Wiggin, 1 N. H. 73 
 (1817) ; s. c. 8 Am. Dec. 38 ; Harner 
 V. Dipple, 31 Ohio St. 72 (1876) ; s. 
 c. 27 Am. Rep. 496 ; Callis v. Day, 
 38 Wis. 643 (1875). As to the ratifi- 
 cation of contracts by infants, see 
 Tobey v. Wood, 123 Mass. 88 (1877); 
 s. c. 25 Am. Rep. 27, and notes 30 to 
 32. 
 
 * Walsh V. Powers, 43 N. Y. 23, 
 26 (1870) ; s. c. 3 Am. Rep. 654 ; 
 Henry v. Root, 33 N. Y. 526 (1865). 
 See Loomer v. Wheelwright, 3 
 Sandf. Ch. (N. Y.) 135 (1845) ; Flynn 
 V. Powers, 35 How. (N. Y.) Pr. 279 
 (1868) ; aff'd 36 How. (N. Y.) Pr. 
 2«9.
 
 § 331.] 
 
 allegij^g defeisxe of ii^fancy. 
 
 391 
 
 after attaining his majority, clearly showing his intention 
 not to be bound by the mortgage, it will be held void/ and 
 the plea of infancy will constitute a good defence to the fore- 
 closure of the mortgage.' But where an infant allows a 
 mortgage to be foreclosed against him after attaining his 
 majority, without pleading his infancy at the time of the 
 execution of the mortgage, he will thereby waive his right to 
 that defence, and will not be permitted to interpose it against 
 a supplemental bill to enforce the decree.' The option which 
 an infant has of disaffirming his contracts should be promptly 
 exercised upon his attaining his majority * but the burden of 
 proving that a contract entered into by an infant, has been 
 ratified by him since attaining his majority, rests upon the 
 party seeking to enforce it. 
 
 What acts amount to the confirmation of a contract is 
 always a question of law for the court. ^ It has been said, 
 where an infant purchases land and subsequently, but before 
 
 ' State V. Plaisted. 43 N. H. 413 
 (1861); Campbell v. Cooper, 34 N. H. 
 49, 67 (1856). See Carr v. Clough, 
 26 N. H. (6 Fost.) 280, 293 (1853) ; 
 s. c. 59 Am. Dec. 345 ; Lufkin v. 
 Mayall, 25 N. H. (5 Fost.) 82 (1852); 
 State V. Howard, 88 N. C. 650 (1883). 
 
 « Willis V. Twambly, 13 Mass. 204 
 (1816). See Ljnde v. Budd, 2 Paige 
 Ch. (N. Y.) 191 (1830) ; s. c. 21 Am. 
 Dec. 84 ; Flj'iin v. Powers, 35 How. 
 (X. Y.) Pr. 279 (1868) ; s. c. aff'd 36 
 How. (N. Y.) Pr. 289 ; Roberts v. 
 Wiggin, 1 N. H. 74 (1817) ; s. c. 8 
 Am. Dec. 38. 
 
 3 Terry v. McClintock, 41 Mich. 
 492 (1879). 
 
 ■* Flynn v. Powers, 36 How. (N. 
 Y.) Pr. 289 (1868), aff'g 35 How. (N. 
 Y.) Pr. 279. See Walsh v. Powers, 
 43 N. Y. 23, 26 (1870) ; s. c. 3 Am. 
 Rep. 654 ; Loomer v. Wheelwright 
 Sandf. Ch. (N. Y.) 135 (1845); 
 Kline v. Beebe. 6 Conn. 494 (1827) ; 
 Baker v. Kennett, 54 Mo. 91 (1873) ; 
 Richardson v. Boright, 9 Vt. 371 
 
 (1837) ; Cecil v. Salisbury, 2 Vern. 
 224 (1691). 
 
 ' See Beardsley v. Hotchkiss, 96 
 N. Y. 211 (1884); Green v. Green, 69 
 N. Y. 553 (1877) ; Walsh v. Powers, 
 43 N. Y. 23, 26 (1870) ; s. c. 3 Am. 
 Rep. 654 ; Henry v. Root, 33 N. Y. 
 526 (1865) ; Roof v. Stafford, 7 Cow. 
 (N. Y.) 179, 183 (1827); Lynde v. 
 Budd, 2 Paige Ch. (N. Y.) 191 
 (1830) ; s. c. 21 Am. Dec. 84 ; Bool 
 V. Mix, 17 Wend. (N. Y.) 120(1837); 
 Hastings v. DoUarhide, 24 Cal. 195 
 (1864) ; Benham v. Bishop, 9 Conn. 
 330 (1832) ; s. c. 23 Am. Dec. 358 ; 
 Rogers v. Hurd, 4 Day (Conn.) 57 
 (1809) ; 8. c. 4 Am. Dec. 182 ; Harris 
 V. Cannon, 6 Ga. 382 (1849) ; Illinois 
 L. & L. Co. V. Bonner, 75 111. 315 
 (1874) ; Scranton v. Stewart, 52 Ind. 
 69 (1875) ; Philips v. Green, 3 A. 
 Iv. Marsh. (Ky.) 7 (1820) ; s. c. 
 13 Am. Dec. 124 ; Lawson v. Love- 
 joy. 8 Me. (8 Greenl.) 405 (1832) ; s. 
 c. 23 Am. Dec. 526 ; Dana v. 
 Coombs, 6 Me. (6 Greenl.) 89 (1839);
 
 
 ALLEGING DEFENCE OF INFANCY. 
 
 [§331. 
 
 his majority, sells it, that his retention of the proceeds 
 of such sale after he becomes of age is not such an affirm- 
 ance of the contract as will bind him personally upon an 
 obligation given as a consideration for the land.* And where 
 an infant bought land subject to a mortgage thereon, cove- 
 nanting in the deed to pay such mortgage as a part of the 
 consideration of the conveyance, and subsequently, but 
 before coming of age, conveyed the land for a larger price 
 and retained and enjoyed the proceeds of such sale for several 
 years after attaining his majority, the court held that there 
 was no personal liability on the covenant of assumption,* 
 and that an appearance by an attorney for the infant in an 
 action to foreclose such mortgage and to obtain a personal 
 judgment against him, would not be a bar to the plea of infancy 
 as a defence in an action against such infant by his grantor 
 to recover the amount of the judgment for deficiency, which 
 he had been obliged to pay.' 
 
 Where aainfant has purchased real property and continued 
 in possession thereof and exercised acts of ownership, after 
 
 s. c. 19 Am, Dec. 194 ; Hubbard v. 
 Cummings, 1 Me. (1 Greenl.) 11 
 (1820) ; Thompson v. Lay. 21 JMass. 
 (4 Pick.) 48 (1826) ; 8. c. 16 Am. 
 Dec. 325 ; Whitney v. Dutch, 14 
 Mass. 457 (1817) ; s. c. 7 Am. Dec. 
 229 ; Martin v. Mayo, 10 Mass. 137 
 (1813) ; s. c. 6 Am. Dec. 103 ; Smith 
 V. Mayo, 9 Mass. 62 (1812) ; s. c. 6 
 Am. Dec. 28 ; Dixon v. Merritt, 21 
 Minn. 196 (1875) ; Allen v. Poole, 54 
 Miss. 323 (1877) ; Norcum v. Shea- 
 hau, 21 Mo. 25 (1855); Roberts v. Wig- 
 gin, 1 N. H. 73 (1817) ; s. c. 8 Am. 
 Dec. 38 ; Cresinger, v. Welch, 15 
 Ohio, 156(1846); Drake v. Ramsay, 5 
 Ohio, 251 (1831) ; Cheshire v. Bar- 
 rett, 4 McC. (S. C.) 241 (1827) ; s. c. 
 17 Am. Dec. 735 ; Scott v. Buchacau, 
 11 Hump. (Tenn.)469 (1850) ; Bige- 
 low V. Kinney, 3 Vt. 353 (1830) ; s, 
 0. 21 Am. Dec. 589 ; Mustard v. 
 Wohlford, 15Gratt. (Va.) 329 (1859); 
 Irvine v. Irvine, 76 U. S. (9 Wall.) 
 
 617(1869); bk. 19 L. ed. 800 ; Tucker 
 V. Moreland, 35 U. S. (10 Pet.) 58 
 (1830) ; bk. 9 L. ed. 346. To con- 
 stitute a ratification, there must be 
 something more than a mere acknowl- 
 edgment ; Benham v. Bishop, 9 
 Conn. 330(1832) ; Thompson v. Lay, 
 21 Mass. (4 Pick.) 48 (1826) ; s. c. 16 
 Am. Dec. 325. Anything from 
 which assent may fairly be deduced 
 may be regarded as an affirmance ; 
 Cheshire v. Barrett, 4 ]\IcC. (S. C.) 
 L. 241 (1827); s. c. 17 Am. Dec. 735; 
 Wheaton v. East, 5. Yerg. (Tenn.) 
 41 (1833) ; s. c. 26 Am. Dec. 251. 
 > Walsh V. Powers, 43 N. T. 
 (1870) ; s. c. 3 Am. Rep. 654. 
 
 2 Walsh V. Powers, 43 N. Y, 
 (1870) ; s. c. 3 Am. Rep. 654. 
 
 3 Walsh V. Powers, 43 N. Y. 23 
 (1870) ; s. c. 3 Am. Rep. 654, revers- 
 ing Flynn v. Powers, 35 How. (N. 
 Y.) Pr. 279 (1868), on this point; 
 s. c. 36 How. (N. Y.) Pr. 289. 
 
 23 
 
 23
 
 § 331.] 
 
 ALLEGING DEFENCE OF INFANOT. 
 
 393 
 
 becoming of full age, the retention of the property and the 
 failure to disaffirm the contract, within a reasonable time 
 after attaining his majority, will operate as a ratification of 
 the contract and bar the defence of Infancy.' It is a well 
 established principle, that an infant will not be permitted to 
 retain property purchased by him, and at the same time 
 to repudiate the contract of purchase ;' he must either con- 
 firm or abandon the contract as a whole.* 
 
 A continuance in the possession of the property purchased 
 by an infant, after he attains his majority, is in all instances 
 regarded as an affirmance of the transaction by which title 
 CO the property was acquired, and entitles the vendor to 
 a recovery in an action therefor.* 
 
 » Beardsley v. Hotchkiss, 96 N. 
 IT. 211 (1884). See Walsli v. Powers, 
 43 N. Y. 23, 26 (1870) ; 3 Am. Rep. 
 •64 ; Heury v. Root, 33 N. Y. 526 
 (i865) ; Lynde v. Budd, 2 Paige Ch. 
 (K Y.) 191 (1830) ; s. c. 21 Am. Dec. 
 84 ; Kline v. Beebee, 6 Conn. 494 
 (18il7); Hubbard v. Cummings, 1 
 Me. (1 Greenl.) 11 (1820) ; Cecil v. 
 Salisbury, 2 Vern. 225 (1691) ; Ket- 
 ley's Case, 1 Brownl. 120 (1675). 
 
 « Henry v. Root, 33 N. Y. 526 
 (1865) ; Flynn v. Powers, 54 Barb. 
 (N. Y.) 554 (1868) ; s. c. 35 How. 
 (N. Y.) Pr. 279 : Gray v. Lessington, 
 2 Bosw. (N. Y.) 263 (1857) ; Kitchen 
 V. Lee, 11 Paige, Ch. (N. Y.) 107 
 (1844) ; Lynde v. Budd, 2 Paige Ch. 
 (N.Y.) 191 (1830) ; Deason v. Boyd, 
 1 Dana (Ky.) 45 (1833) ; Cheshire v. 
 Barrett, 4 McC. (S.C.) 241 (1827) ; 8. 
 c. 17 Am. Dec. 735. 
 
 3 Overbach v. Heermance, Hopk. 
 Ch. (N. Y.) 837 (1824) ; s. c. 14 Am. 
 Dec. 546. See Walsh v. Powers, 48 
 N. Y. 23, 26 (1870) ; s. c. 3 Am. 
 Rep. 654 ; Henry v. Root, 33 N. Y. 
 526, 553 (1865) ; Flynn v. Powers, 
 54 Barb. (N. Y.) 554 (18CS) ; s. c. 35 
 How. (N. Y.)Pr. 279 ; Bartholomew 
 V. Finnemore, 17 Barb. (N. Y.) 428 
 
 (1854) ; Coutant v. Servoss, 3 Barb. 
 (N. Y.) 128 (1848) ; Gray v. Lessing- 
 ton, 2 Bosw. ( N. Y. ) 263 (1857) ; 
 Kitchen v. Lee, 11 Paige Ch, (N.Y.) 
 107 (1844) ; B. c. 43 Am. Dec. 101 ; 
 Lynde v. Budd, 2 Paige Ch. (N. Y.) 
 191 (1830) ; 8. 0. 21 Am. Dec. 84 ; 
 Kline v. Beebe, 6 Conn. 494 (1827) ; 
 Carpenter v. Carpenter, 45 Ind. 146 
 (1873) ; Deason v. Boyd, 1 Dana 
 (Ky.) 45 (1833) ; Hubbard v. Cum- 
 mings, 1 Me. (1 Greenl.) 11, 13 
 (1820) ; Badger v. Pliinney, 15 Mass. 
 359 (1819) ; 8. c. 8 Am. Dec. 105 ; 
 Young V, McKee, 13 Mich. 552 
 (1865) ; Ladd v. Wiggin, 35 N. H. 
 428 (1857) ; Cheshire v. Barrett, 4 
 McC. (S. C.) L. 241 (1827) ; 8. c. 17 
 Am. Dec. 735 ; Morrill v. Aden, 19 
 Vt. 505 (1847) ; Farr v. Sumner, 18 
 Vt. 28 (1840) ; s. c. 36 Am. Dec. 327 ; 
 Irish V. Clayes, 10 Vt. 85 (1838) ; 
 Bigelow V. Kinney, 3 Vt. 353(1830); 
 8. c. 21 Am. Dec. 589. 
 
 * Henry v. Root, 33 N. Y. 526 
 (1865). See Walsh v. Powers, 43 N. 
 Y. 23 (1870); Coutant v. Servoss, 3 
 Barb. (N. Y.) 128 (1848); Kitchen v. 
 Lee. 11 Paige Ch. (N. Y. ) 107 
 (1844); 8. c. 43 Am. Dec. 101; 
 Lynde v. Budd, 2 Paige Ch. (N. Y.)
 
 394 lntai^t's puechase mokey mortgage. [§332. 
 
 § 332. Foreclosure of infant's purchase money mort- 
 gage. — Where an infant executes a mortgage to secure the 
 purchase money, or a portion thereof, for premises purchased 
 by him, and ratifies the same on attaining his majority, the 
 mortgage will become vahd and binding.* A retention of 
 possession and the continued use of«the property, or a sale 
 of the whole or of a part of the premises after attaining his 
 majority, is to be regarded as an affirmance of the contract 
 of purchase, and will bind the infant for the payment of the 
 agreed consideration." Where infancy is set up as a defence 
 on coming of age, the infant can relinquish the land to his 
 grantor and demand the return of the purchase money which 
 was paid at the time the contract was entered into,' but he can 
 not affirm the contract in part and avoid it in part. The 
 mortgage can not be avoided without making the deed void 
 also.* He can not retain possession of the property, thereby 
 affirming the purchase, and plead his infancy at the time of 
 making the contract, to avoid the payment of the purchase 
 money.' 
 
 If an infant wishes to avoid the payment of his purchase 
 money mortgage, he must surrender and reconvey the 
 property; for, as we have seen, an infant can not retain 
 
 191 (1830) ; s. c. 21 Am. Dec. 84 ; Hubbard v. Cummings, 1 Me. (1 
 
 Boyden V. Boyden, 50 Mass. (9 Mete). Greenl.) 11 (1820); Boyden v. Boy- 
 
 519 (1845); Badger v. Phinney, 15 den, 50 Mass. (9 Mete.) 519 (1845); 
 
 Mass. 359 (1819) ; s. c. 26 Am. Dec. Bobbins v. Eaton, 10 N. H. 563 
 
 611 ; Boody v. McKenny, 23 Me. 517 (1840) ; Callis v. Day, 38 Wis. 643 
 
 (1844); Hubbard v. Cummings, 1 (1875). 
 
 Me. (1 Greenl.) 11 (1820) ; Roberts v. » See Lynde v. Budd, 2 Paige Ch. 
 
 Wiggin, 1 N. H. 73 (1817) ; s. c. 8 (N. Y.) 191 (1830); s. c. 21 Am. Dec. 
 
 Am. Dee. 38. 84 ; Willis v. Twambly, 13 Mass. 
 
 ' Eagle Fire Ins. Co. v. Lent, 1 204 (1816). 
 
 Edw. Ch. (X. Y.) 304 (1832) ; Lynde " Wood v. Gosling, 1 N. Y. Leg. 
 
 V. Budd, 2 Paige Ch. (N. Y.) 191 Obs. 74 (1841) ; Coutant v. Servoss, 
 
 (1830) ; s. c. 21 Am. Dee. 84. 3 Barb. (N. Y.) 128 (1848) ; Roberts 
 
 « See Lynde v. Budd, 2 Paige Ch. v. Wiggin, 1 N. H. 73 (1817) ; s. c. 8 
 
 (N. Y.) 191 (1830) ; s. c.21 Am. Dec. Am. Dec. 38. 
 
 84 ; Flynn v. Powers, 54 Barb. (N. * See Henry v. Root, 33 N. Y. 526 
 
 Y.) 554 (1868) ; s. 0. 35 How. (N. (1865) ; Kitchen v. Lee, 11 Paige 
 
 Y.) Pr. 282 ; Boody v. McKen- Ch. (N. Y.) 109 (1844) ; s. c. 42 Am. 
 
 ney, 23 Me. 517 (1844) ; Dana v. Dec. 102 ; Kline v. Beebe, 6 Conn. 
 
 Coombs, 6 Me. (6 Greenl.) 89 (1829); 494 (1827) ; Deason v. Boyd, 1
 
 § 333.] infant's purchase moxey mortgage. 305 
 
 the property and at the same time avoid his obligation on the 
 mortgage.' The deed and the purchase money mortgage, 
 being presumptively executed at the same time and forming 
 parts of the same contract, are to be considered together 
 and regarded as forming but one instrument.' They must 
 stand or fall together, and for that reason the defence of 
 infancy can not be pleaded to the foreclosure of such a 
 mortgage, where the infant still retains possession of the 
 property.* 
 
 § 333' Allegation of insanity of mortg-agor. — The 
 
 insanity of the mortgagor, at the time of the execution of 
 a bond and mortgage, may be set up as a defence in an action 
 for the foreclosure of the mortgage, the same as in an 
 action on any other kind of a contract. But where a mort- 
 gage is executed under the direction and by the authority 
 of a court, the sanity or insanity of the mortgagor is not 
 material ;* and in an equitable proceeding it will be imma- 
 terial whether a mortgagee was sane or not at the date of the 
 execution of a mortgage to him, where it was executed in 
 strict pursuance of a written agreement entered into by such 
 mortgagee when sane.' It would seem, where a mortgage is 
 given to secure the repayment of money previously loaned, 
 that the insanity of the mortgagor at the time of the 
 
 Dana (Ky.) 46 (1833) ; Cheshire v. * Rawson v. Lampman, 5 N. Y. 
 
 Barrett, 4 McC. (S. C.) 241 (1827); 461 (1851) ; Lynde v. Budd, 2 Paige 
 
 B. c. 17 Am. Dec. 735; Bigelow v. Ch. (N. Y.) 191 (1830); s. c. 21 Am. 
 
 Kinney, 3 Vt. 353 (1830). Dec. 84. 
 
 1 Henry v. Root, 33 N. Y. 526, » Coutant v. Servoss, 3 Barb. (N. 
 553 (1865). See Chapin v. Shafer, 49 Y.) 128 (1848) ; Lynde v. Budd, 2 
 N. Y. 407(1872) ; Kitchen v. Lee, 11 Paige Ch. 191 (1830) ; s. c. 21 Am. 
 Paige Ch. (N. Y.) 107 (1844) ; s. c. Dec. 84 ; Stow v. Tifft, 15 Johns. 
 42 Am. Dec. 101 ; Lynde v. Budd, (N. Y.) 458 (1818) ; s. c. 8 Am. 
 3 Paige Ch. (N. Y.) 191 (1830) ; s. c. Dec. 266 ; VanHorne v. Crain, 1 
 21 Am. Dec. 84 ; Kline v. Beebe, 6 Paige Ch. (N. Y.) 455 (1829); Hub- 
 Conn. 494 (1827) ; Deason v. Boyd, bard v. Cummings, 1 Me. (1 Greenl.) 
 1 Dana (Ky.) 45 (1833); Dana v. 11(1820); Roberts v. Wiggiu, 1 N. 
 Coombs, 6 Me. (6 Greenl.) 89 (1829); H. 73 (1817) ; s. c. 8 Am. Dec. 38. 
 8. c. 19 Am. Dec. 194 ; Badger v. * Grier's Appeal, 101 Pa. St. 413 
 Phlnney, 15 Mass. 359 (1819) ; a. c. (1882). 
 
 8 Am. Dec. 105 ; Heath v. West, 28 * Bevin v. Powell, 83 Mo. 385 
 
 N. H. (8 Post.) 101 (1853). (1884).
 
 396 ALLEGING INSANITY OF MORTGAGOR. [§333. 
 
 execution of the mortgage will not be material.* It is an 
 unsettled question what degree of unsoundness of mind 
 must be shown to enable a defendant to avoid his contracts ; 
 but the rules which apply to contracts generally will govern 
 mortgages also. 
 
 Where the insanity is such as to apprise all persons 
 dealing with the party of his mental condition, there is no 
 question regarding the non-liability of the mortgagor upon 
 any contract entered into by him ;' but where his mental 
 disorder is of such a character as not to apprise a man of 
 ordinary discernment of his mental condition, there is more 
 difficulty and uncertainty. A contract, though fair, entered 
 into by a man under such circumstances, will sometimes be 
 held void. Thus, where a man, who had been insane for 
 some time, but who had only periodical recurrences of 
 insanity, was insane at the time of the execution of a mort- 
 gage, the mortgage was set aside as being made while the 
 mortgagor was non compos mentis, although he managed his 
 own affairs with average correctness and was treated by 
 his neighbors as competent to do business, even while they 
 considered him of unsound mind, and although he was not so 
 manifestly insane as to make the conduct of the mortgagee 
 fraudulent in accepting the mortgage security.* 
 
 Where the sanity of the mortgagor is in question, the bur- 
 den of proof is upon the party who seeks to avoid the 
 
 ^ See Copenrath v, Kienby, 83 Ind. believed him to be sober, in his 
 
 18 (1882). In this case the answer right mind, and capable of entering 
 
 set up the mortgagor's unsoundness into a contract, and also that the 
 
 of mind and incapacity to contract transaction between them was bona 
 
 at the time he executed the mort- fide. On demurrer to such reply, 
 
 gage, in bar of the action to fore- for want of facts, the court held it 
 
 close. The mortgagee replied to to be good. 
 
 such answer by showing that the * There are exceptions to the gen- 
 mortgage was given to secure the re- eral rule of the non-liability of a 
 payment of money borrowed by the person unmistakably insane upon 
 mortgagor to enable him to pay his his contracts, such as contracts which 
 lonafide debt to a third person, and are fair and beneficial to him or his 
 that, when the mortgage was exe- estate. But it is not the province of 
 cuted, the mortgagee had no knowl- this work to consider these distinc- 
 edge whatever of any disability of tions, which are fully treated in all 
 the mortgagor to contract, but standard works on contracts.
 
 § 334.] ALLEGING LNSAI^ITY OF MORTGAGOR. S9T 
 
 mortgage ;' and he must show not merely an incapacity to 
 make a vaHd contract at the time of the execution of the 
 mortgage, but also that the mortgagee knew, and took 
 advantage of, the mortgagor's state of mind.' Where the con- 
 sideration has been paid and the conveyance was perfectly fair, 
 no undue advantage having been taken, the security will be 
 held good for its amount, although the insanity may be 
 admitted or proved, if it has not been judicially established.' 
 If the insanity of the mortgagor has once been established, 
 however, it will devolve upon the party claiming under 
 the mortgage to establish by clear and satisfactory evidence 
 that it was executed during a lucid interval,* because a person, 
 once proved to have been insane, will be presumed to remain 
 so until the contrary is shown.* 
 
 § 334. Defect in execution and record of mortgage. — 
 If a mortgage was defectively executed, and not properly 
 recorded, these facts may be shown in defence by any party 
 not absolutely estopped by concurrence in the transaction, 
 such as a subsequent incumbrancer who was not chargeable 
 with notice of the lien.' Where the record of a mortgage is 
 made out of the order required by law, it will not be sufficient 
 to give notice to any one dealing with the title to the land, 
 and will be invalid as to bona fide purchasers and incumbran- 
 cers, without actual notice ;* and the same is true where the 
 record is made in the wrong register, or in the wrong book 
 
 » Curtis V. BrowneU, 42 Mich. 165 407 (1875) ; s. c. 21 Am. Rep. 24, and 
 
 (1879). notes 29 to 35. 
 
 • Fay V. Burditt, 81 Ind. 433 < Ripley v. Babcock, 13 Wis, 425 
 
 (1862) ; 8. c. 43 Am. Rep. 142 ; Day (1861). See Schuff v. Ransoa, 79 
 
 V. Seely, 17 Yt. 542 (1845) ; Jacobs Ind. 458 (1881) ; Beviu v. Powell, 11 
 
 V. Richards, 18 Beav. 300 (1854). Mo. App. 216 (1882). 
 
 » VanHorn v. Keenan, 28 Bl. 445 » Saxon v. Whittaker, 30 Ala. 237 
 
 (1862);Copenrath V. Kienley,83Ind. (1857). See Sprague v. Duel, 
 
 18 (1882) ; Fay v. Burditt, 81 Ind. Clarke Ch. (N. Y.) 90 (1839) ; Breed 
 
 443 (1862) ; s. c. 43 Am. Rep. 142 ; v.Pratt, 35 Mass.(18 Pick.) 115 (1836); 
 
 Marmon v. Marmon, 47 Iowa, 121 Ballew v. Clark, 2 Ired. (N. C.) L. 
 
 (1877). 23 (1841) ; Titlow v. Titlow, 54 Pa. 
 
 » Schuflf V. Ransom, 79 Ind. 458 St. 216 (1867) ; Ripley v. Babcock, 
 
 (1881); Hardenbrook v. Sherwood, 13 Wis. 245 (1861). 
 
 72 Ind. 403(1880); Lancaster Co. Na- « New York Life Ins. and Trust 
 
 tional Bank v. Moore, 78 Pa. St. Co. v. Staats, 21 Barb. (N. Y.) 570
 
 398 ALLEGING DEFECT IN RECORD OF MORTGAGE. [^ 334. 
 
 of the right register. Thus, where a mortgage deed was 
 recorded by the officer entrusted with the duty of recording 
 deeds, on the last page of a former volume of records in which 
 no mortgages had been recorded for upwards of twelve years, 
 and the names of the parties were not entered in the index 
 of mortgages, it was held that the mortgage was not duly 
 recorded and that a subsequent lienor had a priority over 
 the mortgagee.' In an action to foreclose a mortgage, the 
 fact that such mortgage was not recorded within the time 
 prescribed by statute, is not a defence that can be pleaded 
 by the administrator or heirs of the deceased mortgagor." 
 
 It has been held in New York,' that the index of a mort- 
 gage is no part of the record thereof, that the neglect of the 
 county clerk to index it in the proper book will not deprive 
 the mortgagee of his right of priority, and that the mortgage 
 is notice to all subsequent purchasers from the time it is left 
 for record.* A mortgage is considered as recorded from the 
 time of its dehvery to the county clerk. After such delivery 
 nothing more is required to be done to perfect the record, 
 except at the proper time to copy the mortgage in its proper 
 order in the proper book ; and yet, if the mortgage should 
 be mislaid, or lost or purloined before it is copied, the record 
 thereof would still remain complete.* 
 
 Where an essential part of the mortgage is omitted from 
 the record, it will be constructive notice to subsequent mort- 
 gagees and purchasers in good faith only of what appears 
 on the record.' Thus, where a mortgage was given to 
 secure three thousand dollars, but, by mistake of the clerk, 
 
 (1854) ; aS'd subnom. New York Life ' The Mut. Life Ins. Co. v. Dake, 
 
 Ins. Co. V.White 17 N. Y. 469 (1858). 87 N. Y. 257 (1881), afi'g 1 Abb. (N. 
 
 ' New York Life Ins. Co. v. Y.) N. C. 381 (1876). 
 
 White, 17 N. Y. 469 (1858) ; Sawyer * Wadsworth v. Wendell, 5 Johns. 
 
 V. Adams, 8 Vt. 172 (1836) ; 8. c. 30 Ch. (N. Y.) 224, 230 (1821). 
 
 Am. Dec. 459. * Mut. Life Ins. Co. v. Dake, 87 
 
 » Sawyer v. Adams, 8 Vt. 173 N. Y. 257, 264 (1881). 
 
 (1836) ; s. c. 30 Am. Dec. 459. See « Frost v. Beekman, 1 Johns. Ch. 
 
 Gillig V. Maas, 28 N. Y. 191, 214 (N. Y.) 288 (1814). See Mut. Life 
 
 (1853). Ins. Co. v. Dake, 87 N. Y. 357, 263 
 
 * Evans V. Pence, 78 Ind. 439 (1881). 
 (1881).
 
 § 335.] ALLEGING ALTERATIO:^ OF MORTGAGE. 399 
 
 was registered for only three hundred dollars, it was held to 
 be notice to subsequent bona fide purchasers, only to the 
 extent of the sum described in the registry.' 
 
 § 335. Allegation of alteration of instrument. — The 
 material alteration of a mortgage by the mortgagee, or by 
 any other person at his instance or with his knowledge and 
 consent, after it has been executed and delivered to him, 
 and while it is in his possession or custody, by changing 
 the description of the premises," by increasing the stated 
 consideration of the mortgage, or by inserting therein an 
 additional obligation,* without the knowledge or consent 
 of the mortgagor, will have the effect of destroying and 
 annulling the instrument as between the parties, and the 
 mortgage will not be enforceable as a security for the payment 
 of any portion of the indebtedness therein described.* The 
 rule is different, however, where the instrument is altered 
 by a mere stranger, without the privity or consent of the 
 mortgagee or of other parties interested, if the contents of 
 the instrument, as it originally existed, can be ascertained.* 
 
 Thus, it has been held that the validity of a mortgage will 
 not be impaired by the accidental detachment of the seal after 
 the mortgage has been left at the proper office for record j 
 and where the preponderance of evidence shows that the 
 mortgage was signed and sealed at the time of its acknowl- 
 edgment, the absence of the seal afterwards will not render 
 the mortgage void.' 
 
 » Frost V. Beekman, 1 Johns. Cb. (1872). See Pigot's Case, 11 Coke, 
 
 (N. Y.) 288 (1814). 26 (1580); Shep. Touch. 69. 
 
 ' Pereau v. Frederick, 17 Neb. * Waring v. Smyth, 2 Barb. Ch. 
 
 117 (1885). (N. Y. ) 119 (1874) ; Lewis v. Payn, 
 
 8 Johnson v. Moore, 33 Kan. 90 8 Cow. (N. Y.) 71 (1827); s. c. 18 
 
 (1885). Am. Dec. 427 ; Rees v. Overbaugh, 
 
 * Johnson v. Moore, 88 Kan. 90 6 Cow. (N. Y.) 746 (1827) ; Jackson 
 
 (1885). See Smith v. Fellows, 41 N. v. Malin, 15 Johns. (N. Y.) 293, 297 
 
 Y. Supr. Ct. (9 J. & S.) 86, 51 (1876); (1818) ; Marcy v. Dunlap, 5 Lans. 
 
 Waring v. Smyth, 2 Barb. Ch. (N. (N. Y.) 865 (1872) ; United States v. 
 
 Y.) 119 (1847) ; Lewis v. Payn, 8 Linn, 42 U. S. (1 How.) 104 (1848) ; 
 
 Cow. (N. Y.) 71 (1827) ; s. c. 18 Am. bk. 11 L. ed. 64. 
 
 Dec. 427 ; Jackson v. Malin, 15 ' VanRiswick v. Goodhue, 50 Md. 
 
 Johns. (N. Y.) -293, 297, (1818); 57(1878). 
 Marcy v. Dunlap, 5 Lans. (N. Y.) 365
 
 400 ALLEGES'G ALTERATION OF MORTGAGE. [§335. 
 
 As early as Pigot's Case,' it was decided that " when a 
 deed is altered in a point material, by the plaintiff himself, 
 or by any stranger, without the privity of the obligee, be it 
 by interlineation, addition, raising, or by drawing of a pen 
 through a line, or through the midst of any material word, 
 the deed thereby becomes void." " So, if the obligee him- 
 self alters the deed by any of the said ways, although it is in 
 words not material, yet the deed is void ; if a stranger with- 
 out his privity alters the deed by any of the said ways, in 
 any point not material, it shall not avoid the deed."* But in 
 an early New York case,' a doubt was expressed whether the 
 act of a stranger should be allowed to prejudice a party, 
 although the alteration might be in a material part of the 
 instrument ; and in a later case^ it was held that it should 
 not.* 
 
 It is now the well settled doctrine in this country, that an 
 immaterial alteration of a mortgage, made by a person who 
 stands in the position of a stranger to the party claiming 
 under it, will not render the instrument invalid, and that it 
 may be enforced according to its original terms.* The doctrine 
 announced in Pigot's Case was recently considered and 
 doubted by the English Court of Queen's Bench in the case 
 of Aldous V. Cornwall,' where it was held that the addition 
 
 > 11 Coke, 26 (1615). The doc- « Jackson v. Malin, 15 Johns. (N. 
 
 trine of Pigot's Case is doubted in T.) 293, 297 (1818). 
 
 Bigelow V. Stilphens, 35 Vt. 321, * Rees v. Overbaugh, 6 Cow. (N. 
 
 525 (1863) ; Miller v. Stewart, 22 U. Y.) 746 (1827). 
 
 S. (9 Wheat.) 681, 718 (1824) ; bk. 6 » See Lewis v. Payn, 8 Cow. (N. 
 
 L. ed. 189. T.) 71, 73 (1827) ; a. c. 18 Am. Dec. 
 
 * See Lewis v. Payn, 8 Cow, (N. 427. 
 
 Y.) 71, 73 (1827) ; s. c. 18 Am. Dec. « Casoni v. Jerome, 58 N. Y. 315, 
 
 427 ; Jackson v. Malin, 15 Johns. 321(1874); Waring v. Smyth, 2 Barb. 
 
 (N. Y.) 293, 297 (1818). Ch. (N. Y.) 119 (1847); Rees v. Over- 
 
 In Sheppard's Touchstone, p. 69, baugh, 6 Cow. (N. Y.) 746 (1827) ; 
 
 it is said: "If the alteration be Malin v. Malin, 1 Wend. (N. Y.) 625 
 
 made by the party himself that (1828); United States v. Hatch, 1 
 
 owneth the deed albeit it be in a Paine C. C. 336 (1824). 
 
 place not material and it tend to the ' L. R. 3 Q. B. 573 (1868) ; 8. c. 37 
 
 advantage of the other party and L. J. Q. B. 201. Lush, J., speaking 
 
 his own disadvantage, yet the deed for the court, says: "We are not 
 
 is hereby become void." boundby the doctrine of Pigot's Case,
 
 § 336.] ALLEGIN^G ILLITEEACY JlKD KEGLIGEIS^OE. 401 
 
 to a note of words which could not prejudice any person, 
 would not destroy its validity. 
 
 § 336. Allegation of illiteracy and negligence.-Illitcracy 
 or ignorance can not be set up as a defence to a suit on a 
 contract, where there was no fraud on the part of the 
 plaintiff, nor any for which he was responsible. Conse- 
 quently, where a person, who is illiterate, executes a 
 mortgage without knowing its contents, he can not plead 
 his ignorance as a valid defence, if no fraud is shown ;' 
 neither can his grantee, who purchased with knowledge of 
 the mortgage, avail himself of such defence,' unless such 
 mortgagor was prevented from knowing the contents of the 
 mortgage by artifice or trickery for which the mortgagee 
 was responsible.' But where fraud, artifice or deceit is 
 used, the rule is different. Thus, it has been held that the 
 employment of a trusted kinsman and friend, as an agent of 
 the mortgagee, to misrepresent the contents of the mortgage, 
 whereby its execution is obtained without its being read, is 
 a fraud from which relief will be granted,* because, where a 
 known trust and confidence is reposed in the person making 
 the representations and there is a relationship justifying 
 such trust and confidence, the person to whom the represen- 
 tations are made may rely upon them without being guilty 
 of negligence.* 
 
 or the authority cited for it ; and, not 'Leslie v. Merrick, 99 Ind. 180 
 
 being bound, we are certainly not (1884). 
 
 disposed to lay down as a rule of » See Leslie v. Merrick, 99 Ind. 
 
 law, that the addition of words which 180 (1884); Eobinson v. Glass, 94 
 
 can not possibly prejudice auy one, Ind. 211 (1883). 
 
 destroys the validity of the note. ■* Robinson v. Glass, 94 Ind. 211 
 
 It seems to us repugnant to justice (1883). 
 
 and common sense to hold that » Albany Savings Inst. v. Burdick, 
 
 the maker of a promissory note 87 N. Y. 40 (1881); Robinson v.' 
 
 is discharged from his obligation to Glass, 94 Ind. 211 (1883) ; Worley v. 
 
 pay it, because the holder has put Moore, 77 Ind. 567 (1881) ; Matlock 
 
 in writing on the note what the law v. Todd, 19 Ind. 130 (1863) ; Peter 
 
 ■would have supplied if the words v. Wright, 6 Ind. 183 (1855) ; Bischof 
 
 had not been written." v. Coffelt, 6 Ind. 23 (1854) ; Shaeffer 
 
 » Leslie v. Merrick, 99 Ind. 180 v. Sleade, 7 Blackf , ( Ind. ) 178 
 
 (1884); Robinson v. Glass, 94 Ind. (1844). 
 211 (1883). 
 
 (2Si
 
 402 ALLEGING ILLITERACY AXD NEGLIGENCE. [§336. 
 
 In an action by a mortgagor for equitable relief from a 
 bond and mortgage, which he had been fraudulently induced 
 to execute, which bond and mortgage had been assigned to 
 a bona fide purchaser, it is not enough for him to show that 
 the execution of such instruments was induced by the false 
 and fraudulent representations of the mortgagee ; the mort- 
 gagor must also show that the execution of the papers was 
 without negligence on his part, and this although he was old, 
 infirm and illiterate.' 
 
 Negligence in the execution of an instrument furnishes no 
 defence to a suit founded thereon. Thus, where one who 
 can read, depending upon the representations of another 
 as to the contents of a mortgage, neglects to read it 
 before he executes it, he will be bound thereby, although 
 he may sign what he would not have executed had he known 
 its contents." A person who executes a mortgage without a 
 knowledge of its contents, will not be relieved therefrom, 
 because of the fact that its contents were not as the mort- 
 gagee represented them, in the absence of any relation of 
 trust or confidence between the parties, and of any artifice 
 or trick for which the mortgagee was responsible, by which 
 the signature to the mortgage was procured.* 
 
 ' Montgomery v. Scott, 9 S. C. 30 SuUivan, 4 Mass. 45 (1808) ; 8. 0. 8 
 
 (1877) ; s. c. 30 Am. Rep. 1. Am. Dec. 206 ; Mackey v. Peterson, 
 
 * See Chapman v. Rose, 56 N. T. 29 Minn. 298, 305 (1882) ; Shirts v. 
 
 137 (1874) ; s. c. 15 Am. Rep. 401 ; Overjohn, 60 Mo. 305 (1875) ; Foster 
 
 American Ins. Co. v. McWhorter, v. Mackinnon, L. R. 4 C. P. 704 
 
 78 Ind. 13G (1881) ; Nebeker v. Cut- (1869). 
 
 singer, 48 Ind. 436 (1874) ; Douglass » Robinson v. Glass, 94 Ind. 811 
 
 V. Matting, 29 Iowa, 498 (1870); (1883). 
 a. c. 4 Am. Rep. 238 ; Putnam v.
 
 CHAPTER XVI. 
 
 ANSWERS AND DEFENCES. 
 
 CONSIDERATION-USirRY— DEFENCES AGAINST ASSIGNEE OP MOBT- 
 
 GAGE, AND AGAINST PURCHASER OF NEGOTIABLE 
 
 PAPER SECURED BY MORTGAGE. 
 
 837. Want of consideration. 
 
 338. Partial failure of consider- 
 ation. 
 
 839. What is not a sufficient con- 
 
 sideration. 
 
 840. Mortgage securing future 
 
 advances — Actual consider- 
 ation. 
 
 841. Mortgage as security for 
 
 goods to be furnished — 
 Actual consideration. 
 
 842. Defence of illegal or void 
 
 consideration. 
 
 843. Dlegal or void consideration 
 
 — When no defence to ac- 
 tion on note secured by 
 mortgage. 
 844 Usury as a defence. 
 
 845. How to allege usury — What 
 
 law governs. 
 
 846. Who may avail themselves 
 
 of the defence of usury. 
 
 § 347. Defences against assignee of 
 mortgage. 
 
 348. Defence against voluntary 
 
 assignee in bankruptcy. 
 
 349. Defence against a fraudulent 
 
 assignment. 
 
 850. Defence against transferred 
 mortgage payable to mort- 
 gagee alone. 
 
 351. Defences against foreclosure 
 by bona fide purchaser of 
 negotiable paper secured by 
 mortgage. 
 
 353. Purchaser of negotiable pa- 
 per secured by mortgage 
 takes subject to equities 
 against it. 
 
 353. Same rule in Illinois. 
 
 354. Defences against assignee of 
 
 mortgage securing a non- 
 negotiable instrument. 
 
 355. Other defences against such 
 
 an assignee. 
 
 § 337' Want of consideration. — It is common informa- 
 tion that want of consideration may be shown in answer to an 
 action on a contract, and that when established, it furnishes a 
 complete defence. It follows, necessarily, that want of consid- 
 eration for a mortgage may be set up as a defence in an 
 action to foreclose such mortgage.* Where the answer, in 
 
 > See Bridges v. Blake, 106 Ind. 
 333 (1885); Dugan v. Trisler, 69 
 Ind. 553 (1880) ; Gilchrist v. Man- 
 ning, 54 Mich. 210 (1884) ; Hughes 
 V. Thweatt, 57 Miss. 376 (1879); 
 Blanchard v. Morey, 56 Vt. 170 
 (1888). 
 
 As to when the defence of a want 
 of consideration will not be suffi- 
 cient, see Long v. Kinkel, 36 N. J. 
 Eq. (9 Stew.) 359 (1883); Best v. 
 Thiel, 79 N. Y. 15 (1879). 
 
 403
 
 404 WANT OF CONSIDEEATIO]^ AS A DEFENCE. [§ 337. 
 
 an action to foreclose a mortgage, admits the execution of 
 the mortgage as a security for the debt, it substantially 
 admits the cause of action ; the mere denial of the remaining 
 allegations of a complaint, being aimed at a legal conclu- 
 sion, raises no issue, and is, therefore, insufficient.* 
 
 Want of consideration will constitute a good defence to a 
 suit for foreclosure brought by a mortgagee's administrator, 
 even though the mortgage may have been given to defraud 
 creditors ;" because, as regards such fraudulent purpose, the 
 mortgagee is in no better condition than the mortgagor, as 
 he must have participated in it.' It is said that the meaning 
 of the familiar maxim, in pari delicto potior est conditio defen- 
 dentis, is simply that the law leaves the parties exactly where 
 they stood, — not that it prefers the defendant to the plaintiff, 
 but it will not recognize a right of action founded on an 
 illegal contract in favor of either party as against the other.* 
 
 A want of consideration for a note secured by a mortgage 
 is a good defence to a suit for foreclosure of the mortgage,* 
 parol evidence being admissible to show that no debt ever 
 existed between the parties to the mortgage.* And upon a 
 motion for judgment in the foreclosure of such a mort- 
 gage, evidence will be admissible of the amount of liabilities, 
 actual and contingent, which the mortgage was given to 
 secure.' Want of consideration may be set up by the owner 
 
 » Kay V. Chiirchill, 10 Abb. (N.Y.) « Conwell v. Clifford. 45 Tud. 392 
 
 N. C. 83 (1881). See Fosdick v. (1873); Hannan v. Hannan, 123 
 
 Groff, 23 How. (N-. Y.) Pr. 158 Mass. 441 (1877) ; Freeland v. Free- 
 
 (1861) ; Edson v. Dillaye, 8 How. land, 102 Mass. 475 (1869) ; Wearse 
 
 (N. Y.) Pr. 273 (1853) ; McMurray v Peirce, 41 Mass. (24 Pick.) 141 
 
 V. Gifford, 5 How. (K Y.) Pr. 14 (1837); Matteson v. Morris, 40 Mich. 
 
 (1850); Cooley v. Hobart, 8 Iowa, 358 52 (1879). See Boiling v. Munchus, 
 
 (1859). 65 Ala. 558 (1882) ; Mell v, Mooney, 
 
 2 Hannan v. Hannan, 123 Mass. 30 Ga. 413 (1860) ; Coleman v. With- 
 
 441 (1877); Wearse v. Peirce, 41 erspoon, 76 Ind. 285(1881) ; Price v. 
 
 Mass. (24 Pick.) 141 (1837) ; Goudy Pollock 47 Ind. 362 (1874). 
 
 V. Gebhart, 1 Ohio St. 262 (1853). « Hannan v. Hannan, 123 Mass. 
 
 See Hughes v. Thweatt, 57 Miss. 441 (1877); Wearse v. Peirce, 41 
 
 376 (1879). Mass. (24 Pick.) 141 (1837). 
 
 « Wearse v. Peirce, 41 Mass. (24 •" Freeland v. Freeland, 102 Mass. 
 
 Pick.) 141 (1837). 475 (1869), 
 
 " Atwood V Fisk, 101 Mass. 363 
 ^1869).
 
 §§ 338-339.] FAILURE OF CONSIDERATION. 405 
 
 of the equity of redemption, or by any one entitled to or 
 interested in the surplus arising on the sale of the premises. 
 Thus, a junior mortgagee has a right to defeat the lien of a 
 senior mortgage, by showing that it was executed without 
 consideration.' 
 
 § 338. Partial failure of consideration. — Where the 
 actual consideration for a mortgage was less than the amount 
 for which it was executed as a security, the decree on a fore- 
 closure should be entered only for the actual amount due on 
 the mortgage ;" the amount of the consideration may be 
 proved by the admissions of the mortgagee.' A partial 
 failure of consideration is always a defence pro tanto. But 
 such failure of consideration must be distinctly pleaded,* for, 
 where the real debt owing to the mortgagees is in fact less 
 than the sum named in the mortgage, neither they nor their 
 assignees can enforce it for more than the actual amount 
 due.* The burden of proof is always on the defendant 
 to show that the actual consideration was less than the 
 amount secured by the mortgage, if the plaintiff claims 
 the full amount,* for it is a presumption of fact that the 
 sum mentioned in a mortgage as the consideration therefor, 
 is the actual amount secured ; and very convincing proof is 
 required to rebut this presumption.'' 
 
 § 339. What is not a sufficient consideration. — Where 
 a claim is without foundation, a release therefrom will not 
 constitute a valid consideration for a mortgage ;* but an 
 extension of time for the payment of an existing obligation 
 
 ' Coleman v.Witherspoon, 76 Ind. * Rood v. Winslow, Walk. Ch. 
 
 285(1880). (Mich.) 340 (1844); a c. 2 Doug. 
 
 « Dunham v. Cudlipp, 94 K Y. 129 (Mich.) 68 (1845). See Philbrook v. 
 
 (1883) ; Laylin v. Knox, 41 Mich. 40 McEwen, 29 Ind. 347 (1868). 
 
 (1879). * Wiswall v. Ayres, 51 Mich. 324 
 
 » Mackay v. Browufleld, 13 Serg. (1883). 
 
 & R. (Pa.) 239 (1825). See Abbe v. ' Wiswall v. Ayres, 51 Mich. 324 
 
 Newton, 19 Conn. 20 (1848) ; Rood (1883). 
 
 V. Winslow, Walk. Ch. (Mich.) 340 « Harris v. Cassady, 107 Ind. 158 
 
 (1844) 8. c. 2 Doug. (Mich.) 68 (1845). (1886). 
 
 « Dunham v. Cudlipp, 94 N. Y. 
 129 (1883).
 
 406 nfSUTFICIENT CONSIDERATION AS A DEFENCE. [§ 339. 
 
 will be a sufficient consideration to support a mortgage •/ so 
 also will an existing promissory note,' or an existing indebt- 
 edness of any kind, be a sufficient consideration.* But a mort- 
 gage given to secure the pre-existing debt of another, there 
 being no extension of time for payment nor any new consider- 
 ation, will not be founded upon a sufficient consideration to 
 support a foreclosure ;* neither will a promise to pay the debt 
 of another, for which the mortgagor is already liable as 
 surety, be a sufficient consideration to sustain a mortgage.* 
 It has been held in Indiana that a mortgage executed by a 
 husband and wife, upon the separate property of the latter 
 to secure an overdue note, on which the husband was liable 
 as surety, and without any other or further consideration, is 
 invalid, although under the statute a married woman is 
 empowered to incumber her separate property for the debt 
 of a third person.* 
 
 Where a mortgage, which was given to secure the payment 
 of judgments confessed by the mortgagor, is sought to be 
 foreclosed, the fact that the judgments were void for want 
 of compliance with the statute, may be set up as a defence 
 to show a want of consideration.* But it has been held that 
 where there was any consideration whatever for the mort- 
 gage, inquiry could not be made upon the trial whether the 
 consideration was full and adequate.* Where a mortgage 
 is executed and entrusted to an agent for the purpose of 
 procuring a loan, and the agent, instead of procuring the 
 loan, uses it for another purpose and misappropriates the 
 proceeds, the mortgage will be void, there being no consider- 
 ation therefor,* except in a case where the assignee thereof 
 
 ' Farmers' Bank of Mooresville v. * Harris v. Cassady, 107 Ind. 158 
 
 Butterfield, 100 Ind. 229 (1884); (1886). 
 
 Port V. Embree, 54 Iowa, 14 (1880). « Bridges v. Blake, 106 lud. 332 
 
 ^ Ayers v. Adams, 82 Ind. 109 (1885). 
 
 (1882) ; Rowell v. Williams, 54 Wis. ' Austin v. Grant, 1 IVIich. 490 
 
 636 (1882). (1850). 
 
 » Buck V. Axt, 85 Ind. 512 (1882); s Norton v. Pattee, 68 N. T. 144 
 
 Evans v. Pence, 78 Ind. 439 (1877). 
 
 (1881). » Davis v. Bechstein, 69 N. Y. 440 
 
 ♦ Kansas Manuf. Co. v. Gandy, 11 (1877) ; Graver v. Wilson, 14 Abb. 
 
 Neb. 461 (1881). (N. Y.) Pr. N. S. 374 (1872).
 
 §§ 340-341.] MORTGAGE EOK FUTUKE ADVANCES. 407 
 
 might be entitled to the protection accorded to a bona fide 
 holder of negotiable paper. 
 
 §340. Mortgage securing future advances-Actual 
 consideration.-A mortgage to secure indefinite future 
 advances is valid not only between the parties, but also as to 
 third persons-/ so also is a mortgage given to secure a pre- 
 existing debt and future advances.' As between the parties 
 whatever may be its effect as to third persons, it is not 
 essential to the validity of a mortgage Hen to secure future 
 advances and also a pre-existing debt, that the instrument 
 should recite fully the character of the indebtedness which 
 it was given to secure.' 
 
 Where it appears that a mortgage was given to secure 
 future advances which were never made, a complamt to fore- 
 close will of course be dismissed;* because, if no advances 
 were made upon the mortgage and no credit was given it 
 is absolutely without consideration. A mortgage executed toi 
 the purpose of securing future advances can not be enforced 
 for a different liability or purpose.^ When the mortgage m 
 terms secures future advances, the sum named as the con- 
 sideration is of no importance,' because it will be security 
 for the money actually advanced upon it, and for nothing 
 more.^ And in an action for the foreclosure of a mortgage 
 o-iven to secure, future advances, a failure to advance the 
 entire amount desired to be secured by such executory 
 mortgage, can not be set up as a defence against advances 
 actually made.' 
 
 § 341. Mortgage as security for goods to be furnished 
 —Actual consideration.— A mortgage taken in good faith, 
 
 1 Jarratt v. McDaniel. 32 Ark. 598 « Miller v. Lockwood, 33 N. Y. 
 
 ,,o««.) 293, 299 (1865). 
 
 » Sanders v. Farrell. 83 Ind. 28 ^ The mortgage may also stand as 
 
 ^jTo^ security for the accomplishment m 
 
 ^» Forsyth v. Freer. Illges & Co.. G2 the future of definite plans or pur- 
 
 Ala. 443 (1878). POses. See Bell v. Radchff . 32 Ark. 
 
 * McDowell V.Fisher, 25 N.J. Eq. 645(1878). „^ t, , m 
 
 (10 C E. Gr.) 93 (1874). « Dart v. McAdam, 27 Barb. (N. 
 
 s Mizner v. Kussell, 29 Mich. 229 Y.) 187 (1858). 
 (1874).
 
 408 MORTGAGE FOE FUTUBE ADVAlfCES. [§ 342. 
 
 the consideration for which is a present debt and the promise 
 of the mortgagee to furnish in the future a stated amount of 
 goods, is valid as between the parties, is not a fraud upon 
 creditors of the mortgagor, and will be upheld by the courts.' 
 Thus, where a deed of trust recited that it was executed to 
 secure a given sum for supplies already furnished, and supplies 
 to be furnished and cash to be advanced during the year to 
 enable the grantors to accomplish a specified purpose, the 
 court held that, while the amount was limited in terms, the 
 controlling purpose of the deed was to secure a sufficient 
 amount of supplies to enable the grantors to accomplish a 
 specified purpose, and that a court of equity, if necessary, in 
 order to carry out the purpose of the trust, will uphold and 
 protect additional advances over and above the limitations 
 stated in the deed." 
 
 A mortgage given to secure the value of goods to be pur- 
 chased, is valid to the extent of the goods sold, although the 
 mortgagor may in fact be insolvent at the time, and becomes 
 a bankrupt shortly afterwards.' A mortgage given to secure 
 a note for a fixed sum, payable absolutely, but with no 
 actual consideration other than an undertaking to furnish 
 goods, which the mortgagees fail to carry out, can not be 
 enforced, except where the action is brought by a bona fide 
 assignee thereof.* 
 
 § 342. Defence of illegal or void consideration. — A 
 
 mortgage executed upon an illegal consideration is void ab 
 initio, because the nullity of the principal debt destroys all 
 securities accompanying it ;' and the actual facts of the trans- 
 action may be shown in defence, though they contradict the 
 terms of the instrument.* In an action to foreclose a mortgage, 
 where the defence set up was that the mortgage was given 
 
 'Sanders v. Farrell, 83 Ind. 28 ' Chatenond v. Herbert, 30 La. An. 
 
 (1882). 404 (1878). 
 
 » Bell V. Radcliff, 33 Ark. 645 « Norris v. Norrls, 9 Dana (Ky.) 
 
 (1878). 317 (1840) ; s. c. 35 Am. Dec. 138 ; 
 
 » Marvin v. Chambers, 13 Blatchf . McQuade v. Rosecrans, 36 Ohio St. 
 
 C. C. 495 (1875). 443 (1881) ; Goudy v. Gebhart, 1 
 
 * Fisher v. Meister, 24 Mich. 447 Ohio St. 263 (1853) ; Raguet v. Roll, 
 
 (1872J, 7 Ohio 77 (1835).
 
 § 342.] DEFENCE OF ILLEGAL CONSIDERATION. 4.00 
 
 to secure twice the amount of money loaned thereon by the 
 mortgagee, with the intention of defrauding the creditors of 
 the mortgagor, the court held that the consideration of the 
 mortgage being entire and illegal, a court of equity could not 
 aid in its foreclosure ; and that the defence of illegality of 
 consideration in such a case may be made by the mortgagor 
 or by any person succeeding to his rights and interests.' 
 
 Every contract or agreement, the consideration for which 
 is immoral, criminal or unlawful, is absolutely void, and no 
 action can be sustained for its enforcement. Thus, a promis- 
 sory note, the consideration for which is an agreement not to 
 prosecute the maker for a felony, is a contract against 
 public policy,' and therefore void ; and a mortgage given to 
 secure such a note can not be enforced.' In an action to 
 foreclose a mortgage executed upon the consideration, that 
 the son of the mortgagor who was then under arrest for 
 embezzlement should not be prosecuted, it was held that 
 the mortgage was based upon an illegal consideration and 
 was therefore void." A mortgage, the consideration of 
 which is in whole or in part the withdrawing of a prosecution 
 for conspiracy to defraud and for embezzlement as a bank 
 officer, is likewise void.' 
 
 In an action to foreclose a mortgage, a subsequent incum- 
 brancer by attachment and judgment against the mortgagor, 
 
 ' McQuade v. Rosecrans, 36 Ohio Spalding v. Bank of Muskingum, 12 
 
 St. 442 (1881). Ohio, 544, 548 (1841) ; Moore v. 
 
 « See Vanover v. Thompson, 4 Adams, 8 Ohio, 372, 375 (1838) ; 
 
 Jones (N. C.) L. 485 (1857) ; Thomp- Goudy v. Gebhart, 1 Ohio St. 265 
 
 son V. Whitman, 4 Jones (N. C.) L. (1853). 
 
 47 (1856) ; Bostick v. McLarren, 2 4 pggd v. McKee, 42 Iowa, 689 
 
 Brev. (S. C.) L. 275 (1809) ; Badger (1876) ; s. c. 20 Am. Rep. 631 ; 
 
 V. Williams, 1 D. Chip. (Vt.) 137 Raguet v. Roll, 7 Ohio, 77 (1885) ; 
 
 (1797) ; Rourke v. Mealy, Ir. L. R. Roll v. Raguet, 4 Ohio, 400 (1829) ; 
 
 4 Ch. Div. 166, 175 (1879). See also e. c. 22 Am. Dec. 759. 
 
 Hoyt V. Macon, 2 Colo. 502 (1875) ; s Pearce v. Wilson, 111 Pa. St. 14 
 
 Bierbauer v. Worth, 10 Biss. C. C. (1885) ; Ormerod v. Dearman, 100 
 
 60 (1880); 8. c. 5 Fed. Rep. 336. Pa. St. 561 (1882) ; s. c. 45 Am. Rep. 
 
 2 Cameron v. McFarland, 2 Car. 391 ; Riddle v. Hall, 99 Pa. St. 116 
 
 L. R. (K C.) 415 (1815) ; s. c. 6 Am. (1881) ; Bredin's Appeal, 92 Pa. St, 
 
 Dec. 566 ; Roll v. Raguet, 4 Ohio 400 241 (1879). 
 (1829) ; 8. c. 22 Am. Dec. 759. See
 
 410 DEFJEINCE OF ILLEGAL CONSLDEKATION. [§343. 
 
 claimed that the mortgage, upon which the suit was 
 founded, was void, because it was intended to hinder, delay 
 and defraud the creditors of the mortgagor, and because 
 it was against public policy as being an attempt to escape 
 taxation. The court held that neither of these defences 
 could be set up by such subsequent incumbrancer, after the 
 mortgagor had waived them by making a default, and that 
 it was questionable whether even the mortgagor could have 
 availed himself of them.* 
 
 § 343. Illegal or void consideration — When no defence 
 to action on note secured by mortgage. — Where a nego- 
 tiable instrument secured by a mortgage has been transferred 
 to a bona fide purchaser, it has been said that even duress 
 in its execution will not be available as a defence against 
 such assignee in an action on the note." And the fact that 
 the consideration of a promissory note secured by a mort- 
 gage was illegal or void, can not be set up as a defence in 
 an action by an assignee who purchased the note and mort- 
 gage in good faith for a valuable consideration and without 
 notice.* 
 
 It has been said by the supreme court of Iowa that while 
 it is true, that a bona fide "^xyxz^xzstx oi a note before maturity 
 takes the mortgage securing it, as he takes the note, free 
 from the defences to which it is subject in the hands of the 
 mortgagee, yet that this doctrine will not be extended to a 
 case where the mortgage is upon the homestead of a woman 
 who did not sign the note and whose signature to the mort- 
 gage was obtained by duress.* 
 
 An exception to the general rule laid down above, exists 
 vhere the assignment of the note and mortgage is made sub- 
 ject by its terms to the rights of the mortgagor ; for in such a 
 case, the assignee acquires no greater rights than the mort- 
 gagee himself possessed.' 
 
 > Nichols V. "Weed Sewing Ma- Dec. (N. Y.) 253 (1866) ; Taylor v. 
 
 chine Co., 27 Hun (N. Y.) 200 Page, 88 Mass. (6 Allen), 86 (1863). 
 
 (1882). 4 First National Bank of Nevada 
 
 « Beals V. Neddo. 1 Mc Cr. C. C. v. Bryan, 62 Iowa, 42 (1883). 
 
 206 (1880). « Fisher v. Otis, 3 Chand. (Wis.) 
 
 • Smart v. Bement, 4 Abb, App. 83 (1852).
 
 USURY AS A DEFENCE. 
 
 411 
 
 § 344.] 
 
 § 344. Usury as a defence.— It is well settled that usury 
 may be set up as a defence to a bill to foreclose a mortgage, 
 and that the mortgage will be declared void, if such defence 
 is established.' This is especially true when the evidence 
 shows that the mortgage was executed in pursuance of an 
 usurious agreement.' But where a valid and subsistmg 
 
 1 See Freeman v. Auld, 44 N. T. 
 50 (1870); Mumford v. American 
 Life Ins. and Trust Co., 4 N. Y. 463 
 (1851); Brooks v. Avery, 4 N. Y. 
 225 (1850) ; McCraney v. Alden, 46 
 Barb. (N. Y.) 372 (1866) ; Soule v. 
 The Union Bank, 45 Barb. (N. Y.) 
 Ill (1865) ; Vickery v. Dickson, 35 
 Barb. (N. Y.) 96 (1861) ; Lane v. 
 Losee, 2 Barb. (K Y.) 56 (1847); 
 Warner v. Gouverneur, 1 Barb. (N. 
 Y.) 36 (1847) ; Bush v. Livingston, 2 
 Cai. Cas. (N. Y.) 66 (1805) ; 8. c. 2 
 Am. Dec. 316 ; Jackson v. Golden, 
 4 Cow. (N. Y.) 266 (1825) ; Miller v. 
 Hull, 4 Den. (N. Y.) 104 (1847) ; 
 Pearsall v. Kingsland, 3 Edw. Gh. 
 (N. Y.) 195 (1838) ; Wheaton v. Voor- 
 his, 53 How. (N. Y.) Pr. 319 (1877); 
 Stoney v. American L. Ins. Co., 11 
 PaiseCh. (N.Y.) 635(1845) ; Rigliter 
 V. Stall, 3 Sandf. Ch. (N. Y.) 608 
 (1846) ; Neefus v. Vanderveer, 3 
 Sandf. Gh. (N. Y.) 268 (1846); New 
 York Dry Dock Go. v. American L. 
 Ins. &T. Co., 3 Sandf. Ch. (KY.)215 
 (1846); Fox v. Lipe, 24 Wend. (N. 
 Y.) 164 (1840) ; Jackson v. Packard, 
 6 Wend. (N. Y.) 415 (1831) ; Munter 
 V. Linn, 61 Ala. 492 (1878) ; Mitchell 
 T. Preston, 5 Day (Conn.) 100 (1811); 
 Nichols V. Cosset, 1 Root (Conn.) 
 294 (1791) ; Sherman v. Gassett, 9 
 ni. (4 Gilm.) 521 (1847) ; Gambril 
 V. Doe, 8 Blackf. (Ind.) 14 (1846); 
 fl. c. 44 Am. Dec. 760 ; Tyson 
 V. Rickard, 3 Har. & J. (Md.) 109 
 (1810); 8. c. 5 Am. Dec. 424 ; 
 Drury v. Morse, 85 Mass. (3 Allen), 
 445 (1862) ; Hart v. Goldsmith, 83 
 
 Mass. (1 Allen), 145 (1861) ; Baxter 
 V. Mclntire, 79 Mass. (13 Gray), 168 
 (1859) ; Thomes v. Cleaves, 7 Mass. 
 361 (1811) ; Donnington v. Meeker, 
 11 N. J. Eq. (3 Stockt.) 362 (1857) ; 
 Gotheal v. Blydenburgh, 5 N. J. 
 Eq. (1 Halst.) 17 (1845); Cunning- 
 ham V. Davis, 7 Ired. (N. C.) Eq. 5 
 (1850) ; Ballinger v. Edwards, 4 Ired. 
 (N. C.) Eq. 449 (1847) ; Union Bank 
 V. Bell, 14 Ohio St. 200 (1862) ; 
 Lockwood V. Mitchell, 7 Ohio St. 
 387 (1857) ; s. c. 70 Am. Dec. 78 ; 
 Morris V. Way, 16 Ohio, 469 
 (1847) ; Heath v. Page, 48 Pa. St. 
 130 (1864); Greene v. Tyler, 39 
 Pa. St. 361 (1861); Dyer v. Lincoln, 
 11 Vt. 300 (1839) ; Robertson v. 
 Campbell, 2 Call (Va.) 354, 421 
 (1800) ; Fay v. Lovejoy, 20 Wis. 407 
 (1866) ; Richards v. Worthley, 5 
 Wis. 73 (1856) ; DeButts v. Bacon, 
 10 U. S. (6 Gr.) 252 (1810); bk. 3 L. 
 ed. 215 ; Morgan v. Tipton, 3 McL. 
 C. G. 339 (1844); Hodgkison v.Wyatt, 
 4 Ad. & E. N. S. 749 (1843) ; Black- 
 burn V. Warwick, 2 Y. & C. 93 
 (1836). 
 
 « See Walch v. Cook, 65 Barb. 
 (N. Y.) 30 (1873) ; Vickery v. Dick- 
 son, 35 Barb. (N. Y.) 96 (1861); 
 Andrews v. Poe, 30 Md. 485 (1869); 
 Aldrich V.Wood, 26 Wis. 168(1870). 
 But see Patterson v. Birdsall, 64 N.Y. 
 294 (1876) ; 8. c. 21 Am. Rep. 609 ; 
 Spencer v. Ayrault, 10 N. Y. 202 
 (1854) ; Abrahams v. Claussen, 52 
 How. (N. Y.) Pr. 241 (1876) ; White 
 V. Lucas, 46 Iowa, 319 (1877).
 
 412 HOW TO PLEAD USURY. [§345 
 
 debt is included in a security, or made the subject of a con- 
 tract, which is void for usury or for any other reason, it will 
 not be destroyed. Although a valid mortgage may be satis- 
 fied and canceled of record upon being made a part of a 
 new usurious mortgage, it can nevertheless be revived and 
 enforced in case the new security is declared to be void.' 
 Thus, where a plaintiff advanced money to pay a mortgage, 
 taking another mortgage to secure such advance, and the 
 second mortgage was declared void for usury, it was held 
 that the usury of the second mortgage did not affect the 
 validity of the first mortgage and that, the latter mortgage 
 being void, the prior mortgage survived and could be enforced 
 by the plaintiff," because by paying the first mortgage the 
 plaintiff became equitably subrogated to all the rights of 
 the mortgagee whom he paid, and the mortgage must be 
 regarded as still subsisting and unextinguished, as against 
 the mortgagors.* 
 
 § 345. How to allege usury — What law governs. — 
 
 While full effect will be given to the statute against usury, 
 yet nice distin'^ions will not be favored for the purpose of 
 extending its penalties to cases not within the spirit of the 
 statute.* Where usury is set up as a defence to a bill to fore- 
 close a mortgage, the defendant will be held strictly to j^roof 
 of the usurious contract as alleged in his answer ;* and a 
 variance between the usurious contract set up in the answer 
 and that established by the evidence at the hearing, will be 
 fatal to the defence.* If the defendant pleads generally that 
 
 » Patterson v. Birdsall, 64 N. Y. 294 (1876) ; s. c. 21 Am. Rep. 609. 
 
 394 (1876). See Gerwig v. Bitterly, See Elsworth v. Lockwood, 42 N. Y. 
 
 :.6 N. Y. 214 (1874), aff'g 64 Barb. 89 (1870); Averill v. Taylor, 8 N. 
 
 (N.Y.)630 : Winsted Bank v. Webb, Y. 44 (1853) ; Pardee v. VanAnken, 
 
 39 N. Y. 325 (1868) ; Farmers & 3 Barb. (N. Y.) 534 (1848) ; Jenkins 
 
 Mechanics' Banlt of Genesee v. Jos* v. Continental Ins. Co., 12 How. (N, 
 
 ]yn, 37 N. Y. 353 (1867) ; Cook v. Y.) Pr. 67 (1855). 
 
 Barnes, 36 N. Y. 520 (1867) ; Rice * See Patterson v. Birdsall, 64 N. 
 
 V. Welling, 5 Wend. (N. Y.) 595 Y. 294, 298 (1876) ; s. c. 21 Am. Rep. 
 
 (1830). 609. 
 
 « Patterson v. Birdsall, 64 N. Y. " Richards v. Worthley, 5 Wis. 73 
 
 294 (1876) ; s. c. 21 Am. Rep. 609. (1856). See Atwater v. Walker, 16 N. 
 
 « Patterson v. Birdsall, 64 N. Y. J. Eq. (1 C. E. Gr.) 42 (1863).
 
 § 345.] HOW TO PLEAD USURY. 413 
 
 the mortgage contract is usurious without a specific alle- 
 gation as to where the contract was made, the defence 
 will be limited to the statute regarding usury in the state 
 in which the suit is pending, and its usurious character 
 under any other statute can not be shown.' 
 
 The law governing a contract is that of the state where it 
 was made, if it was entered into in a state other than that in 
 which the mortgaged property is situated.' Where both 
 parties reside in the same state which is also the place of 
 contract, but the land is situated in another state, if nothing 
 is said about the place of payment, the debt is presumably 
 payable in the state where the parties reside and where the 
 contract was made ; and the validity of the contract will be 
 determined by the laws of such state ;' but if the note and 
 mortgage are made payable in the state where the land is 
 situated, the laws of that state will govern the construction 
 and the legal effect of the contract.* 
 
 In cases where the defence relied on is that the contract 
 is usurious by the laws of the state where it was made, the 
 defendant must plead this fact, and show in what state 
 the contract was made, and allege that it is in viola- 
 tion of the usury laws of such state." It is not within the 
 scope of this work to deal with the vexed question of what 
 
 • Wheaton v. Voorhis, 53 How, (1867) ; McCraney v. Alden, 46 Barb. 
 
 (N, Y.) Pr. 319 (1877). See Cloyes (N. Y.) 272 (1866) ; Dolman v. Cook, 
 
 V. Thayer, 3 Hill (N. Y.) 564 (1842) ; 14 N. J. Eq. (1 McCart.) 56 (1861) ; 
 
 Vroom V. Ditmas, 4 Paige Ch. (N. Kennedy v. Knight, 21 Wis. 340 
 
 Y.) 526 (1834) ; Munter v. Linn, 61 (1867) ; Newman v. Kershaw, 10 
 
 Ala. 492 (1878) ; 8. c. 2 South. L. J. Wis. 338 (1860). 
 
 205 ; Baldwin v. Norton, 2 Conn. ^ gee Cope v. Wheeler, 41 N. Y. 
 
 161 (1817) ; Maher v. Lanfrom, 86 303, 309 (1869), aff'g 53 Barb. (N. Y.) 
 
 111. 513 (1877) ; Richards v. Worth- 350 (1867) ; Williams v. Fitzhugh, 
 
 ley, 5 Wis. 73 (1856). 37 N. Y. 444 (1868) ; Williams v. 
 
 1 Atwater v. Walker, 16 N. J. Eq. Ayrault, 31 Barb. (N. Y.) 364 (1860); 
 
 (1 C. E. Gr.) 42 (1863). See also Dobbin v. Hewett, 19 La. An. 513 
 
 Hosier v. Norton, 83 111. 519 (1876) ; (1867) ; Blydenburgh v. Cotheal, 5 
 
 Bennington Iron Co. v. Rutherford, N. J. Eq. (1 Ilalst.) (1847). 
 
 9 N. J. L. (3 Harr.) 467 (1842); * Nichols v. Cosset, 1 Root (Conn.) 
 
 Dolman v. Cook, 14 N. J. Eq. (1 294 (1791) ; Duncan v. Helm, 22 La. 
 
 McCart.) 56 (1861). An. 418 (1870). 
 
 * Cope V. Wheeler, 41 N. Y. 303, ^ Curtis v. Mastin, 11 Paige Ch. 
 309 (1869), aff'g 53 Barb. (N. Y.) 350 (N. Y.) 15 (1844) ; Dolman v. Cook,
 
 414 
 
 WHO MAY MAKE DEFENCE OF USURY. [§346. 
 
 is and what is not usury ; the reader is referred to the stan- 
 dard text-books dealing with that subject. 
 
 § 346. Who may avail themselves of the defence of 
 usury. — The defence of usury may be set up not only by 
 the mortgagor himself, but by any person claiming under 
 or in privity with him ;' but it can not be set up by a 
 stranger to the original transaction." Some of the cases 
 hold that any person who has become interested in the 
 property subject to the mortgage, may set up the defence 
 of usury, unless he purchased the property expressly subject 
 to such mortgage, or assumed the payment of it.' 
 
 Thus, it has been held that the defence of usury is available 
 to a wife for the protection of her homestead or her dower 
 interest, although her husband may be estopped by his acts 
 from pleading it as a defence.* Jt may also be set up by the 
 heirs or devisees of the mortgagor; by a judgment creditor ;' 
 by a person holding a subsequent mechanic's lien upon tha 
 premises ;' by an assignee of the mortgagor's property foi 
 
 14 N. J. Eq. (1 McCart.) 56 (1861) ; 
 Cotheal v. Blydenburgh, 5 N. J. Eq. 
 (1 Halst.) 17 (1845). 
 
 ' Brooks V. Avery, 4 N. Y, 225 
 (1850) ; Carow v. Kelly, 59 Barb. 
 (N. Y.) 239 (1871) ; Maher v. Lan- 
 from, 86 111. 513 (1877) ; Westerfield 
 V. Bried, 26 N. J. Eq. (11 C. E. Gr.) 
 357 (1857); Brolasky v. MDler, 9 
 N. J. Eq. (1 Stockt.) 807 (1852) ; s. 
 c. 8 N. J. Eq. (4 Halst.) 789 (1852) ; 
 Greene v. Tyler, 39 Pa. St. 361 
 (1861). 
 
 « Ohio & M. R. R. Co. v. Kasson, 
 37 N. Y. 218 (1867) ; Williams v. 
 Birch, 2 Trans. App. (N. Y.) 133 
 (1867); 8. c. sub nom. Williams v. 
 Tilt, 36 N. Y. 319 ; Stoney v. Amer- 
 ican Life Ins. Co., 11 Paige Ch. 
 (N. Y.) 635 (1845), rev'g 4Edw. Ch. 
 (N. Y.) 332 (1843) ; Brolasky v. Mil- 
 ler, 9 N. J. Eq. (1 Stockt.) 814 (1852). 
 
 ' See Brooks v. Avery, 4 N. Y. 
 225 (1850) ; Post v. Dart, 8 Paige 
 
 Ch. (N. Y.) 640 (1841); Banks v. 
 McClellan, 24 Md. 62 (1865) ; Mc- 
 Alister v. Jerman, 32 Miss. 143 
 (1856); Gunnison v. Gregg, 20 N. 
 H; 100 (1849) ; Cummins v. Wire, 6 
 N. J. Eq. (2 Halst.) 73 (1846) ; Union 
 Bank V. Bell, 14 Ohio St. 200(1862). 
 
 < Campbell v. Babcock, 27 Wis. 
 512 (1871). 
 
 * Merchants' Ex. Bank v. Commer- 
 cial Warehouse Co., 49 N.Y. 636, 643 
 (1872), note; Mason v. Xord, 40 N.Y. 
 476 (1869) ; Thompson v. VanVech 
 ten, 27 N. Y. 568, 585 (1863) ; Carow 
 V. Kelly, 59 Barb. (N. Y.) 239 
 (1871); Jackson v. Tuttle, 9 Cow. 
 (N. Y.) 233 (1828); Schroeppel v. 
 Corning, 5 Den. (N. Y.) 236 (1848) ; 
 Dix V. VanWyck, 2 HiU (N. Y.) 
 622 (1842) ; Knickerbocker Life Ins. 
 Co. V. Hill, 6 T. «fe. C. (N. Y.) 285 
 (1875) ; B. c. 8 Hun (N. Y.) 577 ; 
 Post V. Dart, 8 Paige Ch. (N. Y.) 
 639 (1841).
 
 'd-m.^ WHO ]MAY MAKE DEFENCE OF USUEY. 415 
 
 the benefit of his creditors ;' by creditors for whose benefit the 
 land has been conveyed in trust, where the trustee has 
 neglected to set up such defence ;' by subsequent incum- 
 brancers,* or by a purchaser from the mortgagor/ 
 
 But where the purchaser of the equity of redemption, 
 covered by an usurious mortgage, takes the land subject to 
 the lien of the mortgage, he can not plead usury as a defence 
 to the foreclosure of such mortgage." And this is particu- 
 larly true where he assumes and agrees to pay the mortgage 
 debt.* There is also a line of cases holding that the defence 
 of usury is a personal privilege of the debtor, and that where 
 he himself is willing to abide by the terms of his contract, 
 no one can interfere and plead it as a defence/ 
 
 • Knickerbocker Life Ins. Co. v. 
 Hill, 6 T. «fe C. (N. Y.) 285 (1875) ; 
 s. C. 3 Hun (N. Y.) 577. 
 
 ' Pearsall v. Kingsland, 3 Edw. 
 Ch. (N. Y.) 195 (1838). 
 
 " Union Bank of Masillon v. Bell, 
 14 Ohio St. 200 (1863). Contra, 
 Sands v. Church, 6 N. Y. 847 (1852). 
 
 « Mutual Life Ins. Co. v. Bowen, 
 47 Barb. (N. Y.) 618 (1866) ; Brooke 
 V. Morris, 2 Cin. (O.) Supr. Ct. Rep. 
 528 (1873). 
 
 4 Brooks V. Avery, 4 N. Y. 225 
 (1850). See Bullard v. Raynor, 30 
 N. Y. 197 (1864); Matthews v. Coe, 
 .56 Barb. (N. Y.) 430(1870) ; Shufelt 
 V. Shufelt, 9 Paige Ch. (N. Y.) 137 
 (1841) ; 8. c. 37 Am. Dec. 381 ; Post 
 V. Dart, 8 Paige Ch. (N. Y.) 639 
 (1841). 
 
 » Hartley v. Harrison, 24 N. Y. 
 170 (1861) ; Sands v. Church, 6 N. 
 Y. 347 (1852) ; Morris v. Floyd, 5 
 Barb. (N. Y.) 130 (1849) ; Vroom v. 
 Ditmas, 4 Paige Ch. (K Y.) 527 
 (1834) ; Dolman v. Cook, 14 N. J. 
 Eq. (1 McCart.) 56, 61 (1861) ; Bro- 
 lasky V. Miller, 9 N. J. Eq. (1 
 Stockt.) 814 (1852). 
 
 • Parkinson v. Sherman, 74 N. Y. 
 88 (1878) ; 8. o. 80 Am. Rep. 268 ; 
 
 Sands v. Church, 6 N. Y. 347(1852); 
 Burlington Mut. Assoc, v. Heider, 
 55 Iowa, 424 (1880); Hough v. 
 Horsey, 36 Md. 181 (1872) ; s. c. 11 
 Am. Rep. 484 ; Conover v. Hobart, 
 24 N. J. Eq. ( 9 a E. Gr. ) 120 
 (1873) ; Cramer v. Lepper, 26 Ohio 
 St. 59 (1875) ; s. c. 20 Am. Rep. 756. 
 ' See McGuire v. VanPelt, 55 Ala. 
 344 (1876); Fielder v. Varner, 45 
 Ala. 429 (1871) ; Cain v. Gimon, 36 
 Ala. 168 (1860) ; Fenno v. Sayre, 3 
 Ala. 458 (1842); Loomis v. Eaton, 
 32 Conn. 550 (1865) ; Adams v. 
 Robertson, 37 LI. 45 (1865) ; Studa- 
 baker v. Marquardt, 55 Ind. 341 
 (1876); Carmichael v. Bodfish, 32 
 Iowa, 418 (1871) ; Huston v. String- 
 ham, 21 Iowa, 36 (1866) ; Powell v. 
 Hunt, 11 Iowa, 430 (1860); Prit- 
 chett V. Mitchell, 17 Kan. 355(1876); 
 s. c. 22 Am. Rep. 287 ; Campbell v. 
 Johnson, 4 Dana (Ky.) 178 (1836) ; 
 Green v. Kemp, 13 Mass. 515 (1816); 
 8. c. 7 Am. Dec. 169 ; Farmers' & 
 Mechanics' Bank v. Kimmel, 1 Mich. 
 84 (1848) ; Ransom v. Hays, 39 Mo. 
 445 (1867) ; Miners' Trust Bank v. 
 Roseberry, 81 Pa. St. 309 (1876); 
 Lamoille County Bank v. Bingham, 
 50 Vt. 105 (1877) ; s. c. 28Am.Itep.
 
 416 DEFENCE AGAINST ASSIGNEE OF MORTGAGE. [§347. 
 
 § 347. Defences against assignee of mortgage. — In 
 those states where the transfer of a note carries with it the 
 security collateral thereto, in an action by an assignee to 
 foreclose the mortgage securing a note transferred to him, 
 the defendant can not set up as a defence the want of a formal 
 assignment of the mortgage,* nor a denial of knowledge of 
 the assignment," nor the fact that the note secured was pur- 
 chased at a discount,' nor that the plaintiff purchased the 
 note from motives of malice, nor that the assignor and his 
 assignee acted in concert with a view unnecessarily to harass 
 and oppress the mortgagor, or with the intention of prevent- 
 ing his paying the note, so that the equity of redemption might 
 be foreclosed and that they might become the purchasers of 
 the mortgaged premises for a sum less than their value ;* nor 
 that he has been evicted from the premises, where the mort- 
 gage sought to be foreclosed was given for part of the pur- 
 chase price ;" nor defects in the title to the land conveyed 
 and damages awarded against him therefor ;* nor merger,^ 
 it being sufficient to sustain the action, that the mortgage 
 debt is due and that it has been transferred to, and is owned 
 by, the plaintiff/ But, in an action by the assignee of a note 
 and mortgage for foreclosure, the defendant may show a 
 mistake in drawing the instrument and have it reformed ;* 
 
 490 ; Austin v, Chittenden, 33 Vt. * Grissler v. Powers, 53 How. (N. 
 
 553 (1861) ; Ready v. Huebner, 46 Y.) Pr. 194 (1877) ; Knox v. Galli- 
 
 Wis. 692 (1879) ; s. c. 33 Am. Rep. gan, 31 Wis. 470 (1867) ; Croft v. 
 
 749 ; DeWolf v. Johnson, 33 U. S. Bunster, 9 Wis. 503 (1859). 
 
 (10 Wheat.) 867 (1835) ; bk. 6 L. ed. * Morris v. Tuthill, 73 N. T. 575 
 
 343. (1878). 
 
 ' Jackson v. Blodget, 5 Cow. (N. b National Fire Ins. Co. v. McKay, 
 
 T.) 303, 305 (1835) ; Jackson v. 31 n. Y. 191 (1860). See Hill v. 
 
 WUlard, 4 Johns. (N. Y.) 41, 43 Butler, 6 Ohio St. 307 (1856). 
 
 (1809) ; Rice v. Cribb, 12 Wis.' 179 » Hill v. Butler, 6 Ohio St. 207 
 
 (I860). (1856). 
 
 * Brown v. Woodbury, 5 Ind. 254 n See Reed v. Latson, 15 Barb. 
 
 (1854). The oath of affirmation or (]jq"^ y.) 9 (1853). 
 
 denial of an assignment under the « Morris v. TuthiU, 72 N. Y. 575 
 
 Indiana Rev. Stat, of 1843 was (1878). 
 
 required to be to the effect that the » Andrews v. Gillespie, 47 N. Y. 
 
 party had reason to believe and did 437 (1872). 
 believe that no assignment had been 
 made. Brown v. Woodbury, supra.
 
 § 3i7.] DEFENCE AGAINST ASSIGNEE OF MOKTGAGE. 417 
 
 or that the assignee could not make a valid assign- 
 ment.* 
 
 In an action for the foreclosure of a mortgage by the 
 assignee thereof, the defendant may allege in his answer 
 that the mortgage was assigned without authority of law,* 
 or that it was assigned to procure the performance of an 
 agreement void for illegality.' And where a mortgagor has 
 made bona fide payments to an indorsee upon a note secured 
 by a mortgage, without notice that the indorsee's title is 
 invalid, such payments will be valid as against the rightful 
 owner of the mortgage debt.* 
 
 The fact that a complainant, after having commenced an 
 action to foreclose a mortgage, borrowed money of a third 
 person on such mortgage, with the understanding that the 
 plaintiff was to continue the prosecution of the suit, and, in 
 the event of success, to repay the money so borrowed with 
 interest, can not be set up as a defence to the foreclosure.* 
 
 But an answer is insufficient which alleges that the assignee 
 took his assignment of the mortgage from motives of malice, 
 and solely for the purpose of bringing a foreclosure, and that 
 the assignor transferred the mortgage with a like motive and 
 without consideration.* 
 
 It has been said that any defendant to a mortgage fore- 
 closure suit, who is personally liable for the debt, or whose 
 land is affected by the lien of the mortgage, may introduce 
 a set-off to reduce or extinguish the plaintiff's claim, and 
 may show that the plaintiff has taken only a colorable or a 
 
 » Kenaud v. Conselyea, 7 Abb. (N. Y. 19 (1849) ; s. c. 51 Am. Dec. 333; 
 
 T.) Pr. 105 (1858), reconsidering Green v. Seymour, 3 Sandf. Ch. (N. 
 
 and reversing s. c. 5 Abb. (N. Y.) Y.) 285 (1846); Adams v. Rowan. 16 
 
 Pr. 346 ; 4 Abb. (N". Y.) Pr. 280. Miss. (8 Smed. & M.) 624 (1847). 
 
 2 Leavitt v. Palmer, 3 K Y. 19 See Wyeth v. Braniff, 84 N. Y. 627, 
 
 (1849); 8. c. 51 Am. Dec. 333; 633 (1881); Fish v. DeWolf, 4 
 
 Jolinson V. Bush, 3 Barb. Ch. (N. Bosw. (K Y.) 573 (1859). 
 
 Y.) 207 (1848) ; N. Y. Trust & Loan •* Vanarsdall v. State, 65 Ind. 176 
 
 Co. V. Helmer, 12 Hun (N. Y ^ 35, (1879). 
 
 44 (1877); Green v. Seymour, 3 "Chase v. Brown, 32 Mich. 235 
 
 Sandf. Ch. (N. Y.) 285 (1846). (1875). 
 
 » Dewitt V. Brisbane, 16 N. Y. « Morris v. Tuthill, 72 N. Y. 575 
 
 608 (1858) ; Talmage v. Pell, 7 N. Y. (1878) ; Davis v. Flagg, 35 N. J. Eq. 
 
 828 (1852) ; Leavitt v. Palmer, 8 N. (8 Stew.) 491 (1883). 
 
 (27)
 
 418 DEFElSrCES AGAITv'ST ASSIGNEE. [§§348-349. 
 
 fraudulent assignment of the mortgage and holds it for the 
 benefit of one against whom such a right of set-off exists.* 
 
 § 348. Defence against voluntary assignee in bank- 
 ruptcy. — The assignee of an insolvent mortgagee for the 
 benefit of creditors, is not entitled to the same favor in equity 
 that is accorded to the purchaser of a mortgage for a valuable 
 consideration. He is not a bona fide holder nor a purchaser 
 for value, but takes the property simply as a trustee, subject 
 to all equities which may exist between the debtor and his 
 creditors. He is in no sense a purchaser, because the assign- 
 ment is simply an appropriation by the debtor of his property, 
 in trust for the payment of his debts in the order and manner 
 specified ; an act by which he divests himself of such property 
 for the time being, without altering or parting with his 
 interest in it, for should any property or its proceeds remain 
 after the trust has been executed, it must be returned to 
 the assignor. For these reasons a voluntary assignee in bank- 
 ruptcy is in no better position, and acquires no better title, 
 than his assignor held.* 
 
 Where a debtor executed a mortgage and before its 
 maturity made a valid assignment of all his property for the 
 benefit of his creditors, in an action to foreclose such mortgage, 
 the assignee alone can attack its validity, if none of the cred- 
 itors had a specific lien upon the property by judgment prior 
 to the execution of the assignment. The creditors of the 
 mortgagor are not necessary parties to the action, and the fact 
 that they are made parties will not entitle them to interpose 
 a defence.' 
 
 § 349, Defence against a fraudulent assignment. — 
 
 Fraud voids all contracts and transfers into which it enters, 
 at the election of the party defrauded ; ex dolo malo non oritur 
 
 ' Lathrop v. Godfrey, 3 Hun (N. 2 Barb. ( N. T, ) 475 ( 1848 ) ; 
 
 T.) 739 (1875). In re Howe, 1 Paige Ch. (K T.) 125 
 
 * Schieffelin v. Hawkins, 1 Daly (1828) ; a c. 19 Am. Dec. 395 ; Mead 
 
 (N. Y.) 289 (1863) ; s. c. 14 Abb. (N. v. Phillips, 1 Sandf. Ch. (N. Y.) 83 
 
 T.)Pr. 112. See VanHeuson V. Rad- (1843). 
 
 cliff, 17 N.Y. 580(1858); S.C. 72 Am. » Sprmg v. Short, 90 KY. 538 
 
 Dec. 480; Warren v. Fenn, 28 Barb, (1882). See Geery v, Geery, 63 N. 
 
 (N.Y.) 333 (1858); Legerv. Bonnaffe, Y. 252 (1876).
 
 § 850.] DEFEIfCES AGAINST ASSIGIOIE OF MOETGAGE. 419 
 
 actio is a maxim of very wide, if not universal, application. 
 It applys even to the holder of commercial paper, and more 
 strongly to assignees of choses in action.' Thus, where a 
 party obtains an assignment of a bond and mortgage by 
 means of fraud and with the ostensible purpose of selling the 
 same for the owner, the equitable ownership thereof still 
 remains in the assignor, and in an action brought by the 
 assignee for foreclosure, the defendant may show payment 
 to the mortgagee." And where a mortgage is assigned 
 immediately before the right of redemption would expire, for 
 the purpose of preventing the redemption, it will have the 
 effect of keeping the equity open until a tender can be 
 made,' 
 
 § 350. Defence against transferred mortgage payable to 
 mortgagee alone.— A mortgage, like a note which is pay- 
 able to the payee alone, is not negotiable, and is always sub- 
 ject to all equities existing between the original parties.* 
 And where a mortgage, which was the only evidence of the 
 indebtedness secured, was by its terms, "to be paid by the 
 mortgagor to the mortgagee when called on by said mortgagee, 
 and the mortgagor does not agree to pay the above sur^ to 
 anyone else except the said mortgagee," on suit brought by 
 the administrator of the deceased mortgagee, it not appearing 
 that the mortgagee had in his life-time, either personally or 
 by agent, made a demand upon the mortgagor for payment 
 of the sum secured, the court held, that an action to foreclose 
 the mortgage could not be maintained by such administrator ; 
 that on the death of such mortgagee, without having 
 demanded payment of such debt of the mortgagor, the con- 
 sideration for the debt became a gift to the mortgagor ; and 
 
 ' Hall V. Erwin. 60 Barb. (N. Y.) ards v. Waring, 1-Keyes (N Y ) 576 
 
 349 (1871) ; 8. c. 57 N. Y. 643. (1864) ; James v. Morey 2 Cow (N 
 
 « HaU V. Erwin, 66 N. Y. 649 Y.) 246 (1823) ; s. c. 14 Am. Dec. 475'- 
 
 ^'^'^^)- Clute V. Robinson, 2 Johns. (N Y > 
 
 ^ Deming v. Comings, 11 K H. 595 (1807) ; Livingstone v. Dean, a 
 
 474(1841). Johns. Ch. (N. Y.) 479 (1817) > 
 
 * iDgrahara v. Disborough, 47 N. Murray v. Lylburn, 2 Johns ClJ 
 
 Y. 421, 423 (1872). See Bush v. (N. Y.) 441 (1817). 
 Lathrop, 22 N. Y. 535 (1860) ; Rich-
 
 420 NEGOTIABLE PAPER SECURED BY MORTGxVGE. [§ 351. 
 
 that a demand by the administrator would not be suffi- 
 cient,' 
 
 § 351. Defences against foreclosure by bona fide pur- 
 chaser of negotiable paper secured by mortgage. — The 
 
 assignee, before maturity, of a negotiable promissory note 
 secured by mortgage, takes it free from all equities which 
 existed between the original parties thereto ;' but he takes it 
 subject to such, equities as appear from stipulations or recitals 
 contained in any recorded instrument which forms a link 
 in his chain of title.' In a case, however, where a mortgage, 
 purporting to secure a promissory note of the mortgagor, was 
 executed to a party who knew that it was without considera- 
 tion, and that no note was ever delivered, it was held that 
 an assignee of the mortgage took it subject to all equities 
 existing between the original parties and that it could not 
 be enforced.* 
 
 The assignee of a rnortgage, securing a negotiable promis- 
 sory note, who takes jt in good faith before maturity for 
 value, takes it as he does,the note free from equities between 
 
 » Sebrell v. Couch. 55 Ind. 129, 124 (1877) ; Jones v. Smith, 22 ]Mich. 360 
 
 (1876). The court said : " The de- (1871); Bloomer v. Henderson, 8 
 
 maud was not only tc be made, but Mich. 395 (1860) ; s. c. 77 Am. Dec. 
 
 it was to be made by the mortgagee 453 ; Cicotte v. Gaguier, 2 Mich. 381 
 
 himself ; implying, when taken in (1852) ; Reeves v. Scully, Walk. Ch. 
 
 connection with what follows in the (Mich.) 248 (1843) ; Logan v. Smith, 
 
 mortgage, that, if he did not choose 62 Mo, 455 (1876), overruling Lin- 
 
 to make it, the debt was not to be ville v. Savage, 58 Mo. 248 (1874); 
 
 paid at all." Sawyer v. Prickett, 86 U. S. (19 
 
 « Gould V. Marsh, 4 T. & C. (N. Y.) Wall.) 146, 166 (1872) ; bk. 22 L. ed. 
 
 128 (1874) ; a c. 1 Hun (N. Y.) 566 ; 80 ; Kenicott v. Supervisors of 
 
 Updegraft v. Edwards. 45 Iowa, 513 Wayne County, 83 U. S. (16 Wall.) 
 
 (1877); Farmers'National Bank of Sa- 453(1872); bk. 21 L. ed. 319; Car- 
 
 !em V. Fletcher, 44 Iowa, 252 (1876); penter v. Longan, 83 U. S. (16 Wall.) 
 
 Preston v. Morrig, 42 Iowa, 549 271 (1872) ; bk. 21 L. ed. 313; Beals 
 
 (1876) ; Duncan v. Louisville, 13 v. Neddo, 1 McCr. C. C. 206 (1880). 
 
 Bush (Ky.) 378 (1877) ; s. c. 26 Am. See Trustees of Union College v. 
 
 Rep. 201 ; Billgerry v. Ferguson, 30 Wheeler, 61 N. Y. 88, 107 (1874). 
 
 La. An. 84 (1878); Pierce v. Faunce, » Orrick v. Durham, 79 Mo. 175 
 
 47 Me. 507 (1859) ; Sprague v. Gra- (1883). 
 
 ham, 29 Me. 160 (1848) ; Taylor v. * Burbank v. Waiwlck, 53 Iowa, 
 
 Vage, 88 Mass. (6 Allen), 86 (1863) ; 493 (1879). 
 Helmer v. Krolick, 36 Mich. 371
 
 § 351.] NEGOTIABLE PAPER SECURED BY MORTGAGE. 421 
 
 the original parties ;' but it will be otherwise, where the mort- 
 gage is taken after maturity and without inquiry, although 
 in good faith and for full value.' And where a note, and a 
 mortgage given to secure it, are transferred before maturity 
 to a bona fide purchaser, the mortgagor, although having no 
 notice whatever of such assignment and transfer, can not 
 thereafter pay the note or mortgage to the mortgagee so as 
 to defeat the real owner and holder thereof from recover- 
 ing.' It seems that a purchaser in good faith and for value 
 from the one of a number of contemporaneous mortgagees, 
 who first recorded his mortgage, will take the same free 
 from a parol agreement between the mortgagees of which he 
 was ignorant, that the mortgages should be equal liens.* But 
 the rule that the assignee of a rriortgage before maturity, 
 takes it free from the equities existing between the original 
 parties to the instrument, applies only to such mortgages as 
 are collateral to and secure nesotiable instruments.' 
 
 ' Mundy v. Whittemore, 15 Neb. 
 647 (1884). See Burhan« v. Hutche- 
 son, 25 Kan. 625 (1881); 8. c. 37 
 Am. Rep. 274. 
 
 2 Osborn v. McClelland, 43 Ohio 
 St. 284 (1885). In this case O., for 
 value received, made and delivered 
 to F. her negotiable note, secured 
 by mortgage, payable to the order of 
 F. in five j'ears. Two years before 
 the same became due F., without con- 
 sideration, and solely for the accom- 
 modation of B. & S., bankers, loaned ' 
 the same temporarily to them, to 
 enable them to use the same as col- 
 lateral for a loan to meet a present 
 emergency, B. & S. promising to 
 keep and return them safely. B. & 
 S. did not use them, but they were 
 suffered to remain in their custody 
 until after the note became due, 
 when S., survivor of B. & S., with- 
 out the knowledge of F., or without 
 authority from her, hypothecated 
 them to M. by deliverj', merely say- 
 ing the note would be paid. M. 
 
 took the same in good faith, and for 
 full value, without inquiry, guar- 
 anty, or indorsement by S. , relying 
 solely on his possession and the 
 blank indorsement of F., that S. was 
 the owner. It was held that M. , hav- 
 ing received the note after maturity 
 and without inquiry, acquired no bet- 
 ter title than S. had, and, as S. had 
 neither title nor interest, which was 
 good against F., he could not transfer 
 a title to M. which would give him 
 the right to foreclose the mortgage 
 as against the real owner. 
 
 * Burhans v. Hutch eson, 25 Kan, 
 625 (1881); s. c. 37 Am. Rep. 
 274. 
 
 * Decker v. Boice, 19 Hun (N. T.) 
 152 (1879). 
 
 " Crane v. Turner, 67 N. Y. 437 
 (1876) ; Trustees of Union College v. 
 Wheeler, 61 N. Y. 88, 107 (1874) ; 
 Ingraham v. Disborough, 47 N. Y. 
 421 (1872) ; Rice v. Dewey, 54 Barb. 
 (N. Y.) 455 (1862) ; Hartley v. Tat- 
 bam, 10 Bosw. (N. Y.) 273 (1863) ;
 
 422 NEGOTIABLE PAPEli SECURED BY MORTGAGE. [§ 352. 
 
 In an action to foreclose a mortgage, brought by an 
 assignee thereof, where a defence which would be valid as 
 against the assignor is made, the plaintiff will be required to 
 show that his purchase was bona fide in all respects.* The 
 rule in this regard is the same in a majority of the states, 
 whether the note transferred is, or is not, secured by a 
 mortgage.' 
 
 § 352. Purchaser of negotiable paper secured by mort- 
 gage takes subject to equities against it. — On the other 
 hand, it has been held that while the purchaser of a negoti- 
 able instrument before maturity, without notice, will be 
 protected against all defences to such negotial^le instrument, 
 yet that when the negotiable instrument is secured by a mort- 
 gage or other collateral security, such security will not for that 
 reason be invested with any of the privileges or immunities 
 belonging to negotiable paper ; and, not being assignable sepa- 
 rately and apart from the debt, either at common-law* or by the 
 law merchant* or by statute,* the mortgagor may successfully 
 
 e. c. 24 How. (N. Y.) Pr. 505 ; Nia- 
 gara Bank v. Roosevelt, 9 Cow. (N. 
 Y.) 409 (1827) ; s. c. Hopk. Cli. (N. 
 Y.) 579 ; James v. Morey, 3 Cow. 
 (K Y.) 246 (1823); s. c. 16 Am. Dec. 
 465 ; Clute v. Robinson, 2 Johns. 
 (N. Y.) 595 (1807) ; Ellis v. Messer- 
 vie. 11 Paige CIi. (N. Y.) 467 (1844); 
 s. c. 5 Den. (N. Y.) 640 ; Pendleton 
 V. Fay, 2 Paige Ch. (N. Y.) 202 
 (1803); Nichols v. Lee, 10 Mich. 
 526 (1862) ; Reeves v. Scully, Walk. 
 Ch. (Mich.) 248 (1843) ; Russell v. 
 Waite, Walk. Ch. (Mich.) 31 (1842); 
 Kamena v. Huelbig, 23 N. J. Eq. 
 (8 C. E. Gr.) 75 (1872) ; Andrews v. 
 Torrey, 14 N. J. Eq. (1 McCait.) 
 355 (1862) ; Losey v. Simpson, 11 N. 
 J. Eq. (3 Stockt.) 246 (1856) ; Dunn 
 V. Seymour, 11 N. J. Eq. (3 Stockt.) 
 278 (1856) ; Cornish v. Bryan, 10 N. 
 J. Eq. (3 Stockt.) 146 (1856) ; 
 Twitchell v. McMurtrie, 77 Pa. St. 
 383 (1875) ; Horstman v. Gerker, 49 
 I'a. St. 2S2, 289 (1865) ; Pryor v. 
 
 Wood, 31 Pa. St. 143 (1858) ; Mott 
 V. Clark, 9 Pa. St. 399 (1848) ; 8. O. 
 49 Am. Dec. 566 ; Goulding v, Bun- 
 ster, 9 Wis. 513 (1859); Croft v. 
 Bunster, 9 Wis. 503 (1859). 
 
 ' Getzlaff V. Seliger, 43 Wis. 297 
 (1877). See Matterson v. Morris, 40 
 Mich. 52 (1879). 
 
 * See Carpenter v. Longan, 83 TJ. 
 S. (16 Wall.) 271 ; bk. 21 L. ed. 
 313 (1872); Bennett v. Taylor, 5 
 Cal. 502 (1855) ; Potts v. Blackwell, 
 4 Jones (N. C.) Eq. 58 (1858) ; Mar- 
 tineau v. McCoUum, 4 Chand.(Wis.) 
 153 (1852). 
 
 3 Medley v. Elliott, 62 111. 533 
 (1872) ; Sumner v. Waugh, 56 HI. 
 531 (1869). 
 
 * In re Kansas City Marble and 
 Stone Manufacturing Co., 9 Bankr. 
 Reg. 76,83(1872); Corbelt v. Wood- 
 ward, 5 Sawy. C. C. 403 (1879). 
 
 » Medley v. Elliott, 62 111. 533 
 (1873); Sumner v. Waugh, 56 HI. 
 531 (1869).
 
 § 353.] NEGOTIABLE PAPEE SEOUBED BY MORTGAGE. 423 
 
 interpose any defence in an action brought by the assignee to 
 foreclose the mortgage, that he could have made against the 
 mortgagee,* even though the assignee may have purchased 
 the note and mortgage in good faith for a valuable consider- 
 ation in the regular course of business.' This doctrine is held 
 in Colorado,* Illinois,* Louisiana,' Minnesota,' New Jersey,* 
 Ohio' and Oregon,' and in the inferior courts of the United 
 States." 
 
 § 353. Same rule in Illinois.— It has been held in Illinois 
 that the same doctrine applies to a trust deed, and that in 
 
 J White V. Sutherland, 64 HI. 181 
 (1872); Sumner v. Waugh, 56 111. 
 531 (1869) ; Walker v. Dement, 42 
 m. 272 (1866); Johnson v. Carpenter, 
 7 Minn. 176 (1862). 
 
 « White V, Sutherland, 64 Dl. 181 
 (1872) ; Olds v. Cummings, 31 111. 
 188 (1868). 
 
 » Longan v. Carpenter, 1 Colo. 
 205 (1870). This case was reversed 
 on appeal by the supreme court of 
 the United States. See Carpenter v. 
 Longan, 83 U. S. (16 Wall.) 271 ; 
 bk. 21 L. ed. 313 (1872). The 
 supreme court hold that where a 
 mortgage is given at the time of the 
 execution of a negotiable note, and 
 to secure its payment, and the 
 mortgage is subsequently, but be- 
 fore the maturity of the note, trans- 
 ferred bona fide with the note, the 
 holder of the note, when obliged 
 to resort to the mortgage, will be 
 unaffected by any equities arising 
 between the mortgagor and mort- 
 gagee, subsequently/ to the transfer, 
 and of which, he, the assignee, had 
 no notice at the time it was made. 
 
 * Ellis V. Sisson, 96 111. 105 (1880); 
 United States Mortgage Co. v. Gross, 
 93 111. 483 (1879) ; Chicago D. & V. 
 R. Co. V. Lcewenthal, 93 111. 433 
 (1879) ; Colehour v. State Savings 
 Inst. , 90 111. 152 (1878) ; Brant v. Yix, 
 83 111.11 (1876); White v. Sutherland, 
 
 64 ni. 181 (1872) ; Medley v. Elliott, 
 62111. 532 (1872) ; Sumner v. Waugh, 
 56 HI. 531 (1869) ; Walker v. Dement 
 42111. 272 (1866) ; Olds v. Cummings, 
 51 HI. 188, 192 (1863). 
 
 * Bouligny v. Frotier, 17 La. An. 
 121 (1865) ; Schmidt v. Frey, 8 Eob. 
 (La.) 435 (1844). 
 
 6 Hostetter v. Alexander, 22 Minn. 
 559 (1876) ; Johnson v. Carpenter, 
 7 Minn. 176 (1862). 
 
 ' Woodruff v. Morristown Institu- 
 tion for Savings, 34 N. J. Eq. (7 
 Stew.) 174 (1881) ; Vredenburgh v. 
 Burnet, 31 N. J. Eq. (4 Stew.) 229. 
 231 (1879) ; Putnam v. Clark, 29 N. 
 J. Eq. (2 Stew.) 412, 415 (1878); 
 Atwater v. Underbill, 22 N. J. Eq. 
 (7C. E. Gr.)599, 606(1872); Conover 
 V. VanMater, 18 N. J. Eq. (3 C. E. 
 Gr.) 481, 484 (1867) ; Woodruff v. 
 Depue, 14 N. J. Eq. (1 McCart.) 
 168, 175(1861); Losey v. Simpson, 11 
 N J Eq. (3 Stockt.) 246, 254 (1856). 
 « Baily v. Smith, 14 Ohio St. 396 
 (1863). 
 
 » Corbett v. Woodward, 5 Sawy. 
 C. C. 403 (1879). 
 
 10 See In re Kansas City Marble 
 and Stone Manufacturing Co., 9 
 Bankr. Reg. 76, 82 (1872) ; Fales v. 
 Mayberry, 2 Gall. C. C. 560 (1815) ; 
 United States v. Sturges, 1 Paine 0. 
 C. 525, 534 (1826) ; Corbett v. Wood- 
 ward, 5 Sawy. C. C. 403 (1879).
 
 4 2 J: NEGOTIABLE PAPER SECURED BY MORTGAGE. [§354. 
 
 an action for its foreclosure by an assignee, the defendant 
 may interpose any equitable defence he had against the 
 mortgagee arising out of the original transaction ; but this 
 rule does not extend to the set-off of a debt due from 
 the assignor to the defendant arising out of a collateral 
 transaction or a subsequent matter.' The principle upon 
 which this doctrine is founded, is that while the notes 
 are made negotiable by commercial usage or by statutory 
 regulation, there is no such usage or provision as to the 
 mortgages securing them, and that for this reason the assignee 
 of the mortgage takes it, as he would any other chose in 
 action, subject to all the rights which existed against the 
 mortgage while in the hands of the mortgagee, except as to 
 the latent equities of third persons, whose rights he could 
 not know.* 
 
 § 354- Defences against assignee of mortgage secur- 
 ing a non-negotiable instrument. — At common-law, a 
 mortgage, as far as it is a debt or merely a security for 
 a debt, is simply a chose in action, non-negotiable, and 
 therefore can not be transferred by delivery or indorse- 
 ment. A bond, also, is a non-negotiable instrument, and 
 when assigned is subject to the equities existing between 
 the original parties,' and subject to the same equities 
 when assigned with the mortgage, which is simply collateral 
 
 ' Colehour v. State Savings Insti- over v, VanMater, 18 N. J. Eq. (3 
 
 tution, 90 111. 152 (1878). C. E. Gr.) 482 (1867) ; Andrews v. 
 
 « Sumner v. Waugh, 56 111. 531 Torrey, 14 N. J. Eq. (1 McCart.) 
 
 (1869). See Fortier v. Darst, 31 111. 355 (1861) ; Lee v. Kirkpatrick, 14 
 
 212 (1863) ; Olds v. Cummings, 31 N. J. Eq. (1 McOart.) 264 (1861) ; 
 
 111. 188, 192 (1863) ; Woodruff v. Danbury v. Robinson, 14 N. J. Eq. 
 
 Morrislown Institution for Savings, (1 McCart.) 213 (1861) ; Woodruff v. 
 
 34 N. J. Eq. (7 Stew.) 174 (1881) ; Depue, 14 N. J. Eq. (1 McCart.) 168, 
 
 Vredeuburgh v. Burnet, 31 N. J. 175 (1861) ; Losey v. Simpson, 11 
 
 Eq. (4 Stew.) 229, 231 (1879) ; Put- N. J. Eq. (3 Stockt.) 246, 254 (1856); 
 
 nam v. Clark, 29 N. J. Eq. (2 Stew.) Jacques v. Elser, 4 N. J. Eq. (3 H. 
 
 412, 415 (1878); DeWitt v. Van W. Gr.) 461 (1844); Shannon v. 
 
 Sickle, 29 N. J. Eq. (2 Stew.) 212 Marselis, 1 N. J, Eq. (Saxt.) 413 
 
 (1878); Starr v. Haskins, 26 N. J. (1831). 
 
 Eq. (11 C. E. Gr.) 415 (1875); ^ Ridjardson v. Woodruff, 20 Neb. 
 
 Atwater v. Underbill, 22 N. J. Eq. 132 (18b6). 
 (7 C. E. Gr.) 599, 606 (1872) ; Con-
 
 § 354.] 
 
 NON-NEGOTIABLE PAPER 8ECUEED. 
 
 425 
 
 to it.' The bond being a mere chose in action, and neither 
 it nor the mortgage having any negotiable character, the 
 mortgagor's rights, in respect to the obligation, will not be 
 changed in any way by the transfer of the bond and mort- 
 gage.' Where a non-negotiable note is secured by mortgage, 
 and is assigned, it will be subject to the equities existing 
 between the original parties at the time of the transfer, the 
 same as a bond or other chose in action.* This rule, however, 
 is generally understood to mean, the equity residing in the 
 original obligor or debtor, and not an equity residing in some 
 third person.* 
 
 In an action for foreclosure brought by the assignee of 
 ji bond and mortgage, the mortgagor may set up any equi- 
 table defence he would have had in a suit brought by the 
 mortgagee, on the well established principle that the assignee 
 of a chose in action takes it subject to all the equities 
 against it in the hands of the assignor.* A mortgage not 
 
 ' Strong V. Jackson, 123 Mass. 60, 
 6Z (1877) , 8. c. 25 Am. Rep. 19. See 
 Crane v. March, 21 Mass. (4 Pick.) 
 131 (1826) ; s. c. 16 Am. Dec. 329. 
 
 » See Davis v. Beckstein, 69 N. Y. 
 MO (1877); Moore v. Metropolitan 
 National Bank, 55 N. T. 41 (1873) ; 
 Ingraham v. Disborough, 47 N. Y. 
 421 (1872) ; Mason v. Lord, 40 N. Y. 
 476 (1869) ; Reeves v. Kimball, 40 
 N. Y. 299 (1869) ; Bush v. Lathrop, 
 22 K Y. 535 (1860); Mickles v. 
 Townsend, 18 N. Y. 575 (1859); 
 Westfall v, Jones, 23 Barb. (N. 
 Y.) 9 (1853); Ely v. McNight, 
 SO How. (N. Y.) Pr. 97 (1864); 
 Hovey v. Hill, 3 Lans. (N. Y.) 167 
 (1870); Godeflfroy v. Caldwell, 2 
 Cal. 489 (1853) ; s. c. 56 Am. Dec. 
 360 ; Cumberland Coal & Iron Co. 
 V. Parish, 42 Md. 598 (1875) ; Jones 
 v. Hardesty, 10 Gill & J. (Md.) 404, 
 420 (1839) ; s. c. 32 Am. Dec. 180 ; 
 Mathews v. Heyward, 2 S. C. 239 
 (1870). 
 
 « White V. Heylman, 34 Pa. St. 
 
 143 (1859) ; Matthews v. Wallwyn, 
 4 Ves. 118, 126 (1798). 
 
 * Woodruff V. Morristown Inst, for 
 Savings, 34 N. J. Eq. (7 Stew.) 174 
 (1881). See Warner v. Blakeman, 36 
 Barb. (N. Y) 501, 517 (1862); 
 Thompson v. VanVechten, 6 Bosw. 
 (N. Y.) 373, 411 (1860); James v. 
 Morey, 2 Cow. (N. Y.) 246, 249 
 (1823); s. c. 16 Am. Dec. 475; 
 Livingstone v. Dean, 2 Johns. Ch. 
 (N. Y.) 479 (1817) ; Murray v. Lyl- 
 burn, 2 Johns. Ch. (N. Y.) 442 (1817); 
 Mott V. Clark, 9 Pa. St. 399 (1848). 
 
 * Murray v. Lylburn, 2 Johns. 
 Ch. (N. Y.) 442 (1817); CoveU v. 
 Tradesman's Bank, 1 Paige Ch. (N. 
 Y.) 131, 135 (1828). See Riggs v. 
 Purssell, 89 N. Y. 608 (1882); James 
 V. Morey, 2 Cow. (N. Y.) 246, 298 
 (1823) ; s. c. 16 Am. Dec. 475 ; 
 Muir V. Schenck, 8 Hill (N. Y.) 230 
 (1842); s. c. 38 Am. Dec. 633; 
 Young V. Guy, 23 Hun (N. Y.) 1 
 (1881) ; Hovey v. Hill, 3 Lans. (N. 
 Y.)167, 172 (1870); Tabor v. Foy,
 
 426 DEFENCE AGAINST ASSIGNEE OF MORTGAGE. [§355. 
 
 being transferable at law by delivery or indorsement, the 
 assignee takes it subject to all equities between the parties; 
 the fact that he takes the note secured by the mortgage by 
 assignment before maturity free from all defences at law, does 
 not protect the mortgage against equitable defences,' for while 
 a purchaser in good faith of a note before its maturity, which is 
 indorsed in blank, acquires the legal title, and may enforce 
 his rights in a court of law, yet if the note is secured by a 
 mortgage on real estate, and he resorts to a court of equity 
 to foreclose the mortgage, that court will let in any defence 
 which would have been good against the mortgage in the 
 hands of the mortgagee." 
 
 § 355- Other defences against such an assignee. — A 
 
 mortgage absolute on its face, assigned by the mortgagee to 
 the holder as collateral security, may be shown, on fore- 
 closure, by way of defence, to have been originally given as a 
 collateral mortgage.* And while the assignee of a mortgage 
 takes the same subject to all equities between the mortgagor 
 and the mortgagee, yet he does not take it subject to the 
 equities between the mortgagor and a prior assignee of 
 the mortgage.* The reason for the rule is said to be found 
 in the fact, that the assignee can always go to the mortgage 
 debtor and ascertain what off-sets he may have against the 
 mortgage or other chose in action which he is about to 
 purchase from the mortgagee ;* and where he neglects this 
 
 56 Iowa, 539 (1881) ; Woodruff v. C. C. 164, 168 (1832) ; Priddy v. 
 
 Morristown Inst, for Savings, 34 N. Rose, 3 Meriv. 86 (1817) ; Coles v. 
 
 J. Eq. (7 Stew.) 171 (1881) ; Earnest Jones, 2 Vern. 692 (1715) ; Hill v. 
 
 V. Hoskins, 100 Pa. St. 551 (1882) ; Caillovel, 1 Ves. Sr. 122 (1748) ; 
 
 McMuUen v. Wenner, 16 Serg. & R. Turton v. Benson, 1 P. Wms. 496 
 
 (Pa.) 18, 20 (1827) ; s. c. 16 Am. (1718). 
 
 Dec. 543 ; Bury v. Hartman, 4 ' Tpwner v. McClelland, 110 III 
 
 Serg. & R. (Pa.) 175 (1818) ; Foot v. 542 (1884). 
 
 Ketchum, 15 Vt. 258, 268 (1843) ; ^ Towner v. McClelland, 110 HI. 
 
 Norton v. Rose, 2 Wash. (Va.) 298 542 (1884). 
 
 (1796) ; Pickett v. Morris, 2 Wash. « Dickerson v. Wenman, 35 N. J. 
 
 (Va.) 325 (1796) ; Withers v. Greene, Eq. (8 Stew.) 368 (1882). 
 
 50 U. S. (9 How.) 213, 224 (1850) ; * Reineman v. Robb, 98 Pa. St. 
 
 bk. 13 L. ed. 109 ; United States v, 474 (1881). 
 
 Sturges, 1 Paine C. C. 525, 534 * Westfall v. Jones, 23 Barb. (N. 
 
 (1826); Bradley v. Trammel, Hempst. Y.) 9, 13 (1856) ; Murray v. Lylburn,
 
 § 355.J DEFENCE AGAINST ASSIGNEE OF MOETGAGE. 427 
 
 precaution, he will be deemed to have taken the securities 
 upon the representations of the assignor alone as to their 
 legal validity.* 
 
 The right of the obligor to defend against his bond and 
 mortgage, or non-negotiable note and mortgage, in the 
 hands of an assignee, is limited to matters affecting the exis- 
 tence of the debt, to ofT-sets against it, and to a want of 
 consideration. A secret equity can not be pleaded by the 
 mortgagor against an assignee of the bond and mortgage; 
 neither can an agreement with the obligee merely collateral 
 to or inconsistent with the import or legal effect of the 
 instrument.' 
 
 In Pennsylvania, a bond is used almost exclusively in 
 connection with the mortgage ; and, although the mortgage 
 may be assigned so as to enable the assignee to sue in his 
 own name, yet it will be subject to the same equities and 
 rules that govern other non-negotiable instruments or claims.* 
 The same is true in New York* 
 
 3 Johns. Ch. (N. T.) 441 (1817). 
 See Coming v. Murray, 3 Barb. (N. 
 y.) 652, 654 (1848) ; Hovey v. Hill, 
 8 Lans. (N. Y.) 167, 172 (1870); 
 L'Amoreux v. Vandenburg, 7 Paige 
 Ch. (N. Y.) 316 (1838) ; B. c. 32 Am. 
 Dec. 635. 
 
 » Willis T. Twambly, 13 Mass. 204, 
 206(1816). 
 
 • McMastera v. Wilhelm, 85 Pa. 
 St. 218 (1877) ; Commonwealth v. 
 
 Pittsburgh, 34 Pa. St. 496, 520(1859); 
 Pryor v. Wood, 31 Pa. St. 142 (1858); 
 Davis V. Barr, 9 Serg. & R. (Pa.) 137, 
 141 (1822). 
 
 » Twitchell v. McMurtrie, 77 Pa. 
 St. 383 (1875) ; Horstman v. Gerker, 
 49 Pa. St. 282 (1865); Pryor v. 
 Wood, 31 Pa. St. 142 (1858), 
 
 * Trustees of Union College y. 
 Wheeler, 61 N. Y. 88 (1874).
 
 CHAPTER XVIL 
 
 ANSWERS AND DEFENCES. 
 
 FRAUD, MISREPRESENTATION, MISTAKE AND DURESS. 
 
 356. Defence of fraud — Generally. 
 
 357. Defence of fraud by mort- 
 
 gagor. 
 
 358. Remedies on purchase money 
 
 mortgage in case of fraud. 
 859. Remedies by mortgagor 
 against fraud. 
 
 360. Defence of* fraud against 
 
 purchase money mortgage. 
 
 361. False representations as a 
 
 defence. 
 363. Defence of false representa- 
 tions by a married woman. 
 
 363. Defence of false representa- 
 
 tions by purchaser who 
 assumed mortgage. 
 
 364. Misrepresentation as to num- 
 
 ber of acres — Purchase 
 money mortgage. 
 
 § 365. False representations as to 
 extent and boundaries of 
 land. 
 
 366. Mutual mistake of parties as 
 
 a defence. 
 
 367. Against whom mutual mis- 
 
 takes may be corrected. 
 
 368. Remedies for correcting a 
 
 mistake. 
 
 369. Mutual mistake as to title. 
 
 370. Mutual mistake as to quan- 
 
 tity of land. 
 
 371. Defence of undue infiusnce. 
 
 372. Duress as a defence. 
 
 373. Duress under Ohio doctrine. 
 
 374. Mortgage executed by mar- 
 
 ried woman under duress. 
 
 375. Duress o:^ person. 
 
 § 356. Defence of fraud — Generally. — It is a general 
 rule that fraud vitiates everything it touches ; but where 
 fraud enters into a mortgage contract, it will not necessarily 
 render the mortgage void, unless the fraud was committed 
 upon the mortgagor by the mortgagee or his agent, or with 
 the knowledge and assent of the mortgagee or his agent. 
 There may be fraud without a deliberate intention to mis- 
 lead or deceive ; it may consist merely in the denial of what 
 has been previously affirmed.* It has been said that in an 
 action to foreclose a mortgage executed by a married woman 
 upon her separate estate, she may set up as a defence, that 
 she was induced to execute the mortgage by reason of fraudu- 
 lent representations made to her with reference to the nature 
 of the consideration thereof, even though such representations 
 
 ' Ward V. Berkshire Life Ins. Co., 108 Ind. 301 (1886); s. c. 6 West. Rep 596. 
 
 428
 
 § 357.] DEFENCE OF FRAUD. 429 
 
 were not made by the mortgagee nor with his knowledge 
 and consent.* 
 
 Though a mortgage may be made with the intention of 
 defrauding the creditors of the mortgagor, it will not neces- 
 sarily be void as between the parties ; and in an action for 
 foreclosure, where the mortgagee can show a prima facie 
 right to recover on the face of the instrument, without 
 revealing the fraud in the transaction, the defendant will 
 not be permitted to plead as a defence, his own and the plain- 
 tiff's fraudulent intention, and that the mortgage was with- 
 out consideration." And where a debtor purchased real estate 
 which he caused to be conveyed to his wife in fraud of his 
 creditors, it was held that a bona fide mortgage from the 
 husband and wife would not be affected by the fraud.' Pos- 
 session of the premises by the husband and wife at the time 
 of the execution of the mortgage, will not charge the mort- 
 gagee with notice of the fraud ; neither will he be affected 
 by notice of levies upon the property as that of the husband, 
 subsequent to the conveyance to the wife.* But where a 
 conveyance was made with the intention of defrauding credi- 
 tors, such fraudulent intention may be shown by the parties 
 whom it was intended to defraud.* 
 
 § 357. Defence of fraud by mortgagor. — Fraud can be 
 pleaded in answer by the mortgagor only where it was prac- 
 ticed upon him by the mortgagee or his agents, or with- the 
 mortgagee's knowledge ;* and where a mortgagor has been 
 
 > Cridge v. Hare, 98 Pa. St. 561 < Shorten v. Drake, 38 Ohio St. 76 
 
 (1881). (1882). 
 
 2 Bonesteel v. Sullivan, 104 Pa. « Gill v. Henry, 95 Pa. St. 388 
 St. 9 (1883) ; Gill v. Henry, 95 Pa. (1880). 
 
 St. 888 (1880) ; Bljstone v. Bly- « Reed v. Latson, 15 Barb. (N. T.) 
 
 stone, 51 Pa. St. 378 (1865) ; Wil- 9 (1858) ; Aiken v. Morris, 2 Barb, 
 
 liams V. Williams, 84 Pa. St. 312 Ch. (N. Y.) 140 (1847) ; Abbott v. 
 
 (1859); Hendrickson V. Evans, 25 Allen, 2 Johns. Ch. (N.Y.) 519 (1817); 
 
 Pa. St. 441 (18')5) ; Evans v. Dravo, s. c. 7 Am. Dec. 554 ; Champlin v. 
 
 24 Pa. St. 63 (1854); s. c. 62 Am. Laytin, 6 Paige Ch. (KY.) 189 (1836); 
 
 Dec. 359 ; Sheik v. Endress, 3 Watts aff'd 18 Wend. (N. Y.) 407 ; e. c. 31 
 
 «& S. (Pa.) 255 (1842). Am. Dec. 383 ; Allen v. Shackleton, 
 
 3 Shorten v. Drake, 38 Ohio St. 76 15 Ohio St. 145 (1864). 
 (1882).
 
 430 • DEFENCE OF FRAUD. [§358. 
 
 imposed upon by intentional misrepresentation or conceal- 
 ment, he may have redress in equity for damages in addition 
 to and beyond the canceling of his covenants.* Where a 
 trusted kinsman and friend, as an agent of the mortgagee^ 
 is employed to misrepresent the contents of a mortgage^ 
 •uhereby its execution is secured without its being read to 
 the mortgagor, it is a fraud against which relief will be 
 promptly granted.' If fraud is practiced upon a mortgagor 
 in any manner, it will void the mortgage and an action in 
 equity to set it aside may be maintained, although the plain- 
 tiff may be in possession and might maintain his possession 
 against the fraudulent mortgagee in an action at law.* 
 
 To constitute a good defence to an action to foreclose a 
 mortgage, on the ground of fraud in obtaining such mort- 
 gage, it must be shown, not only that the defendant was 
 defrauded, but also that he was defrauded by the mortgagee 
 or his agent, or at least, that the mortgagee, at the time of 
 the execution and delivery of the mortgage, was aware that 
 a fraud was being committed upon the mortgagor. All the 
 facts necessary to establish the fraud and to bring the knowl- 
 edge of it home to the mortgagee, must be distinctly stated 
 in the answer.* 
 
 § 358. Remedies on purchase money mortgage in case 
 
 of fraud. — It is a well established doctrine in American 
 courts that a purchaser of land, who has gone into posses- 
 sion and accepted a deed, can not have relief in equity 
 against the payment of the purchase money, except in 
 cases of fraud. Unless he has taken the precaution to 
 
 ' Belknap v. Sealey, 2 Duer (N. 336 (1838) : Allen v. Shackleton, 15- 
 
 T.) 570 (1853) ; aff'd in 14 N. Y. 143 Ohio St. 145 (1864). See Wilcox v. 
 
 (1856) ; s. c. 67 Am. Dec. 120 ; Howell, 44 Barb. (N. Y.) 396 (1864); 
 
 Abbott V. Allen, 2 Johns. Ch. (N, Butler v. Viele, 44 Barb. (N. Y.) 
 
 Y.) 519, 522 (1817) ; s. c. 7 Am. Dec. 166 (1865); Aiken v. Morris, 2 Barb. 
 
 554 ; Cornell v. Corbin, 64 Cal. 197 Ch. (N.Y.) 140 (1847); Hall v. Sands, 
 
 (1883) ; Pierce v. Tiersch, 40 Ohio 53 Me. 355 (1864) ; Burns v. Hobbs, 
 
 St. 168 (1883) ; Edwards v. McLeay, 29 Me. 273 (1849) ; Baily v. Smith,, 
 
 1 Cooper Eq. 308 (1815). 14 Ohio St. 396 (1863). 
 
 ■' Robinson v. Glass, 94 Ind. 211 * Aiken v. Morris, 2 Barb. Ch. (N.. 
 
 (1883). Y.) 140 (1847). 
 
 *Marston v. Brackett, 9 N. H.
 
 § 358.] FKAUD IN PURCHASE MONEY MORTGAGE. 431 
 
 require covenants as to his title before paying the contract 
 price, his only remedy will be in a court of law/ If the pur- 
 chaser has not protected himself with covenants in his deed 
 of purchase, he will have no remedy upon a failure of title 
 either at law or in equity, in the absence of fraud.* In 
 certain cases, however, relief has been granted in equity 
 against the payment of the purchase money, until the 
 purchaser could be secured against existing incumbrances 
 or defects in his title, where the conveyance was made 
 with full covenants and there were doubts of the grantor's 
 solvency.* 
 
 ' Denston v. Morris, 2 Edw. Ch. 
 (N. Y.) 37(1833) ; Abbott v. Allen, 3 
 Johns. Ch. (N. T.) 519 (1817) ; 8. C. 
 7 Am. Dec. 554. See Corning v. 
 Smith, 6 N. Y. 82 (1851) ; Leggett 
 V. McCarty, 3 Edw. Ch. (N. Y.) 124 
 (1837) ; Gouverneur v. Elmendorf, 5 
 Johns. Ch. (N. Y.) 79 (1821) ; Chester- 
 man V. Gardner, 5 Johns. Ch. (N. Y.) 
 29 (1820); Bumpus v. Platner, 1 
 Johns. Ch. (N. Y.) 213 (1814); Bates 
 V. Delavan, 5 Paige Ch. (N. Y.) 300 
 (1835); Daviison v. DeFreest, 3 
 Sandf. Ch. (N. Y.) 456 (1846); Banks 
 V. Walker, 2 Sandf. Ch. (N. Y.) 348 
 (1845); Edwards v. Bodine, 26 
 Wend. (N. Y.) 109 (1841); Tallmadge 
 V. Wallis, 25 Wend. (N. Y.) 107 
 (1840) ; Tobin v. Bell, 61 Ala. 125 
 (1878) ; Strong v. Waddell, 56 Ala. 
 473 (1876); CuUum v. Branch 
 Bank, 4 Ala. 21 (1843); Alden v. 
 Pryal, 60 Cal. 233 (1883) ; Barkham- 
 sted V. Case, 5 Conn. 538 (1835); 
 Harding v. Commercial Loan Co., 
 84 ni. 261 (1876) ; Beebe v. Swart- 
 ■wout, 8 ni. (3 Gilm.) 163 (1846) ; 
 James v. Hays, 34 Ind. 274 (1870) ; 
 Laughery v. McLean, 14 Ind. 106 
 (1860) ; Natchez v. Minor, 17 Miss. 
 (9 Smed. & M.) 544 (1848) ; Ander- 
 son V. Lincoln, 6 Miss. (5 How.) 279 
 (1840) ; Waddell v. Beach, 9 N. J. 
 
 Eq. (1 Stockt.) 793 (1852); Van 
 
 Waggoner v. McEwen, 2 N. J. 
 Eq. (1 H. W. Gr.) 412 (1841) ; Shan- 
 non V. Marselis, 1 N. J. Eq. (1 Saxt.) 
 426 (1831) ; Maner v. Washington, 3 
 Strobh. (S. C.)Eq. 171(1849); Com- 
 monwealth V. McClanachan, 4 Rand. 
 (Va.) 482 (1826) ; Noonan v. Lee, 67 
 U. S. (2 Black), 507 (1862) ; bk. 17 
 L. ed. 280 ; Patton v. Taylor, 48 U. 
 8. (7 How.) 159 (1849) ; bk. 12 L. ed. 
 649 ; Greenleaf v Cook, 15 U. S. (2 
 Wheat.) 16 (1817) ; bk. 4 L. ed. 173; 
 McFarlane v. Griffith, 4 Wash. C. C. 
 585 (1826). 
 
 « Abbott V. Allen, 2 Johns. Ch. (N. 
 Y.) 519 (1817) ; 8. c. 7 Am. Dec. 
 554; Laughery v. McLean, 14 Ind. 
 108 (1860); Hyatt v. Twomey. 1 
 Dev. & B. (N. C.) Eq. 317 (1836); 
 Maney v. Porter, 3 Humph. (Tenn.) 
 363 (1842). 
 
 * See Jones v. Stanton, 11 Mo. 486 
 (1848) ; Woodruff v. Bunce, 9 Paige 
 Ch. (N. Y.) 443 (1842) ; Bowen v. 
 Thrall, 28 Vt. 385 (1856). But ordi- 
 narily the insolvency or the absence 
 from the state of the vendor will not 
 take the case out of the general 
 principle stated in the text. See 
 Piatt V. Gilchrist, 3 Sandf. (N. T.) 
 120 (1849) ; Hill v. Butler, 6 Ohio St 
 218 (1856).
 
 432 EEMEDIES BY MOETGAGOR AGAINST FEAUD. [§359. 
 
 § 359- Remedies by mortgagor against fraud. — Where 
 fraud has been practiced upon the mortgagor by the mort- 
 gagee or his agent, or witli the mortgagee's knowledge, in 
 an action to foreclose a mortgage executed under such cir- 
 cumstances, the remedy of the mortgagor is to allege damages 
 for such fraud and to recoup them by way of a counter-claim.* 
 In such a case, in addition to the defences which the mortga- 
 gor may set up in an action to foreclose the mortgage, he may 
 seek the affirmative aid of the court, as a court of equity, to 
 cancel the instrument sued upon as fraudulent." This remedy 
 would seem to be founded upon the well established rule, 
 that relief in equity can be had against any deed or contract 
 in writing founded rn mistake or fraud.* 
 
 This remedy, however, has been questioned in some states. 
 Thus, in an early Maine case,* it was said that the learned 
 chancellor in Gillespie v. Moon,' "maintains that relief 
 may be had in chancery against any deed or contract in 
 writing founded in mistake or fraud, and that the mistake 
 may be shown by parol proof, and relief granted to the 
 
 ' Ludington v. Slauson, 38 N. Y. (N. Y.) 133 (1823) ; Funch v. Aben- 
 
 Supr. Ct. (6 J. & S.) 81 (1874). See lieim, 20 Hun (N. Y.) 1, 6 (1880); 
 
 Greene v. Tallinan, 20 N. Y. 191 Cbamplin v. Laytin, 18 Wend. (N. 
 
 (1859) ; 8. c. 75 Am. Dec. 384 ; Ab- Y.) 432 (1837) : s. c. 31 Am. Dec. 
 
 bott V. Allen, 2 Johns. Ch. (N. Y.) 393 ; Alden v. Pryal, 60 Cal. 223 
 
 519 (1817) ; s. c. 7 Am. Dec. 554 ; (1882) ; Bishop v. Clay Ins. Co., 49 
 
 Lathrop v. Godfrey, 6 T. & C. (N. Conn. 176 (1881) ; Reading v. Wes- 
 
 Y.) 96 (1875) ; s. c. 3 Hun (N. Y.) ton, 8 Conn. 122 (1830) ; s. c. 20 
 
 739. Am. Dec. 99 ; Phoenix Ins. Co. v, 
 
 « Gillespie v. Moon, 2 Johns. Ch. Hoflfheimer, 46 Miss. 658 (1872) ; 
 
 (N. Y.) 585 (1817) ; s. c. 7 Am. Dec. Firmstone v. DeCamp, 17 N. J. Eq. 
 
 559 ; Glass v. Hulbert, 102 IMass. 41 (2 C. E. Gr.) 309 (1865) ; Huss v. 
 
 (1869) ; 1 Story Eq. Jur. § 161. Morris, 63 Pa. St. 373 (1869) ; Wal- 
 
 » Gillespie v. Moon, 2 Johns. Ch. den v. Skinner, 101 U. S. (11 Otto), 
 
 (N. Y.) 585 (1817). See Willes v. 585 ; bk. 25 L. ed. 966 (1879) ; Snell 
 
 Yates, 44 N. Y. 529(1871); Wood V. v. Atlantic F. & M. Ins. Co., 98 
 
 Hubbell, 10 N. Y. 486 (1858) ; Faure U. S. (8 Otto), 89 (1878) ; bk. 25 L. 
 
 V. Martin, 7 N. Y. 213 ( 1852 ) ; ed. 54. 
 
 Hutcheon v. Johnson, 33 Barb. (N. * Elder v. Elder, 10 Me. (1 Fairf.) 
 
 Y.) 398 (1861) ; Kent v. Manchester, 86 (1833); s. c. 25 Am. Dec. 208. 
 
 29 Barb. (N. Y.) 595 (1859) ; Fishell » 2 Johns. Ch. (N. Y.) 585 (1817); 
 
 V. Bell, Clarke Ch. (N. Y. ) 38 opinion ^er Chancellor Kent. 
 (1839) ; Ptoosevelt v. Fulton, 2 Cow.
 
 § 360.] FEAUD EN" PUKCHASE MOIfEY MORTGAGE. 433 
 
 injured party, where he sets up the mistake affirmatively 
 by bill or as a defence. We have looked into the cases 
 cited by him, but are not satisfied that they sustain the 
 doctrine to the extent which his language would seem 
 to imply." This case, however, was an application for 
 the reformation of a written contract by enlarging its terms 
 by parol, and for a specific execution of it as amended ; and 
 the same is true of all the other decisions in which the doc- 
 trine laid down by Chancellor Kent in Gillespie v. Moon is 
 questioned. It is worthy of note that in most of the cases 
 the statute of frauds is relied upon as a defence. 
 
 § 360. Defence of fraud against purchase money mort- 
 
 l^age. — In an action by the mortgagee against the mortgagor, 
 upon a note secured by a mortgage given for the purchase 
 money of certain premises, the mortgagor may, as a defence, 
 set up a counter-claim for damages by reason of the fraud of 
 the mortgagee in concealing from him material facts as to the 
 situation and extent of the premises ;* and if such damages 
 exceed, or are equal to, the amount of the mortgage, the 
 claim under the mortgage will be wholly defeated.' And it 
 has been held, that in an action against a mortgagor for 
 purchase money, his right to set up a counter-claim for any 
 excess in price, paid through the vendor's misrepresentations 
 of the extent or value of the property, is the same ivhether 
 such misrepresentations were wilfully or innocently made.' 
 
 In some states the defence of fraud in the consideration of 
 a mortgage, where the fraud is not such as to render the 
 
 • Baughman v, Gould, 45 Mich. weather v. Benjamin 32 Mich. 305 
 481 (1881) ; Burchard v. Frazer, 23 (1875) ; Webster v. Bailey, 31 Mich, 
 Mich. 224 (1871) ; Dayton v. Melick, 36 (1875) ; Steinbach v. Hill, 25 
 32 N. J. Eq. (5 Stew.) 570 (1880) ; Mich. 78 (1872) ; Converse v. Blum- 
 Pierce V. Tiersch, 40 Ohio St. 168 rich, 14 Mich. 109 (1866) ; Pierce v. 
 (1883) : Allen v. Shackleton, 15 Ohio Tiersch, 40 Ohio St. 168 (1883) ; 
 St. 145 (1864). Smith v. Richards, 38 U. S. (13 Pet.) 
 
 « Greene v. Tallman, SON. T. 191 26 (1839) ; bk. 10 L. ed. 42 ; Tuthill 
 
 (1851) ; Lathrop v. Godfrey, 6 T. & v. Babcock, 2 Woodb, & M. C. C. 
 
 C. (N. Y.) 96 (1875) ; s. c. 8 Hun 298 ( 1846 ) ; Smith v. Babcock, 3 
 
 (N. T.) 739. Woodb. & M. C. C. 246 (1846) ; 
 
 2 Baughman v. Gould, 45 Mich. Taylor v. Ashton, 11 Mees. & W. 
 
 481 (1881). See Lockridge v. Foster, 401 (1843) ; Ainslie v. Medlycott, 9 
 
 5 111. (4 Scam.) 569 (1843) ; Stark- Yes. 21 (1803). 
 
 (28)
 
 434 FALSE REPRESENTATIONS. [§§36L-362 
 
 instrument void, but merely to reduce the amount to be 
 recovered upon it, can not be pleaded by an answer alone. 
 Such a defence, it is held, must be set up in a cross-bill.* 
 
 § 361. False representations as a defence.— It is well 
 established that a vendee may set up as a defence to the 
 foreclosure of a purchase money mortgage, or in mitigation 
 of damages, false and fraudulent representations by the 
 vendor.' But a fraudulent representation as to the value of 
 property, does not of itself invalidate a purchase money 
 mortgage for its whole amount, if the property purchased 
 has any value at all ; in any event the property must be 
 restored or a reconveyance thereof tendered, before the 
 mortgage can be canceled,* because, where a party derives 
 any benefit from a purchase, he can not rescind the contract 
 as long as he retains the thing purchased/ And where a 
 purchaser receives anything valuable either to himself or 
 to the fraudulent seller, and does not return it, he thereby 
 affirms the contract, inasmuch as it is void or valid, only at 
 his election.* 
 
 § 362. Defence of false representations by a married 
 woman. — To enable the defence of fraud or misrepresen- 
 tation to be set up in an action to foreclose a mortgage, it 
 seems that the mortgagee must have participated in or have 
 been in some way privy to such fraud or misrepresentation. 
 Thus, where a mortgage covering a homestead and other 
 
 » Parker v. Hartt, 32 K J Eq. (5 308, 311 (1841) ; Perley v. Balch, 40 
 
 Stew.) 225 (1880) ; O'Brien v. Hul- Mass. (23 Pick.) 283 (1839) ; 8. 0. 84 
 
 fish, 22 N. J. Eq. (7 C. E. Gr.) 472 Am. Dec. 56. 
 
 (1871) ; Graham v. Berryman, 19 » Parley v. Balch, 40 Mass. (23 
 
 N. J. Eq. (4 C. E. Gr.) 29 (1868) ; Pick.) 283 (1839) ; B. c. 34 Am. 
 
 Miller v. Gregory, 16 N. J. Eq. (1 Dec. 56 ; Sanborn v. Osgood, 16 N. 
 
 C. E. Gr.) 274 (1863). H. 112 (1844) ; Shepherd v. Temple, 
 
 « See Carey v. Guillow, 105 Mass. 3 N. H. 455 (1826). 
 
 18 (1870); Tuttle v. Brown, 70 * Perley v. Balch, 40 Mass. (23 
 
 Mass. (4 Gray), 457 (1855) ; Burnett Pick.) 283 (1839) ; s. c. 34 Am. Dec. 
 
 V. Smith, 70 Mass. (4 Gray), 60 56 ; Sanborn y. Osgood, 16 N. H. 
 
 (1855) ; Dorr v. Fisher, 55 Mass. (1 112 (1844). 
 
 Cush.) 271 (1848) ; Mixer v. Cobum, » Rowley v. Bigelow, 29 Mass. 
 
 52 Mass. (11 Mete.) 559, 561 (1846) ; (12 Pick.) 307 (1832) ; s. c. 23 Am. 
 
 Howard v. Ames, 44 Mass. (3 Mete.) Dec. 607 ; Ayers v. Hewitt, 19
 
 § 363,] FALSE REPRESENTATIONS AS A DEFENCE. 435 
 
 property w^as presented to a wife by her husband for execu- 
 tion, and signed by her under the supposition that the home- 
 stead was not included therein, it was held that the mortgage 
 was valid, as it did not appear that the mortgagee had 
 any knowledge of the circumstances under which it was 
 signed.* 
 
 In the case of Alexander v. Bouton," a married woman, to 
 secure the debt of her husband, joined him in the execution 
 of a note and mortgage upon her separate property, having 
 been induced to do so by the representations of her husband 
 that she was to be liable only to the extent of the mortgaged 
 property. The mortgagee also took a collateral agreement 
 from others to secure any deficiency that might remain after 
 the sale of the mortgaged property ; but the defendants 
 were not parties to this agreement. In a foreclosure of 
 the mortgage it was held, that the wife was bound as 
 principal, and that her liability was not modified by her 
 agreement with her husband, nor by the additional security 
 taken by the plaintiff. But, in Indiana, a person taking an 
 incumbrance on the property of a married woman, is bound 
 to inquire whether the consideration is for her benefit or for 
 the benefit of another; and, unless he is misled by her con- 
 duct or misrepresentations, he will be held to have acquired 
 a knowledge of the facts which prudent inquiry would have 
 disclosed.* 
 
 § 363. Defence of false representations by purchaser 
 who assumed^ mortgage. — It has been held in an action 
 by a mortgagee to recover the amount of his mortgage 
 against a purchaser of the mortgaged premises, who received 
 a conveyance thereof subject to the mortgage and assumed 
 the payment of the same, that it is a good defence, that the 
 grantor of the defendant had no title to the property ; that 
 his representations respecting the same were false and fraudu- 
 lent, and that the defendant was induced thereby to assume 
 
 Me. 281 (1841) ; Sanborn v. Osgood, » 55 Cal. 15 (1880). 
 
 16 N. H. 112 (1844) ; Ayer v. » Cupp v. Campbell, 103 Ind. 213 
 
 Hawkes, 11 N. H. 148 (1840). (1885) ; a c. 1 West Rep. 255. 
 
 ' Edgell V. Hagens, 53 Iowa, 223 
 (1880).
 
 436 MISKEPRESENXmO QUANTITY — DEFEi^fCE. [§ 364. 
 
 the payment of the mortgage.' Where a person has pur- 
 chased land expressly subject to a mortgage, such purchaser 
 can not set up as a counter-claim, a fraud practiced upon him 
 after the mortgage was given, if there is nothing to connect 
 the plaintiff with the fraud of the mortgagor.* 
 
 Where a vendor, under a misapprehension of his legal 
 rights, 'makes false representations on which his grantee 
 relies, they will constitute such a fraud as will be a ground 
 for relief in an action for the foreclosure of a mortgage 
 given for part of the purchase money.' 
 
 To be available as a defence the misrepresentations must 
 be as to facts ; misrepresentations merely as to the value of 
 the property will not be sufficient.* And where a defen- 
 dant in a foreclosure suit avers that the mortgage was 
 procured by false representations, the burden of proving the 
 same will be on him.' 
 
 § 364. Misrepresentation as to number of acres — 
 Purchase money mortgage. — In cases where a vendor 
 fraudulently misrepresents the number of acres and thereby 
 induces the vendee to pay more for the premises than he 
 otherwise would have paid, an abatement will be allowed.* 
 And where the vendor of land, by misrepresenting its extent, 
 induces a purchaser to incur a liability for land which the 
 vendor is unable to convey, the effect of the transaction, in 
 the eyes of the law, is a fraud upon the purchaser, even 
 though both parties may act in good faith. ^ 
 
 > Benedict v. Hunt, 32 Iowa, 27 176 (1845) ; Flint v. Jones, 5 "Wis. 
 
 (1871). 424 (1856) ; Coulson v. Coulson, 5 
 
 « Reed v. Latson, 15 Barb. (N. Y.) Wis. 79 (1856) ; Savery v. King, 5 
 
 9(1853). H. L. Cas. 627 (1856); s. c. 35 
 
 2 Champlin v. Laytin, 6 Paige Ch. Eng. L. & Eq. 100. 
 
 (N. Y.) 189 (1836) ; aff'd 18 Wend. « Dayton v. Melick, 34 N. J. Eq. 
 
 (N. Y.) 407 ; B. c. 31 Am. Dec. 383. (7 Stew.) 245 (1881). 
 
 * Sanborn v. Osgood, 16 N. H. 112 ' Baughman v. GouJd, 45 Mich. 
 
 (1844). 481 (1881). See Starkweather v. 
 
 »Ricord v. Jones, 33 Iowa, 26 Benjamin, 32 Mich. 305 (1875); 
 
 (1871) ; Perrett v. Yarsdorfer, 37 Webster v. Baily, 31 Mich. 36 
 
 Mich. 596 (1877) ; Sloan v. Hoi- (1875) ; Steinbach v. Hill, 35 Mich, 
 
 comb, 29 Mich. 153 (1874) ; Baldwin 78 (1872) ; Convers v. Blumrich, 14 
 
 V. Bucklin, 11 Mich. 389 (1863). See Mich. 109 (1866). 
 Buck V. Sherman, 2 Doug. (Mich.)
 
 § 365.] MISEEPKESEJS^ILXG QUANTITY DJiFEIS^CE. 437 
 
 But it has been held that the vendee of land can not claim 
 a deduction from a purchase money mortgage in a foreclosure 
 suit, on the ground that his vendor, who was not the mort- 
 gagor, misstated the number of acres of land conveyed, and 
 that the vendor of such vendor, who was the mortgagee 
 and complainant, made a similar misstatement when he sold 
 such land. To authorize a deduction the mortgagee and the 
 owner must be privies in contract. Thus, where A. sold a 
 farm to B., misstating the number of acres, and taking a mort- 
 gage for part of the consideration, and B. sold, making the 
 5ame misstatement, to C, who assumed the payment of B.'s 
 mortgage, in an action by A. to foreclose, it was held that C. 
 could not set up these facts in order to offset his damages 
 against the mortgage.' 
 
 § 365- False representations as feo extent and bound- 
 aries of land. — It is no defence to an action for fraud in 
 misrepresenting the quantity of land in a parcel which the 
 defendant was selling the plaintiff by the acre, that the 
 latter saw the land and was as able to judge of its size as the 
 defendant ; a positive assurance of the area of the parcel of 
 land made under such circumstances is very material, and is 
 equivalent to an assurance of measurement ; and if the 
 statement is false and the vendee is deceived thereby, it 
 constitutes a fraud for which a court of equity will grant 
 relief.^' 
 
 The court held in a recent Michigan case,' that the principle, 
 that there is no fraud where both parties have equal means 
 of judging, is not applicable to such a case, for it will not be 
 presumed that people generally can judge with accuracy, 
 by the eye, of the contents of a parcel of land ; but that 
 the principle, that one who dissuades another from inquiry 
 and deceives him to his prejudice is responsible, is in point. 
 Where a vendor in the sale of land misrepresents the 
 boundaries of such land, the vendee may plead in defence 
 raudulent representations as to the extent of the property 
 
 > Davis V. Qark, 33 N. J. Eq. (6 Stew.) 579 (1881). 
 • Starkweather v. Benjamin, 33 Mich. 305 (1875). 
 » Starkweather v. Benjamin, 33 IVIieh. 305 (1875).
 
 438 misrepeese:ntations as to BOUin^AiiiES. [§366. 
 
 and recoup in damages in an action by such vendor to fore- 
 close a mortgage taken to secure part of the purchase price 
 thereof,* whether the vendor's misrepresentations were inno- 
 cently or wilfully made.* 
 
 § 366. Mutual mistake of parties as a defence.— Courts 
 of equity will relieve against a mistake as well as against 
 fraud in a deed or contract in writing, both where the plain- 
 tiff seeks the relief affirmatively and where the defendant 
 pleads it as a defence,* and will correct the instrument so as 
 to make it express the intention and agreement of the par- 
 ties.* Where the fact of a mistake appears and the interests 
 of no third party intervene to raise questions of equitable 
 rights, it is the duty of the court to make the correction ; 
 and this duty is co-extensive with the mistake, and extends 
 not merely to the reformation of the original instrument, 
 but also to all subsequent proceedings, judgments and 
 decrees, into which the mistake may have been carried.* 
 
 To entitle a party to relief on the ground of mutual mis- 
 take, in a case free from fraud, the mistake must be as to a 
 material fact, constituting the very essence and terms of 
 the contract ; and the fact must be of such a nature that the 
 party could not by reasonable diligence obtain knowledge of 
 it when put upon inquiry.* But it will be sufficient notice 
 of the mistake, if the facts stated in the record of the 
 mortgage are such as to put a subsequent purchaser from 
 the mortgagor, or a judgment creditor, upon inquiry, which 
 would lead to a knowledge of the mistake.* 
 
 • Pierce v. Tierscli, 40 Ohio St. and strong, so as to establish the 
 168 (1883) ; Allen v. Shackleton, 15 mistake to the entire satisfaction 
 Ohio St. 145 (1864). of the court ; Gillespie v. Moon, 
 
 * Baughman v. Gould, 45 Mich. supra. 
 
 481 (1881) ; Pierce v. Tiersch, 40 * See Dayton v. Melick, 34 N. J. 
 
 Ohio St. 168, 172 (1883). Eq. (7 Stew.) 245 (1881). 
 
 2 Gillespie v. ]Moon, 2 Johns. Ch. ' First National Bank of Parsons 
 
 (N. Y.) 585 (1817) ; s. c. 7 Am. Dec. v. Wentworth, 28 Kan. 183 (1882). 
 
 559 ; Bush v. Bush, 33 Kau. 556 « Taylor v. Fleet, 4 Barb. (N. T.) 
 
 (1885) ; 8. c. 6 Pac. Rep. 794 ; 95 (1848). See Melick v. Dayton, 84 
 
 Davenport v. Sovil, 6 Ohio St. 459 N. J. Eq. (7 Stew.) 245 (1881) ; 
 
 (1856). The evidence to show a Hammond v. Allen, 2 Sumn. C. C. 
 
 mistake in a mortgage must be clear 887 (1836).
 
 §§ 367-368.] DEFENCE OF MUTUAL MISTAKE. 
 
 439 
 
 § 26y. Against whom mutual mistakes may be cor- 
 rected. — Such a mutual mistake may be corrected not only 
 as against the mortgagor, but also as against his heirs, 
 representatives,' assigns,' attaching creditors,' judgment cre- 
 ditors,* and purchasers' with notice of the mistake, and as 
 against a junior mortagagee whose lien was given as a 
 security for an antecedent debt," but not as against sub- 
 sequent bona fide purchasers.^ Where a clause is surrep- 
 titiously inserted in a deed conveying property, contrary to 
 the contract of the parties, purporting to bind the purchaser 
 personally with the assumption of the mortgage debt existing 
 against the property, the vendee may have the deed reformed 
 by striking out such clause.* 
 
 § 368. Remedies for correcting: a mistake. — A mort- 
 gagee may come into a court of equity and have his mortgage 
 reformed by the correction of a mistake in the description of 
 the lands conveyed, and have it foreclosed in the same 
 
 ■f National Bank v. Dayton, 116 
 m. 257 (1886). 
 
 • McKay v. Wakefield, 63 Ind. 37 
 (1878). 
 
 ^ Andrews v. Gillespie, 47 JST. Y. 
 487 (1872). • 
 
 3 Bushv. Bush, 33 Kan. 556(188.5); 
 s. c. 6 Pac. Kep. 794. 
 
 * Boyd V. Anderson, 103 Ind. 217 
 (1885) ; Duncan v. Miller, 64 Iowa, 
 223 (1884). See Monticello Hydrau- 
 lic Works V. Loughry, 72 Ind. 562 
 (1880) ; Wainwright v. Flanders, 64 
 Ind. 306 (1878); Busenbarke v. 
 Ramey, 53 Ind. 499 (1876) ; J'landers 
 V. O'Brien, 46 Ind. 284 (1874); 
 Glideweld v. Spaugh, 28 Ind. 319 
 (186G) ; Sample v. Rowe, 24 Ind. 208 
 (1865) ; Orth v. Jennings, 8 Black f. 
 (Ind.) 420 (1847) ; Sparks v. State 
 Bank, 7 Blackf. (Ind.) 469 (1845) ; 
 B. c. 39 Am. Dec. 437; Wliite v. 
 Wilson, 6 Blackf. (Ind.) 448 (1843). 
 
 ' Gouverneur v. Titus, Paige 
 Ch. (N. Y.) 347 (1837) ; Whitehead 
 
 V. Brown, 18 Ala. 682 (1851) : Wall 
 V. Arrington, 13 Ga. 88 (1853); 
 White V. Wilson, 6 Blackf. (Ind.) 
 448 (1843) ; s. c. 39 Am. Dec. 437 ; 
 Simmons v. North, 11 Miss. (3 
 Smed. & M.) 67 (1844) ; Strang v. 
 Beach, 11 Ohio St. 283 (1860) ; s. c. 
 78 Am. Dec. 308. 
 
 " Busenbarke v. Rainey, 53 Ind. 
 499 (1876). See Vanlleusen v. Rad- 
 cliff, 17 N. Y. 580 (1858) ; s. c. 73 
 Am. Dec. 480 ; Manhattan Co. v. 
 Evertson, 6 Paige Ch. (N. Y.) 457 
 (1837) ; Powell v. Jeffries, 5 111. (4 
 Scam.) 387 (1843); Clay v. Ililde- 
 brand, 34 Kan. 694 (1886) ; Cox v. 
 Esteb, 81 ]Mo. 393 (1884) ; Morse v. 
 Godfrey, 3 Story C. C. 364 (1844). 
 
 '' Busenbarke v. Ramey, 53 Ind. 
 499 (1876) ; Flanders v. O'Brien, 46 
 Ind. 284 (1874) ; 2 Hare & W. Lead. 
 Cas. (3d Am. cd.) 104. 
 
 * Albany City Savings Inst. v. 
 Burdick, 87 N. Y. 40, 48 (1881). See 
 ante § 224.
 
 440 DEFENCE OF MUTUAL MISTAKE. [§369. 
 
 action, even after the law day has passed,' because when 
 a court once acquires jurisdiction for the purpose of fore- 
 closing a mortgage, it may proceed to settle all questions 
 in litigation between the parties growing out of the mortgage,' 
 Where there has been a mutual mistake in the description 
 of the premises mortgaged, which is not discovded until 
 after the sale on foreclosure, the judgment and sale may be 
 set aside and an amended complaint may be filed, so as to 
 obtain a new judgment correcting the description, reforming 
 the mortgage and directing a new sale, providing the property 
 was bought in by the mortagagee at the foreclosure sale,* 
 on the principle that where the plaintiff in a foreclosure 
 has become the purchaser and has not parted with his interest, 
 the decree may be opened by the court which granted 
 it, if the error can not be corrected on a rehearing or 
 upon a bill to review ;* or a new action may be maintained 
 to correct the misdescription.' But it has been held, that 
 a purchaser upon foreclosure can not come into court and 
 ask that other property, in the place of that sold to 
 and purchased by him, be subjected to his purchase on 
 the ground that by mistake, the mortgage covered different 
 property from that intended/ 
 
 § 369. Mutual mistake as to title. — Although, as a 
 general rule, a mistake of law forms no ground for reforming 
 a contract,^ yet, where parties enter into a contract under a 
 
 » A-lexander v. Rea, 50 Ala. 450 773(1878); Schwickerath ,. Cooksey, 
 
 (1873). See Savings & Loan Society 53 Mo. 75 (1873) ; Davenport v. 
 
 V. Meeks, 66 Cal. 371 (1885) ; s. c. 5 Sovil, 6 Ohio St. 459 (1856). 
 
 Pac. Rep. 624; Doe v. Vallejo, 29 * Thompson v. Maxwell, 16 Fla. 
 
 Cal. 385 (1866) ; Halsted v. Lake 773, 778 (1878). See Millspaugh v. 
 
 County, 56 Ind. 363 (1877); Barnaby McBiide, 7 Paige Ch. (N. Y.) 509 
 
 V. Parker, 53 Ind. 271 (1876); Palmer (1839) ; s. c. 34 Am. Dec. 360, 
 
 V. Windrom, 12 Neb. 494 (1882); » Burkam v. Burk, 96 Ind. 270 
 
 Davenport v. Sovil, 6 Ohio St. 459 (1884) ; Armstrong v. Short 95 Ind. 
 
 (1856). See also Bentley v. Smith, 2 26 (1883) ; First National Bank of 
 
 Keyes (N. Y.) 343 (1866), Parsons v. Wentworth, 28 Kan. 183 
 
 « Alexander v. Rea, 50 Ala. 450 (1882). 
 
 (1873) ; Scruggs v. Driver, 31 Ala. « Schwickerath v, Cooksey, 53 
 
 274 (1857); Stow v. Bozeman. 29 Mo. 75 (1873). See Barnard v. 
 
 Ala. 397 (1856). Duncan, 38 Mo. 170 (1866) • Haley 
 
 * Thompson v. Maxwell, 16 Fla. v. Bagley, 37 Mo. 363 (1866).
 
 § 370.] MUTUAL JnSTAKE AS TO TITLE. -iil 
 
 mutual mistake of law, or a mutual misconception of their 
 legal rights amounting to a mistake of law, by reason of which 
 their object is prevented from being accomplished, such 
 contract is as liable to be set aside or reformed as a con- 
 tract founded upon a mistake in matters of fact.' 
 
 Thus, where a vendor, under a misapprehension of his 
 legal rights, sold a lot of land, which, by the terms of con- 
 veyances of adjoining lands to prior purchasers, had been 
 constructively dedicated for the purposes of a public street, 
 and represented to the purchaser that the lot would not be 
 taken for a street without paying to the vendee the full 
 value thereof, but without communicating the facts upon 
 which the legal question as to the rights of the prior pur- 
 chasers depended, and the vendee, relying upon this informa- 
 tion, purchased and in part paid for a lot, which was in fact 
 of no value either to him or to the vendor, it was held that 
 the vendee was entitled to relief as against a bond and mort- 
 gage given by him on such contract, and to a return of the 
 purchase money which had been paid toward the lot under 
 such mutual misapprehension.' 
 
 It is a general rule, however, that ignorance of the law, 
 with a full knowledge of the facts, can not generally be 
 pleaded as a defence ; nor will it protect a party from the 
 operation of a rule of equity law, when the circumstances 
 would otherwise create an equitable bar.' 
 
 § 370. Mutual mistake as to quantity of land. — A mere 
 
 mistake of both parties as to the number of acres of land 
 
 , conveyed, is no ground of defence to a mortgage given for 
 
 ■I Gamar v. Bird, 57 Barb. (N. Y.) c 31 Am. Dec. 382. See Garnar v. 
 
 277, 291 (1870). But it lias been Bird, 57 Barb. (X. Y.) 277, 291 
 
 held in South Carolina that the (1869) ; Mount v. Morton, 20 Barb, 
 
 maxim ignorantia Juris non excuaat, (N. Y.) 123 (1855). 
 
 applies in civil cases where redress * Champlin v. Laytin, 6 Paige Ch. 
 
 is sought for a wrong done or a (N. Y.) 189 (1836) ; aff'd 18 Wend, 
 
 right withheld, Lawrence v. Beau- (N. Y.) 407 ; s. c. 31 Am. Dec. 382. 
 
 bien, 2 Bail. (S. C.) L. 623 (1831) ; » gtorrs v. Barker, 6 Johns. Ch. 
 
 8. c. 23 Am. Dec. 155. (N. Y.) 166 (1882). But see Lawrence 
 
 » Champlin v. Laytin, 1 Edw. Ch. v. Beaubien, 2 Bail. (S. C.) L. 623 
 
 (N. Y.) 467 (1832) ; s. c. afE'd 6 Paige (1831); 23 Am. Dec. 155. 
 Ch. (N. Y.) 189 ; 18 Wend. 407 ; s.
 
 442 
 
 MUTUAL MISTAKE AS TO AKEA. 
 
 [§ 370. 
 
 the purchase money, there being no fraud or misrepresenta- 
 tion by the grantor.* But the question of abatement from 
 the amount of the mortgage on account of a deficiency in the 
 area of the premises, may be raised by answer by the mort- 
 gagor in foreclosure proceedings.* 
 
 It has been held that a reply to a counter-claim, which sets 
 up a prior mortgage on the premises, alleging a material mis- 
 take in the description of the lands in the defendant's mort- 
 gage, and that it was not intended to cover the same premises 
 as the mortgage sought to be foreclosed, is good on de- 
 murrer.' And under executory contracts relief will be granted, 
 where it clearly appears that the parties acted under a mutual 
 mistake as to the quantity of land sold, and it is proved that 
 the deficiency was material, if the mistake on the part of the 
 vendee was caused by the misrepresentation of the vendor, 
 although not fraudulently made.* Thus, where the owner of 
 a farm, innocently but untruly, states the quantity of 
 land contained therein, and a purchaser, relying upon the 
 statement, buys the land and takes a deed thereof, and 
 
 1 Nelson v. Hall, 60 N. H. 274 
 (1880) ; Melick v. Dayton, 34 K J. 
 Eq. (7 Stew.) 245 (1881). Where 
 there has been no fraud or misrepre- 
 sentation, the purchaser is neither 
 liable for a surplus nor entitled to a 
 deduction on account of any defi- 
 ciency in the quantity or measurement 
 of the premises mentioned in the 
 contract or deed. Morris Canal Co. 
 V. Emmett, 9 Paige Ch. (N. Y.) 168 
 (1841) ; 8. c. 37 Am. Dec. 388. See 
 Northup V. Sumney, 37 Barb. (N. Y.) 
 196 ( 1858 ) ; Mann v. Pearson, 2 
 Johns. (N. Y.) 37 (1806); Kirkpatrick 
 V. McMillen, 14 La. 497 (1840); Pow- 
 ell V. Clark, 5 Mass. 355 (1809) ; s. c. 
 4 Am. Dec. 67 ; Clark v. Davis, 33 
 K. J. Eq. (5 Stew.) 530 (1880); 
 Beach v. Stearnes, 1 Aik. (Vt.) 325 
 (1835). It seems that while a defi- 
 ciency in the quantity of the land sold 
 may be set up by the vendee in an 
 action to foreclose a mortgage given 
 
 as part of the purchase price, it caa 
 not be pleaded by the grantee of the 
 vendee, who has assumed and cove- 
 nanted to pay the mortgage as part 
 of his purchase money. Clark v. 
 Davis. Supra. 
 
 ' Melick V. Dayton, 34 N. J. Eq. 
 (7 Stew.) 245 (1881). 
 
 Porter v. Reid, 81 Ind. 569 
 (1882). , 
 
 < Belknap v. Sealey, 14 N. Y. 143 
 (1856) ; s. c. 67 Am. Dec. 130; afl'g 
 8. c. 2 Duer (N. Y.) 570. Wliere 
 the statement made by the vendor 
 of the quantity of land sold is mere 
 matter of description and not of the 
 essence of the contract, no relief 
 will be granted. Stebbins v. Eddy, 
 4 Mason C. C. 414 (1827). See this 
 case, collating the authorities, for a 
 full discussion as to when a court 
 will grant relief for a deficiency in 
 the quantity of land purchased.
 
 § 371.] DEFENCE OF CJNDUE INFLUENCE. 4-13 
 
 subsequently discovers that the actual quantity deeded to 
 him is materially less than that stated, he will be entitled 
 to plead such deficiency as a defence in abatement in an 
 action to foreclose a mortgage given by him as part of the 
 purchase money.* 
 
 § 371. Defence of undue influence. — A contract made 
 between persons sustaining relations of trust and confidence, 
 where it appears that the stronger and controlling mind has 
 obtained an advantage, will be set aside as fraudulent unless 
 the beneficiary shows good faith in the transaction.* Thus, 
 where a daughter, through undue influence, and without an 
 adequate consideration, procured from her aged and infirm 
 mother the execution of a note and mortgage, it was held 
 that these obligations should be canceled upon the petition 
 of the heirs of the mother.* And relief may be granted as 
 against a mortgage extorted by a son from his parents by 
 oppressive means and for an inadequate consideration, while 
 he was practically in a position of guardianship over them 
 and their property.* 
 
 Where one standing in loco parentis to minor owners of 
 real estate, who are accustomed to obey him, and are ignorant 
 of business affairs, induces them after they have attained 
 their majority, to execute to him a mortgage, it may be 
 impeached for fraud and undue influence.* And where a 
 man, who lived for years in unlawful relations with a woman 
 who shared his home and who claimed to be a spiritualistic 
 medium and to have daily communication with his deceased 
 wife, executed a mortgage in favor of such woman, it was 
 held that fraud and undue influence would be presumed in 
 
 » Paine v. Upton, 87 N. Y. 327 * Spargur v. Hall, 62 Iowa, 498 
 
 (1882) ; s. c. 41 Am. Rep. 371. See (1883) ; Leighton v. Orr, 44 Iowa, 
 
 Couse V. Boyles, 4 N. J. Eq. (3 H. 679 (1876) ; Tucke v. Buchliolz, 43 
 
 W. Gr.) 212 (1842); s. c. 38 Am. Dec. Iowa, 415 (1876). 
 
 514 ; Darling v. Osborne, 51 Vt. 148 » Spargur v. Hall, 62 Iowa, 498 
 
 (1878) ; Quesnel v. Woodlief, 2 Hen. (1883). 
 
 & :\runf . (Ya.) 173 (1808) ; Hill v. ■» Bowe v. Bowe, 42 Mich. 195 
 
 Buckley, 17 Ves. 395 ^1811) ; Shovel (1879). 
 
 V Bogan, 2 Eq. Cas. Abr. 688 * Tucke v. Buchholz, 43 Iowa, 415 
 
 (1708). (1876).
 
 444 itJURESS AS A DEFENCE. [§ 372. 
 
 the absence of proof of a valid consideration for the con- 
 veyance.' 
 
 § 372. Duress as a defence. — A defendant may show 
 as a defence to an action to foreclose a mortgage that the 
 ^strument was executed under duress, and that it is for that 
 reason, void.* The duress need not be actual physical 
 restraint, or duress of the person ; it may be a species of 
 force, terrorism or coercion which overcomes free agency, 
 and under which fear seeks security in concession to threats 
 and to apprehensions of injury.* 
 
 The defendant may show that the note was paid, as well 
 as given, under duress, such as a threat to have the obligor's 
 son arrested and prosecuted for burglary, larceny or other 
 crime ;* but if the money be voluntarily paid in fulfillment 
 of such an agreement, it can not be recovered.' The defence 
 of duress is available to one who stands in the relation of 
 surety as well as to the principal.' Where threats of a crimi- 
 nal prosecution are resorted to, for the purpose of overcoming 
 the will of the party threatened by intimidating or terrifying 
 him, they amount to such duress or pressure as will avoid a 
 contract thereby obtained,^ And where a person has been 
 induced by threats of a groundless prosecution to execute a 
 note and mortgage, a court of equity will grant relief and 
 restrain their collection." 
 
 ' Leighton v. Orr, 44 Iowa, 679 Nevada v. Bryan, 62 Iowa, 43 
 
 (1876). (1883). 
 
 « Vinton v. King, 86 Mass. (4 » Eade v. Slimmon, 26 N. Y. 9 
 
 Allen), 562, 564 (1862). See Eadie v. (1862), and Lefebvre v. Dutruit, 51 
 
 Slimmon 26 N. Y. 9 (1862); Sears v. Wis. 326 (1881); s. c. 37 Am.Rep. 833. 
 
 Shafer, 1 Barb. (N. Y.) 408 (1847) ; ^ Schultz v. Culbertson, 49 Wis. 
 
 B. c. 6 N. Y. 272; Whelan v. 122(1880). 
 
 Whelan, 3 Cow. (N. Y.) 537(1824) ; <> Schultz v. Culbertson, 49 Wis. 
 
 Evans v. Ellis, 5 Den. (N. Y.) 640 122 (1880). 
 
 (1846) ; Schoener v. Lissauer, 36 « Ingersoll v. Roe, 65 Barb. (K Y.) 
 
 Hun (N. Y.) 100 (1885); Mills v. 346(1873). 
 
 Rodewald, 17 Hun (N. Y.) 297, 304 ■> Eadie v. Slimmon, 26 N. Y. 9 
 
 (1879); Howell V. Ransom, 11 Paige (1862) ; Fisher v. Bishop, 36 Hul 
 
 Ch. (N. Y.) 538 (1845) ; Ellis v. (N. Y.) 112, 114 (1885) ; Haynes v. 
 
 Messervie, 11 Paige Ch. (N. Y.) 467 Rudd, 30 Hun (N. Y.) 239 (1883) ; a 
 
 (1845) ; Spargur v. Hall, 62 Iowa, c. 83 N, Y. 251 ; Williams v. Baj- 
 
 498 (1883) ; First Nat. Bank of ley, 35 L. J. Ch. 717 (1866).
 
 § 373.] duretss uxdeb onio doctrike. 445 
 
 Where the consideration of a bond is an agreement to 
 interfere with the due administration of a criminal prosecu- 
 tion, or its execution is procured by duress, it will not be 
 binding on the obligor.' But, if such a bond is voluntarily 
 executed for the purpose of making reparation to the persons 
 defrauded by the obligor, it will be binding, notwithstanding 
 the fact that such persons were prosecuting the obligor for 
 the fraud, and such prosecution was pending at the time of the 
 execution of the bond.' 
 
 § 373' Duress under Ohio doctrine. — In a recent case* 
 the supreme court of Ohio held, that in an action by a 
 mortgagee against the mortgagor under the statute,* to 
 recover possession of the lands mortgaged, the fact that such 
 mortgage was given to compound a felony, is not available 
 as a defence. The court say, Okey, C. J., writing the opinion, 
 that, " An examination of these cases will show very 
 clearly, that under the law as it existed before the adoption 
 of the Code of Civil Procedure of 1853, there was no such 
 defence to an action of ejectment based on a mortgage like 
 this ; nor could a bill in chancery, founded on such facts, be 
 entertained to restrain such action or quiet the title of the 
 mortgagor. As against such mortgage the only relief in 
 the courts available to the mortgagor or his heirs, on the 
 facts here stated, was a bill to redeem. It is urged, how- 
 ever, that the rule is now very different, and that by reason 
 of the blending of legal and equitable actions and defences, 
 under the Code of Civil Procedure, the defence of illegality 
 is equally available to the defendant whether an action is 
 brought upon the note or upon the mortgage to obtain a 
 sale of the property, or for the recovery of the possession of 
 the land under the mortgage. True, the rights of parties, 
 with respect to a few matters, are changed by the Code, as, 
 for instance, the acknowledgment of a debt sufficient to take 
 
 * James v. Roberts, 18 Ohio, 548 Rep. 159 (1888) ; s. c. 19 Pitts. L 
 (1849). J. 84 ; 21 Chicago Leg. News, 47. 
 
 1 Avery v. Layton, (Pa.) 12 Crit. » Williams v. Englebrecht, 37 
 
 Rep. 159 (1888) ; s. c. 19 Pitts. L. J. Ohio St. 383(1881). 
 
 84 ; 21 Chicago Leg. News, 47. ■» Ohio Civil Code, § 558 ; Rev. 
 
 * Avery v. Layton, (Pa.) 12 Crit. Stat. §§57, 81.
 
 446. DUKESS UNDEE OHIO DOCTRmE. [§ 374. 
 
 a case out of the statute of limitations, must now be in 
 writing ; and tiie practical effect of permitting, in a proper 
 case, the determination of the rights of the parties, legal and 
 equitable, in the same suit, enables a person sometimes to 
 secure rights, which, under the former practice, would have 
 )een lost. But, with the exception of the express changes 
 referred to, the rights of parties are unaffected by the Code. 
 This view is well expressed in Dixon v. Caldwell,' where 
 it was said : * The distinction between legal and equhable 
 rights exists in the subjects to which they relate, and is not 
 affected by the form or mode of procedure that may be pre- 
 scribed for their enforcement. The Code abolished the 
 distinction between actions at law and suits in equity, and 
 substituted in their place one form of action ; yet the rights 
 and liabilities of parties, legal and equitable, as distinguished 
 from tne mode of procedure, remain the same since, as 
 before, the adoption of the Code.' As the heirs of the mort- 
 gagor could, in a case like this, have maintained a bill under 
 the former practice, to redeem, they may, of course, obtain the 
 same relief in this case by cross-petition.' This is not a 
 change of the rights of the parties. But, as we have seen, 
 a bill in chancery could not have been entertained to 
 restrain an action of ejectment on a mortgage like this, and 
 hence the heirs of the mortgagor can not maintain a cross- 
 petition for such relief in this case. To hold otherwise is to 
 affirm that the Code has effected most material changes in 
 the rights of the parties, without any words to indicate a 
 purpose to make such change." 
 
 § 374. Mortgage executed by married woman under 
 duress. — Where the signature of a woman to a mortgage 
 was obtained by duress, the mortgage purporting in terms 
 to charge her separate estate, and stating that the con- 
 sideration therefor was for the benefit of such estate, it may 
 be shown in defence that such statement was not true, that 
 the note was not given in the course of any separate busi- 
 ness carried on by her, but that it was obtained by duress and 
 fraud. Such a mortgage can not be enforced against her 
 
 » IS Ohio St. 412, 415 (1864). • Ohio Rev. St. § 6071.
 
 § 374.7 DURESS or maeeied womait. 447 
 
 even in the hands of a bona fide holder.' Thus, where a 
 woman's husband was illegally restrained in the office of an 
 attorney, who represented to her that unless she executed 
 a mortgage on her homestead, her husband would be arrested 
 on a charge of felony, and she executed the mortgage sued 
 upon, solely to avoid his arrest, the mortgage was held 
 to have been obtained under duress and therefore to be 
 
 void.^ 
 
 But it will not be a good plea of duress in an action to 
 foreclose a mortgage executed by a husband and wife, that 
 she was induced to sign the mortgage through represen- 
 tations that the plaintiff would pursue legal remedies against 
 the husband, to collect the debt secured, and would sell 
 them out of house and home, in case she did not execute it.' 
 And where a- husband threatened to poison himself unless 
 his wife signed a note as security for him, which threat was 
 conveyed to her through the payee, by means whereof 
 she was induced to sign such note, the court held that 
 this did not amount to such duress as would avoid her 
 
 contract.* 
 
 Where a public defaulter disclosed his situation and his 
 liabiHty to a criminal prosecution to his wife, and urged her 
 to execute a mortgage to secure his sureties, declaring at 
 the time that he would commit suicide before he would go 
 to jail, and she executed, acknowledged and dehvered the 
 mortgage without final objection after several days' hesita- 
 tion and importunity— the mortgagees having no knowledge 
 of her reluctance, and no prosecution having been com- 
 menced or threatened against the husband, and he not having 
 represented to his wife that there had been— the mortgage 
 ■was held to be vahd.* 
 
 1 Loomis V. Ruck, 56 N. T. 463 » Lefebvre v. Dutruit. 51 Wis. 336 
 
 ^874) (1881) ; a c. 37 Am. Rep. 833. See 
 
 » list Nat. Bank of Nevada v. also Smith v. Allis, 53 Wis. 337 
 
 Bryan. 63 Iowa, 43 (1883) ; Green v. (1881), and Wright v. Remmgton. 
 
 Scranage, 19 Iowa, 461 (1865). 41 N. J. L. (13 Vr.) ^ (1879) ; 8. o. 
 
 » Buck V. Axt, 85 Ind. 513 (1882). 33 Am. Rep. 180 ; aff d 43 N. J. L. 
 
 « Wright V. Remington, 41 N. J. (14 Vr.) 451 (1881). 
 L. (13 Vr.) 48 (1879) ; s. o. 33 Am. 
 Rep. 180.
 
 448 DTJEESS OF PERSON AS A DEFENCE. [§375. 
 
 § 375. Duress of person. — Where a note and mortgage 
 are obtained from a prisoner falsely charged with felony, 
 they are obtained under duress and are void in the hands of 
 one who received them with knowledge of the facts.' 
 
 It is a general rule that the assignment of property by a 
 wife to free her husband from imprisonment, must be 
 obtained under circumstances which leave no doubt either 
 of the validity of the claim against the husband or of the 
 full consciousness on her part of the effect of her own deed.' 
 It matters not whether the threats are made by the husband 
 or by a third party against the husband, provided they be of 
 such a character as to show beyond a question that the wife 
 acted under an apprehension of personal injury or grievous 
 wrong.' Thus, it has been held, that terrifying a woman so 
 as nearly to produce hysterics, by threatening to prosecute 
 her husband for alleged embezzlement, will be such coercion 
 as will avoid a mortgage which was thus procured upon her 
 separate property.* 
 
 It has been said that the constraint and duress which has 
 generally availed to impeach a contract, has proceeded from 
 actual violence or a well-grounded fear of personal injury ;* 
 and that duress and coercion, to prevail as a defence against a 
 mortgage executed by a wife upon her separate estate, to 
 secure her husband's debt, must go to the extent of depriving 
 her of free volition by reason of fear of personal injury.* 
 
 » Osbom V. Robbing, 36 N. Y. 365 Jones v. Diederich, 3 Daly (N. T.) 
 
 (1867) ; 8. c. 4 Abb. (N. Y.) Pr. N. 177 (1869) ; Wallach v. Hoexter, 8 
 
 S. 15, 21. See Strong v. Grannis, How. (N. Y.) Pr. N. S. 196 (1886). 
 
 26 Barb. (N.Y.) 123 (1857); Richards » Rexford v. Rexford, 7 Lans. (N. 
 
 V. Vanderpoel, 1 Daly (N. Y.) 71, Y.) 6, 8 (1872). 
 
 75, 76 (1859); Foshay v. Ferguson, 5 * Eadie v. Slimmon, 26 N. Y. 9 
 
 HiU (N. Y.) 154 (1843) ; Watkins v. (1862) ; Wallach v. Hoexter, 3 
 
 Baird, 6 Mass. 510 (1810) ; 8. c. 4 How. (N. Y.) Pr. K S. 196, 198 
 
 Am. Dec. 170; Severance V.Kimball, (1886); Schoener v. Lissauer, 36 
 
 8 N. H. 386 (1836) ; Richardson v. Him (N. Y.) 100 (1885). 
 
 Duncan, 3 N. H. 508 (1826) ; Cum- " WaUach v. Hoexter, 3 How. (N. 
 
 ming V. Ince, 11 Ad. & E. N. S. Y.) Pr. N. S. 196 (1886). SeeLoomis 
 
 112, 119 (1847). V. Ruck, 56 N. Y. 462 (1874) ; Rex- 
 
 ' Barry v. Equitable Life Assur- ford v. Rexford, 7 Lans. (N. Y.) 6 
 
 aace Society, 59 N. Y. 587 (1875) ; (1872).
 
 § 375.] 
 
 DURESS OF PERSOJS" AS A DEFEJfOE. 
 
 Ud 
 
 Where a husband, through the procurement of one of the 
 payees of a note secured by mortgage, threatens that unless 
 his wife signs such note he will poison himself, such threat, 
 being made to induce her to sign the note, does not amount 
 to personal duress and can not be pleaded as a defence in 
 an action to foreclose the mortgage.* The same has been 
 held to be true where the husband was a defaulter, and 
 induced his wife to sign a mortgage to secure his sureties 
 by threatening to commit suicide rather than to go to jail.* 
 Where a mortgage was executed by a wife at the request 
 of her husband, and she was impelled to such execution by 
 his declaration that unless she signed the deed " she should 
 not live with him in peace," this was held not sufficient 
 coercion or duress to invalidate the mortgage deed.* 
 
 • Wallach v. Hoexter, 3 How. (N. 
 Y.) Pr. N. S. 196 (]886); Lord v. 
 Lindsay, 18 Hun (K Y. ) 484 
 (1879). 
 
 * Wright V. Remington, 41 N. J. 
 L. (13 Vr.) 48 (1879) ; 8. c. 32 Am. 
 
 Rep. 180 ; aff'd 43 N. J. L. (14 Vt.) 
 451 (1881). 
 
 « Lefebvre v. Dutruit, 51 Wis. 326 
 (1881) ; s. c. 37 Am. Rep. 833. 
 
 * Rexft)rd v. Rexford, 7 Lans, (N. 
 Y.) 6 (1872). 
 
 99
 
 CHAPTER XVIII. 
 
 ANSWERS AND DEFENCES. 
 
 COUNTER-CLAIMS AND ESTOPPELS. 
 
 § 376. Allegation of counter-claim 
 or set-off. 
 
 877. Counter-claim on contract. 
 
 878. Who may plead a counter- 
 
 claim or set-off. 
 
 879. Counter-claim against as- 
 
 signee of mortgage. 
 
 880. Requisites of counter-claim. 
 
 881. Counter-claim must be a debt 
 
 due and payable. 
 
 882. What are proper coimter- 
 
 claims. 
 
 383. Other matters of proper 
 
 counter-claim. 
 
 384. Counter-claim for damages. 
 
 385. Counter-claim for damages 
 
 for fraud. 
 
 886. Counter-claim or set-off must 
 be pleaded. 
 
 387. Estoppel in pais against the 
 
 mortgagor. 
 
 388. Mortgagor estopped from 
 
 denying his title. 
 
 § 376. Allegation of counter-claim or set-off.— In an 
 action to foreclose a mortgage, in a court of equity, the 
 mortgagor is entitled to set ofif a debt due to him from 
 the complainant in any case where a set-off would be allowed 
 in an action at law,' and also in peculiar cases of equity not 
 
 389. Estoppel against the mort- 
 gagor by his acts, declara- 
 tions and agreements. 
 
 890. Estoppel against married 
 women. 
 
 391. Estoppel against title subse- 
 
 quently acquired by mort- 
 gagor. 
 
 392. Other matters as defence in 
 
 estoppel — Agreement to re- 
 lease lots. 
 
 393. Estoppel by assenting to, or 
 
 encouraging a sale. 
 
 394. Estoppel by silence at a 
 
 sale. 
 
 395. Estoppel against purchaser 
 
 of mortgaged premises sub- 
 ject to the mortgage. 
 
 396. When purchaser subject to 
 
 mortgage not estopped. 
 
 397. Estoppel against purchaser 
 
 subject to usurious mort- 
 gage. 
 
 ' Hunt V. Chapman, 51 N. T. 555 
 (1873); Real Estate Trust Co. v. 
 Keech, 7 Hun (N. Y.) 253 (1876) ; 
 Lathrop v. Godfrey, 3 Hun (N. Y.) 
 739 (1875) ; 8. c. 6 T. & C. (N. Y.) 
 96; Holden v. Gilbert, 7 Paige Ch. (N. 
 Y.) 208 (1838) ; Chapman v. Robert- 
 Bon, 6 Paige Ch. (N. Y.) 637 (1837) ; 
 e. o. 31 Am. Dec. 264 ; Gafford v. 
 
 4E0 
 
 Proskauer, 59 Ala. 264 (1877); 
 Spencer v. Almoney, 56 Md. 551 
 (1881); Lockwood v. Beckwith, 6 
 Mich. 168 (1858) ; s. c. 72 Am. Dec. 
 62; Allen v. Shackelton, 15 Ohio 
 St. 145 (1864). It was formerly held 
 in New York that a defendant 
 could not set off a demand, but must 
 resort to a cross-bill to accomplish
 
 § 376.] ALLEGCiTG COUNTER-CLAIM AS DEFENCE. 451 
 
 strictly within the rules of law ;' as, in a case where an action 
 is brought against the mortgagor and his surety on a note 
 or bond secured by a mortgage, both obligors being made 
 defendants and a judgment being demanded against both for 
 the deficiency, a debt due to the mortgagor from the plaintiff, 
 may be pleaded in answer by way of counter-claim." The 
 fact that a joint judgment may be rendered on a bond for any 
 deficiency, will not exclude the allowance of a counter-claim 
 in favor of one of the defendants.* 
 
 And where a mortgagor has overpaid the indebtedness 
 secured by the mortgage, he will be entitled to plead the 
 over-payment as a counter-claim and to demand judgment 
 for the difference.* The debt which it is sought to set off 
 must be one which is due and payable at the time of the 
 commencement of the suit.* And to enable a defendant to 
 avail himself of such set-off, if it is not liquidated by judg- 
 ment, he must set up such defence by a cross-bill or an answer 
 to the complaint.* But it seems that where junior incum- 
 brancers are made parties defendant in a mortgage fore- 
 closure, a cross-bill will be unnecessary, unless some affirm- 
 ative relief other than a simple foreclosure is sought.' 
 
 A different rule prevails in New Jersey,* where, in an 
 action of foreclosure, the mortgagor or his grantee is not 
 permitted to set off any demand against the mortgage debt, 
 except partial payments, which operate as a releasepro tanto, 
 or an agreement that the sum desired to be set off should be 
 received and credited as a payment.* 
 
 his object ; Troup v. Haight, Hopk. » Holden v. Gilbert, 7 Paige Ch. 
 
 Ch. (N. Y.) 239 (1824). (N. Y.) 208 (1838). 
 
 ' Irving V. DeKay, 10 Paige Ch. « Holden v. Gilbert, 7 Paige Ch. 
 
 (N. Y.) 319 (1843). (N. Y.) 208 (1838) ; Ward v. Sey 
 
 » Bathgate v. Haskin, 59 N. Y. mour, 51 Vt. 320 (1878). 
 
 633 (1875). ' Sales v. Sheppard, 99 111. 616 
 
 'Bathgate v. Haskin, 59 N. Y. (1881). 
 
 633 (1875) ; Holbrook v. Receivers « Parker v. Hartt, 32 K J. Eq. (5 
 
 of American Fire Ins. Co., 6 Paige Stew.) 225 (1880). See "Williamson 
 
 Ch. (N. Y.) 221 (1836) ; Ex parte v. Fox, 30 K J. Eq. (3 Stew.) 483 
 
 Hanson, 12 Ves. 346 (1806). (1879). 
 
 * Conaway v. Carpenter, 58 Ind. » Dudley v. Bergen, 23 N. J. Eq. 
 
 477 (1877). (8 C. E. Gr.) 397 (1873) ; Williams
 
 4:52 DEFENCE OF COUNTEK-CLALM. [§§ 377-378. 
 
 § 377- Counter-claim on contract. — An action to fore- 
 close a mortgage is, in law and in fact, an action to enforce 
 the payment of its amount against the mortgagor or other 
 persons liable for the debt, by a sale of the premises mort- 
 gaged and an application of the proceeds of such sale to 
 such payment, and further, for a personal judgment against 
 the persons liable for the deficiency, if any. Such an action, 
 being against the mortgagor, or person liable upon the con- 
 tract to pay the amount specified in the note or bond, is one 
 against which an off-set might have been pleaded before the 
 adoption of the New York Code of Civil Procedure, and is 
 one in which under the Code' a separate judgment may be 
 rendered against the person liable for the debt, and for that 
 reason the suit is subject to a counter-claim for any other 
 cause of action arising on a contract, which the person liable 
 for the payment of the debt, or on whose property the mort- 
 gage is a lien, has against the plaintiff at the time of the 
 commencement of the action to foreclose.' 
 
 § 378. Who may plead a counter-claim or set-off. — In 
 
 an action to foreclose a mortgage a defendant who is person- 
 ally liable for the debt, or whose land is bound by the lien of 
 the mortgage, may plead any off-set arising on a contract to 
 reduce or extinguish the claim ;' but in order to en&ble the 
 defendant to set up a counter-claim and to demand judgment 
 upon it, he must be personally h'able to the plaintiff, or claim 
 some interest in the mortgaged premises. Where such per- 
 sonal liability is not in question, and where the defendant 
 disclaims all interest in the mortgaged premises, he will not 
 be permitted to plead a counter-claim or set-off,* because his 
 
 V. Doran, 23 X. J. Eq. (8 C. E. Gr.) Co. v. McKay, 21 N. Y. 191 (1860) ; 
 
 385 (1873) ; Bird v. Davis, 14 K J. Folden v. Gilbert, 7 Paige Ch. (N. Y.) 
 
 Eq. (1 McCart.) 467 (1862) ; Dolman 208 (1838) ; Chapman v. Robertson, 
 
 V. Coolc. 14 N. J. Eq. (1 McCart.) 6 Paige Ch. (N. Y.) 627 (1837) ; 8. c. 
 
 56 (1861) ; White v. Williams, 3 N. 31 Am. Dec. 264. See Harrison v. 
 
 J. Eq. (2 H. W. Gr.) 876 (1836). See Bray, 92 K C. 488 (1885). 
 
 Petat V. Ellis, 9 Ves. 562 (1804). » Lathrop v. Godfrey, 3 Hun (N. 
 
 ' X. Y. Code Civ. Proc. §g 501, 507. Y.) 739 (1875); 8. c. 6 T. & C. (N. 
 
 « Bathgate v. Haskin, 59 N. Y. Y.) 96. 
 
 533 (1875); Hunt v. Chapman. 51 ^ National Fire Ins. Co. v. McKay, 
 
 N. Y. 555 (1873) ; National Fire Ins. 21 N. Y. 191, 196 (1860).
 
 § 379.] WHO MAY PLEAD A COUNTEK-CLAIM. 453 
 
 counter-claim must in some way tend to reduce or to defeat 
 the plaintiff's demand in order to be admissible. And where a 
 defendant is not personally liable for the mortgage debt, his 
 right to plead a counter-claim is said to be limited to 
 matters arising out of the subject of the action.* This rule 
 does not apply, however, where a defendant owning the 
 equity desires to set up a claim which he has against 
 the plaintiff, in order that his demand may offset a portion 
 of the mortgage lien upon his estate. 
 
 Where the complainant in an action to foreclose a mort- 
 gage is insolvent, and the respondent, who owns the equity 
 of redemption, but who is not the original mortgagor, has a 
 claim against him personally, such claim may be set off 
 against the mortgage debt.' The insolvency of the com- 
 plainant presents a case where " natural equity " is very 
 strong. Insolvency will often raise an equity which will 
 justify the interference of a court, even where the party 
 desiring the set-off is himself the petitioner; and such insol- 
 vency will have greater force if the party opposing such 
 equity is before a court seeking relief.' 
 
 In cases where a senior mortgagee is made a defendant in 
 a suit to foreclose a junior mortgage, he may, by counter- 
 claim, foreclose his senior mortgage.* 
 
 § 379- Counter-claim against assignee of mortgage.— 
 Where an action to foreclose a mortgage is brought in the 
 name of a person other than the real owner of the mortgage, 
 the mortgagor, or owner of the equity of redemption, may 
 plead in answer any defence or set-off which he has against the 
 real owner of the mortgage ;' the defendant may also show 
 
 ' Agate V. King, 17 Abb. (N. T.) Chamberlain v. Stewart, 6 Dana 
 
 Pr. 159 (1863). See Bennett v. Bates, (Ky.) 32 (1837). Blake v. Langdon,19 
 
 26 Hun (K Y.) 364 (1882). Vt. 485 (1847); s. c. 47 Am. Dec. 701 ; 
 
 > Goodwin v. Keney, 49 Conn. 563 Foot v. Ketchum, 15 Vt. 258 (1843) ; 
 
 (1882). 6. c. 40 Am. Dec. 678. 
 
 « Lindsay v. Jackson, 2 Paige Ch. * ^tna Life Ins. Co. v. Finch, 84 
 
 (N. Y.) 581 (1831). See Rowan v. Ind. 301 (1882). 
 
 Sharp's Rifle Manufacturing Co., 29 'Spear v. Hadden, 31 Mich. 265 
 
 Conn. 282 (1860) ; e. c. 31 Conn. 1 ; (1875). See Chase v. Brown, 33 
 
 Bowen v. Bowen,20 Conn. 127 (1849); Mich. 225 (1875). 
 Pond V. Smith, 4 Conn. 297 (1822) ;
 
 454: COUlfTEE-CLAIM AGAINST ASSIGNEE. [§380. 
 
 that the plaintiff has received only a colorable or fraudulent 
 assignment of the mortgage, and that he holds it for the 
 benefit of one against whom the set-off or counter-claim 
 would be a valid defence.* 
 
 The assignee of a mortgage takes it subject to all equit- 
 able claims existing in favor of the mortgagor, or of his 
 grantees, at the time of the assignment ;* and where a party 
 holds an executory contract for the conveyance to him of 
 certain premises subject to a mortgage, it will be a good 
 defence to an action of foreclosure brought by an assignee 
 of the mortgage, that the defendant had, before the assign- 
 ment of the mortgage, rendered services for the mortgagee 
 which he had agreed to apply upon the mortgage in reduc- 
 tion of the amount due thereon.* But where services are 
 rendered under a contract that they are to be applied in 
 partial or complete payment and discharge of a mortgage, 
 they will not constitute an absolute payment pro tanto, but 
 will only give a claim in set-off, which will be subject to the 
 bar of the statute of limitations, the same as any other coun- 
 terclaim or set-off.* 
 
 § 380. Requisites of counter-claim. — To entitle the 
 defendant to a counter-claim or set-off, under the New York 
 Code of Civil Procedure, the claim must be one existing in 
 favor of the defendant and against the plaintiff, tending 
 in some way to diminish or defeat the plaintiff's recovery ;* an 
 independent claim of the defendant can not be pleaded in 
 answer.' Thus, where an action is brought to foreclose a 
 mortgage, in which the principal debtor and his sureties are 
 made parties defendant, and a personal judgment for 
 deficiency is asked against them, a claim due from the 
 
 ' Lathiop V. Godfrey, 3 Hun (N. •• Ballow v. Taylor, 14 R. I. 27 
 
 Y.) 739 (1875) ; 8. C. 6 T. & C. (N. 277, 280 (1883). See Doody v. 
 
 Y.) 96. Pierce, 91 Mass. (9 Allen), 141 (1864). 
 
 " Hartley v. Tatham, 1 Robt. (K » N. Y. Code Ciy. Proc. § 501. 
 
 Y.) 246 (1863) ; a C. 24 How. (N. • National Fire Ins. Co. v.^McKay, 
 
 Y.) Pr. 505. 21 N. Y. 191 (1860). See White v. 
 
 » Hartley v. Tatham, 1 Robt. (N. Williams. 3 N. J. Eq. (2 H. W. Gr.) 
 
 Y.) 246 (1863) ; s. c. 24 How. (N. 376 (1836). 
 Y.) Pr. 505.
 
 § 381.] REQUISITES OE COUNTEE-CLAIM. 455 
 
 plaintiff to the principal debtor may be allowed to offset 
 the amount due upon the mortgage.' It is said that the 
 several judgment required by the Code may be a judgment 
 for only a part of the relief sought, so as to extinguish the right 
 of one of the defendants in the land, and that the fact that 
 a joint judgment may also be given does not exclude the 
 allowance of a counter-claim.' 
 
 It is held in some states, that to entitle the defendant to 
 set off against the mortgage debt, any payment made by 
 him upon the mortgage, he must plead and show that it was 
 made in direct payment of part of the debt, or that it 
 was agreed that the sum should be received and credited on 
 account of the mortgage ;' for it is a well settled principle, 
 that where a partial payment is made by a person indebted 
 on more than one account, if there is no actual application of 
 the payment by the debtor at the time to a particular 
 indebtedness, the creditor may apply it as he pleases.* 
 
 § 381. Counter-claim must be a debt due and payable. 
 — To entitle a defendant to offset a debt as a counter-claim, 
 it must be due to him from the plaintiff at the time the 
 foreclosure suit is commenced.' And where a claim sought 
 to be set off is for damages not yet liquidated,' it will 
 generally not be allowed, if the defendant has an adequate 
 remedy at law.' Thus, in a suit to foreclose a mortgage 
 securing a note given for part of the purchase price of real 
 estate, an answer has been held insufficient which merely 
 sets up a breach of a covenant of warranty in the deed by 
 
 > Bathgate v. Haskin, 59 K Y. (1861) ; White v. Williams, 3 K J. 
 
 533(1875). SeeHolbrookv. Receivers Eq. (2 H. W. Gr.) 376 (1836). 
 
 of Am. Fire Ins. Co., 6 Paige Ch. * Bird v. Davis, 14 N. J. Eq. (1 
 
 (:>(. Y.) 220 {18'dQ); Ex parte Il-dnsou, McCart.) 467 (1863). See 1 Am. 
 
 13 Ves. 346 (1806). Lead. Cas. (oth ed.) 339, side paging 
 
 2 Bathgate v. Haskin, 59 N. Y. 276. 
 
 533, 540 (1875). ^ Knapp v. Birnliam, 11 Paige Ch. 
 
 3 Dudley v. Bergen, 23 N. J. Eq. (N. Y.) 330 (1844) ; Holden v. Gil- 
 (8 C. E. Gr.) 397 (1873) ; Williams bert. 7 Paige Ch. (N. Y.) 208 (1838). 
 V. Doran, 33 N. J. Eq. (8 C. E. Gr.) « See Bennett v. Bates, 26 Hun 
 385 (1873) ; Bird v. Davis, 14 N. J. (N. Y.) 364 (1882). 
 
 Eq. (1 McCart.) 467 (1862) ; Dolaa ' Ilattier v. Etinaud, 3 Desaus (S. 
 
 V. Cook, 14 N. J. Eq. (1 McCart.) 56 C.) Eq. 570 (1S08).
 
 456 WHAT ARE PEOPER COUNTER-CLAIMS. [§382. 
 
 which the land was conveyed to the defendant, by reason of 
 an alleged lien of a gravel road tax on the premises, and 
 asks that the amount of such tax be deducted from the 
 note, but which does not state that the defendant has paid 
 such tax, or that he has been in any way damaged ; and 
 which fails, also, to allege facts showing that the tax set out 
 is a valid and binding lien upon the property under the 
 existing statutes providing for such a tax.' Under the code 
 practice in some of the states, however, such a claim may be 
 allowed. 
 
 Where there are several suits to foreclose different mort- 
 gages, the defendant can not be compelled to elect in which 
 suit he will set up his counter-claim.* 
 
 § 382. What are proper counter-claims. — A debt due 
 from a complainant to a defendant at the time of filing a 
 complaint for foreclosure, or when a subsequent installment 
 of the mortgage becomes due and is attempted to be 
 enforced, is a proper counter-claim or set-off.* Illegal interest 
 paid upon a mortgage or included in it, is a valid set-off in an 
 action to foreclose the mortgage ;* and where the mortgagor 
 has paid a bonus in addition to the lawful interest to procure 
 an extension of time within which to pay the debt, the 
 amount so paid in excess of the legal rate of interest, is a 
 proper set-off in an action to foreclose the mortgage.* 
 
 Mere delay in foreclosing a mortgage, where there has 
 been no request or notice to foreclose, and the interest 
 has been kept up, is not enough to charge upon the mort- 
 gagee the loss occasioned by a depreciation in the value of 
 the mortgaged premises ; and such loss can not be set up as 
 a defence by way of counter-claim.* 
 
 In an action brought to foreclose a mortgage for $25,000, 
 the defendant alleged in his answer that at the time of its 
 
 ' Cook V. Fuson, 66 Ind. 521 522 (1866) ; Pond v. Causdell, 23 N. 
 
 (1879). J. Eq. (8 C. E. Gr.) 181 (1872); 
 
 « McLane v. Geer, 8 Edw. Ch. (N. Ward v. Sharp, 15 Vt. 115 (1843). 
 Y.) 245 (1838). ' 6 Real Estate Trust Co. v. Keech, 
 
 « Holden v. GUbert, 7 Paige Ch. 7 Hun (N. Y.) 253 (1876) ; Dunlap's 
 
 (N. Y.) 208 (1838). Adm'r v. Mueller, 1 Cin. Supr. Ct. 
 
 * Harbison v. Houghton, 41 HI. Rep. (Ohio), 486 (1871).
 
 § 383.] WHAT ARE PKOPER COUNTEE-CLAIMS. 457 
 
 execution, he, being desirous of purchasing certain real estate, 
 borrowed $38,000 of the plaintiff, to be secured by mortgage 
 on the premises to be purchased ; that subsequently, at the 
 plaintiff's request, he executed the mortgage sought to be 
 foreclosed upon half of the premises, and an absolute deed of 
 the other half, which it was agreed should be in fact a 
 mortgage to secure the remaining $13,000; and that the 
 plaintiff never claimed that the deed was an absolute con- 
 veyance. The defendant then prayed to be allowed to pay 
 the $38,000 and all interest due thereon, and to have the deed 
 canceled and the mortgage satisfied of record. The court held 
 that the cause of action alleged in the answer arose out of the 
 contract or transaction set forth in the complaint and consti- 
 tuted a proper counter-claim.' 
 
 § 383. Other matters of proper counter-claim. — In an 
 
 action on one of a series of notes secured by mortgage, the 
 defendant answered, setting up the invalidity of the fore- 
 closure proceedings upon another note of the same series, 
 and asked that he might be allowed to redeem ; the court 
 held that the matter set out in the answer constituted a good 
 counter-claim, and that the defendant was entitled to the relief 
 asked.' Where in an action to foreclose a mortgage, the answer 
 alleged, " as a separate defence and counter-claim," that the 
 mortgagee had been in possession of the premises under an 
 agreement to apply the profits to the payment of the mort- 
 gage debt, and stated the amount of profits received by the 
 plaintiff, the court held that whether such facts constituted 
 a counter-claim or not, evidence thereof was admissible 
 under the answer as showing payment/^*? tanto* The reason 
 for this would seem to be, that a payment of money made on 
 account of a mortgage is not a cause of action which must 
 be pleaded by the defendant as a counter-claim in order to 
 enable him to prove it in a suit to foreclose the mort- 
 gage.* 
 
 • Merchants' Ins. Co. v. Hinman, * Fonts v. Mann, 15 Neb. 173 
 
 34 Barb. (N. T.) 410 (1861) ; s. c. 13 (1883). 
 
 Abb. (N. Y.) Pr. 110. ^ Yoy6. v. Smith, 60 Wis. 222(1884). 
 
 ' Bernheimer v. Willis, 11 Hun * Ilendrix v. Gore, 8 Oreg. 4C8 
 
 (N. Y.) 16 (1877). (1880).
 
 458 WHAT Ar.E proper counter-claims. [§383. 
 
 It has been said that where the plaintiff in a mortgage 
 foreclosure suit is insolvent, and the defendant who owns 
 the equity of redemption, but is not the original mortgagor, 
 has a claim against him personally, such claim may be set 
 off against the mortgage debt.' 
 
 When an answer sets up facts tending to show that a 
 mortgage sought to be enforced is invalid, such facts do not 
 constitute a counter-claim which calls for a reply.' Thus, 
 where an answer sets up facts tending to show that a bond 
 or note and mortgage sued upon are void for usury and asks 
 that they be delivered up to be canceled, without explicitly 
 stating that such facts are alleged as a counter-claim, such an 
 allegation wall not constitute a counter-claim, but merely a 
 defence to the action, and no reply will be required.' 
 
 To entitle the defendant to set up a counter-claim it must 
 be based upon a legal obligation, and not merely upon an equi- 
 table or supposed right. Thus, in an an action to foreclose 
 a mortgage executed by a gas light company, another gas 
 light company, which had succeeded to the rights of the mort- 
 gagor, set up a counter-claim in substance, that A., the real 
 principal for whom plaintiff acted, and certain associates of 
 his, who were stockholders of defendant, and also of certain 
 other gas light companies, all of whom were interested in 
 certain patents, requested and instigated defendant to make 
 experiments to test the value of such patents, and that by the 
 aid of such services the other corporations were enabled to 
 sell the rights owned by them for a large price ; defendant 
 did not allege an express agreement or promise to pay for 
 such services, but claimed an implied promise from the fact 
 of the request and the benefits derived. The court held the 
 claim untenable, and that the facts did not constitute a 
 counter-claim.* 
 
 ' Goodwin v. Keney, 49 Conn. » Bartiiett v. Elias, 2 Abb. (N. T.) 
 
 .-j63(1882). Pr. N. C. 3G4 (1877); Equitable 
 
 « Yasser v. Livingstone, 13 X. T. Life Association v. Cuyler, 12 Hun 
 
 348 (1855). See Bates v. Rosekans, (N. Y.) 247 (1877) ; aff'd 75 N. Y. 
 
 37 N. Y. 409(1867) ; Agate v. Keen, 511. 
 
 17 Abb. (N. Y.) Pr. 159 (18G2); Caryl * Davidson v. W. G. L. Co., 99 N 
 
 V. WilUama, 7 Laua. (N. Y.) 41'J Y. 558 (1885). 
 ..S73).
 
 § 384.] COUNTEE-CLAIM TOE DAMAGES. 459 
 
 The New York Code of Civil Procedure requires that 
 where a defendant deems himself entitled to an affirmative 
 judgment against the plaintiff, he must demand such judg- 
 ment in his answer.* The same rule, it seems, prevails in 
 New Jersey.* 
 
 § 384. Counter-claim for damages. — In an action 
 brought by a vendor to foreclose a mortgage given for 
 the purchase money of real estate conveyed by a deed of 
 general warranty, the vendee and mortgagor may set up as 
 a defence and counter-claim for damages, failure of title 
 to the property;* but if the defendant has been in 
 possession of the premises, he will not be entitled to 
 interest in estimating the damages sustained because of 
 such failure of his title, although a judgment in ejectment 
 may have been recovered against him.* In such an action, 
 the mortgagor, as a defence, may set up a counter-claim for 
 damages by reason of the fraud of the mortgagee and vendor 
 in concealing from him material facts as to the situation and 
 extent of the premises.* And in an action against a mortgagor 
 upon a purchase money mortgage, he will be entitled to 
 set up as a defence a counter-claim for any excess of the 
 agreed price paid through the vendor's misrepresentations 
 of the extent of the property, whether such misrepresenta- 
 tions were willful or innocent.* 
 
 Where a grantor of lands by fraud induces a mortgagor 
 to purchase a defective title, and to execute a mortgage secur- 
 ing part of the purchase money, the mortgagor will be en- 
 titled, in an action to foreclose such mortgage, to recoupment 
 to the extent of his actual damages ; and if such damages 
 are equal to or exceed the amount of the mortgage, they 
 will constitute an entire defence to the foreclosure.' Where 
 
 » N. T. Code Civ. Proc. § 509. » Pierce v. Tiersch, 40 Ohio St. 
 
 • See Emley v. Mount, 32 K J. 168 (1883) ; Allen v. Shackelton, 15 
 Eq. (5 Stew.) 470 (1880). Ohio St. 145 (1864). See post § 435. 
 
 » Chambers v. Cox, 23 Kan. 393 « Baughman v. Gould, 45 Mich. 
 
 (1880) ; Wacker v. Straub, 88 Pa. 481 (1881) ; Pierce v. Tiersch. 40 
 
 St. 32(1878). See^josi; §§435,436. Ohio St. 168, 172 (1883). Sae post 
 
 * Wacker v. Straub, 88 Pa. St. 32 §§ 435, 436. 
 
 (187b). ' Greene v. Tallman, 20 N. Y. 191
 
 460 COUNTEE-CLAIM FOR DAMAGES. [§385. 
 
 the defect of title extends only to a part of the lands, it 
 M'ill constitute a breach of the covenant of seizin, if not 
 also of the covenant of warranty, and a counter-claim 
 for damages for such breach will be a proper defence in an 
 action to foreclose a purchase money mortgage thereon.' 
 
 § 385. Counter-claim for damages for fraud. — Where 
 a mortgage is given for a portion of the purchase money of 
 lands, a subsequent grantee who has assumed the payment 
 of such mortgage may interpose a counter-claim for damages 
 for fraud and misrepresentation in the sale of the property 
 to the mortgagor, made to induce him to purchase." But 
 where there is no allegation of fraud, and no personal claim 
 is made against the grantee of the mortgagor, he can not 
 set up, by way of answer, that he purchased the prem- 
 ises of the plaintiff's grantee and was the assignee of the 
 plaintiff's covenants of warranty and against incumbrances, 
 and had been evicted by a paramount title acquired under a 
 sale for certain taxes which were incumbrances at the time 
 of the plaintiff's grant. In such a case the grantee will be 
 confined to his remedy by an action at law.' And a pur- 
 chaser from a mortgagor can not set up as a counter-claim 
 the fraud practiced upon him by a pefson other than the 
 plaintiff after the execution of the mortgage, where there is 
 nothing to connect the plaintiff with the fraud of the 
 mortgagor.* 
 
 A mortgage executed as security for advances is valid only 
 for the amount of the advances actually made, and the mort- 
 gage will be a lien to the extent of the amount actually due 
 
 (1859); B. c. 75 Am. Dec. 384; Latham v. McCann, 3 Neb. 276 
 
 Ludington v. Slauson, 38 N. Y. (1872). 
 
 Supr. Ct. (6 J. & S.) 81 (1874) ; « See Reed v. Latson, 15 Barb. (N. 
 
 Lathrop v. Godfrey, 3 Hun (N. Y.) Y.) 9 (1853). 
 
 739 (1875); s. c. 6 T. & C. 96; Abbott » National Fire Ins. Co. v. Mc- 
 
 V. Allen, 2 Johns. Ch. (N. Y.) 519 Kay, 21 N. Y. 191 (1860) ; Greene v. 
 
 (1817) ; 8. c. 7 Am. Dec. 554; Parker Tallman, 20 N. Y. 191 (1859) ; 
 
 V. Hartt, 32 N. J. Eq. (5 Stew.) 225 Abbott v. Allen, 2 Johns. Ch. (N. 
 
 (1880). Y.) 519 (1817). 
 
 • Tallmage v. Wallace, 25 Wend. * Reed v. Latson, 15 Barb. (N. Y.) 
 
 (N. Y.) 107 (1840); Rice v. Goddard. (1853). 
 31 Mass. (14 Pick.) 293 (1833);
 
 §§ 386-387.] COUNTER-CLAIM MUST BE PLEADED. 461 
 
 upon the mortgage ; and the mortgagee's failure to complete 
 the contemplated advances, will afford ground for merely 
 nominal damages by way of set-off, although the mortgagor 
 may be seriously injured by the failure of the mortgagee 
 to advance the stipulated amount,' except in cases where 
 there is an express agreement by the mortgagee to make 
 an advancement of the full amount stipulated. 
 
 But where the mortgage contains a covenant on the part 
 of the mortgagee to release portions of the premises on sales 
 thereof made by the mortgagor, he will be entitled, on 
 breach of such covenant, to damages sustained by reason 
 of such refusal, which damages will constitute an equitable 
 set-off in an action to foreclose the mortgage." 
 
 § 386. Counter-claim or set-off must be pleaded. — 
 
 Where a grantor brings an action to foreclose a mortgage 
 executed to secure purchase money, to enable the defendant 
 to avail himself of a set-off or counter-claim not liquidated 
 by judgment, he must set up such defence by answer to the 
 complaint.' Thus, where one of the grantors of land sued 
 on bonds for the purchase money, of which he was the sole 
 owner, an objection to a counter-claim for breach of cove- 
 nants on the ground that the other grantor was not a 
 party, must be taken by answer or demurrer or it will be 
 waived.* 
 
 § 387. Estoppel in pais against the mortgagor. — In an 
 action to foreclose a mortgage the defendant is estopped by 
 his deed from denying the validity of his title to the mort- 
 gaged property, and an answer setting up the defence that 
 the mortgage is of no effect and constitutes no lien upon the 
 premises described in the complaint, is unavailing because 
 it pleads no facts ; it is merely a statement of a conclu- 
 sion of law.' And where a mortgage of land purports to 
 
 > Dart V. McAdam, 27 Barb. (N. 110 (1866). See also Cummings v. 
 
 Y.) 187 (1858). See ante §§ 340, 341. Morris, 25 N. Y. 625 (1862) ; Schu- 
 
 * Warner v. Gouverneur's Ex'rs, 1 bert v. Harteau, 34 Barb. (N. Y.) 
 Barb. (N. Y.) 36 (1847). 449 (1861) ; Briggs v. Briggs, 20 
 
 » Holden v. Gilbert, 7 Paige Ch. Barb. (N. Y.) 477 (1855). 
 
 (N. Y.) 208 (1838). » Caryl v. Williaim, 7 Lans. (N. 
 
 * Ackerly v. Villas, 21 Wis. 88, Y.) 416 (1873).
 
 462 DEFENCE OF ESTOPPEx,. [§387. 
 
 convey the fee, any title afterwards acquired by the mort- 
 gagor will strengthen the mortgage and inure to the benefit 
 of the mortgagee. This is true, although the title to the 
 property was in the government of the United States 
 when the mortgage was executed, and was acquired by the 
 mortgagor after a foreclosure of the mortgage.' And it has 
 been held that a mortgage upon real property containing the 
 usual covenants of warranty, executed by a person who sub- 
 sequently becomes entitled to an estate in remainder therein, 
 will attach to and may be enforced against such after-acquired 
 estate ; but such mortgage can not affect the rights of a party 
 holding an estate for life in the property, and who wai 
 in the actual possession thereof when the mortgage wat 
 executed." 
 
 It has been held that a mortgagor is estopped from alleg- 
 ing in his answer by way of defence, that the notes and 
 mortgage, while executed to the plaintiff, were as a matter 
 of fact given for goods purchased of a mercantile firm, of 
 which he was a member, and were the property of such 
 firm, and that the partners of such firm had made no assign- 
 ment of their interest therein to the plaintiff.* 
 
 In an action to foreclose a mortgage, the mortgagor can not 
 be heard to complain of an indefinite description of the 
 mortgaged property, whatever may be the effect of a sale 
 under such a description.* A mortgagor is estopped from 
 denying that his mortgage in fact covers all that it was 
 supposed to cover, or all that the parties believed or intended 
 that it should cover.* And one who deals with a foreign 
 corporation by borrowing its money and executing a mort- 
 gage as security therefor, will be estopped from answering 
 that the plaintiff had no authority to loan money where the 
 mortgaged premises were situated, unless he shows that the 
 corporation violated its charter or that some law prohibited 
 
 • Orr V.Stewart, 67 Cal. 275(1885). ing ▼. Stamper, 18 B. Mon. (Ky.) 
 
 ' Iowa Loan & Trust Co. v. 175 (1857). 
 
 King, 58 Iowa, 598 (1882). •• Graham v. Stewart, 68 Cal. 374 
 
 3 French v. Bhmchard, 16 Ind. (1886). 
 
 143 (1 861) ; Trumble v. The State, 4 » Madaris v. Edwards, 33 Kan. 
 
 Black f. (lud.) 435 (1837). See Breed- 884 (1884).
 
 § 388.] MOKTGAGOE CAN NOT DENT TITLE. 463 
 
 the loan.' But the holder of one of two notes secured by a 
 mortgage will not be estopped from contesting the validity 
 of the other note, where the notes were executed to different 
 persons upon different considerations.' 
 
 A mortgagor is estopped from denying the recitals con- 
 tained in his mortgage ;* but it was held in a case where the 
 mortgage recited that it was a purchase money mortgage, 
 when in fact it was not for purchase money, that the wife's 
 right of dower was not affected by such a recital.* 
 
 § 388. Mortgagor estopped from denying his title. — A 
 party who mortgages his property with covenants of title is 
 estopped from pleading in defence to a foreclosure, that at the 
 time of the execution of the mortgage he had no title to,* nor 
 interest in,* the mortgaged premises, or any part thereof ; 
 neither can he set up as a defence a defect in his title,' or the 
 existence of an outstanding paramount title in a third person^ 
 because he is estopped therefrom by his deed and will not be 
 permitted to claim adversely to it.* Thus, a mortgagor is 
 estopped from pleading in defence that the property mort- 
 gaged is trust property and that he had no right to mortgage 
 jt.* And where upon a conveyance of land to an executor 
 as such, he gives back a purchase money mortgage as execu- 
 tor, the mortgagor, his grantees and all persons claiming 
 
 ' Pancoast v. Travelers' Ins. Co., ' Dime Sav. Bank v. Crook, 29 
 
 79 Ind. 173 (1881). Hun (N. Y.) 671 (1883). 
 
 « Coleman V. Witherspoon, 76 Ind. * Tefft v. Munson, 57 N. T. 97 
 
 285 (1881). (1874) ; Bank of Utica v. Mersereau, 
 
 8 Neal V. Perkerson, 61 Ga. 345 3 Barb. Ch. (N. Y.) 528, 567 (1848) ; 
 
 (1878). Jackson v. Bull, 1 Johns. Cas. (N. 
 
 * Taylor v. Post, 30 Hun .(N. Y.) Y.) 81, 90 (1799); Strong v. Waddell, 
 
 446 (1883). 56 Ala. 471 (1876) ; Usina v. Wilder, 
 
 » Strong V. Waddell, 56 Ala. 471 58 Ga. 178 (1877) ; Pike v. Galvin, 
 
 (1876) ; Boone v. Armstrong, 87 29 Me. 183 (1848) ; White v. Patten, 
 
 Ind. 168 (1882) ; Pancoast v. Travel- 41 Mass. (24 Pick.) 324 (1837) ; 
 
 ers' Insurance Co., 79 Ind. 172 Somes v. Skinner, 20 Mass. (3 Pick.) 
 
 (1881). See post %iZl. 52 (1825); Wark v. Willard, 13 N. 
 
 « Sutlive v. Jones, 61 Ga. 679 H. 389 (1843) ; Kimball v. Blaisdell, 
 
 (1878) ; Usina v. Wilder, 58 Ga. 178 5 N. H. 533 (1831) ; Macloon v. 
 
 (1877) ; Allen v. Lathrop, 46 Ga. Smith, 49 Wis. 200 (1880). 
 
 133 (1872) ; Boisclair v. Jones, 36 » Boisclair v. Jones, 36 Ga. 499 
 
 Ga. 499 (1867). (1867).
 
 464 ESTOPPEL AGAESrST MORTGAGOR. [§ 389. 
 
 under him or them, will be estopped from denying his 
 appointment and authority as such executor.' 
 
 § 389. Estoppel against the mortgagor by his acts, 
 declarations and agreements. — A mortgagor may be 
 estopped by his acts, declarations and agreements from setting 
 up defences which would otherwise be valid ; as where he 
 induces the plaintiff to take an assignment of a mortgage 
 against him.* And where a mortgagee sells a bond and 
 mortgage, which have been delivered to him to be held for 
 the benefit of the mortgagor, at a usurious discount, and 
 represents to the purchaser that the bond and mortgage are 
 good and valid securities in his hands, in an action brought by 
 the purchaser of the mortgage to foreclose the same, the mort- 
 gagor will be estopped from showing that it is void for usury.* 
 And where a mortgagor, at the time of executing a mortgage, 
 delivers to the mortgagee a certificate that there is no 
 defence against it, in an action brought by the purchaser 
 of the mortgage for foreclosure, the mortgagor can not 
 plead the defence, that there was fraud in obtaining the 
 mortgage, or a misappropriation by the mortgagee of the 
 moneys raised by its sale.* 
 
 And where the owner of a tract of land, covered by a 
 mortgage given prior to his purchase, influenced a third 
 person to purchase the mortgage by stating to him that it 
 was all right and valid, and a lien upon the premises, and 
 •that he would pay the same, he will be estopped afterward 
 from pleading a failure of consideration as a defence against 
 a foreclosure brought by such third person,* Thus, where 
 the plaintiff, being about to purchase a second mortgage, 
 inquired of the defendant with regard to his personal 
 liability for its payment, and the latter, with full knowledge 
 that the inquiry was made with reference to a purchase of 
 
 ' Skelton v. Scott, 18 Hun (N. Y.) * Hutchison v. Gill. 91 Pa. St. 253 
 
 875 (1879). (1879). 
 
 * Johnson v. Parmely, 14 Hun » Smith v. Newton, 38 El. 230 
 
 (N. Y.) 398 (1878) ; Norris v. Wood, (1865). See Bassett v. Bradley, 48 
 
 14 Hun (N. Y.) 196 (1878). Conn. 224 (1880). 
 
 •Piatt V. Newcomb, 27 Hun (N. 
 Y.) 186 (1882).
 
 §§390-391.] ESTOPPEL IVIAEKIED WOMAIT. 465 
 
 the mortgage, replied that " he had assumed and agreed to 
 pay the debt, as his deed would show," it was held that he 
 was equitably estopped from denying his liability on the 
 contract of assumption.' 
 
 § 390. Estoppel against married women. — A married 
 woman is bound by an estoppel the same as any other 
 person ;' and this estoppel may extend to the conveyance 
 of land by deed or by mortgage.' But there can be no 
 estoppel where there is no fraud ; yet there may be fraud 
 without a preconceived design to mislead or deceive. The 
 fraud may consist merely in a denial of what had previously 
 been affirmed.* Thus, where a married woman makes a repre- 
 sentation by affidavit that a loan is for her benefit, which is 
 relied on in good faith and believed to be true, she will be 
 estopped, in a suit to foreclose a mortgage executed upon 
 her lands to secure the loan, from denying the truth of such 
 representation by asserting that the mortgage was given 
 for a debt contracted by her husband.' 
 
 § 391. Estoppel against title subsequently acquired 
 by mortgagor. — Where a mortgage of land purports to 
 convey the fee, any title subsequently acquired by the mort- 
 gagor, will strengthen the mortgage and inure to the benefit 
 of the mortgagee in the absence of intervening equities ;* 
 and the rights of the mortgagee in such land can not be 
 
 > Bassett v. Bradley, 48 Conn. 224 108 Ind. 301 (1886) ; s. c. 6 West. 
 
 {1880). Rep. 596, 598. See Blair v. Wait, 
 
 « Orr V. White. 106 Ind. 344 69 N. Y. 113 (1877) ; Continental 
 
 (1885); s. c. 4 West. Rep. 482; Nat. Bank v. Nat. Bank of Com., 
 
 Cupp V. Campbell, 103 Ind. 213 50 N. Y. 575 (1872); Pitcher v. 
 
 (1885) ; s. c. 1 West. Rep. 255 ; Dove, 99 Ind. 175 (1884) ; Anderson 
 
 Vogel V. Leichner, 102 Ind. 55 v. Hubble, 93 Ind. 570 (1883). 
 
 (1885). * Ward v. Berkshire L. Ins. Co., 
 
 » Ward V. Berkshire L. Ins. Co., 108 Ind. 301 (1886) ; s. c. 6 West. 
 
 108 Ind. 301 (1886); 8. c. 6 West. Rep. Rep. 596. 
 
 596. In this case it was held that it « Orr v. Stewart, 67 Cal. 275 (1885); 
 
 is immaterial to whom the check for Camp v. Grider, 62 Cal. 20 (1882) ; 
 
 the money loaned was made pay- Sherman v. McCarthy, 57 Cal. 507 
 
 able, for if the loan was made to (1881) ; Rice v. Kelso, 57 Iowa, 115 
 
 the wife the mortgage is valid. (1881). 
 
 * Ward V. Berkshire Life Ins. Co. 
 
 (30)
 
 4:60 OTHER DEFENCES D^ ESTOPPEL. [§ 392. 
 
 divested or rendered subservient to the lien of a subsequent 
 judgment or incumbrance.' The reason for this rule is that 
 the mortgagor will be estopped, after the execution of a 
 mortgage, from setting up the defence that he has acquired 
 some new and independent title not covered by the mort- 
 gage." 
 
 In a case where a mortgage containing the usual cove- 
 nants, was executed upon real property by a person who had 
 no title at the time, but who subsequently became entitled 
 to an estate in remainder therein, it was held that the subse- 
 quently acquired title inured to the benefit of the mortgagee 
 and that he could enforce his mortgage against such after- 
 acquired estate.' But it has been held, where a grantor receives 
 a mortgage for part of the purchase money of a conveyance, 
 that the covenants in the mortgage will affect only the estate 
 acquired from the mortgagee and not an after-acquired title.* 
 It is said, however, that, under the law as it now prevails in 
 Missouri, a mortgagor occupies no such subservient relation 
 to the mortgagee as will prevent him from acquiring an out- 
 standing title and holding it against the mortgagee.* 
 
 § 392. Other matters as defence in estoppel — Agree- 
 ment to release lots. — In an action to foreclose a mortgage 
 the defendant may plead in estoppel any fraud which will have 
 the efTecl: of avoiding a title otherwise valid, as an unfair repre- 
 .scntation or concealment on the part of the mortgagee ;* but 
 
 ' liice V. Kelso, 57 Iowa, 115 (N. Y.) 816 (1838); b. c. 32 Am. 
 
 (1881). Dec. 635; Lasselle v. Barnett, 1 
 
 « Madaris v. Edwards. 32 Kan. Blackf. (Ind.) 150 (1821) ; s. c. 41 
 
 '-'84(1884). Am. Dec. 217 ; Dewey v. Field, 45 
 
 3 Iowa Loan and Trust Co. v. Mass. (4 Mete.) 381 (1842) ; s. c. 38 
 
 King, 58 Iowa, 598 (1882). Am. Dec. 376 ; Spear v. Hubbard, 
 
 Mlandal v. Lower, 98 Ind. 255 21 Mass. (4 Pick.) 143(1826) ; Carter 
 
 (1884). See Bradford v. Russell, 79 v. Longworth, 4 Ohio, 384 (1831) ; 
 
 Ind. 64 (1881). Hoffman v. Lee, 3 Watts (Pa.) 853 
 
 *Bushv. White, 85 Mo. 339(1884). (1834); Napier v. Elam, 6 Yerg. 
 
 « Storrs V. Barker, 6 Johns. Ch. (N. (Tenn.) 108 (1834) ; Peter v. Russell, 
 
 T.) 166 (1822); Wendell v. Van 2 Vern, 726 (1716) ; Evans v. Bick- 
 
 Renssela«r, 1 Johns. Ch. (N. Y.) nell, 6 Ves. 173, 182 (1801). For 
 
 344 ( 1815 ) ; Niven v. Belknap, 2 modifications of the general rule, see 
 
 Johns. (N. Y.) 573 (1807) ; L'Amou- Patterson v. Esterling, 27 Ga, 205 
 
 reus V. Vandenburgh, 7 Paige Ch. (1859) ; Rangeley v. Spring, 21 Me.
 
 § 392.] OTHER DEFENCES m ESTOPPEL. 467 
 
 mere knowledge on the part of the mortgagee, that the 
 mortgagor has conveyed an absolute estate in the mortgaged 
 premises to a third party, will not estop him from asserting 
 his legal rights against such third party at any time.' But 
 it seems that a foreclosure can not be defeated by mere pre- 
 sumption in favor of an issue raised by a subsequent incum- 
 brancer as assignee of the mortgage, if such incumbrancer 
 has not relied upon the records nor upon inquiry before 
 taking the incumbrance.' 
 
 It has been said that an agreement by a mortgagee, that 
 the mortgagor might subdivide the mortgaged premises into 
 town lots, and that, on the request of the mortgagor, he would 
 release any one or more of such lots on the payment to him 
 of a stipulated price per foot front thereof, will be treated 
 also as an agreement, to release his mortgage on the parcels 
 of land adjacent to the lots and designated on the plat as 
 streets and alleys.' And where a mortgage expressly 
 provides for subdividing the premises into lots, whenever 
 the mortgagor may deem it advisable, the consent of the 
 mortgagee to lay out the usual streets and alleys, will be 
 impHed, and when they are so laid out he will be bound by the 
 plat.* In such a case, when the mortgagee adopted the plat 
 by acting upon it and by making releases of the lots by their 
 numbers, this, after the sale of lots to others, would estop 
 any objection on his part that the mortgaged premises were 
 not subdivided according to his express written assent, and 
 would amount to a ratification of the subdivision as actually 
 made ; and parties purchasing would have the right to rely 
 on admissions thus shown by his conduct and acts.' In a 
 case where a person holding a mortgage upon a tract of land 
 
 130 (1842) ; Carpenter v. Cummings, « Jakway v. Jenison, 46 Mich. 521 
 
 40 N. H. 158 (1860); Buswell v. (1881). 
 
 Davis, 10 K H. 413 (1839) ; Marston » Smith v. Heath, 103 Dl. 130 
 
 V. Brackett, 9 N. H. 337 (1838); (1882). 
 
 Wade V. Green, 3 Humph. (Tenn.) * Smith v. Heath, 102 HI. 130 
 
 547 (1842) ; Meux v. Bell, 1 Hare, (1882). 
 
 73 (1841); Jones V. Smith, 1 Hare, * Smith v. Heath, 102 111. 130 
 
 43 (1841). (1882). 
 
 ' Parker v. Banks, 79 N. C. 480 
 11878).
 
 468 ESTOPPEL BY EXCOUliAGIKG SALE. [^ 393. 
 
 agreed with a party purchasing the land that he would release 
 his mortgage lien, if such purchaser would sell certain 
 chattels and deliver the proceeds thereof to a person desig- 
 nated, he will be estopped from foreclosing his mortgage on 
 performance by the purchaser of his part of the contract.* 
 
 § 393. Estoppel by assenting to, or encouraging a 
 sale. — It is well established that a mortgagee may, by mere 
 silence or failure to act, as well as by his declarations and 
 conduct, estop himself from claiming rights in opposition to 
 those of a party who acted upon his tacit encouragement ;* 
 because it is only natural justice that a party who claims an 
 interest in property, and is privy to the fact that another is 
 dealing with it as his own, and by his conduct influences a 
 third person to act on the belief that he has no interest 
 therein, or implies that it will not be asserted, will not be 
 permitted to assert his claim against a title or a lien created 
 by such other person to his prejudice, although he may 
 derive no benefit from the transaction.' Thus, where a 
 mortgagee stands by and advises or encourages a purchase 
 of premises by a third person, who is ignorant of the claim of 
 such mortgagee, he will be estopped from asserting such 
 mortgage as against such purchaser,* for if a man suppresses 
 facts which he is in duty bound to communicate, or by acts 
 or words suggests a falsehood to the prejudice of a person 
 who had a right to a full and correct statement of the facts 
 in the case, his claim or lien will be postponed to that of 
 the person who may be prejudiced by its enforcement.* 
 
 But it is said that a fraudulent intent is necessary to 
 constitute an estoppel affecting the legal title to land;* yet 
 
 > Burke v. Grant, 116 111. 124 * Storrs v. Barker, 6 Johns. Ch. 
 
 (1886). (N. Y.) 166 (1822). See Trenton 
 
 2 See Trenton Banking Co. v. Banking Co. v. Duncan, 86 N. Y. 221 
 
 Duncan, 86 K Y. 221 (1881) ; s. c. (1881) ; 8. c. 24 Alb. L. J. 390 ; 
 
 24 Alb. L. J. 390 ; Wendell v. Van Skirving v. Neufville, 2 Desaus (S. 
 
 Rensselaer, 1 Jolins. Ch. (N. Y.) 344 C.) Eq. 194 (1803) ; Nicholson v. 
 
 (1814). Hooper, 4 Myl. & Cr. 186 (1838). 
 
 ^ See McGovern v. Knox, 21 Ohio * See Storrs v. Barker, 6 Johns. 
 
 St. 547 (1871) ; 3. c. 8 Am. Rep. 83 ; Ch. (N. Y.) 166 (1822) ; Danley v. 
 
 Nicholson v. Hooper, 4 Myl. & Cr., Rector, 10 Ark. (5 Eng.) 211 (1849); 
 
 179 (1838). 6. c. 50 Am. Dec. 245.
 
 § 394.] ESTOPPEL BY excoi;kagi:n^g sale. 469 
 
 if the declarations or conduct of a party were intended to 
 deceive generally, or occurred under circumstances likely to 
 deceive, they will be sufficient to establish the fraud.* And 
 it is deemed an act of fraud for a party, cognizant at the time 
 of his own rights, to suffer another, ignorant of those rights, 
 to proceed under such ignorance in the purchase of the 
 property, or in the improvement of it.' 
 
 It is well settled that prior to default in the payment of a 
 debt secured by mortgage, the mortgagee has no right to 
 forbid the mortgagor or his licensee from using the mort- 
 gaged premises in any manner which will not impair their 
 value as a security. But after default he may, and under 
 some circumstances equity requires that he should, interfere. 
 Thus, where a mortgagee has notice of the fact that a rail- 
 road company is building its road across the mortgaged 
 premises under a parol license or an unrecorded deed given 
 by the mortgagor prior to his default, it is the duty of the 
 mortgagee to notify the company of his rights and to forbid 
 the further prosecution of the work. In case he fails to do 
 this, and the company afterwards makes expenditures upon 
 the work and improvements upon the mortgaged property, the 
 licensee of the mortgagor will be held to be the licensee of 
 the mortgagee also, and his interests will be fully protected 
 on a foreclosure of the mortgage.' 
 
 § 394. Estoppel by silence at a sale. — Where a person 
 owns or has an interest in property and stands by and permits 
 it to be sold without giving notice of his title or asserting 
 his rights, he will be estopped from setting up his claim or 
 title against the purchaser,* because it is his duty at the time 
 of the sale to disclose his claim or title to the property, and 
 
 • "Wendell v. VanRensselaer, 1 ' Masterson v. "West End N. G. B. 
 
 Johns. Ch. (N. Y.) 344 (1814). R. Co., 72 Mo. 342 (1«80). 
 
 > See Dezell v. Odell, 3 Hill (N. * See Wendell v. VanRensselaer, 
 
 Y.) 221 (1842) ; Mitchell v. Reed, 9 1 Johns. Ch. (K Y.) 344 (1814) ; 
 
 Cal. 204 (1858) ; Quirk v. Thomas^ McPherson v. Walters, 16 Ala. 714 
 
 6 Mich. 76 (1858) ; Horn v. Cole, 51 (1849) ; Trapnall v. Burton, 24 Ark. 
 
 N. H. 297 (1868) ; Adams v. Brown, 399 (1866) ; Dauley v. Rector, 10 Ark. 
 
 16 Ohio St. 78 (1865). (5Eng.)211 (1849) ; s. c. 50 Am. Dec. 
 
 » Guffey V. O'Reiley, 88 Mo. 418 245 ; Shall v. Biscoe. 18 Ark. 143 
 
 (1885) ; s. c. 5 West. Rep. 336. (1856) ; Markham v. O'Connor, 53
 
 470 ESTOPPEL BY SILENCE AT SALE. [§ 394. 
 
 if he fails to do so, an innocent purchaser, without knowledge 
 of such title or claim, will not be made to suffer because of 
 the owner's laches.' 
 
 Thus, where a mortgagee is present at a public sale of 
 the mortgaged property and it is announced that the title is 
 unincumbered, and a purchaser buys under the belief that 
 he is obtaining an unincumbered title, the mortgagee will be 
 estopped from enforcing his mortgage against the purchaser, 
 even though the mortgage was duly recorded at the time of 
 the sale,' if he fails to make a correction of the announce- 
 ment, because it would be a fraud to permit a party to assert 
 a claim which his previous conduct had denied, especially 
 if others had acted upon the fair interpretation of his 
 conduct.* But it has been said that where the right, title 
 and interest of a bankrupt in certain real estate is publicly 
 sold by his assignee, and there is a mortgage on record 
 against the premises at the time of the sale, the mortgagee 
 will not be estopped from enforcing his mortgage because 
 he was present at the sale and neglected to state his lien on 
 the lands, especially if no inquiry was made of him.* 
 
 Ga. 198 (1874) ; Corbett v. Norcross, Sturm v. Parish, 1 W. Va, 135 
 
 35 N. H. 99 (1857). (1865) ; Smith v. Ford, 48 Wis. 115, 
 
 • Thompson v. Blanchard, 4 N. Y. 145 (1879) ; Morgan v. Chicago «& 
 
 308 (1850). See Brown v. Owen, A. R. R. Co., 96 U . S. (6 Otto), 716; 
 
 30 N. Y. 541 (1864) ; Baldwin v. bk. 24 L. ed. 743 (1877). 
 
 Brown, 16 N. Y. 359 (1857) ; Cork- « Markham v. O'Connor, 52 Ga. 
 
 hill V. Landers, 44 Barb. (N. Y.) 183 (1874) ; s. c. 21 Am. Rep. 249. 
 
 228 (1865) ; Guthrie v, Quinn, 43 See Storrs v. Barker, 6 Johns. Ch. 
 
 Ala. 568 (1869) ; Trapnall v. Bur- (N. Y.) 166 (1822) ; Wendell v. Van 
 
 ton, 24 Ark. 399 (1866); Shall v. Rensselaer, 1 Johns. Ch. (N. Y.) 
 
 Biscoe, 18 Ark. 142(1856); Mark- 344(1815); Rice v, Bunce, 49 Mo. 231 
 
 ham V. O'Connor, 52 Ga. 198 (1874); (1872) ; s. c. 8 Am. Rep. 129 ; 
 
 Anderson v. Hubble, 93 Ind. 570 Blackwood v. Jones, 4 Jones (N. 
 
 (1883) ; Breeding v. Stamper, 18 B. C.) Eq. 54 (1858). 
 
 Mon. (Ky.) 175 (1857) ; Corbett v. » Rice v. Bunce, 49 Mo. 231 (1872); 
 
 Norcross, 35 N. H. 99 (1857) ; Buck- s. c. 8 Am. Rep. 129. See Camp- 
 
 ingham v. Smith, 10 Ohio, 288(1840); bell v. Johnson, 44 Mo. 247 (1869) ; 
 
 Hill V. Epley, 31 Pa. St. 334 (1858) ; Chouteau v. Goddin, 39 Mo. 229 
 
 Boston & P. R. R. Corp. v. New (1866) ; Newman v. Hook, 37 Mo. 
 
 York & N. E. R. R. Co., 13 R. I. 207 (1866) ; Taylor v. Zepp, 14 Mo. 
 
 265 (1881); First National Bank v. 482 (1851); s. c. 55 Am. Dec 
 
 Hammond, 51 Vt. 215 ( 1878 ) ; 113.
 
 § 395.] 
 
 ESTOPPEL AGAINST PUKCHASEE. 
 
 471 
 
 § 395. Estoppel against purchaser of mortgaged prem- 
 ises subject to the mortgage. — Where a person buys lands, 
 which the vendor had encumbered by mortgage to secure a 
 debt to a third person, expressly agreeing \Vith the vendor 
 and the mortgagee to pay such debt, which is deducted 
 from the purchase price, his title will be made subordinate 
 to the mortgage, and he will be estopped from denying its 
 validity ;* a purchaser of the lands at a sale on execution 
 against the vendee, merely succeeds to his rights, and wiU 
 also be bound by the estoppel, the mortgage having been 
 duly recorded." 
 
 It is a general rule that a purchaser, whose conveyance 
 is by its terms made subject to a prior mortgage, the 
 amount of which is deducted as part of the consideration 
 of the purchase, whether he expressly assumes it as a 
 part of the purchase money or not, can not plead usury 
 as a defence to the foreclosure of such mortgage;^ neither 
 
 * Mason v. Pliilbrook, 69 Me. 57 
 (1879). 
 
 ' Kennedy v. Brown, 61 Ala. 296 
 (1878). See Simpson v. Del Hoyo, 94 
 N. Y. 189 (1883) ; Real Estate Trust 
 Co. V. Balch, 45 N. Y. Supr. Ct. (13 
 J. & S.) 528 (1877) ; Root v. Wright, 
 21 Hun (N. Y.) 344 (1880). 
 
 » Kennedy v. Brown, 61 Ala. 296 
 (1878). 
 
 3 Hartley V. Harrison, 24 N. Y. 170 
 (1861) ; Sands v. Church, 6 N. Y. 
 347 (1853) ; Hardin v. Hyde, 40 
 BaVb. (N. Y.) 435 (1863) ; Morris v. 
 Floyd, 5 Barb. (N, Y.) 130 (1849) ; 
 Chamberlain v. Dempsey, 9 Bosw. 
 (K Y.) 212 (1862) ; Post v. Dart, 8 
 Paige Ch. (N. Y.) 639 (1841) ; Stein 
 V. Indianapolis, &c., Assoc, 18 Ind. 
 237 (1862) ; Butler v. Myer, 17 Ind. 
 77 (1861) ; Wright V. Bundy, 11 Ind. 
 398 (1858) ; Huston v, Stringham, 
 21 Iowa, 36 (1866) ; Greither v. Alex- 
 ander, 15 Iowa, 470 (1863) ; Perry 
 V. Kearns, 13 Iowa, 174 (1862) ; 
 Hough V. Horsey, 36 Md. 181 (1872); 
 
 8. c. 11 Am. Rep. 484 ; Sellers v. 
 Botsford, 11 Mich. 59(1862) ; Cono- 
 ver V. Hobart, 24 N. J. Eq. (9 C. E. 
 Gr.) 120 (1873) ; Cramer v. Lepper, 
 26 Ohio St. 59 (1875) ; s. c. 20 Am. 
 Rep. 756 ; Reed v. Eastman, 50 Vt. 
 67 (1877) ; Thomas v. Mitchell, 27 
 Wis. 414 (1871) ; DeWolf v. John- 
 son, 23 U. S. (10 Wheat.) 367 (1825) ; 
 bk. 6 L. ed. 343. See Merchants' Ex- 
 change Nat. Bank v. Commercial 
 Warehouse Co., 49 N. Y. 635, 643 
 (1872); Freeman v. Auld, 44 N. Y. 50 
 (1870) ; Mason v. Lord, 40 N. Y. 764 
 (1869). But where A. B. & C, part- 
 ners, having executed a promissory 
 note to D., embracing usurious inter- 
 est, and having also executed to him a 
 mortgage on real estate to secure the 
 note, A. conveyed to B. & C. his 
 interest in the partnership property 
 including the real estate mortgaged, 
 B. & C. agreeing, in consideration 
 thereof, to pay the firm debts, 
 including the debt to D., it waa 
 held that B. & C. were not estopped
 
 472 
 
 ESTOPPEL AGAINST PUECHASEE. 
 
 [§ 395. 
 
 can he plead a failure or want of consideration in the mort- 
 gage as between the parties to it/ nor that it was defectively 
 executed,* nor that the mortgage is not a valid lien upon 
 the land,* nor that the mortgagee has other collateral security 
 for the same debt,* nor that the debt is different in its terms 
 from that set out in the complaint, nor that it is payable in 
 a manner different from that stipulated ;* neither can he urge 
 any defence whatever against the mortgage.' And the 
 same rule applies as against a second mortgagee, where his 
 mortgage is made expressly subject to a prior incumbrance •,'^ 
 it has also been applied to a case where the recital was 
 
 from asserting such usury in an 
 action by D. for the sale of the mort- 
 gaged premises, and that the assignee 
 in bankruptcy of J3. & C. was not 
 precluded from making such de- 
 fence, although B. &. C. in the 
 bankrupt proceedings, reported D. 's 
 debt at the full amount claimed by 
 him ; Beals v. Lewis, 43 Ohio St. 
 230 (1885). 
 
 ' Parkinson v. Sherman, 74 N. 
 Y. 88 (1878) ; fi. c. 30 Am. Rep. 
 263 ; Ritter v. Phillips, 53 N. T. 586 
 (1873) ; Horton v. Davis, 26 N. Y. 
 495 (1863) ; Lester v. Barron, 40 
 Barb. (N. Y.) 297(1863) ; Hartley t. 
 Tatham, 26 How. (N. Y.) Pr. 158 
 (1863) ; Haile v. Nichols, 16 Hun 
 (N. Y.) 37 (1878) ; Russell v. Kin- 
 ney, 1 Sandf. Ch. (N. Y.) 34 (1843). 
 See Jewell v. Harrington, 19 Wend. 
 (N. Y.) 471 (1838; ; Barker v. Inter- 
 national Bank of Chicago, 80 111. 96 
 (1875); Price v. Pollock, 47 Ind. 
 362(1874) ; Crawford v. Edwards, 33 
 Mich. 354 (1876) ; Miller v. Thomp- 
 son, 34 Mich. 10 (1876). 
 
 ^ Pidgeon v. Trustees of Schools, 
 44 111. 501 (1867) ; Greither v. Alex- 
 ander, 15 Iowa, 470 (1863) ; Riley v. 
 Rice, 40 Ohio St. 441 (1884). How- 
 ever, it was held in Goodman v. 
 Randall, 44 Conn. 321 (1877), that a 
 
 purchaser who had expressly as- 
 sumed a mortgage for a certain 
 amount in his deed of conveyance, 
 was not estopped from showing that 
 the incumbrance had no existence in 
 fact, because the mortgage was 
 fatally defective, having been wit- 
 nessed, delivered and recorded with- 
 out having been signed by the mort- 
 
 8 Ritter v. Phillips, 53 N. Y. 586. 
 (1873) ; Johnson v. Parmaly, 14 
 Hun (N. Y.) 398 (1878) ; Kennedy 
 v. Brown, 61 Ala. 296 (1878) ; Scarry 
 V. Eldridge, 63 Ind. 44 (1878) ; 8. c. 
 7 Cent. L. J. 418 ; Green v. Hous- 
 ton, 22 Kan. 35 (1879). 
 
 * Ferris v. Crawford, 2 Den. (N. 
 Y.) 595 (1845). 
 
 * Klein v. Isaacs, 8 Mo. App. 568 
 (1881). 
 
 * Freeman v. Auld, 44 N. Y. 50 
 (1870); Holden v. Risen, 77 Ala. 
 515 (1884) ; McDonald v. Mobile 
 Life Ins. Co., 65 Ala. 358 (1880);. 
 Delaware & H. Canal Co. v. Bon- 
 nell, 46 Conn. 9 (1878) ; Losey v. 
 Bond, 94 Ind. 67 (1883) ; Hill v. 
 Minor, 79 Ind. 48 (1881) ; Smith v. 
 Graham, 34 Mich. 302 (1876). 
 
 ' Bronson v. Lacrosse & M. R. 
 Co., 69 U. S. (2 Wall.) 283 (1863); 
 bk. 17 L. ed. 725.
 
 § 396.] WKEIN PUECHASEE NOT ESTOPPED. 473 
 
 erroneous in fact, the prior mortgage being on an entirely- 
 different parcel of land from that covered by the second 
 mortgage.' 
 
 § 396. When purchaser subject to mortgage not 
 estopped. — The fact, that in a conveyance of mortgaged 
 premises with full covenants, the mortgage was excepted from 
 the covenant against incumbrances, does not show that the 
 grantee took the land subject to the mortgage, nor will it 
 prevent him from making any defence against the mortgage 
 which the mortgagor might have made;' but a purchaser of 
 land on which there is a mortgage, of which he had notice, 
 will be bound by all the information which he could pre- 
 sumably obtain upon inquiry from the mortgagee in regard 
 to his claim to a lien on said land.* 
 
 Where a purchaser has bought not merely the equity of 
 redemption, but the whole title, paying the full price therefor 
 with no deduction on account of a mortgage, he may set 
 up the defence of usury in the original contract between the 
 parties.* A purchaser under the foreclosure of a second 
 mortgage, will not be precluded by a clause in the deed of the 
 sheriff, reciting that the conveyance is subject to the lien of 
 the prior mortgage, from pleading the defence of usury, 
 where the second mortgagee could have set up such defence 
 against the first mortgage.* 
 
 In order to estop a mortgagee from asserting his mortgage 
 against a subsequent purchaser of the premises, the proof of 
 the facts from which the estoppel in pais is claimed must be 
 clear and satisfactory.* Where the statement of a mort- 
 gagee as to the amount due him is a mere matter of opinion 
 and no effort was used to induce the purchase, and the pur- 
 chaser relied upon the assurance of the mortgagor from 
 whom he purchased, when he could, by the use of reasonable 
 
 * Sweetzer v. Jones, 35 Vt. 317 * Lilienthal v. Champion, 08 Ga. 
 
 (1862). 158 (1877) ; Malier v. Lanfrom, 86 
 
 « Bennett v. Keehn, 67 Wis. 154 Dl. 518 (1877). 
 
 (1886). ' Pinnell v. Boyd,, 33 N. J. Eq. (6 
 
 "Martin v. Cauble, 72 Ind. 67 Stew.) 600 (1881). 
 
 (1880). See Central Trust Company 'Preble v. Conger, 66 111. 370 
 
 V. Sloan, 65 Iowa. 655 (1885). (1872).
 
 474 ESTOPPEL AGAINST PUECHASEB. [§397. 
 
 diligence on his part, have ascertained the amount of 
 the incumbrance, the mortgagee will not be estopped from 
 enforcing his mortgage against such purchaser.* It is a 
 general principle that the party setting up an estoppel must 
 be free from the imputation of laches in the premises.' 
 
 § 397. Estoppel against purchaser subject to usurious 
 mortgage. — The doctrine is well established that where 
 property covered by a usurious mortgage is conveyed by a 
 deed containing a clause expressly making the conveyance 
 subject to the mortgage lien, such clause in the deed will 
 operate as a waiver of the defence of usury, and will be 
 regarded as a provision made by the mortgagor for the pay- 
 ment of the usurious debt which the grantee can not 
 afterwards question f and the grantee under such a deed 
 can not compel the application of the usurious bonus paid 
 by his grantor to the reduction of the mortgage debt.* But 
 it is held, where the property is reconveyed to the grantor 
 by a deed in which nothing is said regarding the mortgage, 
 that he will be entitled to set up the defence of usury in 
 an action to foreclose the mortgage/ 
 
 » Preble v. Conger, 66 111. 370 Ins. Co., 40 Ohio St. 583(1884) ; Cra- 
 
 (1872). mer v. Lepper, 26 Ohio St. 59 (1875) ; 
 
 * Trenton Banking Co. v. Duncan, Austin v. Chittenden, 33 Vt. 553 
 
 86 N. Y. 221 (1881). (1861). 
 
 « Hartley v. Harrison, 24 N. Y. * Root v. Wright, 21 Hun (N. T.) 
 
 170 (1861) ; Smith v. Cross, 16 Hun 344 (1880). 
 
 (N. Y.) 487 (1879) ; Baskins v. Cal- » Knickerbocker Life Ins. Co. v. 
 
 houn, 45 Ala. 582 (1871) ; Loomis v. Nelson, 78 N. Y. 137 (1879) ; s. c. 7 
 
 Eaton, 32 Conn. 550 (1865) ; Studa- Abb. (N. Y.) N. C. 170, aff'g 13 
 
 baker v. Marquardt, 55 Ind. 341 Hun (N. Y.) 321 (1878). See Bennett 
 
 (1876) ; PinneU v. Boyd, 33 N. J. v. Bates, 94 N. Y. 354, 371 (1884> 
 Eq. (6 Stew.) 190 (1880) ; Jones v.
 
 CHAPTER XIX. 
 
 ANSWERS AND DEFENCES. 
 
 RIGHT OT ACTION NOT ACCRIIED—MOIITGAGE DEBT NOT DUE-PAT- 
 
 HENT AND DISCHARGE — DENIAL Oi' PERSONAL LIABILITY — 
 
 BELEASE OF PAJIT OP MOBTGAGED PREMISES. 
 
 398. Denial of right of action ac- 
 
 crued — Nothing due. 
 
 399. Alleging condition precedent 
 
 as a defence. 
 
 400. Breach of an independent 
 
 or collateral covenant as a 
 defence. 
 
 401. Allegation that mortgage is 
 
 for indemnity only. 
 
 402. Extension of time of pay- 
 
 ment as a defence. 
 
 403. Consideration for extension 
 
 of time. * 
 
 404. Payment as a defence. 
 
 405. What amounts to a payment. 
 
 406. Attorney's fees and taxes to 
 
 be paid as part of mortgage 
 debt. 
 
 407. Payment of condemnation 
 
 money to mortgagor instead 
 of to mortgagee. 
 
 408. Payment by deposit of col- 
 
 lateral security or assump- 
 tion of prior mortgage. 
 
 § 409. Application of payments — 
 How to be made. 
 
 410. Payments by mortgagor after 
 
 conveyance. 
 
 411. Payments — How pleaded — 
 
 Inability to find mortga- 
 gee. 
 
 412. Payment — How proved in 
 
 defence. 
 
 413. Alleging discharge and satis- 
 
 faction of mortgage in de- 
 fence. 
 
 414. Allegation of release of part 
 
 of mortgaged premises. 
 
 415. Alleging release of part of 
 
 moi tgaged premises in de- 
 fence. 
 
 416. .Application of proceeds on 
 
 release of part of mort- 
 gaged premises. 
 
 417. Denial of personal liability 
 
 uii contract of assump- 
 tion. 
 
 § 398. Denial of right of action accrued — Nothing due. 
 — A defendant in an action to foreclose a mortgage may 
 show in defence, while admitting the validity of the mort- 
 gage, that by its terms nothing is due thereon, and that a 
 cause of action has not accrued. Thus, an answer showing 
 an agreement between the parties, contemporaneous with 
 the execution of the mortgage, to the effect that the mort- 
 gage should become due and payable only on the occurrence 
 of an event which never happened, pleads a good defence to 
 an action to foreclose the mortgage.' Where such a defence is 
 
 » Lucas V. Hendrix, 93 Ind. 54 (1883). 
 
 475
 
 476 DENTLNa BIGHT OF ACTION ACCRUED. [§ 399. 
 
 set up, if the plaintiff fails to establish the fact that a portion 
 of the debt is due, or that a cause of action has accrued, his 
 complaint will be dismissed ;' but where the condition of 
 the mortgage is other than for the payment of money, and 
 there is a breach of it, the mortgagor can not set up as a 
 defence to an action for foreclosure the fact that nothing 
 is due. 
 
 Where the condition of the defeasance in a mortgage is, 
 that the note secured thereby shall be paid within sixty days 
 after demand, and a demand is made by a person claiming 
 to act as agent for the owner, but whose agency is denied, 
 the mere possession of the note by the person making the 
 demand will not be sufficient proof of his agency.' 
 
 § 399. Alleging condition precedent as a defence. — 
 Where the title of the vendor to certain premises is known to 
 be defective at the time of conveyance, and a note and 
 mortgage given to secure the whole or a part of the purchase 
 price of the property, contain a stipulation that nothing 
 shall be deemed to be due upon the note until the vendor 
 shall have perfected the title to the premises, the mortgagor 
 may set up the non-performance of this condition as a 
 defence to an action to foreclose such mortgage.* This pro- 
 position has been supported where a vendor covenanted to 
 pay all existing incumbrances;* also, where a stipulation 
 executed with the mortgage provided that it should not be 
 enforced, until a quit-claim deed of an outstanding title had 
 been obtained by the vendor.' 
 
 But where the mortgagor sets up as a defence failure of 
 title to the whole or a part of the premises conveyed, he 
 must also release to the vendor whatever title he may have 
 acquired by his deed to that part of the property, to which 
 the title failed or was defective ; and in case of the failure 
 
 ' See Hall v. Davis, 73 Ga. 101 (1868). See Ryerson v. WUlis, 81 
 
 (1885) ; Lucas v. Hendrix, 92 Ind. N. T. 277 (1880). See post % 400. 
 54(1883). "Stewart v. Clark, 8 Kan. 210 
 
 ' Union Central Life Insurance (1871), 
 Co. V. Jones, 35 Ohio St. 351 (1880). » Ryerson v. Willis, 81 N. Y. 277 
 
 •Weaver v. Wilson, 48 111. 125 (1880).
 
 § 400.] DEFJilN^CE OF BEEACH OF COVENANT. 477 
 
 of the title to the whole property he must offer to rescind 
 the contract,' because one who seeks equitable relief must 
 first do equity.' 
 
 § 400. Breach of an independent or collateral cove- 
 nant as a defence. — A mortgagor can not set up the breach 
 of an independent or collateral covenant as a defence in an 
 action to foreclose a mortgage, where the payment of the 
 debt secured is not made to depend upon the performance 
 of such independent covenant.* Thus, where a mortgage is 
 given to secure part of the purchase price of land, the title 
 to which is defective, or upon which there is a prior incum- 
 brance, and such title is to be perfected or the incumbrance 
 removed by the mortgagee, an answer in an action to fore- 
 close the mortgage, alleging that the title has not been 
 perfected, nor the incumbrance removed, will be unavailing, 
 unless the payment of the mortgage is made dependent 
 upon the perfection of the title or the removal of the 
 incumbrance.* 
 
 And where a complaint sets forth the conditions of a bond, 
 and avers the execution of the mortgage as collateral there- 
 to with the same conditions, an answer merely repeating 
 the words of the conditions as stated in the complaint and 
 alleging that such conditions are not contained in the mort- 
 gage, is not a denial that they are in substance the conditions 
 of the mortgage ; to raise an issue upon that question, the 
 defendant should either deny the debt or plead the conditions 
 verbatim from the bond and mortgage.* In an action to 
 foreclose a purchase money mortgage, if the answer attempts 
 to show a failure of title, but does not set forth the deed or 
 
 > Ryerson v. Willis. 81 N. Y. 377 son v. VanSyckle, 21 N. J. Eq. (8 
 
 (1880) ; Baker v. Robbins, 2 Den. C. E. Gr.) 93 (1870). 
 
 (N.Y.) 136(1846); Rosebaum v. Gun- * Courson v. VanSyckle, 21 N. J. 
 
 ter, 3 E. D.Smith, (N.T.) 203 (1854); Eq. (6 C. E. Gr.) 92 (1870). See 
 
 Fisher v. Conant, 3 E. D. Smith, Duryea v. Linsheimer, 27 N. J. Eq. 
 
 (N. Y.) 199 (1854) ; Weaver v. Wil- (12 C. E. Gr.) 366 (1876). See ant« 
 
 eon, 48 111. 125 (1868). § 399. 
 
 » Ryerson v. Willis, 81 N. Y. 277 * Dimond v. Dunn, 15 N. Y. 498 
 
 (1880). (1857), reversing 8 How. (N. Y.) Pr. 
 
 » Duryea v. Linsheimer, 27 N. J. 16. 
 Eq. (12 C. E. Gr.) 366 (1876) ; Cour-
 
 478 MORTGAGE iOE LNDE^JS'lTY. [§§ 401-402. 
 
 any covenants therein, nor allege fraud, it will be bad on 
 demurrer.' 
 
 § 401. Allegation that mortgage is for indemnity only. 
 
 — The defendant may set up by way of defence and show 
 by parol evidence, that the mortgage sought to be foreclosed 
 was given simply to indemnify the plaintiff as a surety,' that 
 the obligation has been paid and satisfied, and that the 
 plaintiff has not been injured in any way, because where thee 
 has not been a breach of the conditions of the mortgage, 
 an action for foreclosure can not be maintained.' The effect 
 of parol evidence in showing that a mortgage given for the 
 payment of money was in reality to indemnify the plaintiff, 
 is not to counteract or to vary the mortgage, but to identify 
 the demand to which it refers ; and such evidence is always 
 competent.* 
 
 § 402. Extension of time of payment as a defence. — 
 
 A mortgage can not be foreclosed until the debt which it 
 was given to secure has become due and payable, even though 
 the security may be impaired and rendered precarious 
 
 1 Cornwell v. Clifford, 45 Ind. 393 ' On a recognizance of bail, see 
 
 (1873); Church v. Fisher, 40 Ind. 145 Colman v. Past, 10 Mich. 422 (1862), 
 
 (1872) ; McClerkin V. Sutton, 29 Ind. or on a note, Kimball v. Myers, 21 
 
 407 (1868). See Ryerson v. WilUs, Mich. 276 (1870) ; s. c. 4 Am. Rep. 
 
 81 N. Y. 277 (1880) ; Piatt v. Gra- 487 ; Ide v. Spencer, 50 Vt. 293 
 
 ham, 3 Sandf. (N. Y.) 118 (1849) ; (1877). 
 
 Wilbur V. Buchanan, 85 Ind. 42 » Ide v. Spencer, 50 Vt. 293 (1877). 
 
 (1882) ; Jenkinson v. Ewing, 17 Ind. •* Kimball v. Myers, 31 Mich. 376, 
 
 505 (1861) ; Woodforth v. Leaven- 285 (1870) ; s. c. 4 Am. Rep. 487. 
 
 worth, 14 Ind. 311 (1860); Laughery Judge Cooley said, in delivering 
 
 V. McLean, 14 Ind. 106 (1860); the opinion of the court : "Weun- 
 
 Chambers v. Cox, 23 Kan. 393 derstand also that evidence of the 
 
 (1880); Mendenhall v. Steckel, 47 satisfaction of a demand actually 
 
 Md. 453 (1877) ; s. c. 28 Am. Rep. received, though in a manner vary- 
 
 481 ; Key v. Jennings, 66 ;^o. 356, ing from that agreed, is always com- 
 
 068 (1877) ; Wheeler v. Standley, 50 petent, notwithstanding it may have 
 
 Mo. 509 (1872); Glenn V.Whipple, 12 been received with some contempo- 
 
 N. J. Eq. (1 Beas.) 50 (1858) ; Hill raneous agreement," citing Crosman 
 
 V. Butler, 6 Ohio St. 207 (1856) ; v. Fuller, 84 Mass. (17 Pick.) 171, 
 
 Darling v. Osborne, 51 Vt. 148 174 (1835); Hagood v. Swords, 3 
 
 (1878) ; Booth v. Ryan. 31 Wis. 45 Bail (S. C.) L. 305 (1831) ; Bradley 
 
 (1872) ; Hall V. Gale, 14 Wis. 54 v. Bentley, 8 Vt. 245 (1836). 
 (1861).
 
 § 402.] ALLEGING EXTENDED TDIE OF PAYSLENT. 479 
 
 by delay.' And the time within which a mortgage debt 
 is to be paid may be extended upon a vaHd consideration, 
 and such extension will be a bar to an action to foreclose 
 the mortgage until after the period of extension has expired. 
 An extension of the time for the payment of a mortgage 
 affects the right to foreclose, but does not in any way affect 
 the mortgage lien ; for neither an extension of time nor a 
 change in the indebtedness secured by a mortgage will 
 impair or in any way affect the validity of the mortgage.* 
 
 Where the obligation is under seal and an agreement for 
 its extension is made before maturity, it must be in writing 
 and of equal legal formality as the original instrument ;* 
 but where there has been a breach of the conditions of a 
 sealed instrument, the time for payment maybe extended by 
 parol, if founded upon a sufficient consideration/ Thus, 
 where the holder of a mortgage which was past due was 
 about to enforce it by an action, and a third person for a 
 valid consideration agreed by parol with the plaintiff's tes- 
 tator, who had assumed the payment thereof, to purchase 
 said mortgage and to refrain from collecting the principal 
 for five years, the court held in an action to foreclose the 
 mortgage that this agreement, having been executed by 
 the taking of the assignment of the mortgage, operated as 
 effectually to extend the time of payment as if it had been 
 under seal.' 
 
 ' Campbell v. Macomb, 4 Johns, Cow. (N. T.) 48 (1827) ; Townsend 
 
 Cb, (N.Y.) 534 (1820). See Building v. Empire Stone Dressing Co., 6 
 
 Association v. Piatt, 5 Duer (N. T.) Duer (N. Y.) 208 (1856) ; Flynn 
 
 675 (1856). V. McKeon, 6 Duer (N. Y.) 203 
 
 »Shuey v. Latta, 90 Ind. 136 '(1856); Fish v. Hay ward, 28 Hun 
 
 (1883). (N. Y.) 456 (1882) ; Burt v. Saxton, 
 
 » Dodge V. Crandall, 30 K Y. 306 1 Hun (N. Y.) 551 (1874) ; s. c. 4 
 
 (1864) ; Eddy v. Graves, 23 Wend. T. &. C. 109 ; Lattimore v. Harsen, 
 
 (N. Y.) 84 (1840); Allen v. Jacquisb, 14 Johns. (N. Y.) 330 (1817) ; Flem- 
 
 21 Wend. (N. Y.) 628 (1839). ing v. Gilbert, 3 Johns. (K Y.) 528 
 
 * Dodge V. Crandall, 30 N. Y. 306 (1808) ; Keating v. Price, 1 Johns. 
 
 (1864) ; Stone v. Sprague, 20 Barb. Cas. (N. Y.) 22 (1799) ; Newton v. 
 
 (N. Y.) 509 (1855) ; Clark v. Dales, Wales, 3 Robt. (N. Y.) 453 (1865) ; 
 
 20 Barb. (N. Y.) 42 (1855); Esmond Delacroix v. Bulkley, 13 Wend. (N. 
 
 V. Vanbenschoten, 12 Barb. (N. Y.) Y.) 71 (1834). 
 
 869 (1851) ; Dearborn v. Cross, 7 » Dodge v. Crandall, 80 N. Y. 294
 
 480 ALLEGING EXTENDED TIME OF PAYMENT. [§ 403. 
 
 While an executory parol agreement is not technically 
 sufficient to alter the terms of a contract under seal, yet 
 when made before a breach of the conditions of such contract 
 and upon a sufficient consideration, it may operate for a 
 limited time as a waiver of a right to enforce the obligation 
 of such contract ;' and where such parol agreement for an 
 extension of time has been entered into, and the consider- 
 ation paid, no court will enforce the contract at the time of 
 its maturity merely on the ground that such agreement was 
 not in writing." To enforce a mortgage in opposition to an 
 agreement founded upon a valuable consideration for an 
 extension of time would be against conscience and good 
 faith, and a fraud upon the rights of the mortgagor.* An 
 agreement to extend the time for the payment of a mortgage 
 debt must be made after the execution and delivery of the 
 mortgage ; and both the mortgagor and the mortgagee must 
 be parties to the contract in order to be entitled to rights 
 under it.* 
 
 § 403. Consideration for extension of time. — In order 
 to constitute a valid defence to an action to foreclose a 
 mortgage, the contract for an extension of time must be 
 founded upon a valuable new consideration.* But it has 
 
 (1864); Burtv. Saxton, 1 Hun (N. » Trayser v. Trustees of Indiana. 
 
 Y.) 551 (1874) ; a c. 4 T. &. C. (N. Asbury University, 39 Ind. 556. 567 
 
 Y.) 109. (1873). See Fowler v. Brooks, 13 N. 
 
 ' Trayser v. The Trustees of In- H. 240 (1842) ; Bailey v. Adams, 10 
 
 dlana Asbury University, 39 Ind. 556 N. H. 162 (1839) ; Wheat v. Kendall, 
 
 (1872); VanHouten v. McCarty, 4 6 N. H. 504 (1834); McComb v. 
 
 N. J. Eq. (3 H. W. Gr.) 141 (1842) ; Kittridge, 14 Ohio, 348 (1846) ; Aus- 
 
 Klng V. Morford, 1 N. J. Eq. (Saxt.) tin v. Dorwin, 21 Vt. 38 (1846). 
 
 274, 280 (1831) ; Tompkins v. Tomp- * Lee v. West Jersey Land Co., 29 
 
 kins, 21 N. J. Eq. (6 C. E. Gr.) 338 N. J. Eq. (2 Stew.) 377 (1878). 
 
 (1871) ; Cox V. Bennet, 13 N. J. L. » Pabodie v. King, 12 Johns. (N. 
 
 (1 J. S. Gr.) 165, 171 (1832). Y.) 426 (1815) ; Hall v. Constant, 2 
 
 « Scott V. Frink, 53 Barb. (N. Y.) Hall (N. Y.) 185 (1829) ; Gibson v. 
 
 633 (1868) ; Burt v. Saxton, 1 Hun Renne, 19 Wend. (N. Y.)389 (1838); 
 
 (N. Y.) §51 (1874) ; s. c. 4 T. «fc C. Patchin v. Peirce, 12 Wend. (N. Y.) 
 
 (N. Y.) 109. In re Betts, 4 Dill C. 61, 63 (1834) ; Reynolds v. Ward, 5 
 
 C. 93 (1877) ; 8. c. 7 Rep. 225. See Wend. (N. Y.) 501 (1830) ; Miller v. 
 
 Albert y. Grosvenor Investment Co., Holbrook, 1 Wend. (N. Y.) 317 (1828); 
 
 L. R. 8 Q. B. 123, 127 (1867). Harris v. Boone, 69 Ind. 300 (1879).
 
 § 403.] ALLEGING EXTENDED TIME OF PAYMENT. 481 
 
 been said that mutual promises, on the one hand, to waive 
 payment of an installment at the time when it matures, and 
 to accept it at a later date, and, on the other hand, to pay 
 the whole principal and the interest, at the expiration of the 
 extended time, furnishes a sufficient consideration to sustain 
 an extension of time.' 
 
 An agreement between a mortgagor and a mortgagee to 
 raise the interest upon a bond and mortgage from six per 
 centum to the highest rate allowed by law, in consideration of 
 an extension of the time of payment, will constitute a vahd 
 consideration ;' so, also, will the payment of interest* or of 
 an installment of the principal in advance,* because pay- 
 ment before the day on which a debt matures, being a benefit 
 to the creditor, is a good consideration for a promise.* The 
 giving of additional security,' the assuming of the mortgage 
 debt by a purchaser who relies upon an agreement of exten- 
 sion,* or the payment of an installment of interest by a 
 grantee of the mortgagor not personally obliged to make 
 such payment,' form sufficient considerations to support a 
 promise for the extension of the time of payment. 
 
 ' Pierce v. Goldesbcrry, 31 Ind. 52 
 (1869). See Wakefield Bank v. 
 Truesdell, 55 BarJ). (N. Y.) 602 
 (1864) ; Clark v. Dales, 20 Barb. (N. 
 Y.) 42 (1855); Burt v. Saxton, 1 
 Hun (N. Y.) 551 (1874) ; s. c. 4 T. 
 & C. (N. Y.) 109 ; Preston v. Ken- 
 ning, 6 Bush (Ky.) 556 (1869); 
 Bailey v. Adams, 10 N. H. 162 
 (1839). 
 
 ' Haggarty v. Allaire, 5 Sandf . 
 (N. Y.) 230 (1851). See Crosby v. 
 Wiatt, 10 K H. 318 (1839) ; Bailey 
 V. Adams, 10 N. H. 162 (1839). 
 
 * Wakefield Bank v. Ti;uesdell, 55 
 Barb. (N. Y.) 602 (1864); Maher 
 V. Lanfrom, 86 111. 513 (1877) ; 
 Pierce v. Goldesberry, 31 Ind. 52 
 (1869); Preston v. Henning, 6 
 Bush (Ky.) 556 (1869). 
 
 * Newsam v. Finch, 25 Barb. (N. 
 Y.) 175 (1857). In re Betts, 4 Dill. C. 
 C. 93 (1877) ; s. c. 7 Rep. 225. 
 
 But it has been said that the pay- 
 ment of the portion of a debt due is 
 not a suflicient consideration to sup- 
 port a promise to give further time 
 for the payment of the balance. Hall 
 V. Constant, 2 Hall (N. Y.) 185 
 (1829). 
 
 6 Austin V. .Dorwin, 21 Vt. 38, 44 
 (1848) ; Pinnel's Case, 5 Coke, 117 
 (1591). 
 
 ® Trayser v. Trustees of Indiana 
 Asbury University, 39 Ind. 556 
 (1872). See .Jester v. Sterling, 25 
 Hun (N. Y.) 344 (1881) ; Gibson v. 
 Renne, 19 Wend. (N. Y.)389 (1838). 
 
 ■> Jester v. Sterling, 25 Hun (N. 
 Y.) 344 (1881); Burt v. Saxton, 1 
 Hun (N. Y.) 551 (1874); s. c. 4 T. 
 & C. 109. 
 
 8 See Grinnan v. Piatt, 31 Barb. 
 (N. Y.) 328 (1860); Jester v. Sterling. 
 25 Hun (N. Y.) 344 (1881). 
 
 (31)
 
 482 DEFENCE OF PAYMENT. [§ 404. 
 
 § 404. Payment as a defence.— The existence and con- 
 tinuance of the debt is essential to the life of a mortgage 
 given to secure it ; whenever the debt is paid, discharged, 
 released or barred by the statute of limitations, the mort- 
 gage ceases and can no longer have any legal effect.* The 
 mortgagor or other person liable for the payment of any 
 deficiency that may arise on the sale of the mortgaged 
 premises, as well as the owner of the equity of redemption, 
 has a right to answer that the mortgage debt has been paid 
 in whole or in part, and this will plead a good defence 
 to a foreclosure.' And where an action is brought to fore- 
 close a mortgage for an unpaid installment, the payment of 
 the amount due with costs will terminate the suit ;* while 
 payment in whole or in part, when properly alleged and 
 proved, is a good defence for either a mortgagor or a junior 
 incumbrancer,* yet where payment is set up as a defence, it 
 must be clearly established.* Whenever a defendant pleads 
 payment, it will be for the trial court to decide whether a 
 proper defence is made justifying the suspension of judg- 
 ment for the plaintiff, whose legal right of possession is not 
 denied, until the determination of the question whether the 
 mortgage debt has or has not been paid.' 
 
 The equitable assignee of a mortgage, in order to protect 
 hiij rights against the payment of the debt by the mortgagor 
 to the mortgagee, should give actual or constructive notice 
 of his assignment, either by placing the assignment on record 
 or by giving notice thereof to the mortgagor personally. If 
 
 > Emory v. Keighan, 94 HI. 543 the mortgage debt can not set up a 
 
 (1880). release executed by one who had no 
 
 • Prouty V. Price, 50 Barb. (N. T.) authority to execute it at the time. 
 844 (1867). See Lawson v. Barron, Cornog v. Fuller, 30 Iowa, 213 
 18 Hun (N. Y.) 414 (1879). (1870). 
 
 • Brown v. Thompson, 29 Mich. » Suhr v. Ellsworth, 29 Mich. 57 
 72 (1874). See Dow v. Moor, 59 Me. (1874). See Finlayson v. Lipscomb, 
 118(1871). 16 Fla. 751 (1878); Cameron v. 
 
 « Prouty V. Price, 50 Barb. (N. Y.) Culkins, 44 Mich. 531 (1880) ; Rich- 
 
 844 (1867) ; Prouty v. Eaton, 41 ardson v. Tolman, 44 Mich. 379 
 
 Barb. (N. Y.) 409 (1863) ; Edwards (1880). 
 
 V. Thompson, 71 N. C. 177 (1874) ; « Edwards v. Thompson, 71 N. C. 
 
 Hendrix v. Gore, 8 Oreg. 406 (1880). 177 (1874). 
 
 But a mortgagor who has not paid
 
 § 404.] DEFENCE OF PAYilENT. 483 
 
 he does neither, and there are no attending circumstances 
 to put the mortgagor on inquiry as to the fact of the 
 assignment, a payment of the debt to the mortgagee will 
 satisfy the mortgage and defeat an action to foreclose. 
 
 But payment to the mortgagee after the legal transfer of 
 the note and mortgage before maturity will not satisfy the 
 note, and the mortgage may be enforced.' It has been held 
 that a mortgagor has a right to rely, where he does so in 
 good faith, upon the statement of the mortgagee's adminis- 
 trator as to the ownership of the mortgage, and if he makes 
 payments to the person who the administrator says owns 
 the note and mortgage, they will be valid and may be 
 set up as a defence in an action brought by the right- 
 ful owner to foreclose.' It has been said, however, that 
 a mortgage may be kept alive even after payment in full, 
 if such was the intention of the parties, or if there are 
 interests which require it for their protection ; but where a 
 mortgagor causes a first mortgage to be paid with his own 
 money, his payment will extinguish such mortgage in law 
 and in equity, as between the rights attaching to it and 
 those attaching to a second mortgage.' 
 
 The payment of a mortgage debt before it becomes due 
 will operate as a discharge of the lien, and will constitute a 
 good defence to a foreclosure ;* a tender or payment at 
 maturity' will also discharge the lien, and is a valid defence." 
 The title to the property will rest in the mortgagor free 
 from the incumbrance.^ 
 
 * Towner v. McClelland, 110 111. « Merrill v. Chase. 85 Mass. (3 
 542(1884). Allen), 339 (1862); Richardson v. 
 
 2 Reynolds v. Smith, 57 Mich. 194 Cambridge, 84 Mass. (2 Allen), 118 
 
 (1885). (1861); 8. c. 79 Am. Dec. 767; Shields 
 
 » Loverin v. Humboldt Safe De- v. Lozear, 34 N. J. L. (5 Vr.) 496 
 
 posit& Trust Co., 113 Pa. St. 6(1886). (1869); s. c. 3 Am. Rep. 256. See 
 
 * Holman v. Bailey, 44 Mass. (3 Grover v. Flye, 87 Mass. (5 Allen), 
 Mete.) 55 (1841). 543 (1863). 
 
 * Kortright v. Cady, 21 N. Y. 343 ■" Shields v. Lozear, 34 N. J. L. 
 (1860); S.C. 78 Am. Dec. 145; Grain v. (5 Vr.) 496 (1869) ; s. c. 3 Am. Rep. 
 McGoon, 86 111. 431 (1877) ; s. c. 18 256. 
 
 Am. L. Reg. N. S. 178, and notes 
 182 to 186.
 
 484 DEFENCE OF PAYMENT. [§ 405. 
 
 Payment by a third person will discharge the lien of a 
 mortgage, although it may have been made without authority, 
 if it was subsequently ratified by the mortgagor, in which 
 case the payment by an agent will become equivalent to an 
 original authorization to make it.' 
 
 § 405. What amounts to a payment. — To constitute a 
 payment there must be a full liquidation of the debt ; hence, 
 a mere change in the form of indebtedness will not operate 
 as a payment. Thus, it has been held that the fact, that the 
 original notes secured by a mortgage have been surrendered 
 and other forms of indebtedness taken in their stead, will 
 not, as between the parties, while the original indebtedness 
 still continues, deprive the creditor of the security afforded 
 by his mortgage ;" and a mortgage debt will not be satisfied 
 by the mere giving of other notes in renewal, because it is 
 the debt and not the mere evidence of it which is secured, 
 and so long as the debt exists in any form, the mortgage will 
 remain unsatisfied.* 
 
 The acceptance of a mortgagor's note for interest due on 
 a mortgage, will not pay the debts nor discharge the lien of 
 the mortgage for such interest.* Payment by a mortgagor to 
 the next of kin of his deceased mortgagee is no defence to 
 an action by the administrator for foreclosure ;* and the pay- 
 ment of part of a mortgage debt after the commencement of 
 proceedings to foreclose the mortgage, but before their termi- 
 nation, will not necessarily delay or prevent the continuance 
 of the foreclosure.* 
 
 In a case where the amount of a mortgage was reduced by 
 the court on an appeal by the mortgagor on a bill to set it 
 aside, the complainant was allowed costs of both courts and 
 was permitted to apply them, with taxes, as a payment /r<? 
 
 • Heermans v. Clarkson, 64 N. Y. * Hutchinson v. Swartzweller, 31 
 171 (1876); Commercial Bank of N. J. Eq. (4 Stew.) 205 (1879). 
 Buffalo V. Warren, 15 N. Y. 577 * Mitchell v. Moorman, 1 Young 
 (1857) ; Hayes v. Kedzie, 11 Hun & J. 21 (1826). See Story v. Kemp, 
 (N. Y.) 577, 581 (1877). 51 Ga. 399 (1874). 
 
 * Heively v. Matteson, 54 Iowa, * Welch v. Stearns, 74 Me. 71 
 505 (1380;. (1882). 
 
 » Bodkin v.Merit.86 Ind. 560 (1883).
 
 § 406.] DEFEXCE OF PAYilEXT. 485 
 
 tanto on the mortgage.' In a case where the maker of a note, 
 secured by mortgage, on the day of its maturity sent checks 
 to the mortgagee for the amount thereof with the intention of 
 paying it, and requested the same to be applied in payment 
 of the note, the mortgagee objected to such apphcation 
 and requested that the checks should be applied towards the 
 payment of an open account, stating that if insisted upon, 
 the application would be made in payment of the note as 
 required but that in such case the open account would be 
 closed and payment required, and that further credit would 
 not be given. The mortgagor did not expressly assent to 
 this, though no further directions were given by him as to 
 the application of the check and he did not make a demand 
 for the note ; the mortgagee credited the checks on the open 
 account and delivered receipted vouchers therefor showing 
 such application, and the mortgagor continued to purchase 
 and the mortagagee to sell to him on credit. In an action 
 brought to foreclose the mortgage, it was held that the 
 checks were not a payment on the note, because the above 
 facts showed the acquiescence of the mortgagor in the appli- 
 cation as made on the open account." 
 
 § 406. Attorney's fees and taxes to be paid as part of 
 mortgage debt— Where a mortgage provided for the pay- 
 ment of an attorney's fee, " to become payable on filing the 
 complaint for foreclosure," and after the commencement 
 of an action to foreclose, the mortgagor paid the principal 
 and interest, together with the court costs, but not the attor- 
 ney"s fee, and was informed by the plaintiff that by the terms 
 of the mortgage there was an attorney's fee due, which would 
 have to be paid before the mortgage would be discharged 
 or the action dismissed, it was held that the plaintiff was 
 entitled to proceed with the action to enforce the payment 
 of the attorney's fee.' And it has been held that the pay- 
 ment of the debt secured by a mortgage does not extinguish 
 
 ' Bowe V. Bowe, 42 Mich. 195 » Stockton Saving and Loan Sec. 
 (1879). V. DonneUy, 60 Cal. 4S1 (lttb2). 
 
 » Pennsylvania Coal Co. v. Blake, 
 85 N. T. 226 (1881). See post § 409.
 
 486 DEFENCE OF PAYMENT. [§§ 407-408. 
 
 the lien of the mortgage as a security for taxes properly paid 
 by the mortgagee to protect his mortgage security.* 
 
 § 407. Payment of condemnation money to mortgagor 
 instead of to mortgagee. — A mortgagee will not be barred 
 of his right to foreclose by the payment to the mortgagor, 
 instead of to him, of the condemnation money found to 
 be due to the owner of the property, where such property 
 is taken by the right of eminent domain.' Thus, where a 
 railroad company, in the exercise of the power of eminent 
 domain, seeks to appropriate private property to its own use 
 for the purpose of a right of way, by condemnation and 
 appraisement, all persons having an interest in the property* 
 including the mortgagees, should be made parties to the 
 proceeding by proper notice; and if such company fails so to 
 do and pays the money to a person not entitled thereto, the 
 proceeding and payment will be void as to all persons not 
 parties to it and therefore not binding upon a mortgagee, 
 who may foreclose his mortgage as against the railroad 
 company.* Where the entire mortgaged premises are taken, 
 the question as to whether, by the condemnation proceed- 
 ings, the railroad company acquired the fee to the land or 
 only an easement, is not material ; the whole of the property 
 being taken, the effect upon the mortgagee's security is the. 
 same.* 
 
 § 408. Payment by deposit of collateral security or 
 assumption of prior mortgage. — In a recent case* a party 
 purchased certain premises in reliance upon representations of 
 the vendor that they were free and clear from all incumbrances, 
 there being in fact a mortgage thereon at the time. Upon 
 discovery of the fraud by the purchaser an oral agreement 
 was made between him and his grantor, that he would assume 
 the old mortgage and that the amount thereof should be 
 
 ' Horrigan v. Wellmuth, 77 Mo. * Dodge v. Omaha & S. W. R. 
 
 542 (1883). Co., 20 Neb. 276 (1886). 
 
 » Dodge V. Omaha & S. W. R. R. » Green v. Fry, 93 N. Y. 353 
 
 Co., 20 Neb. 276 (1»»6). (1883). 
 
 » Dodge V. Omaha & S. W. R. R. 
 Co., 20 Neb. 276 (1886).
 
 § 409.] APPLICATION OP PAYMENTS. 487 
 
 credited as a payment upon a mortgage given by him to secure 
 part of the purchase money. The vendor subsequently 
 assigned his mortgage to parties who had no knowledge of the 
 agreement. After the assignment, for the purpose of 
 carrying out the oral agreement, the vendor executed to the 
 purchaser a receipt for the amount of the old mortgage to 
 be applied upon the purchase money mortgage. The 
 mortgagor at that time had knowledge of the assignment. 
 In an action to foreclose, it was held that the oral agreement 
 was valid and effectual as a payment, and that its effect was 
 not impaired by taking the receipt. 
 
 Where the attorney of a mortgagee refused to receive 
 from the mortgagor a partial payment on the mortgage to 
 stop the interest, but consented to receive it as a deposit, 
 with the understanding that if the mortgagee would take 
 the same as a payment and allow interest, it should be indorsed 
 on the mortgage, and the mortgagee refused to receive the 
 money unless the whole debt was paid, but subsequently 
 accepted the money from his attorney with the under- 
 standing that he was not to allow interest thereon until the 
 residue was paid; the court held that the mortgagor was 
 equitably entitled to have the money applied as a payment 
 on the day it was made, and that it wsls pro tanto a defence 
 to an action to foreclose.* 
 
 § 409. Application of payments— How to be made. — 
 
 A debtor has a right to direct the application of his pay- 
 ments to any one of several debts owing by him to a creditor,* 
 
 > Toll V. Hiiler, 11 Paige Ch. (X. 9 Cow. (N. Y.) 420 (1827) ; Van 
 
 Y.) 228 (1844). Rensselaer v. Roberts, 5 Den. (N. 
 
 « See Bank of California v. Webb, Y.) 470 (1848) ; Allen v. Culver, 3 
 
 94 N. Y. 467 (1884) ; National Bank Den. (N. Y.) 284 (1846); Hall v 
 
 of Newburgh v. Bigler, 83 N. Y. 51 Constant, 2 Hall (X. Y.) 185 (1829) ; 
 
 (1880) ; Harding v. Tifft, 75 N. Y. Patty v. Milne. 16 Wend. (N. Y.) 
 
 461 (1878) ; Sheppard v. Steele, 43 557 (1837) ; Stone v. Seymour, 15 
 
 N. Y. 53 (1870) ; Butler v. Ameri- Wend. (X. Y.) 19 (1835) ; Webb 
 
 can P. L. Ins. Co., 42 N. Y. Supr. v. Dickinson, 11 Wend. (X. Y.) 62 
 
 Ct. (10 J. & S.) 342 (1877) ; Seymour (1833) ; Seymour v. VanSlyck, 8 
 
 V. Marvin, 11 Barb. (N. Y.) 80 Wend. (X. Y.) 403 (1832) ; King v. 
 
 (1851) ; Mann v. Marsh, 2 Cai. (X. Andrews, 30 Ind. 429 (1868) ; Bacon 
 
 Y.) 99 (1804); Baker v. Stackpoole, v. Brown, 1 Bibb (Ky.) 334 (1809);
 
 488 
 
 APPLICATION OF PAYMENTS — HOW MADE. [§ 409. 
 
 and such application by the creditor may be implied from 
 attending circumstances.* Where the debtor fails to direct 
 a specific application at the time of the payment, the creditor 
 may make such application as he chooses." Where neither 
 party makes an application of the payment at the time it is 
 made, the court may subsequently direct how it shall be 
 made.* 
 
 If the application of payments is made by a court, it will 
 be made according to the equitable rights of all interested 
 parties.* Where a debtor owes his creditor upon various 
 debts, a portion of which are secured, the application of 
 payments, if made by a court, will usually be made upon 
 those that are secured, in order to release the securities.* 
 
 Champeuois v. Fort, 45 Miss. 355 
 (1871); Leef v. Goodwin, Tan. C. C. 
 460 (1841). See ante % 405. 
 
 ' Seymour v. VanSlyck, 8 Wend. 
 (N. Y.) 403 (1832). See Truscott v. 
 King, 6 K Y. 147 (1853) ; Robert 
 V. Garnie, 3 Cai. (N. Y.) 14 (1805) ; 
 Allen V. Culver, 3 Den. (N. Y.) 284 
 (1846) : Stone v. Seymour, 15 Wend. 
 (N. Y.) 19 (1835) ; Webb v. Dickin- 
 son, 11 Wend. (N. Y.) 62 (1833). 
 
 ' National Bank of Newburgh v. 
 Bigler, 83 N. Y. 51 (1880). See Feld- 
 man v. Beier, 78 N. Y. 293 (1879) ; 
 Harding v. Tifft, 75 N. Y. 461 
 (1878) ; Shipsey v. Bowery Nat. 
 Bank, 59 N. Y. 485 (1875) ; Bank of 
 California v. Webb, 48 N. Y. Supr. 
 Ct. (16 J. & S.) 175 (1882) ; Seymour 
 V. Marvin, 11 Barb. (N. Y.) 80 
 (1851) ; Mann v. Marsh, 2 Cai. (N. 
 Y.) 99 (1804); Baker V. Stackpoole, 9 
 Cow. (N. Y.) 420 (1827) ; VanRens- 
 selaer v. Roberts, 5 Den. (N. Y.) 470 
 (1848) ; Allen v. Culver, 3 Den. (N. 
 Y.) 284 (1846) ; Hall v. Constant, 2 
 Hall (N. Y.) 185 (1829) ; Godfrey v. 
 Warner, Hill & Den. (N. Y.) 32 
 (1842); Webb v. Dickinson, 11 
 Wend. (N. Y.) 62 (1833) ; Trotter v. 
 Grant, 2 Wend. (N Y.) 413 (1829) ; 
 
 Waterman v. Younger, 49 Mo. 413 
 (1872) ; Howard v. McCall, 21 Gratt. 
 (Va.) 205 (1871) ; Mayor v. Patten, 
 8 U. S. (4 Cr.) 317 (1808) ; bk. 2 L. 
 ed. 632. 
 
 8 Allen V. Culver, 3 Den. (N. Y.) 
 284 (1846) ; Stone v. Seymour, 15 
 Wend. (N. Y.) 19 (1835) ; Righter v. 
 Stall, 3 Sandf. Ch. (N. Y.) 608 
 (1846) ; Hargroves v. Cooke, 15 Ga. 
 321 (1854); Nutall v. Brannin, 5 
 Bush (Ky.) 11 (1868); Calvert v. 
 Carter, 18 Md. 73 (1861). 
 
 * Jones V. Benedict, 83 N. Y. 79 
 (1880). See Griswold v. Onondaga 
 Co. &c. Bank, 93 N. Y. 301 (1883) ; 
 Truscott v. King, 6 N. Y. 147 
 ( 1852 ) ; Dows v. Morewood, 10 
 Barb. (N. Y.) 183 (1850) ; Baker v. 
 Stackpoole, 9 Cow. (N. Y.) 420 
 (1827) ; Allen v. Culver, 3 Den. (N. 
 Y.) 284 (1846) ; Stone v. Seymour, 
 15 Wend. (N. Y.) 19 (1835) ; Chester 
 V. Wheelwright, 15 Conn. 562 
 (1843); Bacon v. Brown, 1 Bibb 
 (Ky.) 334 (1809) ; Harker v. Conrad, 
 12 Serg. & R. (Pa.) 301 (1825) ; Ayer 
 V. Hawkins, 19 Vt. 26 (1846); 
 Emery v. Titchout, 13 Vt. 15 (1841); 
 Leef V. Goodwin, Tan. C. C. 460 
 (1841).
 
 § 409.] APPLICATIOlf OF PAYMENTS — HOW MADE. 489 
 
 But it is questionable whether in all cases, as between a 
 mortgage and an open account, the court will apply a general 
 payment upon the mortgage instead of upon the open 
 account.' Some of the cases hold that such an application 
 of general payments should be made as will be most bene- 
 ficial to the debtor, and that generally such payments should 
 be applied to extinguish the debts first due.* 
 
 Where payments are made by a party upon a mortgage 
 debt in pursuance of the discharge of a duty, in the proper 
 performance of which others are interested, such payments 
 must be applied and allowed in satisfaction of the mort- 
 gage, and can not be used by such party as a mere con- 
 sideration for the assignment of the mortgage and debt to 
 a third person.* And money once paid and appropriated by 
 the parties to a note secured by a mortgage, and indorsed 
 upon it, can not by a subsequent agreement be transferred to 
 the credit of another debt, and such satisfied mortgage 
 thereby become re-instated and made good as against a 
 second mortgage.* 
 
 Where a mortgagee, subsequent to the execution of the 
 mortgage, has become indebted to the mortgagor upon a 
 book account, the owner of the equity of redemption or 
 a junior mortgagee has a right to have such indebtedness, 
 due from the prior mortgagee to the mortgagor, applied in 
 satisfaction of the senior mortgage.* But it has been held. 
 
 » Jones V. Benedict, 83 N. Y. 79 » Dows v. Morewood, 10 Barb. 
 
 (1880) ; Thomas v. Kelsey, 30 Barb. (N. Y.) 183 (1850). See Hunter v. 
 
 (N. Y.) 268 (1859) ; Dows v. More- Osterhoudt, 11 Barb. (N. Y.) 33 
 
 wood, 10 Barb. (N. Y.) 183 (1850) ; (1851); Allen v. Culver, 3 Den. (N. 
 
 Wright V. Wright, 7 Daly (N. Y.) 55 Y.) 284 (1846) ; Wheeler v. Cropsey, 
 
 (1877) ; Jackson v. Johnson, 11 Hun 5 How. (N. Y.) Pr. 288 (1850) ; 
 
 (N. Y.) 509 (1877) ; Callahan v. Fairchild v. Holly, 10 Conn. 176 
 
 Boazman, 21 Ala. 246 (1852) ; Stam- (1834) ; Sprague v. Hazenwinkle, 53 
 
 ford Bank v. Benedict, 15 Conn. 437 Bl. 419 (1870) ; Crompton v. Pratt, 
 
 (1843) ; Langdon v. Bowen, 46 Vt. 105 Mass. 255 (1870) ; Langdon v. 
 
 512 (1874) ; Vance t. Monroe, 4 Bowen, 46 Vt. 512 (1874). 
 
 Gratt. (Va.) 53 (1847). But see Field « Burnham v. Dorr, 72 Me. 198 
 
 V. Holland, 10 U. S. (6 Cr.) 8 (1810) ; (1881). 
 
 bk. 3 L. ed 136. ' York Co. Savings Bank v. 
 
 ' Griswold v. Onondaga Co. &c. Roberts, 70 Me. 384 (1879). 
 
 Bank, 93 N. Y. 301 (1883). * Prouty v. Price, 50 Barb. (N. Y.)
 
 490 PAYMENTS BY MORTGAGOR AFTER SALE. [§410. 
 
 that the question, whether a balance on account in transac- 
 tions between a mortgagee and a mortgagor after the 
 execution of the mortgage, which is equal to the amount of 
 the mortgage, is to be applied upon the payment of such 
 mortgage, and to be regarded as a discharge thereof, depends 
 upon the intention of the parties and is purely a question 
 of fact ;' if it was the intention and agreement of the 
 parties, that the money secured by the mortgage should 
 remain unpaid, irrespective of the current balance of accounts, 
 the mortgagor will not be entitled, as against an assignee 
 of the mortgage, to apply such balance to the satisfaction of 
 the mortgage debt, or as a payment thereon pro tanto* 
 Where- the mortgagor of land performs labor for the mort- 
 gagee, under an agreement that his wages shall be applied 
 upon the mortgage debt, and earns more than enough to 
 satisfy the same, the debt will nevertheless remain undis- 
 charged until the actual application of the amount to such 
 payment ; yet if such application is not made, and the 
 condition of the mortgage is broken, the mortgagor may 
 maintain an action to redeem.* 
 
 § 410. Payments by mortgagor after conveyance.— A 
 
 mortgage is valid and may be foreclosed as long as the debt 
 which it secures is not barred by the statute of limitations; 
 and a partial payment or an acknowledgment of the debt, 
 which would prevent the statute from running against it, will 
 also prevent the statute from running against the remedy on 
 the security. Thus, it has been held that where a purchaser 
 from the mortgagor has either actual notice of the mortgage 
 at the time of his purchase, or constructive notice by means 
 of public records, he will be bound by a previous acknowl- 
 edgment of the debt made by his grantor within twenty 
 years.* 
 
 844 (1867) ; Rosevelt v. Bank of (1880) ; Toll v. Hiller, 11 Paige Ch. 
 
 Niagara, Hopk. Ch. (N. Y.) 579 (N. Y.) 228 (1844). 
 
 (1825) ; afl'd 9 Cow. (N. Y.) 409 « Peck v. Minot, 3 Abb. Ct. App. 
 
 (1827). Dec. (N. Y.) 465 (1867). 
 
 ' Peck V. Minot, 3 Abb. Ct. App. * Doody v. Pierce, 91 Mass. (2 
 
 Dec. (N. Y.) 465 (1867). See Bocks Allen), 141 (1864). 
 
 •». Hathoru, 20 Hun (N. Y.) 503 * See Heyer v. Pruyu, 7 Paige Ctu
 
 § 411.] PAYMEI!TTS HOW PLEADED AS DEFENCE. 491 
 
 It has been said that a grantee of mortgaged premises 
 will be bound by the acts of the mortgagor, or other person 
 under whom he claims, made subsequently to the vesting of 
 his estate, as well as by those prior thereto ; and that a pay- 
 ment or a new promise made by such person after the 
 transfer of the property to the grantee, will keep the debt 
 and security alive against the estate.' And it has been held 
 that a payment of interest by a tenant for life, will keep the 
 mortgage alive as against a person entitled to the mortgaged 
 premises in remainder." But it is also held that, where the 
 mortgagor conveys the equity of redemption and ceases to 
 pay interest on the mortgage note, the regular payment of 
 interest by the grantee will not operate to prevent the run- 
 ning of the statute of limitations against the liability of the 
 mortgagor on the mortgage and the note.* The doctrine, 
 however, that a payment made by the mortgagor or other 
 party liable for the debt after he has parted with all interest 
 in the property, will keep alive the debt and the lien on 
 the property, is repudiated in California,* Kansas,' Mas- 
 sachusetts' and Texas.* 
 
 § 411. Payments — How pleaded — Inability to find mort- 
 gagee. — Payment may be pleaded by answer and need not 
 be set up as a counter-claim to be available. Thus, the defence 
 that the mortgagee has received a conveyance of property 
 or payments in money, which should be applied on the mort- 
 gage debt, may be taken by answer without filing a cross- 
 bill.' And where a defendant in his answer to a complaint 
 to foreclose a mortgage alleges that the debt has been fully 
 
 (N. T.) 465 (1839) ; s. c. 34 Am. » Trustees of old Alms House 
 
 Dec. 355 ; Hughes v. Edwards, 23 Farm v. Smith, 53 Conn. 434 (1884). 
 
 U. S. (9 Wheat.) 489 (1824) ; bk. 6 * Low v. Allen, 26 Cal. 141 (1864). 
 
 L. ed. 142. See ante chap. iv. * Schmucker v. Seibert, 18 Kan. 
 
 > N. Y. Life Ins. & Trust Co. v. 104 (1877) ; s. c. 26 Am. Rep. 765. 
 
 Covert, 6 Abb. (N. Y.) Pr. N. S. 154 » Butler v. Price, 115 Mass. 578 
 
 (1867) ; s c. 3 Abb. App. Dec. (N. (1874) ; Pike v. Goodnow, 94 Mass. 
 
 Y".) 350, reversing 29 Barb. (N. Y.) (12 Allen), 473 (1866). 
 
 435 ; Barrett v, Prentiss, 57 Vt. 297 ' Cason v. Chambers, 62 Tex. 305 
 
 (1885), (1884). 
 
 « Roddam v. Morley, 1 De G. & J. » Edgertou v. Young, 43 111. 464 
 
 1 (1856). (1867).
 
 492 PAYMENTS HOW PLEADED EN DEFENCE. [§ 412. 
 
 paid, he will be entitled to prove on the trial that the plain- 
 tiff received money at different times, to be applied as pay- 
 ments on the mortgage, although he did not plead such 
 payments as a counter-claim.* Where a mortgage contains 
 a stipulation that the mortgagor may make payments before 
 the debt falls due, at his option, he must distinctly and 
 afifirmatively elect to do so in order to make a valid tender 
 of the whole amount secured ; and if he relies upon such 
 election and a tender thereunder as a defence against a 
 foreclosure, he must not only allege it in his answer, but 
 prove it.* 
 
 In an action brought to foreclose a mortgage, containing a 
 clause making the principal due in case of default in paying 
 the interest after a certain number of days, it is not a valid 
 defence or ground of relief that the defendant could not find 
 the holder of the mortgage until after the time for the pay- 
 ment of the interest had expired, where the answer does not 
 set out a trick or fraud on the part of the plaintiff to prevent 
 the payment of the interest.* 
 
 § 412. Payment — How proved in defence. — Where the 
 defendant sets up satisfaction of the debt as a defence, 
 the only question being one of fact,* payment may be proved 
 by parol,* or inferred from attending circumstances.' Thus, 
 in an action to foreclose a mortgage, which, by its terms, was 
 given to secure the payment of moneys according to the 
 conditions of a bond, where the defence of payment is inter- 
 posed, the failure of the plaintiff to produce the bond will 
 be evidence of the satisfaction of the mortgage debt, and, if 
 unexplained, will be conclusive against the plaintiff's right 
 
 » Hendrix v. Gore, 8 Oreg. 406 » Thornton v. Wood, 43 Me. 282 
 
 (1880). (1856) ; Ackla v. Ackla, 6 Pa. St. 
 
 * Post V. Springsted, 49 Mich. 90 228 (1847); McDaniels v. Lapham, 21 
 (1882). Vt. 222 (1849). 
 
 * Dwight V. Webster, 32 Barb. (N. * Waugh v. Riley, 49 Mass. (8 
 Y.) 47 (1860) ; a. c. 10 Abb. (N. T.) Mete.) 290 (1844) ; Morgan v. Davis, 
 Pr. 128. See Ferris v. Ferris, 16 2 Ear. & McH. (Md.) 9 (1781) ; 
 How. (N. Y.) Pr. 102 (1858). Deming v. Comings, 11 N. H. 474 
 
 * See Wells v. Lawrence, 65 Iowa, (1841). 
 873 (1884).
 
 §4:13.] ALLEGING DISCHARGE EST DEFENCE. 493 
 
 to recover.' But the presumption of payment arising from the 
 possession of the notes and mortgage by the mortgagor may 
 be rebutted,' as may also the entry of discharge on the 
 record by the mortgagee,' even where such discharge was 
 made under seal.* 
 
 § 413. Alleging discharge and satisfaction of mortgage 
 in defence. — What acts amount to a discharge of mortgage 
 is a question of law for the court. The simple discharge of 
 a mortgage of record is not necessarily a satisfaction of the 
 debt, nor evidence of its payment, although it may be a 
 complete bar to an action to foreclose.* Thus, innocent pur- 
 chasers of land will take it discharged of a mortgage lien 
 which has been satisfied of record, although the satisfaction 
 was procured by fraud.* 
 
 Where a mortgage is given by a debtor to two persons to 
 secure the payment of a sum of money owing to them jointly, 
 a discharge by either on payment to him of the amount 
 of the joint debt will be valid.' And where the holder 
 of a note received a mortgage with the understanding that 
 he was to retain it as security for the payment of- the note, 
 only until he could assure himself of the solvency of another 
 party, who was offered as surety, and having satisfied himself 
 on this point, he obtained the signature of the proposed 
 surety to the note and thereafter kept the note without dis- 
 charging the mortgage of record, it was held that this was an 
 equitable discharge of the mortgage.* But where a mort- 
 gagee agreed to discharge a mortgage upon the consideration 
 that the mortgagor would insure his life to secure the debt, 
 which insurance was never obtained, and a power of attorney 
 was written upon the mortgage authorizing the recorder to 
 
 ' Bergen v. Urbahn, 83 N. Y. 49 * Fleming v. Perry, 24 Pa. St. 47 
 
 (1880). (1854). 
 
 •Crocker v. Thompson, 44 Mass. * Mason v.Beach, 55 "Wis.607 (1882). 
 
 (3 Mete.) 224 (1841) ; Smith v. Smith, « Burton v. Reagan, 75 Ind. 77 
 
 15 N. H. 55(1844). (1881). 
 
 » Robbinson v. Sampson, 23 Me. ' Lyman v. Gedney, 114 111. 388 
 
 388 (1844) ; Trenton Banking Co. v. (1885). 
 
 Woodruff, 2 N. J, Eq. (1 H. W. Gr.) « Baile v. St. Joseph's Fire & 
 
 117 (1838). Marine Ins. Co., 73 Mo. 371 (1881).
 
 494 ALLEGING DISCHARGE IN DEFXNOE. [§413. 
 
 enter satisfaction thereof, which was never delivered, but was 
 retained by the mortgagee, and a new note was taken and the 
 old one was marked canceled, but was not surrendered, it was 
 held that such authorization was not sufificient to show a 
 discharge of the mortgage.' 
 
 Where the owner of the equity of redemption pays off a 
 mortgage with his own funds for the purpose of re-pledging 
 the land, such payment will constitute a satisfaction of the 
 mortgage lien ;" but it will be otherwise, if the owner of 
 the equity of redemption pays off the mortgage with the funds 
 of a third person, for the purpose of purchasing the mortgage 
 for such third person. Under such circumstances the mort- 
 gage will not be considered satisfied nor the lien discharged, 
 either as to the owner or as to subsequent incumbrancers.* 
 Where a mortgagee, after a foreclosure sale for an installment 
 due and an entry on the premises, conveyed the land by 
 warranty deed, it was held that such deed discharged the 
 mortgage lien and released the indorsers of such notes as 
 were secured by subsequent installments.* 
 
 Where a party holding a mortgage discharges it of record 
 solely for the purpose of giving priority to a second mort- 
 gage held by another person, the first mortgage will still sub- 
 sist as between the parties thereto and may be foreclosed 
 against the mortgagor, the same as though no discharge had 
 been made.* And where a mortgage is given to secure a 
 debt, and the debt subsequently becomes merged in a 
 judgment, the mortgage lien will not be thereby discharged, 
 but will stand as security for the judgment. So, where a 
 settlement is had between a mortgagor and a mortgagee and 
 a new note is given for the balance due, upon which a 
 judgment is subsequently taken by confession, the new 
 note and judgment will not operate as a discharge of the 
 mortgage.* 
 
 ' National Bank v. Dayton, 116 * Bridgman v. Johnson, 44 Mich. 
 
 111. 257 (1886). 491 (1880). 
 
 « Denton v. Cole, 30 N. J. Eq. (3 * Wood v. Wood, 61 Iowa, 56 
 
 Stew.) 244 (1878). (1883). 
 
 3 Denton v. Cole, 30 N. J. Eq. (3 « Darst v. Bates, 95 m. 493 (1880). 
 Stew.) 244 (1878).
 
 § 414.] KELEASE OF PAET OE PREMISES. 405 
 
 § 414. Allegation of release of part of mortgaged 
 premises. — A proper release of a mortgage discharges the 
 released portion of the mortgaged premises from the lien of 
 Ihe mortgage debt, and is a good defence to a foreclosure; 
 but a fraudulent release, or a release by a party having no 
 authority to execute the same, will, of course, be void.' 
 
 And a release by a mortgagee, with notice of subse- 
 quent incumbrances, will not give priority to a fourth mort- 
 gage over the lien of the intermediate incumbrances ;' but 
 where the holder of a mortgage takes a new mortgage as a 
 substitute for an existing mortgage in ignorance of an inter- 
 vening lien, equity will restore the lien of the first mortgage,* 
 because a court will always keep an incumbrance alive to 
 subserve the purposes of justice and to give effect to the actual 
 intention of the parties.* Thus, the payee of a note has no 
 authority after its transfer to release a mortgage executed 
 to secure it.* And where notes and a mortgage were left 
 with an attorney with power to cancel the original mortgage 
 upon the receipt of a new mortgage, and the attorney 
 canceled the original mortgage without receiving such new 
 mortgage, it was held that such cancellation was without 
 authority.* A release of mortgaged lands at the instance of 
 
 • Kendall v. Woodruff, 87 N. Y. 1 As to a fraudulent entry of satis- 
 
 (1881); Kendall v, Niebuhr, 58 How. faction of a mortgage and its effects, 
 
 (N. T.) Pr. 156 (1879); VanSlyke v. see Hays v. O'Connor, 1 N. Y. Leg. 
 
 VanLoan, 26 Hun (K Y.) 344(1882); Obs. 505 (1843) ; Remann v. Buck, 
 
 Darst V. Bates, 95 111. 493 (1880) ; master, 85 111. 403 (1877) ; Fine v. 
 
 Meacham V. Steele, 93 111. 135 (1879) ; King, 33 N. J. Eq. (6 Stew.) 108 
 
 Hawhev. Snydaker, 86111. 197(1877); (1880) ; Wier v. Mosher, 19 Wis. 311 
 
 Dewey v.Ingersoll,42 Mich.l7 (1879); (1865). 
 
 Benton v.Nicoll, 24 Minn. 221 (1877); » Taylor v. Wing, 84 K Y. 471 
 
 Mount V. Potts, 23 N. J. Eq. (8 C. (1881). See Bernhardt v. Lymbur- 
 
 E. Gr.) 188 (1872) ; Stillman v. Still- ner, 85 N. Y. 172 (1881). 
 
 man, 21 N. J. Eq. (6 C. E. Gr.) 126 « Geib v. Reynolds, 35 Minn. 331 
 
 (1870) ; Hoy v. Bramhall, 19 N. J. (1886). 
 
 Eq. (4 C. E. Gr.) 563 (1868) ; Gaskill * Sidener v. Pavey, 77 Ind. 241 
 
 V. Sine, 13 N. J. Eq. (2 Beas.) 400 (1881). 
 
 (1861) ; Johnson v. Olcott, 8 N. J. « Hagerman v. Sutton, 91 Mo. 513 
 
 Eq. (4 Halst.) 561 (1851) ; Mcllvain (1887). 
 
 V. Mutual Assurance Co., 93 Pa. St. * Foster v. Paine, 63 Iowa, 85 
 
 30 (1880) ; Kelley v. Whitney, 45 (1884). 
 Wia. 110 (1878).
 
 496 RELEASE OF PART OF PREMISES. [§415. 
 
 the mortgagor is not a good defence in an action to fore- 
 close, where there is nothing to indicate that the release was 
 against the rights of any of the defendants.' 
 
 If a release of a mortgage is relied upon as a defence in 
 an action for foreclosure, the answer should either give a 
 brief description of the release with averments of the facts 
 connected therewith, or should set it out at length. An 
 answer which merely alleges that the mortgage is of no 
 binding effect and is not a lien upon the premises described, 
 simply states a conclusion of law and is insufificient.* Where 
 a mortgagee of land releases a portion thereof from the 
 operation of his mortgage, with actual or constructive notice 
 that any other part thereof has a right to exemption from 
 contribution to the payment of his mortgage, such exemp- 
 tion may be pleaded as a defence to an action to foreclose, 
 and the mortgagee will thereby be estopped from enforcing 
 his mortgage against such exempt portion.* 
 
 § 415. Alleging release of part of mortgaged premises 
 in defence. — The general rule that the release of the part of 
 mortgaged premises still owned by the mortgagor, will 
 operate as a discharge of the part aliened by him does not 
 apply, unless the releasor has knowledge of the fact of the 
 alienation or notice sufficient to put him on inquiry.* A 
 release of a part of mortgaged premises given with knowledge 
 of a prior conveyance of another part is not a technical dis- 
 charge of the part conveyed ; nor will it amount to an equi- 
 table release or discharge, unless, upon the principles of 
 natural equity and justice, it ought thus to operate against the 
 mortgagee giving the release.* Where a release is made by 
 the mortgagee of a portion of the premises, with full knowl^ 
 edge of a previous sale of the remaining portion, the payment 
 of the purchase money and the fact that the vendee relied 
 upon the transfer of the lien of the mortgage to the unsold 
 
 ' Botsford V. Botsford, 49 Mich. * Kendall v. Niebuhr, 45 N. Y. 
 
 29 (1882). Supr. Ct. (13 J. & S.) 542 (1879). 
 
 « Caryl v. Williams, 7 Lans. (N. « Kendall v. Woodruff, 87 N. Y. 1 
 
 Y.) 416 (1873). (1882) ; Schrack v. Shriner, 100 Pa. 
 
 » George v. Wood, 91 Mass. (9 St. 451 (1882). 
 Allen). 81 (1864).
 
 § 416.] KELEASE OF PAET OF PEEMISEa 497 
 
 portion, will discharge the entire mortgaged premises from 
 the lien of the mortgage.* If the part of the premises 
 released is not sufficient in value to discharge the debt, such 
 release will be a discharge pro tanto of the portion previously 
 conveyed.* 
 
 In determining whether the release of the remaining 
 portion discharges, pro tanto, the portion conveyed, the valu- 
 ation of the part released must be taken at the time when 
 the mortgage was given.* 
 
 A mortgagee may release a part or the whole of the mort- 
 gaged premises without inquiring whether a junior incum- 
 brancer has intervened, because it is the duty of the 
 latter, if he intends to claim an equity through the prior 
 incumbrance, to give the holder thereof notice in order that 
 he may act understandingly ; and if he fails to do so, the con- 
 sequence of his neglect must be visited upon himself.* 
 
 § 416. Application of proceeds on release of part of 
 mortgaged premises. — An agreement by a mortgagee with 
 a mortgagor to release portions of the mortgaged premises, 
 on the payment of specified sums, may be enforced. Thus, 
 where an arrangement was made with a mortgagee by which 
 he was to receive the proceeds of certain lots whenever sold, 
 and to release one lot from the lien of his mortgage for every 
 $1,000 paid to him, and a larger amount of such proceeds 
 was received by him in bonds, it was held that the excess 
 should be applied in discharge of the mortgage.' In a 
 recent case in New York,' the facts were as follows: A 
 mortgage originally covered several pieces of land, all of 
 which, except two pieces, were released on sales thereof 
 
 > Schrack v. Shriner, 100 Pa. St. » Cook v. Woodruff, 97 Ind. 134 
 
 451 (1883). (1884). It was held in this case that 
 
 * Martin's Appeal, 97 Pa. St. 85 the plaintiff was subject to an exam- 
 (1881). ination in regard to an indemnifying 
 
 » Stevens v. Cooper, 1 Johns. Ch. bond, executed by parties in interest 
 
 (N. Y.) 435 (1815) ; Parkham v. to secure the payment of the bonds 
 
 Welch, 36 Mass. (19 Pick.) 331 received on the sales of the lots, to 
 
 (1837); Johnson v. Williams, 4 ascertain what application he had 
 
 Minn. 360 (1860). made of the proceeds thereof. 
 
 * Mcllvain v. Assurance Co., 93 * Griswold v. Onondaga Co. Sav- 
 Pa. St. 30 (1880). ings Bank, 93 N. Y. 801 (1883).
 
 498 APPLYING PKOCEEDS OF RELEASE. [§417. 
 
 made by the mortgagor, and the proceeds of such sales were 
 applied upon the mortgage debt. Another parcel was sold 
 and this also was released in accordance with the contract and 
 a mortgage was taken for the purchase money, which was 
 assigned to the original mortgagee. The original mortgagor 
 was at this time indebted to the original mortgagee upon 
 an unsecured account; no application of the assigned 
 mortgage was made by either party. About ten years after 
 such assignment the mortgagor conveyed the remaining 
 parcel of land and requested the plaintiff to execute a 
 discharge of the original mortgage on the ground that it was 
 paid by the assignment of the purchase money mortgage. 
 This the plaintiff declined to do, but for about seventeen 
 years made no claim under his mortgage. In an action to 
 foreclose such mortgage it was held, that equity required 
 the proceeds of the assigned mortgage to be applied as 
 a payment upon the original mortgage instead of upon the 
 open account.' 
 
 § 417. Denial of personal liability on contract of 
 assumption. — A mortgagee has a right to proceed in equity 
 against one who has assumed and agreed to pay his mort- 
 gage.' But where the mortgagee seeks to hold the grantee 
 of the mortgaged premises personally liable, such grantee 
 may deny on the foreclosure of the mortgage, tnat he 
 assumed the payment of the mortgage debt or any part 
 thereof, and that he is personally liable. And where the 
 
 > Griswold v. Onondaga Co. Sav- 171 (1852) ; Cornell v. Prescott, 3 
 
 ings Bank, 93 N. Y. 301 (1883). Barb. (N. Y.) 16 (1847); Marsh v. 
 
 It is not settled whether the court Pike, 10 Paige Ch. (N. Y.) 597 
 
 •will in all cases, as between a mort- (1844) ; King v. Whitely, 10 Paige 
 
 gage and an open account, apply a Ch. (N. Y.) 465 (1843) ; Halsey v. 
 
 general payment upon the mortgage. Reed, 9 Paige Ch. (N. Y.) 446 (1842); 
 
 See Dows v. Morewood, 10 Barb. Curtis v. Tyler, 9 Paige Ch. (N. Y.) 
 
 (N. Y.) 183 (1850) ; Griswold v. 483 (1842). 
 
 Onondaga Co. Savings Bank, 93 N. But this right does not embrace a 
 
 Y. 301 (1883). See ante § 409. claim to the purchase money on a 
 
 * Burr V. Beers, 24 N. Y. 178 (1861). sale of the mortgaged premises or to 
 
 See Garnsey v. Rogers, 47 N. Y. 236 the vendor's lien to secure it. Emley 
 
 (1872) ; Trotter v. Hughes, 12 N. Y. v. Mount, 32 JST. J. Eq. (5 Stew.) 
 
 74 (1854) ; RusseU v. Pistor, 7 N. Y. 470 (1880).
 
 § 417.] DENYING PEESONAL LIABILITY. 499 
 
 deed makes the grantee liable for the mortgage debt, he may 
 set up in defence and show by parol, that the deed under 
 which he holds does not express the contract of the parties.* 
 Where the defendant has purchased the mortgaged 
 premises and agreed to pay the mortgage debt or a portion 
 thereof, his liability depends upon the nature of the dealing 
 in which the assumption was made, and is subject to any 
 condition or defeasance attached thereto." If the consider- 
 ation for the assumption fails, or there is a good defence to 
 it, as between the parties, it is questionable whether it can be 
 enforced by the mortgagee.* And a contemporaneous agree- 
 ment by a separate instrument will qualify or control it even 
 as to the mortgagee.* Hence, one who has purchased a 
 part of the mortgaged lands and agreed with the mortgagor to 
 assume and pay the whole mortgage, may discharge his land 
 from the consequences of that assumption by an agreement 
 made with the grantor while the latter was still the owner 
 of the residue; and the grantee of such residue, after such 
 discharge, can not claim the benefit of the assumption, 
 because the grantee succeeds only to the equities of his 
 grantor existing at the time of the conveyance, and that 
 without regard to any question of notice.* 
 
 ' Selchow V, Stymus, 26 Hun(N. 379(1880). SeeWadsworthv. Nevin, 
 
 Y.) 145 (1881). 64 Iowa, 64 (1884). 
 
 » Judson V. Dada, 79 N. Y. 373, ■• Judson v. Dada, 79 N. T. 373, 
 
 379 (1880) ; Garnsey v. Rogers, 47 379 (1880) ; Flagg v. Munger, 9 N. 
 
 N. Y. 233 (1872). See ante chap. Y. 483 (1854). 
 
 xi. * Judson v. Dada, 79 N. Y. 873, 
 
 » Judson V. Dada, 79 N. Y. 373, 879 (1880).
 
 CHAPTER XX. 
 
 ANSWERS AND DEFENCES. 
 
 ADVERSE AND PARAMOUNT CLAIMS OF TITLE-DEFECTIVE TITLE- 
 FIXTURES-EVICTION— OUTSTANDING TITLE— WANT OF TITLE. 
 
 § 418. Adverse and paramount 
 claims of title can not be 
 litigated in a foreclosure. 
 
 419. Defective title of mortgagor 
 
 can not be set up iu deience. 
 
 420. Claim of paramoimt title can 
 
 not be pleaded in answer. 
 431. Effect of making owner of 
 paramount title a defendant. 
 
 423. Paramount title by widow's 
 
 right of dower. 
 433. Answers by prior lien holders 
 as defendants. 
 
 424. Pleading in defence para- 
 
 mount title subsequently 
 acquired by mortgagor. 
 
 425. What claims as to priority 
 
 may be set up in answer. 
 
 436. Pleading ownership of fix- 
 tures in answer. 
 
 427. Gas fixtures, burners, brack- 
 ets and chandeliers. 
 
 § 428. Fixtures where land leased 
 for a term of years. 
 439. Settlement of equities be- 
 tween mortgagees. 
 
 430. Demiuid in answer for sale 
 
 in inverse order of aliena- 
 tion. 
 
 431. Allegation of outstanding 
 
 title or incumbrance. 
 
 432. Wlien purchaser may set up 
 
 outstanding title as a de- 
 fence. 
 
 433. Payment of an outstanding 
 
 claim by purchaser as a 
 defence. 
 
 434. Eviction as a defence. 
 
 435. Defence of want of title. 
 
 436. Allegation of failure of 
 
 title. 
 
 437. Denial of title in mortgagor 
 
 at the time of executing 
 mortgage. 
 
 § 418. Adverse and paramount claims of title can not 
 be litigated in a foreclosure. — It is well settled, that the 
 object of an action to foreclose a mortgage is to bar the mort- 
 gagor and all parties claiming under him, subsequent to the 
 mortgage, and that in such an action the plaintiff can not be 
 required to litigate questions of adverse or paramount title ;' 
 neither can the legal title of the mortgagee be questioned.' 
 
 ' Hekla Fire Ins. Co. v. Morrison, 
 
 58 Wis. 133 (1888); Macloon v. Smith, 
 49 Wis. 200 (1880). See ante chap. ix. 
 2 Skelton v. Scott, 18 Hun (N. Y.) 
 875 (1879) ; Cross v. Robinson, 21 
 Conn. 379 (1851) ; Palmer v. Mead. 
 7 Conn. 149 (1828); Broome v. 
 
 Beers, 6 Conn. 198 (1826). See Hol- 
 comb V. Holcomb, 2 Barb. (N. Y.) 
 20 (1847) ; Eagle Fire Ins. Co. v. 
 Lent, 6 Paige Ch. (N. Y.) 637 (1837); 
 Frelinghuysen v. Colden, 4 Paige 
 Ch. (N. Y.) 206 (1833) ; Lange v. 
 Jones. 5 Leigh (Va.) 193 (1834); 
 
 500
 
 §419.] PLEADING ADVEESE TITLE. 501 
 
 A foreclosure suit is not a proper proceeding in which to 
 litigate the adverse and paramount title of a defendant who 
 claims under the foreclosure of a prior mortgage, from 
 which the complainant does not seek to redeem ;' and in a 
 suit to foreclose, the mortgagor, though in possession, can not 
 defend merely on the ground that the lien of the mortgage 
 has been divested by the foreclosure of a prior mortgage.* 
 The reason for this would seem to be that in the usual form 
 of mortgage, the mortgagor covenants to warrant and 
 defend, and one who has covenanted to defend the title 
 against all adverse claims, is estopped from alleging title para- 
 mount in a third person ;' and where an action at law is 
 brought to recover possession of the mortgaged premises, 
 the mortgagor will be estopped by his deed from denying 
 that he had title to the mortgaged premises at the time of 
 making the mortgage.* 
 
 A mortgagor who is bound to pay the taxes upon the 
 mortgaged premises can not acquire and hold a tax title 
 as against his mortgagee ; his purchase of the title at a tax 
 sale will operate merely as a payment of the taxes.* A 
 mortgagor can not set up a matter going behind the mort- 
 gage as a defence to an action of foreclosure, where there 
 has been neither fraud nor misrepresentation.* 
 
 § 419. Defective title of mortgagor can not be set up 
 in defence. — In an action to foreclose a mortgage the mort- 
 gagor can not plead as a defence a defect in his title at the 
 time of the execution and delivery of the mortgage ;' and 
 the court has no authority to determine a controversy, 
 between defendants jointly liable on a note which the mort- 
 gage was given to secure, as to which of them was the 
 principal debtor and which the surety.* 
 
 Stewart's Heirs v. Coalter, 4 Rand. » Renshaw v. Stafford, 30 La. An. 
 
 (Va.) 74(1826). 858(1878); Dunn v. SneU, 74 Me. 
 
 I Bell V. Pate, 47 Mich. 468 (1882). 22 (1882) ; Allison v. Armstrong, 28 
 
 » Herber v. Christopherson, 30 Minn. 276 (1881), 
 
 Minn. 395 (1883). • Northrop v. Sumney, 27 Barb. 
 
 » Macloon v. Smith, 49 Wis. 200 (N. Y.) 196 (1858). 
 
 (1880). "" Dime Savings Bank of Brooklyn 
 
 * Concord M. F. Ins. Co. v. Wood- v. Crook, 29 Hun (N. Y.) 671 (1883). 
 
 bury, 45 Me. 447 (1858). * Hovenden v. Knott, 12 Oreg. 267
 
 502 DETEOnVE TITLE CAN NOT BE PLEADED. [§ 420. 
 
 The foreclosure of a mortgage is not a proper action for 
 the settlement of a disputed title, and there is no reason 
 why the court should entertain a question concerning the 
 title to the premises. Thus, a mortgagee seeking to fore- 
 close his mortgage and having no interest in a litigation 
 between the defendants on a cross-bill by one of them for 
 the specific performance of an alleged contract for the sale 
 of the equity of redemption, will not be compelled to wait for 
 a decree of sale until such other litigation has been decided.* 
 The purchaser at a sale, made under a decree of foreclosure, 
 will acquire whatever interest the mortgagor had in the 
 premises at the time of the execution of the mortgage.' A 
 title, which was before defeasible, will become absolute upon 
 sale ; if there is a dispute respecting its nature and extent, 
 it must be adjudicated in some form of action in which the 
 pleadings and proceedings are adapted to that purpose.* 
 
 § 420. Claim of paramount title can not be pleaded in 
 answer. — The only questions that can be determined con- 
 cerning a title upon the foreclosure of a mortgage are such as 
 affect the equity of redemption ; the plaintiff has no right 
 to make a third person, who claims an adverse title not 
 derived from either the mortgagor or the mortgagee and 
 who can not be affected by the judgment, a defendant for the 
 purpose of litigating his claim to a paramount title.* 
 
 (1885). See Handley v. Munsell, 109 3 Barb. Ch. (N. Y.) 438 (1848); Bank 
 
 111. 362 (1884). of Orleans v. Flagg, 3 Barb. Ch. (N. 
 
 ' Handley v. Munsell, 109 111. 362 Y.) 316, 318 (1848) ; Brundage v. 
 
 (1884). See N. Y. Code Civ. Proc. Domestic and Foreign Missionary 
 
 §§ 521, 1205. Society, 60 Barb. (N. Y.) 204 (1871); 
 
 * N. Y. Code Civ. Proc. § 1632. Holcomb v. Holcomb, 2 Barb. (N. 
 » Dime Savings Bank of Brooklyn Y.) 20, 22 (1847) ; Meigs v. Willis, 
 
 V. Crook, 29 Hun (N.Y.) 671 (1883). 66 How. (N.Y.) Pr. 466 (1884); Em- 
 
 * Emigrant Industrial Savings igrant Industrial Savings Bank v. 
 Bank v. Goldman, 75 N. Y. 127 Clute, 33 Hun (N. Y.) 82 (1884) ; 
 (1878) ; Ratkbone v. Hooney, 58 N. Eagle Fire Ins. Co. v. Lent, 6 Paige 
 Y. 463 (1874) ; Merchant's Bank v. Ch. (N. Y.) 635 (1837) ; Jones v. St. 
 Thomson, 55 N. Y. 7 (1873) ; Frost John, 4 Saudf. Ch. (N. Y.) 208 
 V. Koon, 30 N. Y. 428 (1864) ; Lewis (1846); City of San Francisco v. Law- 
 V. Smith. 9 N. Y. 502 (1854) ; s. c. ton. 21 Cal. 589 (1863) ; s. c. 79 
 61 Am. Dec. 706 ; Corning V. Smith, Am. Dec. 187; Bozarth v. Lan- 
 6 N. Y. 82 (1851) ; Banks v. Walker, ders, 113 Bl. 181 (1885); Banning
 
 § 421.] PLEADLNa PARAMOUNT TITLE. 503 
 
 The only proper parties to a foreclosure are the mortgagor 
 and the mortgagee, and those who have acquired rights or 
 interests under them subsequent to the execution and delivery 
 of the mortgage, for they are the only persons who have any 
 rights or obligations growing out of the mortgage, or who 
 can be affected in any manner by the litigation. A stranger 
 claiming adversely to the title of the mortgagor can in 
 no way be affected by the foreclosure suit. It can make no 
 difference to him whether the mortgage is valid or invalid, 
 whether it is discharged or foreclosed, or whether the estate 
 mortgaged, the only estate which can be affected by the 
 decree, remains in the mortgagor, or is transferred to another. 
 As such adverse claimant is a stranger to the mortgage and 
 to the mortgaged estate, he can have no interest in the sub- 
 ject matter of the action ; there is no privity between him 
 and the plaintiff, and the plaintiff has no right to make him a 
 party defendant to a foreclosure, for the purpose of trying 
 his adverse title.* 
 
 § 421. Effect of making owner of paramount title a 
 defendant. — But w here a person claiming a paramount title 
 is made a party to a foreclosure, under an allegation that he 
 
 V. Bradford, 21 Minu. 308 (1875) ; 444 (1864) ; Lewis v. Smith. 9 N. T. 
 
 6. c. 18 Am. Rep. 398 ; Dorr v. 502 (1854) ; s. c. 61 Am. Dec. 706 ; 
 
 Leach, 58 N. H. 18 (1878); Kins- Corning v. Smith, 6 N. Y. 82(1851); 
 
 ley V. Scott, 58 Vt. 470(1886); Hekla Holcomb v. Holcomb, 2 Barb. (N. 
 
 Fire Ins. Co. v. Morrison, 56 Wis. Y.) 20 (1847) ; Eagle Fire Ins. Co. v. 
 
 133 (1882); Macloon v. Smith, 49 Lent, 6 Paige Ch. (N. Y.) 635 (1837); 
 
 Wis. 200 (1880) ; Roberts v. Wood, Hibernia S. & L. Co. v. Ordway, 38 
 
 38 Wis. 60 (1875) ; Supervisors v. Cal. 79 (1869); City of San Francisco 
 
 MineralPointR. R. Co.,24Wis. 93, v. Lawton, 21 Cal. 589 (1863); 
 
 120, 121 (1869); Roche v. Knight, s. c. 79 Am. Dec. 187; Wright v. 
 
 2lWis. 324(1867); Palmer V. Yager, Dudley, 8 Mich. 74, 115 (1860); 
 
 20 Wis. 91 (1865) ; Pelton v. Farmin, Chamberlain v. Lyell, 3 Mich. 
 
 18Wis.222(1864); Straight V. Harris, 448 (1855); Banning v. Brad- 
 
 14 Wis. 509 (1861) ; Strobe v. Dow- ford, 21 Minn. 308 (1875) ; Newman 
 
 ner, 13 Wis. 10 (1860); s. c. 80 Am. v. Home Ins. Co., 20 Minn. 422 
 
 Dec. 709 ; Peters v. Bowman, 98 U. (1874) ; Pelton v. Farmin, 18 Wis. 
 
 S. (8 Otto), 56 (1878); bk. 25 L. ed. 222 (1864) ; 1 Dan. Ch. Pr. (3d Am. 
 
 91 ; Dial v. Reynolds, 96 U. S. (6 ed.) 239, 330, 331, 582, 605 ; Story 
 
 Otto), 340 (1877)"; bk. 25 L. ed. 644. Eq. PI. §§ 226, 227, 230, 231, 262, 
 
 See ante chap. ix. 513, 517, 519. 
 1 Frost V. Koon, 30 N. Y. 428,
 
 d04 owner of adverse title defendant. L§ -121. 
 
 claims an interest in, title to, or a lien upon the property 
 mortgaged subsequent to the plaintiff's mortgage, and such 
 party answers by filing a general denial, the decree will be 
 binding on him, if a judgment is rendered against all 
 the defendants foreclosing their equity of redemption, and 
 he will not be again entitled to litigate matters which he 
 could have set up in the foreclosure.' And where in an 
 action of foreclosure the defendants, claiming under a title 
 paramount to the mortgage, set up their claim by answer, 
 and the same was litigated without objection, and decided in 
 their favor, the judgment should not be reversed on appeal 
 on the ground that the question could not properly be 
 litigated in the action. Both parties having appeared and 
 having actually litigated the issue in this form, will be bound 
 by the judgment." 
 
 But where a party, who is made a defendant as a subsequent 
 incumbrancer or purchaser, sets up in his answer a claim of 
 title prior to the mortgage, such title can not properly be 
 investigated, and the complaint of the plaintiff should be 
 dismissed as to such defendant, unless the plaintiff is prepared 
 to prove that such claim in fact arose subsequent to the mort- 
 gage. Where this is not done and a judgment in the usual 
 form is entered against all the defendants, it will not bind 
 his prior interest and will be reversed on appeal, even 
 though made after a hearing on the pleadings and proofs,* 
 because there can be no foundation in the complaint for a 
 decree upon a question of paramount title.* 
 
 > Wolfinger v. Betz, 66 Iowa, 594 Jordon v. VanEpps, 85 N, T. 427, 
 
 (1885). See Newby v. Caldwell, 435(1881). 
 
 54 Iowa, 102 (1880); Mally v. » Corning v. Smith, 6 N. Y. 82 
 
 Mally, 52 Iowa, 654 (1879) ; Patten (1851). See Merchants' Bank v. 
 
 V. Loughridge, 49 Iowa, 218 (1878) ; Thomson, 55 N. Y. 7 (1873) ; Barker 
 
 Painter v. Hogue, 48 Iowa, 426 v. Burton, 67 Barb. (N. Y.) 458 
 
 (1878); Lawrence Savings Bank (1877) ; Lee v. Parker, 43 Barb. (N. 
 
 V. Stevens, 46 Iowa, 429 (1877); Y.) 611 (1865); Summers v. Brom- 
 
 Hackworth v. Zollars, 30 Iowa, 433 ley, 28 Mich. 125 (1873) ; Wurcherer 
 
 (1870). V. Hewitt, 10 Mich. 453 (1862); 
 
 ^ Helck V. Reinheimer, 105 N. Y. Chamberlain v. Lyell, 3 Mich. 448 
 
 470 (1887). See Barnard v. Onder- (1855). 
 
 donk, 98 N. Y. 158, 163 (1885); * See cases cited above; also Moran
 
 § 421.] OWNER OF ADVERSE TITLE DEFEND A]?n?. 
 
 505 
 
 In an action to foreclose a mortgage the validity of a trust 
 deed executed prior to the mortgage can not be tried, where 
 there is no allegation of fraud.* The validity of such a deed 
 is a paramount question of law and should be decided 
 in an action for ejectment.' A foreclosure is not a proper 
 proceeding in which to litigate the adverse and paramount 
 title of a defendant who claims under the foreclosure of 
 a previous mortgage, from which the plaintiff does not 
 seek to redeem.* 
 
 A person who accepts a mortgage on real estate will be 
 estopped from claiming title thereto.* And a mortgagee in 
 
 V. Palmer, 13 Mich. 367 (1865); 
 Wright V. Dudley, 8 Mich. 115 
 (1860). 
 
 > Helck V. Reinheimer, 105 N. Y. 
 470 (1887). 
 
 In this case the General Term, [see 
 23 N. Y. Week. Dig. 473 ; s. c. 40 
 Hun (N. Y.) 637 (1886)], on appeal 
 from the judgment at Special 
 Term, decided that the question 
 of the validity and effect of the 
 trust deed sliould not have been 
 tried in this action; the interests of 
 those claiming under that deed, not 
 being subsequent to the mortgage, 
 but being adverse to it, the complaint 
 should have been dismissed with 
 costs as to the two defendants whose 
 interests were alleged to be adverse 
 to the mortgagor. No decision was 
 made on the merits, and as to the 
 other defendants the usual decree of 
 foreclosure was granted. Judgment 
 was entered, in conformity with this 
 decision, containing a provision that 
 the judgment should not prejudice 
 any parties who might be interested 
 under the trust deed, nor involve its 
 validity or effect. The Court of Ap- 
 peals say : " We do not concur 
 in the view taken by the court 
 at General Term. If the defen- 
 dants had claimed that they had 
 been improperly made parties de- 
 
 fendant, because their rights were 
 paramount and not subsequent to 
 the mortgage and could not properly 
 be litigated in this action, it might, 
 as before stated, have been proper to 
 dismiss the complaint with costs, 
 as to them, for that reason. But in 
 this case, instead of taking any such 
 ground, they themselves, in their 
 answer, set up their claims under 
 the trust deed, and asked that they 
 be adjudicated upon, and demanded 
 judgment that the mortgaged prem- 
 ises be freed from the mortgage, 
 and that it be discharged of rec- 
 ord, and on the trial both parties 
 litigated the question, and the 
 defendants obtained judgment in 
 their own favor thereon. Under 
 these circumstances we think that it 
 was too late to take the ground that 
 the dismissal of the complaint, as to 
 them, should be sustained on the 
 ground that the questions could not 
 properly be litigated in this action." 
 See Barnard v. Onderdonk, 98 N. 
 Y. 158, 163 (1885) ; Jordan v. Van 
 Epps, 85 N. Y. 427, 435, 436 (1881). 
 
 * Davison v. The Associates of the 
 Jersey Co., 71 N. Y. 333, 340 (1877). 
 See also Helck v. Reinheimer, 105 
 N. Y. 470 (1887). 
 
 3 Bell V. Pate, 47 Mich. 468 (1882). 
 
 <Voss V. Eller, 109 Ind. 260
 
 506 PARAMOUNT TITLE BY DOWEE. [§§ 422-423. 
 
 possession of fands, being required to pay taxes thereon, 
 can not set up against the mortgagor a tax title acquired 
 while thus in possession.' 
 
 § 422. Paramount title by widow's right of dower. — 
 Where a married woman was made a party to an action to 
 foreclose a mortgage, under the general allegation that she 
 had, or claimed to have, some interest in or lien upon the 
 mortgaged premises, or some part thereof, which had 
 accrued subsequently to the lien of the mortgage, and she 
 answered, setting forth a statement of facts upon which 
 she claimed a right of dower in the property superior to 
 the mortgage, and upon a trial of the issues thus pre- 
 sented, introduced evidence having some tendency to 
 establish the correctness of her answer, and the court 
 directed a judgment in the usual form, barring and foreclos- 
 ing the defendants of all right, claim, interest and equity of 
 redemption in the mortgaged premises and every part 
 thereof ; it was held on appeal, that the complaint should 
 have been dismissed as to her in so far as the action had a 
 tendency to affect the paramount right claimed in her 
 behalf, or else that her interest should have been protected 
 by an express qualification in the judgment.* 
 
 § 423. Answers by prior lien holders as defendants. — 
 
 The holder of a mortgage, prior in record, but subsequent 
 in fact, to a mortgage under foreclosure, may be made a 
 defendant to the action ; and it will be sufficient to allege 
 that he has, or claims to have, some lien upon or interest in 
 the mortgaged premises, or some part thereof, which lien 
 or interest, if any, is subsequent to the plaintiff's mortgage ; 
 special allegations will not be necessary.* 
 
 (1886). Estoppel from asserting title 67 Barb. (N. Y.) 458 (1877) ; Eliaa 
 
 under a prior mortgage should be set v. Verdugo, 27 Cal. 418 (1865) ; 
 
 up under by amendment to the com- City of San Francisco v. Lawton, 21 
 
 plaint in foreclosure. Connerton v. Cal. 589 (1863) ; s. c. 79 Am. Dec. 
 
 Millar, 41 Mich. 608 (1879). 187. See ante §§ 134-139. 
 
 • Schenck v. Kelley, 88 Ind. 444 " Constant v. American Bap. &c. 
 
 (1882). Soc, 53 N. Y. Supr. Ct. (21 J. & S.) 
 
 » Lanier v. Smith, 37 Hun (N. Y.) 170 (1886). 
 529 (1885). See Barker v. Burton,
 
 §424.] ANSWERS BY PRIOR LIEN HOLDERS. 507 
 
 A prior mortgagee or lien holder, who is made a party to 
 a foreclosure, is not obliged to set up his rights by an 
 answer in order to protect them.' But where in an action 
 to foreclose a mortgage a person holding a subsequent 
 mortgage is made a defendant, and such defendant is also 
 the owner of mortgages prior to that of the plaintiff, he may 
 answer in the action and ask to have such prior mortgages 
 paid out of the proceeds of the sale, before any portion 
 thereof is applied to the satisfaction of the plaintiff s claim^ 
 Where a prior mortgagee is made a party defendant and 
 does not answer, the entrance of a decree of foreclosure will 
 not exclude him from his interest in the equity of redemption. 
 This rule applies to all holders of prior liens and interests 
 as well as to prior mortgagees; thus, it applies to prior 
 incumbrancers by judgment,' or mechanic's hen,* to a life 
 estate not bound by the mortgage,' and to a claim to an 
 inchoate right of dower by a wife who did not join her 
 husband in the execution of a mortgage/ 
 
 8424. Pleading in defence paramount title subse- 
 quently acquired by mortgagor.-A sale under a decree 
 of foreclosure can have no broader effect than to vest in the 
 purchaser the title which the mortgagor held at the time of 
 the execution ef the mortgage.' It is held in some states 
 that a purchaser at a tax sale, after the execution of a 
 mortgage, may be made a defendant, and that his title will be 
 barred under a foreclosure.* 
 
 1 Payn v Grant, 23 Hun (N. Y.) N. Y. 502 (1854) ; 8. c. 61 Am. Dec. 
 
 '~06 
 
 ^^S;.^nii^^Hun(N.Y.) ;;s;^^^^:t^:;;^ir: 
 
 ^S-^Kor sV??: Y. .28 l^l^^^^^ -^•- 
 
 i^^.llifS^-"^^'""^'^' %rv"powVn% A.. 351 
 
 ^-Emiir" Industrial Savings (1884) ; Randle v Boyd 73 Ala. 283 
 
 BankT Goldman. 75 N. Y. 127 (1882). On a bill in chancery to 
 
 Uant V. w foreclose a mortgage, tlie complam- 
 
 ^ s Rathbone v. Hooney, 58 N. Y. ant also sought to have a tax deed 
 
 .R^nsTT ot the premises covered by the 
 
 e Merchants' Bank V.Thomson, 55 mortgage set aside, as an alleged 
 
 N Y 7 (1873); Lewis v. Smith, 9 cloud upon his tule. The plamtifE
 
 508 
 
 TITLE SUBSEQUENTLY ACQUIRED. 
 
 [^ 424. 
 
 It has been stated as a general rule, that where a mortgagor 
 has acquired a paramount title subsequently to the execu- 
 tion of a mortgage, that such title will not be affected by 
 a foreclosure and sale.* There is an exception to this 
 rule, however, where the mortgagor has, subsequently to the 
 execution of the mortgage, acquired a title which inures 
 by way of estoppel to the benefit of the mortgagee. In 
 such a case a sale under foreclosure will pass the subsequently 
 acquired title to the same extent as if originally held by the 
 mortgagor." 
 
 Thus, where a mortgagor in his mortgage warrants the 
 title to lands which he really does not possess, and subse- 
 quently acquires title thereto, the title subsequently acquired 
 will inure to the benefit of the mortgagee, the same as if the 
 entire title had been originally possessed by the mortgagor,* 
 and will estop such mortgagor,* and all persons claiming 
 
 made the alleged owner of the tax 
 deed a party defendant, averring 
 that his claim of title was acquired 
 under a tax sale which was void, 
 and that whatever interest he had in 
 the premises Aas subordinate to 
 the rights of the mortgagee. For 
 want of any answer by such defen- 
 dant, the bill was taken as con- 
 fessed against him, and a tlnal 
 decree was entered annulling and 
 setting aside his tax deed as a cloud 
 upon the complainant's title. Upon 
 the question as to the right of the 
 court below, to entertain the bill at 
 all, in so far as it concerned the 
 alleged claim under the tax deed, 
 the appellate court said there seemed 
 to be a misapprehension as to the 
 true scope and effect of the decision 
 in Gage v. Perry, 93 111. 176 (1879), 
 where it was held that a court of 
 equity had no right, upon a bill to 
 foreclose a mortgage, to consider and 
 pass upon an independent adverse 
 claim of title, unconnected with that 
 under which the mortgagee claimed. 
 
 and alleged to be a cloud upon the 
 mortgagee's title. In that case the 
 owner of the tax title, which consti- 
 tuted the alleged cloud, appeared 
 and answered, setting up his title as 
 adverse to, and independent of the 
 supposed title of the mortgagor or 
 of the mortgagee. That decision 
 should be limited to the facts so dis- 
 closed. In this case no such defence 
 was set up, and the allegations of the 
 bill were admitted by the default to 
 be true ; Chicago Theological Sem. 
 v. Gage, 103 111. 175 (1882). 
 
 ' Weil v. Uzzell, 92 N. C. 515 
 (1886). 
 
 * City of San Francisco v. Lawton, 
 21 Cal. 589 (1863). 
 
 ' Vallejo Land Assoc, v. Viera, 48 
 Cal. 572, 579 (1874) ; City of San 
 Francisco v. Lawton, 21 Cal. 589 
 (1863) ; s. c. 79 Am. Dec. 187 ; Clark 
 V. Baker, 14 Cal. 612 (1860) ; Pan- 
 coast V. Travelers' Ins. Co., 79 Ind. 
 176, 177 (1881) ; Marrier v. Lee, 3 
 Utah, 262 (1880). 
 
 * Clark V. Baker, 14 Cal. 612
 
 § 42 1] TITLE subseque^t:ly acquiked. 509 
 
 under him, from subsequently asserting any title against the 
 mortgagee and those claiming under him.* The reason for 
 this seems to be that the mortgagor will not be permitted to 
 attack a title, the validity of which he has covenanted 
 to maintain." 
 
 The supreme court of the United States held, in the case 
 of VanRensselaer v. Kearney,' that "whatever may be the 
 form or nature of the conveyance used to pass real property, 
 if the grantor sets forth on the face of the instrument by 
 way of recital or averment, that the grantor is seized or 
 possessed of a particular estate in the premises, and which 
 estate the deed purports to convey ; or what is the same 
 thing, if the seizin or possession of the particular estate is 
 affirmed in the deed, either in express terms or by necessary 
 implication, the grantor, and all persons in privity with him, 
 shall be estopped from ever afterwards denying that he was 
 so seized and possessed at the time he made the conveyance. 
 The estoppel works upon the estate and binds the after 
 acquired title as between parties and privies. 
 
 "The reason is, that the estate thus affirmed to be in the 
 party at the time of the conveyance must necessarily have 
 
 (1860). See also Jackson v. Hubble, (1882) ; Sherman v. McCarthy, 57 
 
 I Cow. (N. Y.) 613 (1823) ; Edwards Cal. 507 (1881) ; Vallejo Land Assoc. 
 V. Varlck, 5 Den. (N. Y.) 665 (1846); v. Viera, 48 Cal. 579 (1874) ; Christy 
 •Jackson v. Wright, 14 Johns. (N. v. Dana, 34 Cal. 548 (1868) ; 8. c. 42 
 Y.) 193 (1817) ; Varick v. Edwards, Cal. 179 (1871) ; Green v. Clark, 31 
 
 II Paige Ch. (N. Y.) 289 (1844); Cal. 593(1867); Kirkaldie v. Larra- 
 Jackson v. Waldron, 13 Wend. (N. bee, 31 Cal. 457 (1866) ; Lent v. 
 Y.) 178 (1834) ; Pelletreau v. Jack- Morrill, 25 Cal. 500 (1864) ; City of 
 son, 11 Wend. (N. Y.) 110 (1833) ; San Francisco v. Lawton, 21 Cal. 
 Jackson v. Bradford, 4 Wend. 619 589 (1863) ; s. c. 79 Am. Dec. 187 ; 
 (1830) ; Dart v. Dart, 7 Conn. 250 Baxter v. Bradbury, 20 Me. 260 
 (1828) ; Oomstock v. Smith, 30 Mass. (1841) ; s. c. 37 Am. Dec. 49 ; Mc 
 (13 Pick.) 116 (1832) ; s. c. 23 Am. Williams v. Nisley, 2 Serg. & R. 
 Dec. 670 ; Some v. Skinner, 20 (Pa.) 507 (1816) ; a. c. 7 Am. Dec. 
 ilass. (3 Pick.) 52 (1825) ; Kimball 654 : Marrier v. Lee, 2 Utah, 462 
 V. Blaisdell, 5 K H. 533 (1831) ; s. (1880). 
 
 c. 22 Am. Dec. 476 ; Kinsman v. « Hoppin v. Hoppin, 96 III. 272 
 
 Loomis, 11 Ohio, 475 (1842); Dos- (1880). 
 
 well V. Buchanan, 3 Leigh (Va.) 365 » 25 U. S. (11 How.) 297, 325 (1850) ; 
 
 (1831). bk. 13 L. ed. 703. 
 > See 'Camp v. Grider, 62 Cal. 20, 25
 
 510 ANSWERING PROPER CLAIMS OF PRIORITY. [§ 425. 
 
 influenced the grantee in making the purchase. And hence, 
 the mortgagor and those in privity with him, in good faith 
 and fair dealing, should be forever thereafter precluded from 
 gainsaying it." ' 
 
 § 425. What claims as to priority may be set up in 
 answer. — The court may entertain questions which are 
 necessary to be determined in order that complete justice 
 may be done between the parties whose rights in the equity 
 of redemption are to be barred by the decree of foreclosure. 
 A party asserting a right under the mortgagor prior to the 
 mortgage, is sometimes a proper party to an action to fore- 
 close the mortgage, and the question of priority is then a 
 proper one to be determined." It is held that, in an action 
 to foreclose a mortgage, defendants claiming under an 
 attachment lien accruing after the mortgage was given, are 
 entitled to prove the existence of their lien and to show that, 
 in consequence of certain acts of the plaintiff set forth in 
 their answer, their lien under the attachment is superior to 
 the lien of the mortgage.* And it is said to be proper 
 to determine in a foreclosure suit a controversy between 
 the plaintiff and the grantee of the mortgagor, as to the right 
 of the latter to remove a building erected by him on the 
 land ; and the court may, by a provision in the judgment, in 
 case the right is established, protect it by authorizing the 
 removal of the building before sale or by directing that the 
 sale shall be made subject to such right.* 
 
 The holder of a mortgage, dated and recorded prior to a 
 deed of the same property, is entitled to treat all subsequent 
 rights under the deed as subordinate ; and on a foreclosure 
 of his mortgage such rights need not be brought into issue 
 by him.* But where a person executes a mortgage upon 
 premises which he had previously contracted to sell, and the 
 
 ' See also Crews v. Burcham, 66 Mineral Point R. R. Co., 24 Wis. 93 
 
 U. S. (1 Black), 357 (1861) ; bk. 17 (1869). See ante %% 188, 190. 
 
 L. ed. 93. » Scrivener v.Dietz, 68 Cal. 1 (1885). 
 
 * Brown v. Volkening, 64 N. T. * Brown v. Keeney Settlement 
 
 76 (1876) ; Bank of Orleans v. Flagg, Cheese Assoc, 59 N. Y. 242 (1874). 
 
 3 Barb. Ch. (N. Y.) 316 (1848); « Shelden v. Warner, 45 Mich. 638 
 
 Board of Supervisors of Iowa Co. v. (1881). *
 
 §426.] DEFEI^CE OF OWNERSHIP OF FIXTURES. 511 
 
 mortgagees file a complaint to foreclose such mortgage, 
 making the purchaser a party thereto, if they claim to be 
 entitled to a preference over such purchaser as bona fide 
 mortgagees without notice, the complaint will not be suffi- 
 cient, if it merely alleges generally that such purchaser has or 
 claims to have some interest in the premises which is subse- 
 quent to their mortgage ; it should state that such purchaser 
 claims an interest under a contract to purchase, prior to the 
 mortgage, and that if he had any such interest the com- 
 plainants had no notice or knowledge thereof at the time 
 they took their mortgage. The complaint should also show 
 the other facts which are necessary to entitle the complain- 
 ants to protection as bona fide mortgagees.* 
 
 § 426. Pleading ownership of fixtures in answer.— 
 Personal property attached to the land will be regarded as 
 a fixture, where it is necessary to the full enjoyment of the 
 freehold, and will pass under a foreclosure to the purchaser 
 of the premises.' Thus, fencing material, accidentally or 
 temporarily detached from the realty after having been used as 
 a part of a fence,' or placed along the line of a contemplated 
 fence,* machinery in a building fitted up as a manufactory 
 by the owner and essential to the purposes thereof;* manure 
 
 » Bank of Orleans v. Flagg, 3 E. Gr.) 395 (1866) ; Hill v. We&t- 
 
 Barb. Ch. (N. Y.) 316 (1848). worth, 28 Vt. 428 (1856). 
 
 « Voorhees v. McGinnis, 48 N. Y. « Goodrich v. Jones, 2 Hill (N. Y.) 
 
 278, 289 (1872). See Sisson v. Hib- 142 (1841). 
 
 bard, 75 N. Y. 542, 544 (1879) ; Tifft * Conklin v. Parsons, 1 Chand. 
 
 V. Horton, 53 N. Y. 380 (1873) ; Shel- (Wis.) 240 (1849). 
 
 don V.Edwards, 35 N. Y. 283(1866); * Ottumwa Woolen Mill Co. v. 
 
 Ford V. Cobb, 20 N. Y. 344 (1859) ; Hawley, 44 Iowa, 57 (1876) ; Farrar 
 
 Main v. Schwarzwaelder, 4 E. D. v. Stackpole, 6 Me. (6 Greenl.) 154 
 
 Smith (N. Y.) 275 (1855) ; Eaves v. (1829) ; Green v. Phillips, 26 Gratt. 
 
 Estes, 10 Kan. 314 (1873) ; s. c. 15 (Va.) 752 (1875) ; s, c. 21 Am. Rep. 
 
 Am. Rep. 345 ; Pierce v. George, 323 ; Longbottom v. Berry, L. R. 5 
 
 108 Mass. 78 (1871) ; s. c. 15 Am. Q. B. 123 (1869) ; Reg. v. Inhabi- 
 
 Rep. 345 ; Richardson v. Borden, tants of the Parish of Lee, L. R. 1 
 
 42 Miss. 71 (1868) ; s. c. 2 Am. Rep. Q. B. 241 (1866) ; Hubbard v. Bag- 
 
 595; Wadleigh v. Janvrin, 41 N. shaw, 4 Sim. 326 (1831). See 
 
 H. 503 (1860); s. c. 77 Am. Dec. Stockwell v. Campbell, 39 Conn. 
 
 780 ; Potts V. New Jersey Arms & 362 (1872) ; s. c. 12 Am. Rep. 393 ; 
 
 Ordinance Co., 17 N. J. Eq. (2 C. McConneU v. Blood, 123 Mass. 47
 
 512 DEFENCE OF OWNERSHIP OF FIXTURES. [§426. 
 
 produced upon a farm ;' hop poles, although pulled up 
 and piled upon the land at the time of the conveyance ;' 
 a bell hung upon a frame and fastened to it by a hasp, the 
 frame being nailed to the cupola of a barn,' or otherwise 
 permanently attached ; platform scales bolted and fastened 
 
 11877); Pierce v. George, 108 Mass. 78 
 (1871) ; s. c. 11 Am. Rep. 310, 314 ; 
 McMillan v. Fish, 29 N. J. Eq. 
 610 (1878); s. c. 6 Rep. 661 ; 
 Meigs' Appeal, 62 Pa. St. 28 (1869) ; 
 Hill V. National Bank. 97 U. S. (7 
 Otto), 450 (1878); bk. 24 L. ed. 1051; 
 Holland v. Hodgson. L. R. 7 C. P. 
 828 (1872) ; s. c. 41 L. J. C. P. (N. 
 S.) 146 ; 20 W. R. 990 ; Boyd v. 
 Shorrock, L. R. 5 Eq. 72 (1867) ; a 
 c. 16 W. R. 102; Hutchinson v. 
 Kay, 23 Beav. 413 (1857); Wynne v. 
 Ingleby, 1 D. <& R. 247 (1822); Jenkins 
 V. Gething, 2 Johns. & Hem. 520 
 (1862) ; Walmsley v. Milne, 7 C. B. 
 N. S. 115 (1859) ; 8. c. 6 Jur. K S. 
 125 ; 29 L. J. 0. P. 97 ; 1 L. T. N. 
 S. 92 ; Mather v, Fraser, 2 K. «& J. 
 536 (1856) ; 8. c. 2 Jur. N. S. 900 ; 
 35 L. J. Ch. 361 ; Ux parte Reynal, 
 2 M. D. & DeG. 443 (1841). See also 
 McRea v. Central National Bank, 66 
 N. Y. 489 (1876) ; Eaves v. Estes, 10 
 Kan. 314 (1872) ; s. c. 15 Am. Rep. 
 345. 
 
 If a part of a machine is an im- 
 movable fixture, and another part 
 thereof is movable without any 
 damage to the freehold, the latter 
 must also be treated as realty, 
 Mather v. Fraser, 2 K. & J. 536 
 (1856) ; 8. c. 2 Jur. N. S. 900 ; 25 L. 
 J Ch. 361. 
 
 ' Chase v. Wingate, 68 Me. 204 
 (1878) ; 8. c. 28 Am. Rep. 36 ; Kitt- 
 redge v. Woods, 3 N. H. 503 (1826) ; 
 B. c. 14 Am. Dec. 393. See Goodrich 
 V. Jones, 2 Hill (N. Y.) 142 (1841) ; 
 Middlebrook v. Corwin, 15 Wend. 
 (N. Y.) 169 (1836); Parsons v. Camp, 
 
 11 Conn. 525 (1836) ; Gallagher v. 
 Shipley, 24 Md. 418, 427, 428 (1865); 
 Fletcher v. Herring, 112 Mass. 382, 
 384 (1873); Strong v. Doyle, 110 
 Mass. 92 (1872); Perry v. Carr, 
 49 N. H. 65 (1869); Plumer -v. 
 Plumer, 30 N. H. 558 (1855). Contra, 
 Ruck man v. Cutwater, 28 N. J. L. 
 (4 Dutch.) 581 (1860); Sanders v. 
 Ellington, 77 N. C. 255 (1877); 
 Smithwick v. Ellison, 2 Ired. (N. 
 C.) L. 326 (1842) ; Lewis v. Jones, 
 17 Pa. St. 262, 264 (1851) ; Wing v. 
 Gray, 36 Vt. 261, 267 (1863). 
 
 But where the manure is not made 
 in the course of husbandry, it is per- 
 sonalty and does not pass with the 
 estate. Proctor v. Gilson, 44 N. H. 
 118 (1862). See Lassell v. Reed, 6 
 Me. (6 Greenl.) 222 (1829); Daniels v. 
 Pond. 38 Mass. (21 Pick.) 367 (1838). 
 
 « See Bishop v. Bishop, 11 N. Y. 
 123 (1854) ; Walker v. Sherman, 20 
 Wend. (N. Y.) 636, 655 (1839). 
 
 It is said in Noyes v. Terry, 1 
 Lans. (N. Y.) 222 (1869), that Bishop 
 V. Bishop, supra, carried the rule to 
 the extremest point and is only to be 
 sustained on the ground that, as the 
 hop root was perennial and would 
 pass with a conveyance, so the pole, 
 which is used exclusively in connec- 
 tion with the root and is indispen- 
 sable to its cultivation, would pass 
 also. The growing crop of hops 
 upon the vines is regarded as per- 
 sonalty. Frank v. Harrington, 36 
 Barb. (N. Y.) 415 (1862). 
 
 * Weston V. Weston, 102 Mass. 
 514 (1869).
 
 §427.] DEFENCE OF OWNERSHIP OF FIXTURES. 513 
 
 to sills laid upon a brick wall set in the ground, and intended 
 for permanent use on a farm for weighing stock and 
 grain ;* a sugar mill on a plantation ;' a hot air furnace in a 
 house;* a cotton-gin and stand ;^ salt pans in use in salt 
 works ;' a threshing machine fastened in a barn by means 
 of bolts and screws* and tapestry, pictures in panels, 
 frames filled with satin and attached to the walls of a 
 house, statues, figures, vases and stone garden seats,^ as 
 between a mortgagor and a mortgagee, have been held to be 
 a part of the realty and to pass with the estate.* 
 
 § 427. Gas fixtures, burners, brackets and chandeliers. 
 — Regarding gas fixtures, such as burners, brackets, chande- 
 liers and the like, there is a conflict in the decisions ; but by 
 the weight of American authority they are not regarded as 
 fixtures, but as mere articles of furniture, and do not pass 
 with a conveyance of the premises,* though as to gas 
 fittings or pipes, to which the fixtures are attached, the rule 
 is different." 
 
 In Vaughen v. Haldeman" the supreme court of Pennsyl- 
 vania, in holding that gas fixtures are personal property and 
 
 'Arnold v. Crowder, 81 111. 56 
 (1875) ; 8. c. 25 Am. Rep. 260. See 
 Bliss V. Whitney, 91 Mass. (9 Allen), 
 114 (1864). 
 
 * Hutchins v. Masterson, 46 Tex. 
 551 (1877) ; s. c. 26 Am. Rep. 286. 
 
 * Jarechi v. Philharmonic Society, 
 79 Pa. St. 403 (1875) ; s. c. 21 Am. 
 Rep. 78, 80 and note. 
 
 * Richardson v. Borden, 42 Miss. 
 71 (1868) ; 8. c. 2 Am. Rep. 599. 
 
 » Lawton v. Salmon, 1 H. Bl. 259 
 (1782). 
 
 « Wiltshear v. Cottrell, 1 E. & Bl. 
 674 (1853). 
 
 ' D'Eyncourt v. Gregory, L. R. 3 
 Eq. Cas. 383 (1866) ; 8. c. 36 L. J. 
 Ch. 107 ; 15 W. R. 186. 
 
 » Witmer's Appeal, 45 Pa. St. 462 
 (1863); Rogers v. Gilinger, 30 Pa. 
 St. 189 (1858) ; Heaton v. Findlay, 
 12 Pa. St. 307 (1849); Covey v. 
 
 Pittsburgh, F. W. & C. R. Co., 3 
 Phila. (Pa.) 173 (1858); Lemar v. 
 Miles, 4 Watts. (Pa.) 332 (1835); 
 Morgan v. Arthurs, 3 Watts. (Pa.) 
 140 (1834) ; Voorhis v. Freeman, 2 
 Watts. & S. (Pa.) 119 (1841). 
 
 » See Rogers v. Crow, 40 Mo. 91 
 (1867) ; Jarechi v. Philharmonic 
 Society, 79 Pa. St. 404 (1875); 
 Vaughen v. Haldeman, 33 Pa. St. 
 522 (1859); Montague v. Dent, 10 
 Rich. (S. C.) L. 135 (1856) ; Sewell v. 
 Angerstein, 18 L. T. N. S. 300 (1868). 
 
 '" Lawrence v. Kemp, 1 Duer (N. 
 Y.) 363 (1852) ; Wall v. Hinds, 70 
 Mass. (4 Gray), 256 (1855) ; Rogers 
 V. Crow, 40 Mo. 91 (1867); Montague 
 V. Dent, 10 Rich. (S. C.) 135 (1856); 
 Ewell on Fixtures, 299 ; Tyler on 
 Fixtures, 396, et seq; Brown on Fix- 
 tures, appx. A. 
 
 " 33 Pa. St. 522 (1859). 
 (33)
 
 514 DEFEN"OE OF OWlSrERSHTP OF FIXTURES. [§ 427. 
 
 do not pass with the land, said that there is " really nothing to 
 distinguish this new apparatus from the old lamps, candle 
 sticks and chandeliers, which have always been considered 
 as personal chattels. Gas stoves are largely used for bath 
 and other rooms, and are necessarily connected with the gas 
 pipes in the same way, but no one would think of saying that 
 they are fixtures which it would be waste to remove. It is, 
 therefore, more simple to consider all these gas fixtures, 
 whether stoves, chandeliers, hall and entry lamps, drop lights 
 or table lamps, as governed by the same rules as the article 
 for which they were substituted ; " and this decision was 
 approved by the same court in the later case of Jarechi v. 
 Philharmonic Society.' The supreme court of Missouri,' 
 following the Pennsylvania cases, has held that the fixtures 
 of a church are movable chattels.* 
 
 The doctrine laid down in these cases is evidently too 
 broad, because gas fixtures may or may not become attached 
 to the realty, and pass by a conveyance of the land, accord- 
 ing to the particular circumstances of each case and the 
 intention of the parties.* In a late case in New Jersey,* 
 which was a suit between the mortgagee of chattels on 
 certain premises and a subsequent mortgagee of the realty 
 on which the chattels were situated, it was held that the gas 
 burners were fixtures. The court held that they were in no 
 sense furniture, but mere accessories to the building.* 
 
 » 79 Pa. St. 404 (1875). that, " the question whether chattels 
 
 * Rogers v. Crow, 40 Mo. 91 (1867). are to be regarded as fixtures de- 
 
 * This decision is apparently based pends less upon their manner of 
 upon the additional cases of Law- acquisition to the freehold, than upon 
 rence v. Kemp, 1 Duer (N. Y.) 363 their own nature and their adapta- 
 (1853), and Wall v. Hinds, 70 Mass. tion to the purposes for which they 
 (4 Gray), 256 (1855) ; but the court are used." See, sustaining this doc- 
 seems to have overlooked the fact trine, McRea v. Central National 
 that these were cases between land- Bank, 66 N. Y. 494 (1876) ; Hoyle 
 lord and tenant. v. Pittsburgh & M. R. R. Co. , 54 N. 
 
 * SeweU V. Angerstein, 18 L. T. Y. 314, 334 (1873) ; Voorhees v. 
 N. S. 300 (1868). McGinnis, 48 N. Y. 278, 324 (1872) ; 
 
 » Keeler v. Keeler, 31 N. J. Eq. Potter v. Cromwell, 40 N. Y. 287 
 
 (4 Stew.) 191 (1879). (1869) ; Quinby v. Manhattan C. & 
 
 In Johnson's Ex'rs v. Wiseman, 4 P. Co., 24 N. J. Eq. (9 0. E. Gr.) 
 
 Met. (Ky.) 361 (1863), the court held 260 (1873).
 
 §428.] OWNERSHIP OF FIXTURES AS DEFEIS^CE. 515 
 
 While it is true that personal property attached to the land 
 will be regarded as fixtures, where such is the manifest inten- 
 tion of the parties/ yet under certain circumstances such 
 chattels remain personal property and may be removed with- 
 out the consent of the owner of the land or those claiming 
 under him ; thus, where rails are built into a fence by a 
 tenant under an agreement that he may remove them from 
 the land, they are, it seems, as between such tenant and the 
 owner of the soil, personal property." It is proper to deter- 
 mine in a foreclosure suit a controversy between a mortgagee 
 and the grantee of the mortgagor, as to the right of the latter 
 to remove an erection made by him on the land, and the 
 court may, by a provision in the judgment, in case the right 
 is established, protect it by authorizing the removal of the 
 building before the sale, or by providing that the sale shall 
 be subject to the right.* 
 
 § 428. Fixtures where land leased for a term of years. 
 
 — As between a mortgagor and a mortgagee, fixtures placed 
 upon land leased for a term of years, become a part of the realty 
 and will pass under a mortgage of the land.* The rule in 
 respect to what fixtures shall be deemed a part of the realty, 
 is more liberally construed in favor of a mortgagor than in 
 favor of a tenant holding under the mortgagor. All fixtures, 
 attached to the land and which are habitually used and 
 enjoyed therewith, whether for the purposes of trade and 
 manufacture or not, pass with the freehold ; and as betweea 
 the mortgagee and a tenant of the mortgagor, they are a part 
 of the realty.* But it has been held that machinery attached 
 to a building for manufacturing purposes and connected with 
 the motive power by leather belts, and not otherwise annexed 
 
 • See Hutchinson v. Kay, 23 Beav. * Day v. Perkins, 2 Sandf . Ch. 
 414 (1857), where the gas light was (N. Y.) 359 (1845). 
 
 said to be a necessary part of a mill. * Breese v. Bange, 2 E. D. Smith 
 
 ^ See authorities cited above in (N. Y.) 474 (1854). See Sands v. 
 
 this section. PfeiHer, 10 Cul. 258 (1858) ; Sparks 
 
 « Mott V. Palmer, 1 N. Y, 564 v. State Bank, 7 Blackf. (Ind.) 469 
 
 (1848). See Ford v. Cobb, 20 N. Y. (1845) ; Fullam v. Stearns, 30 Vt. 
 
 344 (1859). 443 (1857). 
 
 * Brown v. Keeney Settlement 
 Cheese Assoc, 59 N. Y. 242 (1874).
 
 516 OWIfEESHIP OF FIXTUEES AS DEFENCE. [§ 428. 
 
 to the building than by screws holding it to the floor, which 
 keep it steady while working, and which can be removed 
 •without injury to the machinery or building, is a chattel and 
 not a part of the realty, and does not pass with the land 
 under a mortgage.' 
 
 While it is true that all the cases upon this subject can not 
 be reconciled, and that no rule can be stated in exact terms, 
 which will furnish a clear guide for every case, yet the true 
 doctrine, as established in New York and in other states, 
 seems to be that, where the chattel, as attached to the 
 realty, is useful and necessary to its enjoyment, and adds 
 value thereto, and when detached loses its character and 
 usefulness, then the chattel becomes a fixture and passes 
 with the freehold. Applying this principle to the case of 
 a factory, the wheel or engine which furnishes the motive 
 power, and all that part of the gearing and machinery which 
 has special relation to the building with which it is con- 
 nected, would belong to the freehold, while an independent 
 machine, like a loom, which, if removed, still remains a loom, 
 and can be used as such wherever it is wanted and power 
 can be applied to it, will retain its character as a chattel. 
 With the rule, as thus stated, a majority of the cases coin- 
 cide.' 
 
 It is stated as a rule of law in respect to mills and manu- 
 factories, that in the absence of custom or agreement, 
 anything that can be removed without injury to itself or to 
 the freehold, is a chattel and does not pass with the convey- 
 ance of the realty.* Thus, machines and such articles as 
 may be used in any other building, as well as in that in 
 
 • Murdock v. Gifford, 18 N. Y. 28 Y. 283 (1872) ; Walker v. Sherman, 
 (1858). 20 Wend. (N. Y.) 636, 657 (1839) ; 
 
 * Vanderpoel v. VanAllen, 10 Barb. Wade v. Johnston, 25 Ga. 331 (1858); 
 (N. Y.) 157 (1850) ; Cresson v. Stout, Richardson v. Copeland, 72 Mass, 
 17 Johns. (N. Y.) 116, 117 (1819) ; (6 Gray), 536 (1856) ; Hill v. Sewald, 
 Swift V. Thompson, 9 Conn. 63 53 Pa. St. 274 (1866) ; Sweetzer v. 
 (1831) ; Gale v. Ward, 14 Mass. Jones, 35 Vt. 317 (1862) ; Fullam v. 
 352 (1817) ; Teaff v. Hewitt, 1 Ohio Stearns, 30 Vt. 443 (1857) ; Hill v. 
 St. 511 (1853) ; Powell V. Monson, 3 Wentworth, 28 Vt. 436 (1856); 
 Mason C. C. 459 (1824). Walmsley v. Milne, 7 C. B. N. S. 
 
 » See Voorhees v. McGinnis, 48 N. 115 (1859).
 
 §429.] EQUITIES BETWEEN M0ETGAGEE3. 517 
 
 1 
 
 which they are placed, are ordinarily deemed to be chattels, 
 
 if they can be removed without injury to the freehold.' 
 
 § 429. Settlement of equities between mortgagees.— 
 
 In an action of foreclosure the court may adjust all rights 
 and equities between incumbrancers. The rights and equi- 
 ties of the parties are sometimes as much affected by the 
 order in which separately encumbered pieces of land are 
 to be sold, as by the determination which is the primary 
 and which the auxilliary security. Thus, it has been held that 
 where one holds a mortgage on real estate to secure the 
 payment of money owing to him, and before the payment of 
 the money secured by the mortgage, such mortgagee 
 becomes indebted to the mortgagor on a book account, a 
 junior incumbrancer, whether general or specific, of the 
 mortgaged premises, will have a right to have such indebted- 
 ness applied in extinguishing the mortgage debt." This 
 right of a junior incumbrancer is absolute, and can not be 
 defeated by the parties to the mortgage in the absence of 
 equities in favor of the mortgagee.* 
 
 And where a mortgagor makes general advances to his 
 mortgagee, although such advances may not be applied upon 
 the mortgage by the parties, yet if they are such that the 
 mortgagee would have the right to apply them as a satisfaction 
 of the mortgage debt, a judgment recovered against the 
 mortgagor by a third person will determine the application, 
 so far as to give the judgment creditor a right to demand 
 such set-off, and to compel a reduction of the amount of the 
 prior mortgage, which right the parties to the mortgage can 
 not defeat.* 
 
 Where a mortgagee has a lien upon several distinct parcels 
 of land, and some of the lands still belong to the person 
 who in equity ought to pay and discharge the debt, and 
 other parcels have been sold by him, the lands still belonging 
 
 • Vanderpoelv.VanAllen, lOBarb. » Rosevelt v. Bank of Niagara, 
 
 (N. Y.) 157 (1850) ; Swift v. Thomp- Hopk. Ch. (N. Y.) 579 (1825) ; affd 
 
 son, 9 Conn. 63 (1831) ; Gale v. 9 Cow. (N. Y.) 409. 
 
 Ward, 14 Mass. 352 (1817). * Bank of Niagara v. Rosevelt, 9 
 
 « Prouty V. Price, 50 Barb. (N. Y.) Cow. (N. Y.) 409 (1827), aff'g Hopk. 
 
 344 (1867). Ch. (N. Y.) 579 (1825).
 
 518 SALE IN INVERSE ORDER OF ALIEjS^ATIOK [§ 430. 
 
 to such person are in equity first chargeable with the payment 
 of the debt. And if the person who ought to pay the niortgage 
 has conveyed the several parcels of the land upon which it 
 is a lien at different times to bona fide purchasers, the lands, 
 as between the purchasers, will be chargeable with the pay- 
 ment of the debt in the inverse order of their alienation,' on 
 the principle that as between equal equities, he who is prior 
 in time is strongest in right.* The first purchaser from the 
 mortgagor will have a prior equity, although his consideration 
 may not actually be paid until after the other portion of the 
 lands is sold and paid for." 
 
 § 430. Demand in answer for sale in inverse order of 
 alienation. — The rule that the lands are to be sold to satisfy 
 the mortgage debt in the inverse order of their alienation, 
 is not confined to the original alienation of the mort- 
 gagor who is personally liable for the debt. It is equally 
 applicable to the several conveyances of the separate parcels 
 of the mortgaged premises made at different times by his 
 grantees who convey with a warranty.* And where there are 
 general liens upon the whole land, and subsequent mortgages 
 lupon parts of such land, the parts of the land not covered by 
 the subsequent mortgages are primarily chargeable with the 
 prior liens covering the whole land, and the property so mort- 
 gaged is chargeable in the inverse order of the mortgages.* 
 
 And where mortgaged premises are sold subsequent to the 
 date of the mortgage to different purchasers in parcels, such 
 parcels, upon the foreclosure of the mortgage, are to be 
 
 > Crafts V. Aspinwall, 2 N. Y. 289 (N. Y.) 183 (1840). qui prior est 
 (18-49); Skeel v. Spraker, 8 Paige Ch. tempore, potior est jure. See James 
 (N. Y.) 183 (1840). See Clowes v. v. Morey, 3 Cow. (N. Y.) 246, 316 
 Dickenson, 5 Johns. Ch. (N.Y.) 235 (1823); s. c. 14 Am. Dec. 475; 
 (1821) ; Gill V. Lyon, 1 Johns. Ch. Berry v. Mutual Ins. Co., 2 Johns. 
 (N. Y.) 447 (1815); Rathbone v. Ch. (N. Y.) 603 (1817). 
 
 Clark, 9 Paige Ch. (N. Y.) 648 (1843); ^ Gouverneur v. Lynch, 2 Paige 
 
 Schryver v. Teller, 9 Paige Ch. (N. Ch. (N. Y.) 300 (1830). 
 
 Y.) 173 (1841) ; Guion v. Knapp, 6 * Guion v. Knapp, 6 Paige Ch. (N. 
 
 Paige Ch. (N. Y.) 35 (1836): Gouver- Y.) 85 (1836). 
 
 neur v. Lynch, 2 Paige Ch. (N. Y.) ^ Schryver v. Teller, 9 Paige Ch. 
 
 300 (1830). (N. Y.) 173 (1841). 
 
 > Skeel V. Spraker, 8 Paige Ch.
 
 § 431.] SALE LN LNYEPvSE OEDER OF ALIEN ATIOU". 519 
 
 sold in the inverse t rder of their alienation, so as to protect 
 the equitable rights of the defendants respectively, as 
 between themselves, in reference to the payment of the 
 mortgage which is a lien upcn the equity of redemption in 
 all the parcels.' This principle is also applicable to subse- 
 quent incumbrancers upon different parcels of the mort- 
 gaged premises either by mortgage, judgment or otherwise." 
 
 The right of the subsequent grantee of a part of mortgaged 
 premises, to have the different parcels charged with the debt 
 in the inverse order of their alienation, is an equitable and 
 not a strictly legal right, and is governed by the same 
 principles upon which a court of equity protects the rights 
 of sureties or those standing in the situation of sureties.^ 
 
 The duties of the party who holds the incumbrance will 
 not be affected, unless he is informed of the existence of facts 
 upon which the right depends, or he has a sufficient notice 
 of the probable existence of such a right, to make it his duty 
 to inquire for the purpose of ascertaining whether any 
 equities in fact exist.* Thus, the recording of a subsequent 
 deed given by a mortgagor, is not constructive notice to 
 the mortgagee of the equitable right of the grantee to have the 
 residue of the mortgaged premises, not embraced in his deed, 
 first charged with the payment of the amount due upon the 
 mortgage.' 
 
 § 431. Allegation of outstanding title or incumbrance. 
 — In an action to foreclose a mortgage, the defendant will 
 not be permitted to allege, by way of defence, that there is 
 an outstanding title or incumbrance prior to the mortgage,* 
 for it is a well settled principle that, where no fraud is 
 
 ' Stuyvesant v. Hall, 2 Barb. Ch. "* Stuyvesant v. Hall, 2 Barb. Ch. 
 
 (N. Y.) 151 (1847) ; New Tork Ins. (N. Y.) 151, 159 (1847). 
 
 & Trust Co. V. Milnor, 1 Barb. Ch. * Stuyvesant v. Hall, 2 Barb. Ch. 
 
 (N. Y.) 353 (1846) ; Guion v, Knapp, (N. Y.) 151, 159 (1847); Guion v. 
 
 6 Paige Ch. (N- Y.) 35 (1836). Knapp, 6 Paige Ch, (K Y.) 35, 42 
 
 * Stuyvesant v. Hall, 2 Barb. Ch. (1836). 
 
 (N. Y.) 151 (1847). * Parkinson v. Sherman, 74 N. Y. 
 
 » Guion V. Knapp, 6 Paige Ch. (N. 88 (1878) ; B. C. 30 Am. Rep. 268 ; 
 
 T.) 35, 42 (1836). See Stuyvesant v. Glenn v. Whipple, 12 N. J. Eq. (1 
 
 Han, 2 Barb. Ch. (N. Y.) 151, 158 Beas.) 50 (1858) ; Van Waggoner v. 
 
 (1847). McEwen, 2 N. J. Eq. (1 H. W. Gr.)
 
 520 
 
 OUTSTANDLNG TITLE AS A DEFENCE. 
 
 [§ 432. 
 
 alleged, and where the grantee or the person claiming under 
 him entered into possession on receiving the conveyance and 
 continued in possession without disturbance, and the deed 
 conveying the premises contains covenants of seizin and 
 warranty,' in an action to foreclose a mortgage given to secure 
 a part of the purchase money, the defendant can not have 
 relief against the mortgage on the ground of an outstanding 
 incumbrance or of a failure of title.'' The defendant will be left 
 to his remedy on the covenants in the deed.' The reason for 
 this rule is that the incumbrance, if let alone, may never be 
 asserted against the property, as it may be paid off or satis- 
 fied in some other way; it would then be inequitable that 
 any part of the purchase money should be retained.* 
 
 § 432. When purchaser may set up outstanding title 
 as a defence. — Where there has been an imposition or 
 fraud upon the purchaser by the vendor, through any willful 
 
 412 (1841) ; Shannon v. Marselis, 1 
 N. J. Eq. (Saxt.) 413, 426 (1831). 
 See Odell v. Wilson, 63 Cal. 159 
 (1883) ; Doss v. Ditmars, 70 Ind. 451 
 (1880). 
 
 ' Edwards v. Bodine, 26 Wend. 
 (N. Y.) 109 (1841). 
 
 But it seems that the rule will be 
 otherwise, if the deed does not con- 
 tain a covenant of warranty. Grant 
 V. Tallman, 20 K Y. 191 (1859); 
 s. c. 75 Am. Dec. 374 ; Tallmage v. 
 Wallis, 25 Wend. (N. Y. ) 107 
 (1840). 
 
 * Parkinson v. Sherman, 74 N. 
 Y. 88 (1878) ; s. c. sub nom. Parkin- 
 son V. Jacobson, 13 Hun (N. Y.) 
 317;- York v. Allen, 30 N. Y. 104 
 (1864); Curtiss v. Bush, 39 Barb. 
 661 (1863); Burke v. Nichols, 34 
 Barb. (N. Y.) 430 (1861) ; s. c. 21 
 How. (N. Y.) Pr. 459 ; aff'd 2 Keyes 
 (N. Y.) 670 ; Sandford v. Travers, 7 
 Bosw. (N. Y.) 498 (1860); Leggett 
 V. McCarty, 3 Edw. Ch. (N. Y.) 124 
 (1837) ; Denston v. Morris, 2 Edw. 
 Ch. (N. Y.) 37 (1833) ; Gouverneur 
 
 V. Elmendorf, 5 Johns. Ch. (N. Y.) 
 79 (1821) ; Chesterraan v. Gardner, 
 
 5 Johns. Ch. (N. Y.) 29 (1820) ; 9. c. 
 9 Am. Dec. 265 ; Abbott v. Allen, 2 
 Johns. Ch. (N. Y.) 519 (1817); s. c. 
 7 Am. Dec. 554 ; Bumpus v. Platner 
 1 Johns. Ch. (N. Y.) 213, 218(1814) ; 
 Banks v. Walker, 2 Sandf. Ch. (N. 
 Y.) 344 (1845) ; Stahl v. Hammon- 
 tree, 72 Ind. 103 (1880); Mahoney 
 V. Bobbins, 49 Ind. 146 (1874) ; 
 Hulfish V. O'Brien, 20 N. J. Eq. (5 
 C. E. Gr.) 230 (1869) ; Hill v. Butler, 
 
 6 Ohio St. 207 (1856). 
 
 ^ Parkinson v. Sherman, 74 N. Y. 
 88, 92 (1878); s. c. 30 Am. Rep. 268 ; 
 York V. Allen, 30 N. Y. 104 (1864) ; 
 Curtiss V. Bush, 39 Barb. (N. Y.) 
 661 (1864). See Withers v. Morrell, 
 3 Edw. Ch. (N. Y.) 560 (1842); 
 Glenn v. Whipple, 12 N. J. Eq. (1 
 Beas.) 50 (1858) ; Abbott v. Allen, 2 
 Johns. Ch. (X. Y.) 519 (1817) ; 8. c. 
 
 7 Am. Dec. 554; Bumpus v. Platner, 
 1 Johns. Ch. (N. Y.) 213 (1814). 
 
 * Grant v. Tallman, 20 N. Y. 191, 
 195 (1859); s. c. 75 Am. Dec. 374.
 
 § 432.] 
 
 OUTSTANDING TITLE AS A DEFENCE. 
 
 521 
 
 misrepresentation or concealment, it will take the case out 
 of the general rule and entitle the purchaser to redress in 
 equity in addition to and beyond his covenants.* Where 
 a tax deed is set up in an action to foreclose a mort- 
 gage, Avith a view to extinguishing the mortgage lien, the 
 mortgagee will have a right to litigate the validity of the tax 
 deed ; and in such case a tender of the taxes paid will 
 not be necessary." And where the mortgagor has been 
 evicted,' or an ejectment suit has been commenced against 
 him on an outstanding title,* or the defendant has paid or 
 discharged the incumbrance, or a part thereof,' the court 
 will interfere,* and will enjoin a foreclosure until the action 
 
 ' Denston v. Morris, 2 Edw. Ch 
 (N. Y.) 37 (1833). See Gouverneur 
 V. Elmendorf, 5 Johns. Ch. (N. Y.) 
 79 (1821) ; Chesterman v. Gardner, 5 
 Johns. Ch. (N. Y.) 29 (1820) ; 8. c. 8 
 Am. Dec. 265 ; Johnson v. Gere, 2 
 Johns. Ch. (N. Y.) 546 (1817); 
 Abbott V. Allen, 2 Johns. Ch. (N.Y.) 
 519 (1817); s. c. 7 Am. Dec. 554 ; 
 Bumpus V. Platner, 1 Johns. Ch. 
 (N. Y.) 213 (1814). See also Legge v. 
 Croaker, 1 Bal. & B. 506, 514 (1811). 
 
 ' Hoffman v. Groll, 35 Kan. 652 
 (1886). 
 
 » Ryerson v. Willis, 81 N. Y. 277 
 (1880); Tallmage v.Wallis, 25 Wend. 
 (N. Y.) 107 (1840) ; Price v. Lawton, 
 27 N. J. Eq. (12 C. E. Gr.) 325 
 (1876) ; Hile v. Davison, 20 N. J. 
 Eq. (5 C. E. Gr.) 228 (1869) ; Glenn 
 V. Whipple, 12 N. J. Eq. (1 Beas.) 
 50 (1858) ; VanWaggoner v. Mc- 
 Ewen, 2 N. J. Eq. (1 H. W. Gr.)412 
 (1841) ; Shannon v. Marselis, 1 N. J. 
 Eq. (Saxt.) 413 (1831). Where there 
 has been an eviction, and the pur- 
 chaser is liable to the true owner for 
 mesne profits to an amount equal to 
 the sum demanded by his vendor, he 
 may plead such facts in bar of an 
 action for the breach as showing a 
 total failure of consideration ; 
 
 whether a total or a partial failure of 
 consideration by reason of defective 
 title can be shown where the convey- 
 ance was with warranty and there 
 has not been an eviction, qu(rre. 
 Tallmage v. Wallis, 25 Wend. (N. Y.) 
 107 (1840). 
 
 * Price v. Lawton, 27 N. J. Eq. 
 (12 C. E. Gr.) 325 (1876) ; Hile v. 
 Davison, 20 N. J. Eq. (5 C. E. Gr.) 
 228 (1869) ; Glenn v. Whipple, 12 
 N. J. Eq. (1 Beas.) 50 (1858); Van 
 Waggoner v. McEwen, 2 N. J. Eq. 
 (1 H. W. Gr.'! 412 (1841). 
 
 ' Grant v. Tallman, 20 K Y. 191 
 (1859) ; s. c. 75 Am. Dec. 384 ; Coy 
 V. Downie, 14 Fla. 544 (1874). It 
 has been said that the court will not 
 relieve against a mortgage, on the 
 ground of any outstanding claim 
 which the mortgagor for greater 
 security to his title has paid off, 
 without any judicial investigation or 
 decision on such claim in a proceed- 
 ing in which all proper persons were 
 made parties and were called on to 
 bring forward their title. Lee v. 
 Porter, 5 Johns. Ch. (N. Y.j 268 
 (1821). 
 
 ® It was held in Coy v. Downie. 14 
 Fla. 544 (1874), that the defendant, 
 in an action to foreclose a mortgage,
 
 622 DEFENCE OF OUTSTANDING TITLE. [§§ 433-434. 
 
 in ejectment has been determined, even though the mort- 
 gage contains a power of sale not requiring a foreclosure by 
 action.* 
 
 § 433' Payment of an outstanding claim by a pur- 
 chaser as a defence. — Where a defendant has paid and 
 caused an incumbrance to be discharged to protect his title, 
 he must show, in order to avail himself of such defence, 
 either that what he paid was actually due, or that he had 
 given notice to his vendor requiring him to satisfy the incum- 
 brance within a limited time. Some of the authorities 
 establish the rule, without any qualification, that the pur- 
 chaser may set off or recover the amount paid by him to 
 protect his title ; but it seems reasonable that a vendor who 
 has been innocent of any fraud should have an opportunity 
 to correct the mistake, before being obliged to pay more than 
 the amount actually due on the incumbrance." 
 
 Thus, where the grantee of land was allowed to with- 
 hold part of the consideration for a specified time in order 
 to take up an outstanding title, and, as a security for the 
 money withheld, gave a mortgage to the vendor, in an 
 action to foreclose the mortgage it was held, that it was no 
 defence that in order to perfect his title he had paid the 
 amount withheld to a person who claimed to have obtained 
 a quit claim of the outstanding title, where it was neither 
 averred in the answer nor shown by the proof that the claim 
 on which the money was paid was valid or enforceable.* 
 
 § 434. Eviction as a defence. — In an action to foreclose 
 a mortgage given to secure part of the purchase money. 
 
 may resist the foreclosure by recoup- Bodine, 26 Wend. (N. Y.) 109 (1841); 
 
 ment or off-set of damages for a Peters v. Bowman, 98 U. S. (8 Otto), 
 
 breach of the covenant to the extent 56 (1878) ; bk. 25 L. ed. 84. Contra, 
 
 of the damages sustained for the Piatt v. Gilchrist, 3 Sandf. (N. Y.) 
 
 failure or partial failure of the title. 118 (1849). 
 
 But it has been questioned in Indi- « Grant v. Tallman, 20 N. Y. 191 
 
 ana whether there can be any de- (1859); s. c. 75 Am. Dec. 384; 
 
 fence by way of recoupment before Richardson v, Tolman, 44 Mich. 379 
 
 an actual eviction. Church v. Fish- (1880). 
 
 er, 40 Ind. 145 (1872). » Richardson v. Tolman, 44 Mich. 
 
 ' Johnson v, Gere, 2 Johns. Ch. 379 (1880). 
 (N. Y.) 54§ U817); Edwards v
 
 §434.] EVICTION AS A DEFENCE. 523 
 
 where the defendant has been evicted from the premises 
 under a paramount title, such eviction will afford a complete 
 bar to the foreclosure.' To constitute an eviction, a forcible 
 dispossession of the premises, or an actual physical expul- 
 sion, is not necessary.* An eviction can not be more than 
 an ouster, and a constructive eviction will be as effective 
 as an actual eviction.' 
 
 The peaceable surrender of property under and in pursu- 
 ance of a judgment directing the delivery of possession in an 
 action, which the mortgagor is unable to resist, constitutes an 
 eviction,* and this may be accomplished without suffering 
 an actual change of possession, as by the purchase of the 
 property under the foreclosure of a prior incumbrance,* or 
 by being compelled to purchase an outstanding paramount 
 title in order to protect his interest.' 
 
 It was held at one time that to constitute an eviction 
 "there must be a disturbance of the premises by legal 
 process," but such is not now the rule ; possession, without 
 a struggle to maintain it, may be surrendered to persons 
 holding a paramount title ;' in such a case the burden will be 
 
 1 Coudrey v. Coit, 44 N. Y. 382 * Coudrey v. Coit, 44 N. Y. 382 
 
 (1871); Curtiss v. Bush, 39 Barb. (N. (1871). 
 
 Y.) 661 (1863) ; Banks v. Walker, 2 * Coudrey v. Coit, 44 N. Y. 382 
 
 Sandf. Ch. (N. Y.) 344 (1845). (1871). Tucker v. Coouey, 34 Hun 
 
 » Coudrey v. Coit. 44 N. Y. 382, (N. Y.) 227 (1884). 
 
 386 (1871) ; Dyett v. Pendleton, 8 « Wiiitney v. Dinsmore, 60 Mass. 
 
 Cow. (N. Y.) 727 (1826). (6 Cush.) 124 (1850). See Coudrey 
 
 3 Dyett V. Pendleton, 8 Cow. (N. v. Coit, 44 N. Y. 382 (1871) ; Tucker 
 
 Y.) 727, 731 (1826) ; Whitney v. v. Cooney. 34 Hun (N. Y.) 227 
 
 Dinsmore, 60 Mass. (6 Cush.) 124, (1884); Loomis v. Bedell, 11 N. H. 
 
 126 (1850) ; Whitney v. Whiting, 44 74(1840) ; Foote v. Burnet, 10 Ohio, 
 
 Mass. (3 Mete.) 81 (1841) ; Sprague 330 (1840) ; King v. Kerr, 5 Ohio, 
 
 V. Baker, 17 Mass. 586 (1822); 158 (1831) ; Brown v. Dickerson, 12 
 
 Hamilton v. Cutts, 4 Mass. 349 Pa. St. 372 (1819); Stewart v. 
 
 (1808); s. c. 3 Am. Dec. 222. Drake, 8 N J. L. (4 Halst.) 139 
 
 Lord Mansfield says: "Some (1827); Davenport v. Bartlett, 9 
 
 ambiguity seems to have arisen from Ala. 179 (1846). See Bender v. 
 
 the term 'actual ouster,' as if it Fromberger, 4 U. S. (4 Dull.) 436; 
 
 meant some act accompanied by bk. 1 L. ed. 898. 
 
 real force, and as if a turning out ' Coudrey v. Coit, 44 N.Y. 382, 386 
 
 by the shoulders were necessary ; (1871) ; Simers v. Saltus, 3 Den. (N. 
 
 but this is not so." Fisher v. Pros- Y.)214, 217(1846); Greeuvault v. Da. 
 
 ger, Cowp. 217 (1774). vis, 4 Hill (N. Y.) 643, 045, 610 (1843).
 
 524 DEFENCE OF WANT OF TITLE. [§435. 
 
 on the defendant to show that the title to which he yielded 
 possession was paramount. He can not voluntarily surren- 
 der the possession to one having no title and then set up the 
 defence of an eviction.' And it has been held that an 
 eviction may be established by proof that at the time of the 
 purchase, the lands sold were actually occupied under a 
 valid hostile title, so that the purchaser could not obtain 
 possession of them, and that in consequence he never 
 obtained actual possession.' 
 
 § 435. Defence of want of title.— A defendant may 
 plead as a defence to the foreclosure of a mortgage a want 
 of or a defect in the title. Thus, where a person purchases 
 land and gives his note secured by a mortgage for the whole 
 or a part of the purchase price, but really acquires no interest 
 in the land because of defects in the title of his vendor, in an 
 action on the note and mortgage the defendant may set up 
 such defects in his vendor's title as a bar to the action,' if 
 the property was conveyed with covenants of warranty ; but 
 if the conveyance was made without covenants with regard 
 to the title, the failure thereof is said to be no defence to 
 an action upon the note given for the purchase money.* 
 
 Where a mortgage was given upon one tract of land to 
 secure the purchase money of another tract, which latter 
 tract the mortgagee covenanted by his bond to convey with 
 covenants of warranty, in an action to foreclose such mort- 
 gage, the failure of the title of the vendor was said to be a 
 good defence, upon the ground that the mortgagor under- 
 took to pay the mortgage, only on condition that the mort- 
 gagee had a good title to the tract he agreed to convey.* It 
 has been said, that upon principles of natural justice the 
 
 » York V. Allen, 30 N. Y, 104 35 Am. Dec. 116. See Dickinson v. 
 
 (1864). Hall, 31 Mass. (14 Pick.) 217 (1833); 
 
 ' Withers v. Powers, 2 Sandf. Ch. Hunt v. Livermore, 22 Mass. ( 5 
 
 (N. Y.) 350, note, (1842) ; Banks v. Pick.) 395 (1827). See ante § 431. 
 Walter, 2 Sandf. Cli. (N. Y.) 344 * Owinger v. Thompson, 4 111. (3 
 
 (1845). Scam.) 502, 508 (1842). 
 
 ' Frisbee v. HofEnagle, 11 Johns. « Smith v. Newton, 38 111. 230 
 
 (N. Y.) 50 (1814) ; Tyler v. Young, (1865). 
 8 HI. (2 Scam.) 444, 447 (1840) ; s. c.
 
 § 436.] DEFEITGE OF FAILUKE OF TITLE. 525 
 
 defendant can not be required under such circumstances to 
 pay for lands which can never be conveyed to him by the 
 party contracting to convey.' 
 
 Where a note secured by a mortgage is negotiable in 
 form, title to it may be passed by indorsement and delivery. 
 In an action brought by an assignee of such a note to fore- 
 close the mortgage, failure of title to a portion of the 
 premises for which the note was given as a part of the 
 purchase price, constitutes no defence if such assignee had 
 no notice of such failure of title.' 
 
 § 436. Allegation of failure of title.— Failure of title 
 may be pleaded as a defence to an action to foreclose a 
 mortgage, whether the failure is as to the whole or only as 
 to a part of the property purchased ;' and a failure of title 
 may be shown although the deed contains covenants of 
 warranty.* Where there is only a partial failure of title it 
 will be a defence /r^; tanto.* 
 
 It has been held that in a suit upon a promissory note and 
 and to foreclose a mortgage given for the purchase money 
 of real estate, an answer attempting to set up a failure of 
 title, but which does not set out a deed or any covenants 
 therein, or allege fraud, is insufficient.' It is a general rule 
 that a purchaser who has paid part of the purchase money, 
 and given notes secured by a mortgage for the residue, will 
 not be relieved against an action to foreclose such mortgage, 
 on the ground of defect of title where there is no allegation 
 
 > Tyler v. Young, 3 El. (3 Scam.) Scam. (3 III.) 414 (1840); s. c. 35 
 
 444, 447 (1840); 8. c. 35 Am. Dec. Am. Dec. 116. 
 116. * Banks v. Walker. 2 Sandf. Ch. 
 
 » Dutton V. Ives, 5 Mich. 515 (1858). (N. Y.) 344 (1845). See ante § 431. 
 See Stillwell v. Kellogg, 14 Wis. * Pacific Iron Works v. Newhall, 
 
 461 (1861) ; Cornell v. Hichens, 11 34 Conn. 67, 77, 78 (1867) : Avery t. 
 
 Wis. 353 (1860) ; Croft v. Bunster, Brown, 31 Conn. 398 (1863). 
 9 Wis. 503 (1859). * Church v. Fisher, 40 Ind. 145 
 
 » See Banks v. Walker, 2 Sandf. (1872). See McClerkin v. Sutton, 
 
 Ch. (N. Y.) 344 (1845) ; Pacific Iron 29 Ind. 407 (1868); Jenkiuson v. 
 
 Works V. Newhall, 34 Conn. 67, 77, Ewing, 17 Ind. 505 (1801) ; Wood- 
 
 78(1867); Robinson v. Wilson, 19 ford v. Leavenworth, 14 Ind. 311 
 
 Ga. 505 (1856); Smith v. Newton, 38 (1860); Laughery ?. McLean, 14 Ind. 
 
 111. 230 (1865) ; Conway v. Case, 22 106 (1860). 
 lU. 127 (1859) ; Tyler v. Young, 2
 
 526 DEFENCE OF FAILURE OF TITLE. [§437. 
 
 of fraud in the sale, and he has not been evicted.' In such 
 cases the purchaser will be confined to his remedy at law 
 upon the covenants contained in his deed.' 
 
 If there is an entire failure of title to the land conveyed 
 and the purchaser is unable to obtain possession under it, 
 such failure to obtain possession will constitute a defence to 
 an action to foreclose a mortgage, given for the purchase 
 price, and no personal judgment can be rendered in such 
 action because of the failure of consideration, even in 
 the absence of covenants of title in the deed of conveyance ;* 
 but it would seem that where the vendee acquires any title 
 whatever under his purchase, or even possession, if there 
 is no fraud, he can not have such relief.* And the fact that 
 a purchaser who has obtained possession, has been sued by 
 persons claiming title paramount to his deed, for the pur- 
 pose of recovering such possession, will not constitute a 
 defence to an action to foreclose a purchase money mort- 
 gage.* 
 
 § 437. Denial of title in mortgagor at time of execut- 
 ing mortgage. — Generally a mortgagor in possession can 
 not set up an outstanding title in a third person as a bar to 
 a bill for the foreclosure of a mortgage ; nor can a purchaser 
 
 ' Ryerson v. Willis, 81 N. T. 277 Johns. Ch. (N. T.) 213, 218 (1814) ; 
 
 (1880). See Piatt V.Gilchrist, 3 Sandf. Patton v. Taylor, 48 U. S. (7 How.) 
 
 (N. Y.) 118 (1849) ; ConweU v. Clif- 132 (1849); bk. 12 L. ed. 637. 
 
 ford. 45 Ind. 392 (1873) ; Key v. Jen- » Shattuck v. Lamb, 65 N. Y. 499 
 
 nings, 66 Mo. 356, 368(1877); Wheeler (1875) ; Sandf ord v. Travers, 40 N. 
 
 V. Standley, 50 Mo. 509 (1832) ; Y. 140 (1869); Banks v. Walker, 2 
 
 Glenn v. Whipple, 12 N. J. Eq. (1 Sandf. Ch. (N. Y.) 344 (1845) ; afid 
 
 Beas.) 50 (1858) ; Hill v. Butler, 6 3 Barb. Ch. (N.Y.) 438; Withers v. 
 
 Ohio St. 207 (1856); Darling v. Os- Powers, 2 Sandf. Ch. (N. Y.) 350, 
 
 borne, 51 Vt 148 (1878) ; Booth v. note, (1842). 
 
 Ryan, 81 Wis. 45 (1872). But com- * Abbott v. Allen, 2 Johns. Ch. 
 
 pare Wilber v. Buchanan, 85 Ind. (N. Y.) 519 (1817) ; B. c. 7 Am. Dec. 
 
 42 (1882) ; Chambers v. Cox, 23 Kan. 554. 
 
 393 (1880) ; Mendenhall v. Steckel, » Miller v. Avery, 2 Barb. Ch. (N. 
 
 47 Md. 453 (1877); Hall v. Gale, 14 Y.) 582 (1848). See Banks v. Wal- 
 
 Wis. 54 (1861). ker, 2 Sandf. Ch. (N. Y.) 344 (1845) ;. 
 
 * Ryerson v. WiUis, 81 N. Y. 277, aff'd 3 Barb. Ch. (N. Y.) 438 ; Piatt 
 
 280(1880); Abbott V.Allen, 2 Johns. v. Gilchrist, 3 Sandf. (N. Y.) 118 
 
 Ch. (N. Y.) 519 (1817) ; b. c. 7 Am. (1849). Contra, Johnson v. Gere, 3 
 
 Dec. 654 ; Bumpus v. Plainer, 1 Johns. Ch. (N. Y.) 546 (1817).
 
 §437.] DEXIAL OF TITLE IN MOETGAGOE. 527 
 
 in possession set up such outstanding title as a defence to a 
 bill to enforce the vendor's lien for the purchase money, 
 because each is alike estopped from denying the title 
 asserted against him.* A mortgagor who has covenanted to 
 defend the title against all adverse claims, is estopped from 
 alleging title paramount in a third person.' 
 
 It would seem that in an action to foreclose a mortgage, 
 the defendant may deny any title to the premises covered 
 by the mortgage at the time it was executed,' especially 
 where there is no recital of a particular fact forming an 
 inducement for the contract, general words not being suffi- 
 cient to create an estoppel. When the mortgagor conveys 
 without title, but with covenants of warranty, he will be 
 concluded, and an after acquired estate will pass to the 
 mortgagee, not because the mortgagor had a title at the 
 time of the execution of the mortgage, but because his deed 
 will raise an equitable estoppel.* 
 
 > Strong V. WaddeU, 56 Ala. 471 Ins. Co. v. McKay, 43 N. T. Suit. 
 
 (1876). Ct. (1 Sheld.) 138 (1867); Van 
 
 « Macloon v. Smith, 49 Wis. 200 Amburgh v. Cramer, 16 Hun (N.Y.) 
 
 (1880). 205 (1878). 
 
 * See Sparrow v. Kingman, IN. •* Sparrow v. Kingman, 1 N. T. 
 
 T. 242, 246 (1848) ; National Fire 242, 246 (1848).
 
 CHAPTER XXI. 
 
 PRACTICE ON FAILURE TO ANSWER— DEFAULT— PRACTICE 
 ON TRIAL AFTER ISSUE JOINED. 
 
 REFERENCE TO COMPUTE AMOUNT DUE-POWERS AND DUTIES OF 
 
 REFEREE — REPORT OF REFEREE — DECREE OF FORECLOSURE 
 
 AND SALE— PROCEEDINGS ON TRIAL. 
 
 § 438. Introductory. 
 
 439. When notice of motion for 
 
 order of reference not neces- 
 sary. 
 
 440. When such notice is neces- 
 
 sary. 
 
 441. Upon what papers motion 
 
 made. 
 
 442. What mu.st be shown by the 
 
 motion papers. 
 
 443. Reference to compute amount 
 
 due — Who may be referee. 
 
 444. Contents of order — Whole 
 
 amount due, and not due. 
 
 445. Contents of order — When 
 
 Infant and absentee defen- 
 dants. 
 
 446. Miscellaneous matters in or- 
 
 der of reference — Changing 
 referee. 
 
 447. Proceedings on reference — 
 
 General rules. 
 
 448. Who to prosecute reference 
 
 — Service of order. 
 
 449. Examination on reference — 
 
 Evidence. 
 
 450. Computing amount due — 
 
 Statement of items — Allow- 
 ance for repairs and pay- 
 ment of prior liens. 
 
 451. Computing amount on build- 
 
 ing and loan association 
 mortgage — Fines and dues. 
 
 452. Allowance on reference of 
 
 taxes and assessments paid 
 by mortgagee. 
 
 453. Computing amount due on 
 
 failure to pay taxes and 
 assessments. 
 
 § 454. Allowance of insurance pre- 
 miums paid by mortga- 
 gee. 
 
 455. Powers and duties of referees 
 
 — Generally. 
 
 456. Finding as to how property 
 
 should be sold. 
 
 457. Conduct of reference — Dis- 
 
 cretion and authority of re- 
 feree — Where reference to 
 to be held. 
 
 458. Report of referee. 
 
 459. Filing and confirming re- 
 
 feree's report — Exceptions 
 thereto — New hearing. 
 
 460. Application for judgment — 
 
 What must be shown. 
 46L Notice of application for 
 judgment. 
 
 462. Decree of foreclosure and 
 
 sale — Variations from re- 
 feree's report. 
 
 463. Extent of relief granted by 
 
 decree of sale. 
 
 464. Opening default — Power of 
 
 court. 
 
 465. Proceedings on trial after 
 
 issue joined — General rules. 
 
 466. Proceedings after issue joined 
 
 — Where part only of the 
 defendants have answered. 
 
 467. Proceedings after default or 
 
 issue joined — Where some 
 of the defendants are infants 
 or absentees. 
 
 468. Proceedings where the bill 
 
 is taken as confessed. 
 
 § 438. Introductory. — In an action to foreclose a mort- 
 gage, if the defendants fail to answer within the time allowed 
 
 628
 
 § 439.3 PEAcncE ON default. 529 
 
 by law for that purpose, or the rights of the plaintiff, as 
 stated in the complaint, are admitted by the answer, the 
 plaintiff may apply for an order of reference to some suitable 
 person to compute the amount due to him, and to such of 
 of the defendants as are prior incumbrancers, and, where 
 the whole amount secured by the mortgage is not due, to 
 ascertain whether the mortgaged premises can be sold in 
 parcels. If any of the defendants are infants who have put 
 in a general answer by their guardian ad litem, or are 
 absentees, the order of reference must direct the person to 
 whom the cause is referred to take proof of the facts and 
 circumstances stated in the complaint, to examine the 
 plaintiff or his agent on oath as to any payments which have 
 been made, and to compute the amount due upon the mort- 
 gage, preparatory to the application for a decree of fore- 
 closure and sale of the premises.' 
 
 In an action to foreclose a mortgage, a judgment by 
 default against one who was properly made a party to the 
 action, and duly served with process, and required to answer 
 as to any interest he might have or claim in the premises, 
 will be conclusive as to any prior claim of interest or title 
 adverse to the plaintiff.' 
 
 § 439- When notice of motion for order of reference 
 not necessary.— The order of reference, in an action for the 
 foreclosure of a mortgage, generally known as the interiocu- 
 tory order to compute the amount due upon default, is 
 made ex parte and without notice to any one, if it 
 appears from the papers presented to the court that no 
 appearance has been made by any defendant.* A notice of 
 motion for an order of reference can be dispensed with only 
 in case no appearance has been made by any defendant ; the 
 motion is generally governed by the rules applicable to 
 ex parte motions in other actions. It has been the practice 
 for many years, according to the rule handed down from the 
 court of chancery, in case a notice of motion is made for 
 
 » K Y. Supreme Court Rule 60. See post § 445, 
 
 • Barton v. Anderson, 104 Ind. 578 (1885) ; s. c. 2 West. Kep, 679. 
 
 • It. Y. Supreme Court Rule 60. 
 
 (34)
 
 530 MOTION FOE REFERENCE. [§§440-441. 
 
 the relief demanded in the complaint, or for judgment, to 
 dispense with a separate notice of motion for an order of 
 reference to compute the amount due on the mortgage.' 
 
 § 440. When such notice is necessary. — A notice of 
 motion for an order of reference must be served upon such 
 of the defendants as have appeared in the action, at least 
 eight days before the hearing of the motion. Failure to 
 serve such notice is an irregularity for which the court may 
 subsequently cause the order to be set aside, if objected to.' 
 The motion is generally made without placing the cause on 
 the calendar.' It must be made at a term of the court, and 
 not before a judge at chambers; it must also be made in 
 the district in which the property is located and in which the 
 action is triable, or in an adjoining county.* 
 
 § 441. Upon what papers motion made. — The motion 
 for an order of reference is always based upon the plead- 
 ings, and upon an affidavit stating the facts, by reason of 
 which the plaintiff claims to be entitled to the order of refer- 
 ence. The affidavit may be verified by the plaintiff or by 
 any person who has a knowledge of the facts. The steps 
 which have been taken in the action may be shown by the 
 affidavit of the plaintiff's attorney or of the attorney's clerk.' 
 If it is desired upon the motion to show the time of filing 
 the complaint and the lis pendens, it may be done by 
 affidavit or by the certificate of the county clerk.' 
 
 The affidavits of the persons who served the summons on 
 the different defendants should accompany these papers. If 
 service has been made by publication, or without the state, or 
 by any form of substituted service, all of the papers showing 
 
 > Kelly V. Searing, 4 Abb. (N. T.) Proc. Eep. (N. T.) 340, 343 (1888), 
 
 Pr. 354 (1857). This case reviews the holding that a separate notice of 
 
 history of the present N. Y. Supreme motion for judgment is necessary. 
 Court Rule 60, as transmitted from « N. Y. Supreme Court Rule 60 ; 
 
 the rules of the court of chancery in IST. Y. Code Civ. Proc. § 780. 
 force in 1844, being a substitute for » N. Y. Supreme Court Rule 60. 
 rule 134 of that year ; it also states < ]sf ^ y. Code Civ. Proc. § 769. 
 the best practice upon default in " N. Y. Supreme Court Rule 60. 
 
 foreclosure cases. But see Citizens' « N. Y. Supreme Court Rule 60. 
 
 Savings Bank v. Bauer, 14 Civ.
 
 §§ 442-443.] MOTION papers. 531 
 
 such service to be regular and complete, should accompany 
 the motion papers, or at least be referred to therein as on file 
 with the clerk of the court. All papers used upon the motion 
 should be filed at the time of making the motion. 
 
 § 442. What must be shown by the motion papers.— 
 Upon an application for a reference to compute the amount 
 due and for judgment of foreclosure and sale, it must appear 
 that proper and complete service of the summons has been 
 made upon each of the defendants,' or that they have 
 appeared, and that the time allowed by law for serving an 
 answer or demurrer has expired, and that the attorney of 
 the plaintiff has not been served with a copy of an answer 
 or of a demurrer. The afifidavits should show that the 
 bill is taken as confessed, and that the money secured by 
 the mortgage is due and payable ; also that a lis pendens 
 with the complaint was filed at least twenty days prior to the 
 application." The affidavit of regularity,' which was required 
 to be made by the solicitor of the complainant, under the 
 chancery practice prior to the Code, is not nece.^sary under 
 the present practice.* 
 
 § 443. Reference to compute amount due— Who may 
 be referee.— Where a defendant interposes an answer raising 
 a material issue, but fails to appear at the trial, the plaintiff 
 can not have an order of reference to compute the amount 
 due as upon default.* Where an answer sets up a defence, 
 or what is claimed to be a defence, the correct practice, if 
 no demurrer is interposed, and a motion is not made to 
 strike out the answer as irrelevant, nor for judgment upon 
 it as a frivolous pleading, is to place the cause upon the 
 
 > An action can not be referred * N. Y. Supreme Court Rule 60. 
 
 While any defendant against whom * As to the requisites of the affl- 
 
 the plaintiff seeks to recover a judg- davit of regularity under the old 
 
 ment for deficiency has not been practice, see Nott v. Hill, 6 Paige 
 
 served with the summons, or has Ch. (K Y.) 9 (1886). 
 
 been served only with a notice of no * Laws of 1840, chap. 342, as 
 
 personal claim, and has not appeared. amended by laws of 1844, chap. 346. 
 
 Goodyear v. Brooks, 4 Robt. (N. Y.) » Exchange Fire Ins. Co. v. Early, 
 
 682 (1866) ; 8. c. 2 Abb. (N. Y.) Pr. 4 Abb. (N. Y.) N. C. 78 (1878). 
 N. S. 296.
 
 532 REFERENCE TO CO^klPUTE AMOUNT DUE. [§444. 
 
 calendar, and at the trial to demand judgment upon the plead- 
 ings.' 
 
 The referee appointed in foreclosure cases to compute the 
 amount due, or to sell the mortgaged premises, must be 
 selected by the court ; and the court can not appoint as such 
 referee a person named by either of the parties to the action 
 or by their attorneys.' Any suitable person may be appointed 
 referee. It is not necessary that he should be an attorney, 
 although the usual practice is to appoint an attorney or 
 an attorney's clerk as referee ;' yet it has been. held that the 
 court can not appoint as a referee to sell, the notary before 
 whom the affidavit, upon which the application for the refer- 
 ence is based, was verified.* 
 
 § 444. Contents of order — Whole amount due, and not 
 due. — Where the whole amount secured by a mortgage is 
 due, and none of the defendants are infants or absentees, 
 the order of reference should simply direct a computation of 
 the amount due to the plaintiff, and to such of the defend- 
 ants as are prior incumbrancers of the mortgaged premises, 
 if there are any such. The referee may also be required to 
 compute the amount due on other mortgages set up in the 
 answer, and to ascertain whether there are any prior liens 
 upon such premises.* Such an order of reference is to 
 be regarded as an interlocutory decree,' made by the court 
 
 > Stuyvesant v. Browning, 33 N. ties of New York and Kings, shall 
 
 Y. Supr. Ct. (1 J. & S.) 203, 207 be appointed referee in a mortgage 
 
 (1871) ; Boyce v. Brown, 7 Barb. foreclosure case under any order or 
 
 (N. Y.) 81 (1849) ; VanValen v. Lap- judgment of any court, unless the 
 
 ham, 13 How. (N.Y.) Pr. 243(1856). parties to the action mutually agree 
 
 See N. Y. Supreme Court Rule 60, to such referee. See Laws of 1876, 
 
 * N. Y. Supreme Court Rule 61. chap. 205. 
 
 It was held in White v. Coulter, 1 * Steward v. Bogart (N. Y. Sup. 
 
 Hun (N. Y.) 357 (1874) ; s. c. 3 T. Ct.) 2 Month. L. Bull, 94 (1880). 
 
 & C. (N. Y.) 608, that the appoint- » Chamberlain v. Dempsey, 36 N. 
 
 mcnt of a referee who is nominated Y. 144 (1867) ; s. c. 1 Trans. App. 
 
 by one of the parlies in a mortgage 257, reversing 9 Bosw. (N, Y.) 540 ; 
 
 foreclosure and approved by the b. c. 15 Abb. (N. Y.) Pr. 1. 
 
 other, is not an irregularity. , « Roberts v. White, 39 N.Y. Supr. 
 
 2 No clerk, deputy clerk, or assis- Ct. (7 J. & S.) 272, 275 (1875). See 
 
 tant clerk of any court of record, or Chamberlain v. Dempsey, 15 Abb. 
 
 of the surrogate's court of the coun- (N. Y.) Pr. 1 (1867) ; Johnson v.
 
 § 445.] OEDER OF REFERENCE. 533 
 
 and not by a judge in chambers, and is not appealable ;* 
 but as an order of reference is in aid of final judgment, an 
 appeal from the final judgment will bring up for review all 
 previous interlocutory orders and decrees.* 
 
 In cases where the whole amount secured by the mortgage 
 has not become due, the order of reference should also require 
 the referee " to examine and report whether the mortgaged 
 premises can be sold in parcels."* Where the referee reports 
 that the premises can be sold to advantage in parcels, he 
 should also report the order in which the sale of parcels 
 should be made, so that the court may direct the order in 
 which such parcels shall be sold, so as to protect the rights of 
 the different parties interested in the equity of redemption.* 
 
 § 445. Contents of order — When infant and absentee 
 defendants. — Where any of the defendants are infants or 
 absentees, the order of reference, besides providing for the 
 computation of the amount due, must also direct the referee 
 to take proof of the facts and circumstances set forth in the 
 complaint, and to report to the court the evidence taken before 
 him.* The court is bound to protect the interests of infant 
 litigants, whether represented by their guardians or not.* 
 
 Everett, 9 Paige Ch. (N. Y.) 636 » Chamberlain v. Dempsey, 36 N. 
 
 (1842). Y. 144 (1867) ; N. Y. Code Civ. Proc. 
 
 « Gray v. Fox, 1 N. Y. Code Rep. § 1316. 
 
 N. S. 334 (1852) : Dickenson v. » N. Y. Supreme Court Rule 60. 
 
 Mitchell, 19 Abb. (N. Y.) Pr. 286 * See Erie Co. Savings Bank v. 
 
 (1865); Harris v. Mead, 16 Abb. Roop, 48 N. Y. 292, 298 (1872); 
 
 (N. Y.) Pr. 257 (1863) ; UbsdeU v. Ferguson v. Kimball, 3 Barb. Ch. 
 
 Root, 3 Abb. (N. Y.) Pr. 142 (1856) ; 616 (1846) ; Rathbone v. Clark, 9 
 
 McLean v. East River Ins. Co., 8 Paige Ch. 648 (1842); Jumel v. 
 
 Bosw. (N. Y.) 700 (1861) ; Smith v. Jumel, 7 Paige Ch. 591 (1839). 
 
 Dodd, 3 E. D. Smith (N. Y.) 348 » Wolcott v. Weaver, 3 How. (N, 
 
 (1854) ; Dean v. Empire Mut. Ins. Y.) Pr. 159 (1847) ; N. Y. Supremo 
 
 Co., 9 How. (N. Y.) Pr. 69 (1853); Court Rule 60. 
 
 Bryan v. Brennon, 7 How. (N. Y.) * Sheahan v. Wayne Circuit Judge, 
 
 Pr. 359 (1853). But where an order 42 Mich. 69 (1879). General guar- 
 
 of reference is directed in a case in dians do not represent their infant 
 
 which a reference is not authorized wards in foreclosure proceedings, 
 
 by law, it will be appealable. Cram and the solicitors of the guardians 
 
 V. Bradford, 4 Abb. (N. Y.) Pr. 193 can not bind the rights of the infants; 
 
 (1857) ; Whitaker v. Desfosse, 7 nor can guardians ad litem bind the 
 
 Bosw. (N. Y.) 678, 680 (1861). infants, except in strict accordance
 
 534 COJN^TEXTS OF ORDER OF REFERENCE. [§ 446. 
 
 Where a non-resident defendant has not been personally 
 served with the summons, and does not appear in the aetiofi, 
 a judgment can not be rendered against him, except on the 
 report of the referee as to the truth of the facts and circum- 
 stances stated in the complaint.' 
 
 The evidence required of the plaintiff to establish the 
 allegations of his complaint must be legal proof ; secondary- 
 evidence will not be sufficient.' Where an order has been 
 made, upon the pleadings and upon affidavits in a mortgage 
 foreclosure, appointing a referee to compute the amount 
 due, and to inquire into the facts and circumstances set forth 
 in the plaintiff's complaint, such referee can not receive an 
 affidavit verified before a commissioner of deeds as evidence 
 of any such facts.* But the testimony on such a reference, 
 being in the nature of affidavits, a husband and wife may 
 testify in behalf of each other.* 
 
 Where any of the defendants are infants or non-appearing 
 absentees, the order of reference, besides providing for the 
 computation of the amount due and for taking proof of 
 the facts and circumstances alleged in the complaint, should 
 also require that the referee examine the plaintiff, or his 
 agent, under oath, as to any payments which have been 
 made on the mortgage debt.' In cases where proofs have 
 been taken in chief, prior to entering an order of reference, 
 upon a proper application made to the court, permission 
 will be granted to the plaintiff to use such proofs upon the 
 reference against an absentee.' 
 
 § 446. Miscellaneous matters in order of reference — 
 Changing referee. — An order of reference to compute the 
 amount due, and to take proof of the facts and circumstances 
 alleged in the complaint, and to examine the defendant, or 
 his agent, as to any payments that have been made, should 
 
 ■with the rules for their protection. » Security Fire Ins. Co. v. Martin, 
 
 Sheahan v. Wayne Circuit Judge, 15 Abb. (N. Y.) Pr. 479 (1863). 
 sujjra. * Laing v. Titus, 18 Abb. (N. T.) 
 
 ' Corning v. Baxter, 6 Paige Ch. Pr. 388 (1864). 
 (X. Y.) 179 (1836). 6 N. Y. Supreme Court Rule 60. 
 
 ' Wolcott V. Weaver, 3 Hovr. (N. « Corning v. Baxter, 6 Paige Ch. 
 
 Y.) Pr. 159 (1847). (N. Y.) 178 (1836).
 
 § 447.] C0XTE2s^TS OF ORDER OF REFERENCE. 535 
 
 define the duties of the referee and limit the scope of the 
 reference, and should also require him to report the proofs 
 and evidence taken before him.' An order of reference to 
 compute the amount due, granted against a non-answering 
 defendant, should not combine with it a reference of the 
 whole issue as to other defendants who contest the plaintiff's 
 claims. They are separate proceedings, and their union in 
 the same order will be irregular as to the non-answering 
 defendant, though regular as to the contesting defendants.* 
 Where there has been a reference in a mortgage fore- 
 closure to compute the amount due, to take proof of 
 the facts and circumstances alleged in the complaint, 
 and to examine the plaintiff or his agent on oath as to 
 payments, the matter can not be withdrawn from the 
 referee named without a special order of the court ;* and 
 such an order will not be granted, unless it is made to. appear 
 that there are special reasons therefor, such as the inability of 
 the referee, because of illness or pressure of private business, 
 to proceed with reasonable dispatch in hearing and deter- 
 mining the matter referred to him, or that there has 
 been unreasonable delay on the part of the referee to 
 proceed with the examination, or that he has adjourned 
 the proceedings for an unreasonable length of time, against the 
 wishes of a party to the suit, — either of which reasons will 
 be a sufficient cause to justify a change of a referee.* 
 
 § 447. Proceedings on reference— General rules. — The 
 
 proceedings on a reference in a mortgage foreclosure, are, in 
 general, similar to those on other interlocutory references, and 
 
 ' Wolcott V. Weaver, 3 How. (N. pointed. Chatfield v. Hewlett, 2 
 
 Y.) Pr. 159 (1847). Dem. (N. T). 191, 196 (1882), citing 
 
 « Cram v. Bradford, 4 Abb. (N. Nason v, Luddington, 56 How. (N. 
 
 Y.) Pr. 193 (1857). See post %4m. Y.) Pr. 173 (1878); Leaycroft v! 
 
 2 But it seems that where a referee Fowler, 7 How. (N. Y.) Pr. 259, 260 
 is appointed by the court, and by (1852) ; Whalen v. Board of Super- 
 stipulation of the parties, without an visors, 6 How. (N. Y.) Pr. 278 (1851). 
 order from the court, another person * Forrest v. Forrest, 3 Bosw. (N. 
 is substituted in the place of the Y.) 650 (1859). See Rathbim v. 
 referee originally appointed, such Ingersoll. 34 N. Y. Supr. Ct. (2 J. 
 substituted referee will possess all the & S.) 211, 214 (1872). 
 powers of the one originally ap-
 
 63G PEOCEEDUSTGS ON REFERENCE. [§448. 
 
 are governed by the same rules. The referee should be duly 
 sworn before entering upon his official duties,' unless the 
 parties, being of full age and competent, either by written 
 stipulation or orally, expressly w^aive such oath.* Such 
 ■waiver should be entered in the minutes of the referee.* 
 Should the referee fail to take the oath prescribed, it will be 
 an irregularity; but such irregularity will be deemed waived, 
 if the parties proceed with the reference without objec- 
 tion.* 
 
 § 448. Who to prosecute reference — Service of order. 
 
 — The order appointing a referee in a foreclosure is his 
 commission to act, and until such order has actually been 
 entened, and a certified copy served upon him, he should 
 not proceed with the reference, for the validity of all his 
 proceedings will depend entirely upon the extent and scope 
 of the order from which he derives his authority.* 
 
 It is the general rule that the party who obtains an order 
 of reference, is entitled to the prosecution thereof in the first 
 instance, unless the court in making it commits the prose- 
 cution to some other party ; but where both parties are 
 alike interested, the plaintiff's counsel will be entitled to 
 
 ' It has beeu held that a referee to as to apply to referees appointed 
 
 compute the amount due in a fore- under g 1215. 
 
 closure, should take the oath of * Exchange Fire Ins. Co. v. Early, 
 
 officeprescribedbyg lOlGof theN.Y. 4 Abb. (N. Y.) K C. 78 (1878). 
 
 Code of Civil Procedure. Exchange * Malcolm v. Foster, 5 N. T. 
 
 Fire Ins. Co. v. Early, 4 Abb. (N. Week. Dig. 310 (1877) ; Browning 
 
 Y.) N. C. 78 (1878) ; s. c. 54 How. v. Marvin, 5 Abb. (N. Y.) N. C. 285 
 
 (N. Y.) Pr. 279. See Browning v. (1878). In re Vilmar, 10 Daly (N. 
 
 Marvin, 5 Abb. (N. Y.) N. C. 285 Y.) 15 (1878). 
 
 (1878). But it is said in McGowan v. ■* See Malcolm v. Foster, 5 N. T. 
 
 Newman, 4 Abb. (N. Y.) N. C. 80 Week. Dig. 310 (1877) ; Bucklin v. 
 
 (1878), that no oath of office is re- Chapin, 53 Barb. (N. Y.) 488 (1868) ; 
 
 quired from a referee appointed Bonner v. McPhail, 31 Barb. (N. Y.) 
 
 under and in pursuance to § 1215 of 111 (1860) ; Garcie v. Shelden, 3 
 
 the N. Y. Code of Civil Procedure ; Barb. (N. Y.) 232 (1848) ; Keator t. 
 
 that the provisions of § 1016 of the Ulster & Delaware Plank Road Co., 
 
 Code, relate solely to referees appoint- 7 How. (N. Y.) Pr. 41 (1851). 
 
 cd as prescribed in that section, which * Bonner v. McPhail, 31 Barb. (N. 
 
 relates to trials without jury, and F.) 106, 116(1860). See Bucklia t. 
 
 are applicable to cases where issue Chapin, 53 Barb. (N. Y.) 488, 4S\ 
 
 is joined, but can not be extended so (1868).
 
 § 449.] EXAMINATION ON EEFEKENCE ^EVIDENOE. 537 
 
 prosecute the reference in the first instance.* Should the 
 party entitled to prosecute the reference in the first instance, 
 neglect to proceed within a reasonable time after the entry 
 of the order, any person interested in the reference may 
 apply to the court for an order requiring the party entitled 
 to prosecute it, to show cause why such prosecution should 
 not be taken from him and committed to another.' 
 
 §449. Examination on reference — Evidence. — Where 
 in an action of foreclosure an order has been granted upon the 
 pleadings and affidavits, appointing a referee to compute 
 the amount due, to examine the plaintiff as to payments, and 
 to take proof of the facts and circumstances alleged in the 
 bill, the referee has no discretionary powers, but must be 
 confined to the scope and authority of the order appointing 
 him ; he can not go into an examination of the plaintiff as 
 to any facts except those relating to payments on the mort- 
 gage, nor can he examine an absent defendant in behalf of 
 his co-defendant as to any defence set up in an answer.* 
 
 On a reference, on default in a mortgage foreclosure, to 
 compute the amount due and to take proof of the facts and 
 circumstances stated in the complaint, the referee should 
 require legal proof of every fact embraced in the subject of the 
 reference ; secondary evidence is inadmissible.* He can not 
 receive an affidavit verified before a commissioner of deeds as 
 evidence of the amount due on the mortgage, or of any other 
 fact to be established ;' but he may receive the recital of the 
 bond in the mortgage set out in the complaint as evidence 
 of its execution, if the bond has been lost.* On a reference 
 
 ' Quackenbush v. Leonard, 10 inconsistent therewith, such, doubt- 
 Paige Ch, (K Y.) 131 (1843). less, is still the correct practice. 
 
 * Such was the practice in the ' McCrackan v. Valentine Ex'rs., 
 
 former court of chancery. See 9 N. Y. 43 (1853). 
 
 Quackenbush v. Leonard, 10 Paige * Wolcott v. Weaver, 8 How. (N. 
 
 Ch. (N. Y.) 131 (1843) ; Holley v. Y.) Pr. 159 (1847). 
 
 Glover, 9 Paige Ch. (N. Y.) 7(1841); » Security Fire Ins. Co. v. Martin, 
 
 N. Y. Chancery Rule 101 ; such also 15 Abb. (N. Y.) Pr. 479 (1863). 
 
 is the established English practice, * Cooper v. Newland, 17 Abb. (N. 
 
 Powell V. Wallworth, 2 Madd. Ch. Y.) Pr. 342 (1863) ; Knickerbocker 
 
 436 (1817) ; and as the Code of Civil Life Ins. Co. v. Hill, 16 Abb. (N. Y.) 
 
 Procedure contains no provision Pr. N. S. 321 (1875). The proper
 
 538 COMPUTING AMOUNT DUE. [§400. 
 
 to compute the amount due in a foreclosure, the testimony 
 of the witnesses need not be signed by them.' 
 
 Where there are infant or absentee defendants, and the 
 plaintiff or his agent is to be examined on oath by the referee 
 as to any payments that may have been made on the bond 
 and mortgage, the examination of the witnesses should be 
 full and exhaustive. 
 
 § 450. Computing amount due— Statement of items — 
 Allowance for repairs and payment of prior liens. — Upon 
 a reference to compute the amount due upon a bond and 
 mortgage, the referee is not limited by the penalty of the 
 bond. Where the principal and interest exceed such penalty, 
 the mortgagee has a lien upon the whole land for the amount 
 of principal and interest due, according to the conditions of 
 the mortgage, although such amount may exceed the penalty 
 of the bond.' The burden of showing that the amount due 
 and unpaid on the mortgage under foreclosure is less than 
 the plaintiff claims, is on the defendant.' 
 
 In computing the amount due in a mortgage foreclosure, 
 the referee is not obliged to set out the several items 
 constituting the sum found due, because they will be covered 
 by the general finding, although pot stated in detail. In 
 Sidenberg v. Ely,* objection was taken to the refusal of the 
 referee to specify the several sums which constituted 
 
 practice as to the method of proving (1824) ; Lyon v. Hall, 1 E. D. Smith, 
 
 the bond and mortgage on the refer- (K Y.) 250 (1851); State v.Wayman, 
 
 ence in a mortgage foreclosure, isdis- 2 Gill & J. (Md.) 254 (1830) ; Harris 
 
 cussed by counsel with full citations v. Clap, 1 Mass. 308 (1805) ; s. c. 2 
 
 in Knickerbocker Life Ins. Co. v. Am. Dec. 27 ; Tenant's Ex'rs v. Gray, 
 
 Hill, 16 Abb. (N. Y.) Pr. N. S. 321, 5 Munf. (Va.) 494 (1817) ; Perit v. 
 
 823 (1875). Wallis, 2U. S. (2Dall.)252(1796); bk. 
 
 ' N. Y. Supreme Court Rule 30. 1 L. ed. 370. Contra, United States 
 
 » Mower v. Kip, 6 Paige Ch. (N. Y.) v. Arnold, 1 Gall C. C. 348 (1812) ; 
 
 88 (1836); s. c. 29 Am. Dec. 748. See Lonsdale v. Church, 2 T. R. 388 
 
 Griffiths V. Hardenbergh, 41 N. Y. (1817) ; Holdipp v. Otway, 2 Saund. 
 
 464, 471 (1869) ; Lyon v. Clark, 8 106 (1670). 
 
 N. Y. 148, 153 (1853) ; Smedes v. « Lyon v. McDonald, 51 Mich. 436 
 
 Iloughtaling, 3 Cai. (N. Y.) 49 (1805); (1883). 
 
 s. c. 2 Am. Dec. 250 ; Moffat v. * 90 N. Y. 257 (1882) ; s. c. 43 
 
 Barnes, 3 Cai. (N. Y.) 49, note, (1803); Am. Rep. 163 ; s. c. 11 Abb. (N. Y.) 
 
 Clark V. Bush, 3 Cow. (N. Y.) 151 N. C. 354
 
 § 451.] COMPUTING AMOUNT DUE, 039 
 
 the gross sum set out in his findings, and the court held that 
 such refusal was not error. It was held in this case, that 
 " these items are covered by the general finding, and it was 
 not necessary to state them specifically : nor does the request 
 made embrace facts material to the issue and the proper 
 disposal of the case." 
 
 A mortgagee in possession before foreclosure, who pur- 
 chases or pays off an outstanding lien for the purpose of 
 protecting his possession, may be allowed what he has paid 
 with legal interest and no more.* And where a mortgagee 
 pays taxes and other prior claims to protect his lien, he can 
 not be allowed more than the statutory rate of interest on 
 such advances, as against a junior incumbrancer in a fore- 
 closure proceeding, though he may have an agreement 
 with the mortgagor for interest at the rate of ten per 
 centum.' 
 
 It was held in Barthell v. Syverson,' that the cost of 
 repairs made upon the mortgaged premises by a mortgagee, 
 can not be added to the mortgage debt. This was a case 
 in which the plaintiff held a mortgage on a flouring mill, 
 "which was out of repair; the plaintiff took out a defective 
 piece of machinery and replaced it with a new piece. The 
 court held that the plaintiff could not tack the amount paid 
 for such machinery to his mortgage, and have the same made 
 a charge on the real estate. The reason for this is that the 
 mortgagee can not tack to his mortgage debts not secured 
 thereby, and require their payment.* A mortgagee in 
 possession after a sale on foreclosure is not entitled to com- 
 pensation for repairs and improvements.* 
 
 § 451. Computing amount on building and loan asso- 
 ciation mortgage — Fines and dues. — Mortgages to build- 
 ing and loan associations are governed by the laws relating 
 to and governing mortgages generally, but in such mortgages 
 there are usually conditions for the payment of fines and 
 
 » Comstock V. Michael, 17 Neb. ■* Bacon v. Cottrell, 13 Mann. 194 
 
 288 (1885). (1868). 
 
 * Butterfield v. Hungerford, 68 * Marshall t. Stewart, 80 Ind. 189 
 
 Iowa, 249 (1885). (1881). 
 
 » 54 Iowa, 160 (1880).
 
 540 SAVINGS AND LOAN ASSOCIATION MOETGAGE. [§451. 
 
 dues in accordance with the by-laws and regulations of the 
 associations. 
 
 In an early case in New York,' it was held that a mortgage to 
 a building and loan association, in the usual form, is a valid 
 security only for the monthly payments stipulated to be 
 made, and not for fines and other dues. It is a well settled 
 rule of law that penalties agreed upon for the breach of a 
 contract are illegal." And it has been said, that there is 
 nothing in the character of building and loan associations to 
 except them from the doctrine of equity, applicable to other 
 cases of penalty for the non-payment of money, which 
 prohibits the enforcement and collection of such fines and 
 penalties.* 
 
 It has been said that a covenant to pay "all fines imposed 
 by the articles of the association," does not make such arti- 
 cles a part of the mortgage and does not authorize the court 
 to consider them in construing it ; because, in case of a fore- 
 closure and sale, the court can not look beyond the mortgage 
 itself to ascertain the sum due, unless the rules and articles 
 of the building and loan association are made a part of the 
 mortgage, or so referred to in it as to call the attention of 
 the court to them.* But it seems that where a mortgage 
 makes no mention of fines or of any liability to pay them, if 
 the mortgagor has actually paid such fines, he can not 
 recover them back ; and in an action brought to foreclose, he 
 will not be entitled to have them applied towards the satis- 
 faction of the mortgage.' 
 
 But it was held in the Juniata Building and Loan 
 Association v. Mixell,* that where a married woman unites 
 with her husband in executing a mortgage on her separate 
 property to secure a loan for her husband, which he, as a 
 
 * Hamilton Building Assoc, v. ■* Robertson v. American Home- 
 
 Eeynolds, 5 Duer (N. Y.) 671 (1856). stead Assoc, 10 Md. 397 (1851). 
 
 « Oemulgee Building & Loan * Clarksville Building & Loan 
 
 Assoc. V. Thomson, 52 Ga. 427 Assoc, v. Stephens, 26 N. J. Eq. (11 
 
 (1874). C. E. Gr.) 351 (1875). 
 
 » Mulloy V. Fifth Ward Building « 84 Pa. St. 313 (1877). 
 Assoc, 2 Me. & Ar. (D. C.) 594, 597 
 (1876).
 
 § 452.] AM0U1?T ON ASSOCIATION MOETGAGE. 541 
 
 stockholder, procured from a building and loan association, 
 it is a valid mortgage on her separate property under 
 ,the married woman's act of 1859, ^"^ covers the pre- 
 :miums due from her husband, as such stockholder, and 
 also the fines incurred by reason of default in the payment 
 of dues, although under the act of 1859 ^ married woman's 
 iinortgage of her separate estate to a building and loan asso- 
 ciation to secure the payment of her own debt could bind 
 iher property only to the extent of the amount actually 
 'advanced with interest.' It is held in some of the states and 
 in England, however, where a fine is imposed by a building 
 'and loan association, when a borrowing member becomes in 
 [arrears in the payment of his dues, that such fine is imposed 
 las interest and not by way of penalty, and that the above 
 trule of equity will not entitle the borrowing member to 
 
 relief.' 
 
 i 
 
 § 452. Allowance on reference of taxes and assess- 
 ments paid by mortgagee. — Where the owner of mortgaged 
 premises neglects or refuses to pay the taxes or assessments 
 imposed thereon, which he should pay,* the owner or the 
 holder of the mortgage may pay such taxes to protect his 
 security,* although there may be no clause in the mortgage 
 
 ' "Wolbach V. The Lehigh Building interest to pay the whole tax levied 
 
 Assoc., 84 Pa. St. 211 (1877). upon the premises, but is bound 
 
 I • See Ocmulgee Building & Loan to pay only one-half thereof, and in 
 
 (Assoc V. Thomson, 52 Ga. 427 case the mortgagee pays the whole 
 
 j(1874) ; Shannon v. Howard Mat. of the tax in order to preserve his 
 
 Assoc. 36 Md. 383 (1872) ; Juniata lien, he will be allowed to recover 
 
 "Building & Loan Assoc, v. Mixell, only one-half of the amount so 
 
 84 Pa. St. 313 (1877) ; Parker v. paid from the proceeds of the sale 
 
 Butcher, L. R. 3 Eq. 762 (1867); s. arising upon a foreclosure of his 
 
 c 36 L. J. Ch. 553 ; Matterson v. mortgage. "Weed v. Hornby, 35 
 
 Eiderfield, L. R. 4 Ch. App. 207 Hun (N. Y.) 580 (1885). 
 <i869) ; 8. 0. 20 L. T. N. S. 503 ; 33 * Sidenberg v. Ely, 90 K Y. 257 
 
 J. P. 326 ; 17 W. R. 422 ; Thomp- (1882) ; s. c. 43 Am. Rep. 163 ; 
 
 son V. Hudson, L. R. 2 Ch. App. Kepley v. Jansen, 107 111. 79 (1883) ; 
 
 255 (1867). Broquet v. Sterling, 56 Iowa, 357 
 
 * The owner of an undivided half (1881) ; Leitzbach v. Jackman, 28 
 interest in real estate is under no Kan. 524 (1882) ; Walton v. Holly- 
 obligations to one to whom he wood, 47 Mich. 385 (1882); Southard 
 luts mortgaged hia said one-half v. Dorrington, 10 Neb. 122 (1880).
 
 542 ALLOWANCE OF TAXES Uf COMPUTATION. [§452. 
 
 permitting him to do so ;' and where a mortgagee pays such 
 taxes and redeems the property from a tax sale, he will be 
 subrogated to the rights of the state and will be entitled to 
 a Hen on the mortgaged premises for the amount of the taxes 
 thus paid, in addition to the amount of his mortgage.'' To 
 give the owner of a mortgage this right, it is not necessary 
 for him to wait until the premises are sold, or offered for 
 sale, for such taxes and assessments, before paying the 
 same.' 
 
 His claim, however, must be enforced as a part of the 
 mortgage debt and not by an independent action against 
 the mortgagor, as for money paid to his use, or under 
 a claim of subrogation to the lien of the state or muni- 
 cipality,* because money paid by the holder of a mortgage to 
 redeem the premises from a tax sale does not constitute a 
 lien apart from the mortgage, but will be discharged when 
 the mortgage is satisfied ; and whether the amount paid is 
 or is not included in the sum for which the mortgage is 
 foreclosed, no subsequent or separate proceeding can be 
 maintained against the mortgagor to enforce its payment.* 
 
 Even the owner of an invalid mortgage is entitled to a 
 lien upon the premises for taxes paid by him upon the 
 same.' And where a subsequent mortgage lien is cut off by 
 the foreclosure of a prior mortgage, if the amount paid for 
 taxes has been added to the latter incumbrance, the lien 
 therefor will not be extinguished with the mortgage.^ On a 
 
 ' Sidenberg v. Ely, 90 N. T. 257 mortgage debt, is questioned in 
 
 (1882) ; 8. c. 43 Am. Rep. 163. Barthell v. Syverson, 54 Iowa, 160 
 
 » Sidenberg v. Ely, 90 N. Y. 257 (1880). 
 
 (1882) ; B. c. 43 Am. Rep. 163 ; » Sidenberg v. Ely, 90 N. Y. 257 
 
 Faure v. Winans, Hopk. Cb. (N. Y.) (1882) ; s. c. 43 Am. Rep. 163 ; 
 
 283 (1824) ; s. c. 14 Am. Dec. 545 ; Williams v. Townsend, 31 N. Y. 
 
 Sharp V. Thompson, 100 111. 447 414 (1865) ; Eagle Fire Ins. Co. v. 
 
 (1881) ; Broquet v. Sterling, 56 Iowa, Pell, 2 £dw. Ch. (N. Y.) 631 (1836). 
 
 357 (1881) ; Baker v. Clark, 52 Mich, * Horrigan v. Wellmuth, 77 Mo. 
 
 22 (1883); Walton v. Hollywood, 542 (1883); Young v. Brand, 15 
 
 47 Mich. 385 (1882) ; Horrigan v. Neb. 601 (1884). 
 
 Wellmuth, 77 Mo. 542 (1883). » Vincent v. Moore, 51 Mich. 618 
 
 Whether taxes paid by a mortgagee (1883). 
 
 upon the property, in the absence of * Aultraan v. Jenkins, 19 Neb. 
 
 an agreement, can be tacked to the 209 (1886).
 
 § 453.] rNCLUDESTG TAXES IN AMOUNT DUE. 543 
 
 foreclosure the mortgagee will not be entitled to recover 
 taxes paid on a tract of land not covered by the mortgage ;' 
 neither will the mortgagee or the assignee of a mortgage be 
 entitled to recover as taxes paid by himself or his agent, sums 
 expended in purchasing the mortgaged premises at a tax 
 sale.* And where a mortgagee in possession suffers the 
 land to be sold for taxes, he will not be permitted to 
 recover on foreclosure, the amount paid by him to redeem 
 from such sale, but only the actual amount of the taxes 
 with interest.* 
 
 § 453. Computing the amount due on failure to pay 
 taxes and assessments. — In computing the amount due, 
 where the owner of the mortgaged property has failed to 
 pay taxes, assessments or liens of a like nature imposed 
 upon it, and the mortgagee or the assignee of the mortgage 
 has paid them in order to protect his security, the referee 
 should include the amount thus paid with interest, and 
 add it to the mortgage debt in his report as to the amount 
 due.* 
 
 If the referee should find that the mortgage is upon an 
 undivided one-half interest in real estate, and that the mort- 
 gagee, in order to protect his lien, has paid the tax or assess- 
 ment levied against the whole premises, he should allow the 
 mortgagee only one-half of the tax so paid, in computing 
 
 ' Connecticut Mut. Life Ins. Co. 2 Edw. Ch. (N. Y.) 631, 634 (1834) ; 
 
 V. Bulte, 45 Mich. 113 (1881). Faure v. Winans, Hopk. Cli. (N. 
 
 1 Crane v. Aultman Taylor Co., Y.) 283 (1824) ; s. c. 14 Am. Dec. 
 
 61 Wis. 110 (1884). 545 ; Brevoort v. Eandolph, 7 How. 
 
 » Maxfleld v. Willey, 46 Mich. 253 (N. Y.) Pr. 398 (1853) ; Burr v. 
 
 (1881). See Williams v. Townsend, Veeder, 3 Wend. (N. Y.) 412 (1829>. 
 
 81 N. Y. 411 (1865) ; however, a con- See Williams v. Townsend, 31 N. Y. 
 
 trary doctrine was held in Allison v. 411, 414 (1865) ; Dale v. McEvers, 3 
 
 Armstrong, 28 Minn. 276 (1881) ; s. Cow. (N. Y.) 118 (1823) ; Sharp v. 
 
 C. 41 Am. Rep. 281. Thompson, 100 111. 447(1881); Water- 
 
 » Moshier v. Norton, 100 111. 63 son v. Devoe, 18 Kan. 223 (1877) ; 
 
 (1881). Sharp v. Barker, 11 Kan. 381 (1873) ; 
 
 * Sidenberg v. Ely, 90 N. Y. 257, Stanclift v. Norton, 11 Kan. 218 
 
 263 (1882) ; s. c. 43 Am. Rep. 163 ; (1873) ; Leland v. Collver, 34 Mich. 
 
 11 Abb. (N. Y.) N. C. 354 ; Robin- 418 (1876) ; Johnson v. Payne, 11 
 
 Bon V. Ryan, 25 N. Y. 320, 327 Neb. 269 (1881). 
 (1862) ; Eagle Fire Ins. Co. v. Pell.
 
 544: iNCLUDiNa rrfsuKANCE in amount due. [§ 454. 
 
 the amount due, because the mortgagor is under no obliga- 
 tions to the person to whom he has mortgaged his interest 
 in such real estate, to pay the whole of the tax or assess- 
 ment levied against the premises, but is bound to pay only 
 one-half thereof.' Where the referee finds that the mortgage 
 is upon a lease-hold interest, and that the mortgagor has 
 covenanted to pay the rent charges, but has failed to do so, 
 and that to protect his interest, the mortgagee has been 
 compelled to pay the same, he should allow the amount thus 
 paid in computing the amount due on the mortgage.* 
 
 § 454. Allowance of insurance premiums paid by 
 mortgagee. — Where a mortgage contains a clause requiring 
 the mortgagor to keep the premises insured for the benefit 
 and protection of the mortgagee, and agreeing that in case 
 of his failure to do so the mortgagee shall have the right to 
 insure the same, all moneys paid by the mortgagee for insur- 
 ance, because of the mortgagor's failure to procure insurance, 
 will be a charge upon the premises and collectible under 
 the mortgage ;* and the moneys so paid may be included 
 in the amount of the judgment of foreclosure, even though 
 the insurance was taken for the full term of the mort- 
 gage.* But in an action to foreclose, in the absence 
 of a supplemental complaint, the plaintiff will not be entitled 
 to recover moneys paid for insurance premiums after the 
 commencement of the action.* 
 
 In the absence, however, of an express agreement on the 
 part of the mortgagor to keep the mortgaged premises 
 insured for the benefit and protection of the mortgagee, the 
 
 »Weedv. Hornby, 35 Hun (N.Y.) N. Y. 320 (1862); St. Andrew's 
 
 580 (1885). Church v. Tompkins, 7 Johns. Ch. 
 
 « Catlin V. Grissler, 57 K Y. 363 (N. Y.) 14 (1823) ; Frost v. Beek- 
 
 (1874) ; Robinson v. Ryan, 25 N. Y. man, 1 Johns. Ch. (N. Y.) 288 (1814). 
 
 320 (1862). If the stipulation of the » Neale v. Albertson, 39 N. J. Eq. 
 
 mortgagor to pay rent charges does (12 Stew.) 384 (1885) ; Over by v. 
 
 not appear on the face of the mort- Fayettville Building & Loan Assoc, 
 
 gage, the mortgagee will not be 81 N. C. 56 (1879). 
 
 entitled to enforce his rights under * Walton v. Hollywood, 47 Mich, 
 
 such agreement, as against subse- 385 (1882). 
 
 quent bona fide grantees without * Washburn v. Wilkinson, 59 Cal. 
 
 notice. See Robinson v. Ryan, 25 538(1881).
 
 § 455.] 
 
 POWERS AND DUTIES OF REFEREE. 545 
 
 premiums paid by him for insurance against fire can not be 
 charged upon the mortgaged premises ; and on a reference 
 to compute the amount due in such a case, the referee can 
 not allow any premiums paid by the mortgagee for insur- 
 ance.' In an early case' in New York, it was held that 
 "insurance stands on a different footing from taxes, as it 
 may be effected by the mortgagee for his own security. 
 But taxes are a legal charge upon the estate, not upon the 
 mortgagee." 
 
 § 455. Powers and duties of referees — Generally. — 
 
 The general powers and duties of a referee appointed to 
 compute the amount due on a mortgage, to examine the 
 plaintiff or his agent as to any payments made on the mort- 
 gage debt, and to take proof of the facts and circumstances 
 stated in the complaint in a foreclosure suit, not being pre- 
 scribed by the Code of Civil Procedure nor provided for by 
 the rules of practice, and being the same powers as were 
 formerly possessed and exercised by a master in chancery, the 
 referee in his proceedings will be governed by the rules and 
 the former practice of the court of chancery, as far as they 
 are applicable under the Code.' It is the duty of the referee 
 ** to report the proofs and examinations had before him,"* 
 that the court may make such order thereon as shall be just. 
 It will not be sufficient for the referee simply to report the 
 result of his examination of the witnesses, or his own con- 
 clusions from the evidence ; but the proofs, whether docu- 
 mentary or oral, should be fully reported to the court.* 
 
 > Faure v. Wymans, Hopk. Ch. Y.) Pr. 159 (1847). Baylies says, 
 
 (N. Y.) 383 (1824) ; s, c. 14 Am. however, that the referee is no 
 
 Dec. 545. longer required to report the evi- 
 
 • Faure v. Wymans, Hopk. Ch. dence had before him, and that 
 (N. Y.) 283 (1824) ; s. c. 14 Am. he should simply state his conclu- 
 Dec. 545. sions of fact, and not give the evi- 
 
 3 Ketchum v. Clark, 23 Barb. (N. deuce on which such conclusions are 
 
 T.) 819 (1856). See Palmer v. Pal- based. See Baylies' Tr. Pr. 319 ; 
 
 mer, 13 How. (K Y.) Pr. 363(1856); also N. Y. Supreme Court Rule 60. 
 
 YanZant v. Cobb, 10 How. (N. Y.) = Wolcott v. Weaver, 3 How. (N. 
 
 Pr. 348(1854) ; Graves v. Blanchard, Y.) Pr. 159 (1847). 
 i How. (N. Y.) Pr. 300 (1850). 
 
 ♦ Wolcott V. Weaver, 3 How. (N.
 
 546 HOW PEEMISES SHOULD BE SOLD. j^ 456. 
 
 It has been said that the referee should perform his duty 
 as though he were an examiner ; and where, under such an 
 order, a report was made which did not set out a certificate 
 of acknowledgment by the mortgagor of the execution of 
 the mortgage, but merely referred to the mortgage by a 
 brief statement of its date and conditions, giving the names 
 of the parties thereto, with the additional fact that it had 
 been acknowledged by the mortgagor, the report was held 
 defective, because it did not contain such a statement as was 
 required by the statute to make it evidence of the execution 
 of the mortgage by the defendant.* 
 
 § 456. Finding as to how property should be sold. — 
 
 Under an order of reference in foreclosure cases, if the whole 
 amount secured by the mortgage is not due, it is the duty 
 of the referee after computing the amount due on the 
 mortgage, to ascertain whether the mortgaged premises 
 are so situated that they can be sold in parcels, without 
 injury to the interested parties.' Should the referee find 
 that the property can not be sold in parcels, as he is bound 
 to do in cases where it can not be divided to advantage, 
 such finding will practically end his duties under the order. 
 But should he find that the mortgaged premises consist of 
 distinct parcels of land, whose relative values are entirely 
 independent of one another, he should so report ; he should 
 also report the order in which they can best be sold. 
 Should the premises consist of a single tract of land, the 
 referee may, under direction of the court, inquire whether 
 such tract can be subdivided and sold in distinct parcels 
 without impairing its aggregate value, and if so, in what 
 parcels, or whether the premises are so situated that a sale 
 of the whole in one parcel will be most beneficial to the 
 parties interested. In other words, the duty of the referee 
 under such an order will be to inquire and to report how the 
 mortgaged premises may be sold so as to realize the largest 
 sum.* 
 
 * "Wolcott V. "Weaver, 8 How. (N. » Gregory v. Campbell. 16 Hotv. 
 T.) Pr. 159 (1847). (N. Y.) Pr. 417 (1858). The sale of 
 
 • N. T. Supreme Court Rule 60. tbie whole premises in one parcel
 
 § 457.] DISCRETION AND AUTHOEITT OF EEFEREE. 547 
 
 Where the referee finds that the mortgage covers several 
 lots owned separately by different defendants, he should 
 report the order in which the sale should be made.' 
 
 § 457. Conduct of reference— Discretion and authority 
 of referee— Where reference to be held.— In computing 
 the amount due, taking proof of the facts and circumstances 
 alleged in the complaint, and in examining the plaintiff or his 
 agent under oath, as to payments on the mortgage, in cases 
 of default, it is within the discretion of the referee to deter- 
 mine how he will conduct the proceedings.' 
 
 Upon an ordinary reference to compute the amount due 
 in a mortgage foreclosure, if the plaintiff claims priority, 
 and the claim is denied by the defendant's answer, the 
 referee will have no power or authority to examine into 
 and to settle questions of priority between the parties ; such 
 questions must be left to be passed upon by the court upon 
 the trial of the cause.* 
 
 Where a reference to compute the amount due is directed 
 in a mortgage foreclosure, it is not necessary that it be 
 executed in the county in which the venue of the action 
 is placed.* Thus, where an action was commenced in 
 Westchester county to foreclose a mortgage, and a reference 
 to compute the amount due was made to the clerk of the 
 court, who held the reference in Kings county where the 
 court was sitting at the time, objection was made that the 
 reference should have been executed in Westchester county 
 where the action was triable, instead of in Kings county where 
 the court was sitting. The court held that, " If the court 
 has the power to devolve upon its clerk, or other suitable 
 
 can be most beneficial to the parties Pr. 211, 223 (1859); s. c. 9 Abb. (N. 
 
 only -when the mortgagee will re- T.) Pr. 150, 157 ; Palmer v. Palmer, 
 
 ceive, and the mortgagor pay, from 13 How. (K Y.) Pr. 368 (1856) ; 
 
 the sale thereof, the largest amount McCarten v. VanSyckel, 10 Bosw. 
 
 of the mortgage debt, or leave the (N. T.) 694 (1868). 
 
 largest surplus after payment of the » Harris v. Fly, 7 Paige Ch. (N. 
 
 whole debt. Y.) 421 (1839). 
 
 » Bard v. Steele, 3 How. (N. T.) * Kelly v. Searing, 4 Abb. (N. Y.) 
 
 Pr. 110 (1847). Pr. 354, 357 (1857). 
 
 • Pratt V. Stiles, 17 How. (N. T.)
 
 548 KEPORT OF KEFEREE. [§ 458, 
 
 person, the duty of making this computation, in order to pro- 
 ceed at once to render judgment upon the main application, 
 it can not be required that the clerk, or referee, must go to 
 another county, it may be at the extremity of the district, 
 to perform his duty. If he must, the very object of the 
 reference is defeated. Instead of expediting, it will delay 
 the proceedings.'" 
 
 § 458. Report of referee. — The referee, having computed 
 the amount due and discharged the other duties required in 
 the order of reference, must make a report thereof to the 
 court as the basis for a judgment and decree of sale. 
 The report of the referee should show the facts upon which 
 his conclusions are based ;' it should also contain the proofs 
 and examinations had before him, and be accompanied by 
 an abstract of the documentary evidence produced on the 
 reference.' 
 
 On a reference in an action to foreclose a mortgage, the 
 referee should report upon all the matters embraced in 
 the order of reference. Thus, where the defendant in a 
 foreclosure alleges numerous payments on account, exceed- 
 ing the amount of the debt, and sets up a counter-claim 
 for the balance due him, the referee should state an account 
 between the parties.* But the referee should not report 
 matters not fully within the issues referred to him. Thus, 
 where in an action to foreclose a mortgage the defendant 
 by counter-claim sets up a prior mortgage and seeks to 
 have the priority established, to which there is filed a reply 
 of general denial and payment, a special finding by the 
 referee that the defendant's mortgage, although it describes 
 the property embraced in plaintiff's mortgage, was not so 
 intended, and a conclusion of law that it is not a prior lien, 
 are not within the issues and are therefore irrelevant, and an 
 exception thereto will be sustained.* 
 
 ' Kelly V. Searing, 4 Abb. (N. Y.) 15 Abb. (N. Y.) Pr. 497 (1863). See 
 
 Pr. 354, 357 (1857). ante % 455. 
 
 « Wolcott V. Weaver, 3 How. (N. ■* Killops v. Stephens, 66 Wis. 571 
 
 Y.) Pr. 1.59 (1847). (1886). 
 
 3 Security Fire Ins. Co. v. Martin, » Porter v. Reid, 81 Ind. 569 (1882).
 
 §459.] EEPORT OF EEFEKEE. 549 
 
 On a reference to ascertain the facts, the report of the 
 referee, to be sufficient, must clearly report all the facts 
 pertinent to the issue. Thus, upon an issue as to whether 
 one of the defendants had authority to execute a note and 
 mortgage in the name of another, as her attorney in fact, a 
 finding by the referee that the note and mortgage purported 
 to be executed in the name of the latter by the former as 
 her attorney in fact, and that the attorney assumed to be 
 authorized to execute the note and mortgage, is not a suffi- 
 cient finding of fact.' 
 
 On a reference to compute the amount due and to report 
 as to the manner of the sale of the property, if the referee 
 should find that a sale of the whole of the premises is neces- 
 sary, he should also give the reasons upon which his opinion 
 is founded. If he finds that the property should be sold in 
 parcels, he must then state in his report the relative situa- 
 tion and value of the several parcels, and what part of the 
 premises should be sold first, together with all the facts 
 necessary to enable the court to render such judgment as 
 will be most beneficial to the parties in interest." 
 
 § 459. Filing and confirming referee's report — Excep- 
 tions thereto — New hearing. — Upon the coming in of the 
 report of the referee, it must be filed with the clerk ; a note 
 of the day of filing should also be entered in the proper 
 book under the title of the cause or proceeding, and notice 
 of the filing must be given to the attorneys for such of the 
 parties as were entitled to notice of the execution of 
 the reference.* Such report shall become absolute and 
 stand confirmed in all things, unless exceptions thereto are 
 filed within eight days after the service of notice of filing the 
 same.* 
 
 ' Hibernia Sav. & Loan Soc. v. N. C. 356 (1878) ; American Ex- 
 Moore, 68 Cal. 156 (1885). change Bk. v. Smith, 6 Abb. (N. Y.) 
 
 » Ontario Bank v. Strong, 2 Paige Pr. 1 (1857). See N. T. Supreme 
 
 Ch. (N. T.) 301 (1830). Court Eule 30. 
 
 ' Somers v. Milliken, 7 Abb. (N. * N. Y. Supreme Court Rule 30. 
 
 T.) Pr. 524 (1858). See Chamberiain See Kelly v. Searing, 4 Abb. (X. Y.) 
 
 V. Dempsey, 36 N. Y. 144 (1867) ; Pr. 354 (1857). In the case of Somers 
 
 Morgan v. Stevens, 6 Abb. (N. Y.) v. Millken, 7 Abb. (N. Y.) Pr. 524
 
 550 CONFIEJIING EEFEREe's REPORT. [§ 459. 
 
 If any party is dissatisfied with the report of the referee 
 appointed to compute the amount due in a mortgage fore- 
 closure, he may file exceptions to the report, and the court 
 may, on the evidence, overrule the computation of the 
 referee.' Where any of the defendants desire to take excep- 
 tions to the computation and to the report of the referee, they 
 should attend at the time appointed for the application for 
 judgment, and present their objections to the court.' If 
 exceptions are filed and served within the time required by 
 the rule, or within such time as the court shall fix, they 
 may be brought to a hearing at any special term thereafter, 
 on notice by any party interested therein.* 
 
 The report of the referee appointed to compute the 
 amount due and to take proofs, must be presented to 
 the court at a special term thereof for confirmation.* Upon 
 confirmation of the referee's report, his computation of the 
 amount due becomes the act of the court, as fully as though 
 originally made by the court itself.* 
 
 Where the reference to compute the amount due on a 
 mortgage has been executed, either party may apply for an 
 order directing a new hearing, upon proof by affidavit that an 
 error has been committed to his prejudice, either upon the 
 hearing or in the report. In a proper case the application 
 may be granted even after judgment has been entered. 
 
 (1858), the attention of the court was waive tlie delay of eight days and 
 
 called to the proper construction to have the same confirmed at once ; 
 
 be given to N. Y. Supreme Court (4) that in cases where no one 
 
 Rule 32 (now Rule 30) in regard to appears for the defendant, the report 
 
 filing reports of referees other than may be presented to the court for 
 
 for the trial of issues. The court the final order of confirmation and 
 
 held : (1) that all such reports for judgment without waiting eight 
 
 must be filed, and a note of the day days. See Voorhis's Code (9th ed. 
 
 of filing be made by the clerk ; (2) 1867), 861, 862. 
 that in all cases where any of the ' Crine v. White, 1 Month. Law 
 
 defendants appear, so as to be enti- Bull (N. Y.) 92 (1879). 
 tied to notice, such report can not * 5 Wait Pr. 215, 216. 
 
 be confirmed until eight days after * N. Y. Supreme Court Rule 80. 
 
 service of notice of the filing of the * Swarthout v. Curtis, 4 N. Y. 415 
 
 same ; (3) that all the parties who (1850) ; s. c. 5 How. (N. Y.) Pr. 198. 
 have appeared in the cause or pro- * McGowan v. Newman, 4 Abb. 
 
 ceeding, may consent in writing to (N. Y.) N. C. 80 (1878).
 
 § 460.] APPLICATION FOB DECEEE OF SALE. 551 
 
 Where the application is granted after judgment, the judg- 
 ment may be set aside either then or after the new hearing.' 
 
 § 460. Application for judgment — What must be 
 shown. — After the referee appointed to compute the amount 
 due has made his report, the plaintiff is entitled to move for 
 judgment.' The motion for judgment, if the suit is brought 
 in the supreme court, must be made at a special term thereof, 
 held within the judicial district in which the action is 
 triable, or in a county adjoining that in which it is triable ; 
 except that where it is triable in the first judicial district, 
 the motion must be made in that district.* The application 
 for judgment in the first judicial district may be made to a 
 judge out of court,* and the motion can not be made in the 
 first judicial district where the action is triable elsewhere.* 
 
 Upon appointing a referee to compute the amount due in 
 an action for the foreclosure of a mortgage, the court can 
 not direct that, upon the coming in of the report of the 
 referee, the same be confirmed and the plaintiff have the usual 
 judgment of foreclosure and sale without further notice. 
 Notice of motion for judgment is indispensable. In a recent 
 case' it was held that, "No court can be certain in advance 
 what will be the contents of a referee's report ; and to direct 
 that it shall be confirmed before it is made, is to go beyond 
 the competent exercise of judicial authority. The question 
 of the propriety of its confirmation can not be intelligently 
 determined until it is laid before the court." 
 
 Upon an application for judgment upon default in an 
 action to foreclose a mortgage, the plaintiff must show, by 
 affidavit or otherwise, whether any of the defendants who 
 have not appeared are absentees ; and if any of them are 
 absentees, he must produce the report of the referee as to 
 the proof of the facts and circumstances stated in the com- 
 plaint, and as to the examination of the plaintiff or his agent 
 
 ' See N.T. Code Civ. Proc. § 1233. * N. T. Code Civ. Proc. § 770. 
 
 » N. Y. Supreme Court Rule 60, * N. Y. Code Civ. Proc. § 769. 
 
 See Citizens' Savings Bank v. Bauer, • Citizens' Savings Bank v. Bauer, 
 
 14 Civ. Proc. Rep. (N. Y.) 340 14 Civ. Proc. Rep. (N. Y.) 340, 343 
 
 (1888). (1S88). 
 
 « N. Y. Code Civ. Proc. § 769.
 
 552 APPLICATION FOR JUDGMENT. [§ -iOl. 
 
 on oath as to any payments which have been made, together 
 with the papers upon which such order of reference was 
 granted, or show that such papers have been filed with the 
 clerk of the court.' 
 
 In every case when the plaintiff moves for final judgment 
 of foreclosure and sale, he must show, by affidavit, or by the 
 certificate of the clerk of the county in which the mortgaged 
 premises are situated, that a notice of the pendency of the 
 action, in due form of law as required by the rules and prac- 
 tice of the court, has been filed at least twenty days before 
 such application for judgment, and at or after the time of 
 filing the complaint as required by law.' And where there 
 are infant defendants, the application should show the time 
 of the appointment of the guardian ad litem, because a judg- 
 ment by default can not be taken against an infant defendant, 
 until the expiration of twenty days after the appointment 
 of his guardian ad litem ;* if such guardian has appeared or 
 pleaded an answer, judgment may be taken without waiting 
 twenty days.* 
 
 If service of the summons on any of the defendants was 
 made by publication, the motion papers should show, in 
 addition to the above matters, that service of the summons 
 has been completed, and that all the requirements of the 
 statute in regard to the publication of the summons have 
 been fully complied with.* 
 
 § 461. Notice of application for judgment. — Where no 
 answer has been pleaded denying the material facts and 
 allegations of the complaint, the motion for judgment may be 
 made upon due notice to such of the defendants as have 
 appeared in the action, without placing the cause upon the 
 calendar.* 
 
 The court by ordering a reference to compute the amount 
 due in a mortgage foreclosure, does not lose control of the 
 
 >N. Y. Supreme Court Rule 60. " K Y. Code Civ. Proc. §1216. 
 
 « K Y. Supreme Court Rule 60 ; See Kendall v. Washburn, 14 How. 
 
 N. Y. Code Civ. Proc. § 1631. (N. Y.) Pr. 380 (1857) ; Hallett v. 
 
 » N. Y. Code Civ. Proc. § 1318. Rigliters, 13 How. (N. Y.) Pr. 43 
 
 * Newins v. Baird, 19 Hun (N.Y.) (1856). 
 
 306 (1879). « N. Y. Supreme Court Rule 60.
 
 §462.] NOTICE OF APPLICATION FOB JUDGMENT. 553 
 
 main application ; such reference may be immediately pro- 
 ceeded with and judgment rendered upon the report of 
 the referee, without a new notice to a defendant who has 
 appeared but has made default in pleading.' 
 
 In a mortgage foreclosure, judgment on default, where a 
 reference has been directed and a report thereon has been 
 made, follows as a matter of course. On application, the 
 court will render such judgment as is proper, according 
 to the proof submitted. In determining what the judgment 
 should be, the court will not be limited to the report of the 
 referee as the only evidence before it, but it may also look to 
 the pleadings and receive their allegations in its discretion ; 
 it may also consider any stipulations, offers or admissions 
 of the parties presented to it. 
 
 In the case of Gregory v. Campbell,' the court held that, 
 " nothing is referred to a referee under these orders of refer- 
 ence except the questions relating exclusively to the material 
 situation of the mortgaged premises, and how the same can 
 be most advantageously sold, having reference to its 
 condition, the demand for such property, and its relative 
 value and saleableness in the market in the locality where it 
 is situated. The report of the referee is a part of the 
 evidence before the court, and upon which it is called upon 
 to decide whether it will or will not be most beneficial to 
 the parties to decree a sale of the vvhole premises in one 
 parcel in the first instance. The court will look to the 
 pleadings and will receive other evidence in its discretion, 
 and will consider any stipulations or admissions of the 
 parties, or of other persons, presented to it on the hearing." 
 § 462. Decree of foreclosure and sale— Variations from 
 referee's report.— In an action to foreclose a mortgage upon 
 real property, when the plaintiff becomes entitled to final 
 judgment, such judgment must direct the sale of the property 
 mortgaged, or, if a part thereof will be sufficient to satisfy 
 
 ' KeUy V. Searing, 4 Abb. (N. Y.) » 16 How. (N. Y.) Pr. 417, 419 
 Pr. 354 (1857). See Citizen's Sav- (1858). 
 ings Bank v. Bauer, 14 Civ. Proc. 
 Rep. (N. Y.) 340 (1888).
 
 554 VARYING DECKEE FROM REFEREe's REPORT. [§ 463. 
 
 the mortgage debt, the expenses of the sale, and the costs 
 of the action, then that such part only be sold. The judgment 
 may also direct the sale of the mortgaged premises, either 
 as an entirety or in separate parcels, as the referee may 
 have reported to be most advantageous ; or that one part or 
 parcel be sold first and that the remainder be left unsold, 
 unless the sale of such remainder shall be necessary to pay 
 the amount due, with the costs and expenses.* A judgment 
 in a foreclosure, which includes also the foreclosure of mort- 
 gages prior in lien to the one upon which the action was 
 brought, will be irregular and may be opened by the prior 
 mortgagee, but the foreclosure of mortgages subsequent to 
 the one sued upon will be valid and binding.* 
 
 Where in a foreclosure suit one judge settles and adjusts 
 all the rights of the parties therein, and orders a reference 
 to compute the amount due, and, after the report of the 
 referee comes in, final judgment is rendered by a judge other 
 than the one who first tried the case and settled the rights 
 of the parties, such judgment will be as binding and valid 
 as though rendered by the judge before whom the case was 
 tried.' 
 
 It has been held that where, in an action brought to fore- 
 close a mortgage, the referee's report states the amount due 
 at the commencement of the action and also the amount 
 due at the date of his report, before which latter date and 
 after the commencement of the action a payment of the 
 principal fell due under the provisions of the mortgage, and 
 the judgment set forth the latter amount as due, the 
 remedy of the defendant is by motion to correct the judg- 
 ment and to conform the same to the report, and not by an 
 appeal therefrom.* 
 
 § 463. Extent of relief granted by decree of sale.— A 
 
 judgment on default in a foreclosure suit can not be entered 
 
 » N. T. Code Civ. Proc. §§ 1626, « Chamberlain v. Dempsey, 36 N. 
 
 1636, 1637. Y. 144 (1867) ; s. c. 1 Trans. App. 
 
 « McHeynolds v. Munns, 2 Keyes 257, reversing 9 Bosw. (N. Y.) 540 ; 
 
 (N. Y.) 214 (1865). See Adams v. s. c. 15 Abb. (N. Y.) Pr. 1. 
 
 McPartlin, 11 Abb. (N. Y.) N. C. * Walbridge v. James, 4 Hun (N. 
 
 869 (1882). Y.) 793 (1875) ; aff'd 66 N. Y. 639.
 
 § 463.1 TRT^Mf^ OF DEOBEE OF RAT.TC 555 
 
 for a larger amount than the complaint shows to be due,* 
 but if an answer is pleaded, the court may permit the plain- 
 tiff to take any judgment consistent with the case made by 
 the complaint and embraced within the issues.* A judgment 
 on default, which grants to the plaintiff relief not demanded 
 in the complaint, will be void as unauthorized ;* it is not 
 enough to state the facts entitling the plaintiff to the relief, 
 but he must specifically demand it.* In a decree on default 
 in a mortgage foreclosure a judgment for deficiency can not be 
 rendered, unless it has been specially demanded in the com- 
 plaint.* It has been held that a plaintiff in a mortgage 
 foreclosure is not entitled, under the Code of Civil Procedure,' 
 to a contingent personal judgment against any of the 
 defendants before final judgment of foreclosure, nor until 
 the referee to sell has made his final report.'' 
 
 In an action to foreclose a mortgage, where only a part of 
 the sum secured is due and payable at the time of the com- 
 mencement of the action, the court may make a decree of 
 sale to recover not only the sum due at the time the com- 
 plaint was filed, but also such other sum as may have become 
 due at the time of making the decree.* Thus, where a 
 mortgage secures two or more promissory notes, all of 
 which are not due at the time of the commencement of the 
 action, the court may include in the judgment and decree 
 
 > Savings & Loan Society v. Hor- (1881), reversing s. c. 22 Hun (N, 
 
 ton, 63 Cal. 105 (1883) ; Zwickey v. T.) 462 ; Peck v. New York «& N. 
 
 Haney, 63 Wis. 464 (1885). J. R. Co., 85 N. T. 246 (1881). 
 
 » K T. Code Civ. Proc. § 1207. » Simonson v. Blake, 12 Abb. (N. 
 
 » Grant v. VanDercook, 8 Abb. T.) Pr. 331 (1861) ; 8. c. 20 How. 
 
 (N. Y.) Pr. N. S. 455 (1869) ; 8. c. (N. Y.) Pr. 484 ; Swart v. Boughton, 
 
 57 Barb. (N. Y.) 165 ; 2 Alb. L. J. 35 Hun (N. Y.) 281 (1885). 
 
 52 ; Simonson v. Blake, 12 Abb. (N. » §§ 1204, 1205, 1206. 
 
 Y.) Pr. 331 (1861) ; Bullwinker v. ' Cobb v. Thornton, 8 How. (N. 
 
 Ryker, 12 Abb. (N. Y.) Pr. 311 Y.) Pr. 66 (1852). 
 
 (1861) ; Swart v. Bougbton, 35 Hun • Asendorf v. Meyer, 8 Daly (N. 
 
 (N. Y.) 281 (1885). Y.) 278 (1879) ; Johnson v. Van 
 
 * Simonson v. Blake, 12 Abb. (N. Velsor, 43 Mich. 208 (1880). See 
 
 Y.) Pr. 331 (1861) ; s. c. 20 How. Walbridge v. James, 66 K Y. 639 
 
 <N. Y.) Pr. 484; Swart v. Boughton, (1876), aff'g 4 Hun (N. Y.) 793. 
 S5 Hun (N. Y.) 281 (1885). See 
 Bullard v. Sherwood, 85 N. Y. 253
 
 0b6 OPENING DEFAULT IN PLEADING. [§464. 
 
 such as fall due after the commencement of the action and 
 before the decree is rendered.' 
 
 On a bill to foreclose a mortgage on an undivided interest 
 in land, the court will have no power in its decree to nullify, 
 reverse or modify a decree of sale in an action for the 
 partition of the same land, where no such purpose is indicated 
 in the bill, and the parties to the partition are not brought 
 before the court for that purpose.' 
 
 § 464. Opening default — Power of court. — There is no 
 question but that a court of equity has power, in a proper 
 case, to open a judgment taken by default, and to allow an 
 answer to be made if the defendant has a meritorious 
 defence ;* this may be done either before judgment is entered 
 or afterwards.* 
 
 Although equity is ever ready to receive the excuses of 
 a mortgagor, and to open a foreclosure where there is any 
 good reason for the default," yet it has long been the estab- 
 lished practice in this state not to set aside a regular judg- 
 ment entered upon default in a foreclosure suit, or in any 
 other case, where the defendant has any interest or induce- 
 ment to delay the proceedings, unless the application is made 
 upon afifidavits excusing failure to answer, accompanied 
 by an affidavit of merits;* in such a case the defendant 
 must either produce the sworn answer which he proposes to 
 plead, so that the court may see that he has a meritorious 
 defence prima facie, or he must, in his affidavit, state the 
 
 » Bostwick V. McEvoy, 62 Cal. 496 * McGuin v. Cace, 2 Hilt. (N. Y.) 
 
 (1882) ; Hanford v. Robertson, 47 467 (1859) ; s. c. 9 Abb. (N. Y.) Pr. 
 
 Mich. 100(1881). 160; Bogardus vi Livingston, 7 
 
 « Thompson v. Frew, 107 111. 478 Abb. (N. Y.) Pr. 428 (1858) ; 8. c. 2 
 
 (1883). Hill (N. Y.) 236 ; Sharpe v. Mayor, 
 
 8 Foster v. Udell, 2 N. Y. Code etc., 31 Barb. (N. Y.) 578 (1860) ; s. 
 
 Rep. 30(1849); Allen v. Ackley, 2 K c. 19 How. (N. Y.) Pr. 193; Ells- 
 
 Y. Code Rep. 21 (1849) ; Salutat v. worth v. Campbell, 31 Barb. (N. 
 
 Downes, 1 N. Y. Code Rep. 120 Y.) 134 (1860). 
 
 (1848) ; Lynde v. Verity, 1 N. Y. « Golden v. Fowler, 26 Ga. 451 
 
 Code Rep. 97 (1848) ; Clark v. (1858). 
 
 Lyon, 2 Hilt. (N. Y.) 91 (1859); « Powers v. Trenor, 3 Hun (KY.) 
 
 Ramsey v. Gould, 4 Lans. (N. Y.) 3 (1874) ; Hunt v. Wallis, 6 Paige 
 
 476 (1871). Ch. (N. Y.) 371, 377 (1837).
 
 § 465.] PEOCEEDLNGS ON TRIAL OF ISSUE. 557 
 
 nature of his defence and his belief in the truth of the mat- 
 ters stated therein, so far at least as to enable the court to 
 see that injustice would probably be done, if the judgment 
 entered upon default were permitted to stand ;' and this early 
 established rule of practice, not being inconsistent with any 
 of the provisions of the Code of Civil Procedure, still con- 
 tinues in force.' 
 
 § 465. Proceedings on trial after issue joined — Gen- 
 eral rules. — The trial of an action to foreclose a mortgage 
 is conducted substantially the same as that of other actions 
 tried by a court or a referee down to the entry of judg- 
 ment.* Unless a reference is directed in a foreclosure suit, 
 it can be tried only at a special term of the court held in the 
 county in which the mortgaged premises are situated.* The 
 provisions of the Code,' authorizing the adjournment of a 
 special term of the court to the chambers of any justice of the 
 court residing in the district, and an adjournment from time 
 to time as the justice holding the same shall order and direct, 
 does not authorize the transfer of the trial of a local action to 
 another county, but was intended simply to facilitate the 
 transaction of such business as might have been done in 
 the county to which the term was adjourned.' Thus, where 
 the trial of an action for the foreclosure of a mortgage upon 
 real estate situated in the county of Westchester was 
 adjourned by the judge holding the special term, to his 
 chambers in Brooklyn, in the county of Kings, where he 
 proceeded to try the action at the adjourned term in 
 Brooklyn against the objection of the defendant, the appellate 
 court held that this was error.* 
 
 » Goodhue V. Churchman, 1 Barb. v. Hatfield, 43 N. Y. 224 (1870); 
 
 Ch. (N. Y.) 596 (1846) ; Winship v. N. Y. Code Civ. Proc. § 983. Sea 
 
 Jewett, 1 Barb. Ch. (X. Y.) 173 Marsh v. Lowry, 26Barb. (N. Y.)197 
 
 (1845) ; Powers v. Trenor, 3 Hun (1857) ; I^Iiller v. Hull, 8 How. (N. 
 
 (N. Y.) 3 (1874) ; Hunt v. Wallis, 6 Y.) Pr. 325 (1848). 
 
 Paige Ch. (N. Y.) 371, 377 (1887). « N. Y. Code Civ. Proc. § 239. 
 
 ' N. Y. Supreme Ct. Rules 28, 85. « Gould v. Bennett, 59 N. Y. 124 
 
 » Baylies' Tr. Pr. 341. (1874). 
 
 * Gould V. Bennett, 59 X. Y. 124 ' Gould v. Bennett, 59 N. Y. 124 
 
 (1874); Bii-mingham Iron Foundry (1874).
 
 558 PEOCEEDLNGS ON TRIAL JURY. [§ 465. 
 
 In this case the counsel for the plaintiff insisted that the 
 error in adjourning the trial to the judge's chambers, was 
 obviated by the fact that the judge, after partly trying the 
 case in Brooklyn, by taking a part of the testimony, adjourned 
 the further proceedings in the trial to a special term, there- 
 after to be held in the county of Westchester, at which 
 special term further testimony was taken and the judgment 
 given. The court say : " This, so far from obviating the error, 
 unless consented to, was an additional error. The court has no 
 more authority to require parties, without their consent, to 
 go with their witnesses from county to county, partially 
 trying the case in each, in cases triable by the court without 
 a jury, than it has, in cases triable by jury, to require the 
 jurors to attend out of their county." 
 
 Where there is an issue, either of law or of fact, it must be 
 disposed of before the plaintiff can proceed with the cause. If 
 the defendant, having answered, fails to appear at the trial, an 
 inquest must be taken by the court, or the whole issue must 
 be referred.' But failure to appear at the trial can not be 
 treated as equivalent to a failure to answer, or the same 
 as a case in which a general answer is interposed by the 
 guardian ad litem of an infant defendant." 
 
 Where an action to foreclose a mortgage is tried by a 
 court, and all the rights of the parties are adjudicated 
 and settled, the court, instead of making the necessary com- 
 putation to ascertain the amount due to the plaintiff, may 
 order a reference for that purpose, and may also direct the 
 referee to ascertain the amount due upon any mortgages 
 set up in the answer and also to ascertain and report whether 
 there are any prior liens by mortgage upon the premises, 
 and if so, whether they are yet due.' 
 
 Where an issue has been joined as to all the defendants 
 in an action to foreclose a mortgage, the action must be 
 brought on for trial in the usual manner, and be heard and 
 determined the same as other actions in equity. 
 
 > Baylies' Tr. Pr. 341. » Chamberlain v. Dempsey, 36 N. 
 
 'Exchange Fire Ins. Co. v. T. 144 (1867); Baylies' Tr. Pr. 
 
 Early, 4 Abb. (N. T.) N C. 78 342. 
 (1878).
 
 § 466.] PEOCEEDINGS AFTER ISSUE JOINED. 559 
 
 §466. Proceedings after issue joined — Where part 
 only of the defendants have answered. — Where only a 
 part of the defendants have answered, the trial must be by 
 the court without a jury, unless a reference is ordered or a 
 trial by jury specially directed, because issues of fact in 
 mortgage foreclosures are not triable by a jury as a matter of 
 right.* But where a mortgagee brings an action against the 
 grantees of a mortgagor to recover the deficiency arising 
 on the foreclosure of a mortgage, which they had by their 
 deed covenanted and agreed to pay as part of the purchase 
 price of the land, the action is one at law and is triable by a 
 
 jury-' 
 
 In such a case, when the plaintiff notices the cause for 
 trial, he should also give notice to all defendants who have 
 appeared but who have not pleaded an answer, that he will 
 apply at the same time for the relief demanded against them. 
 He may then proceed to a trial of the issues raised by the 
 pleas of those defendants who have answered, and he may 
 at the same time produce the proofs necessary to entitle him 
 to recover against the non-answering defendants. If, on 
 such trial, the plaintiff proves the material facts stated in the 
 complaint, and is examined upon oath as to the payments 
 which have been made, the court may render final judgment 
 without ordering a reference as against the non-answering 
 defendants. 
 
 Where the answer of any defendant presents a defence to 
 the plaintiff's claim, or any part of it, and no demurrer is 
 interposed and no motion is made to strike it out as irrele- 
 vant, or for judgment upon it as frivolous, the proper 
 practice is to have the case placed on the calendar for trial, 
 and upon the hearing to obtain a decision on the issues pre- 
 sented.* He should then apply to the court for an order refer- 
 ring the cause to some suitable person to compute the amount 
 
 > Baylies' Tr. Pr. 341. See N. T. T. Supr. Ct. (1 J. & S.) 203 (1871) -, 
 
 CJode Civ. Proc. §§ 968, 969. Baylies' Tr. Pr. 342. The proceed- 
 
 ' Hand v. Kennedy, 83 N. T. 149 ings provided for by N. Y. Supreme 
 
 (1880), aff'g 8. 0. 45 N. T. Supr. Court Rule 60, do not apply to sueli 
 
 Ct (13 J. «& S.) 385. an answer. 
 
 * Sti^vesant v. Browning, S3 N.
 
 660 PROCEEDINGS AiTEK ISSUE JOINED. [§466. 
 
 due to the plaintiff and to such of the defendants as are prior 
 incumbrancers, and, if the whole amount of the debt secured 
 by the mortgage has not yet become due, to examine and 
 report whether the mortgaged premises can be sold in 
 parcels.* The reference in such cases is made for the infor- 
 mation and convenience of the court, and without regard to 
 the question whether any party has made default, or whether 
 any of the defendants are infants or absentees." 
 
 Where a verdict is rendered in his favor on the trial of the 
 issues by a jury, or on the coming in of the referee's report, 
 where the trial of the cause has been referred, the plaintiff 
 may move for the usual order of reference as to the defen- 
 dants who have not appeared, or who have not answered.' 
 The plaintiff may expedite matters by having this reference 
 made to the referee having charge of the issues of fact, so 
 that one report may embrace both matters. In such a case 
 the referee will be clothed with the double power of decid- 
 ing the issues of fact, in which his decision will stand as the 
 decision of the court, and of reporting the amount due and 
 the other facts required by the rule ;* upon the confirmation 
 of the report and the motion for judgment, the court will 
 still have to pass upon the questions of fact and the conclu- 
 sions of law, as well as upon the proofs upon which the 
 conclusions are founded.* It will be irregular to combine 
 in one reference both the trial of the issues and the inquiry 
 as to the facts and circumstances stated in the complaint, 
 and to enter a judgment as of course upon the report, 
 without application to the court for judgment against the 
 non-answering or absentee defendants.* 
 
 Upon the coming in and the confirmation of the report of 
 the referee appointed for that purpose, the court may 
 direct the entry of the usual judgment of foreclosure and 
 sale.* 
 
 > Baylies' Tr. Pr. 341. • Cram v Bradford 4 Abb. (N. 
 
 « Baylies' Tr. Pr. 342. T.) Pr. 193 (1857). See Citizens' 
 
 * Hill V. McReynolds, 30 Barb. (N. Savings Bank v. Bauer, 14 Civ. 
 Y.) 488 (1859). Proc. Rep. (N. Y.) 340, 343 (1888). 
 
 * N. Y. Supreme Court Rule 60. ' Chamberlain v. Dempsey, 36 N. 
 » 2 VauSant. Pr. 98 ; Baylies' Tr. Y. 144 (1867) ; Baylies' Tr. Pr. 342. 
 
 Pr. 342.
 
 §§467-4:68.] PROCEEDINGS ON TRIAL mTANTS. 561 
 
 § 467. Proceedings after default or issue joined— 
 Where some of the defendants are infants or absentees. 
 — Where no proof of the material allegations in the com- 
 plaint is made, because the issues involved do not require it, 
 and there are infant or absentee defendants, a reference will 
 be necessary to take proof of the facts and circumstances 
 stated in the complaint.' The decision in such a case is 
 merely interlocutory, determining only the issues involved 
 and directing a reference. The same facts must be shown 
 on the reference in such cases, as where there is a default." 
 
 If the defendant is an infant and has put in a general 
 answer by his guardian, or if any of the defendants are 
 absentees, the order of reference must also direct the referee 
 to take proof of the facts and circumstances stated in the 
 complaint, and to examine the plaintiff or his agent on oath 
 as to any payments which have been made, and to compute 
 the amount due on the mortgage preparatory to application 
 for judgment of foreclosure and sale. After the referee has 
 filed his report, the plaintiff will be in a position to apply for 
 final judgment of foreclosure and sale.* 
 
 § 468. Proceedings where the bill is confessed. — Where 
 the bill is taken as confessed against all the defendants, or 
 where no answer has been pleaded by any of them denying 
 the material allegations of the complaint, the plaintiff may, 
 when the cause is in readiness for a hearing as to all the 
 defendants, apply for a final decree of foreclosure and sale on 
 any regular motion day, either in vacation or during a regular 
 term of the court, upon giving due notice to such of the 
 defendants as have appeared in the suit. He need not have 
 the case placed on the calendar.* This rule applies only to 
 cases where the bill is taken as confessed, and does not 
 authorize the complainant to apply for a decree on a 
 motion day, where a plea or a demurrer to the bill has 
 been filed in good faith.* 
 
 * New York Supreme Court Rule Y.) Pr. 193 (1857) ; Hill v. McRey- 
 
 €0. nolds, 30 Barb. (N. Y.) 488 (1859) ; 
 
 » 1 Crary Pr. 801 ; 5 Wait Pr. 217. N. Y. Supreme Court Rule 60. 
 
 See ante §§ 447, 449. •• N. Y. Supreme Court Rule 60 > 
 
 » Cram v. Bradford, 4 Abb. (N. 2 Barb. Ch. Pr. 182. 
 
 (36)
 
 562 PEOCEEDINGS WHERE BILL COIfFESSED. [§ 468." 
 
 Where the defendant puts in a frivolous plea or demurrer, 
 however, the complainant may, on a motion day, apply to 
 have such plea or demurrer stricken out as frivolous, and for 
 a final decree in the cause as upon default. To entitle him 
 to this relief the complainant must give special notice to the 
 defendants, that he intends to move'for an order to strike out 
 the plea or demurrer as frivolous and to take the bill as con- 
 fessed and for a final decree thereon.* Where a bill is taken 
 as confessed against any of the defendants, the complainant, 
 at the hearing or when he moves for final decree, must show 
 by affidavit or otherwise whether it is so taken against 
 any of the defendants as absentees, and where it is, the 
 complainant must produce the referee's report as to the proof 
 of the facts and circumstances stated in the complaint, 
 and as to the examination of the complainant or his agent 
 on oath as to any payments which have been made.* But 
 where the record in the case shows that personal service of 
 process has been made upon each of the defendants, an 
 affidavit showing that none of them are absentees will not 
 be required.* 
 
 » Bowman v. Marshall, 9 Paige » 2 Barb. Ch. 183. 
 Ch. (N. Y.) 78 (1841). « Manning v. McCIurg, 14 TVia. 
 
 "Bowman v. Marshall, 9 Paige 350(1861). 
 Ch. (N. Y.)78(1841).
 
 CHAPTER XXII. 
 
 SALE OF MORTGAGED PRESSES. 
 
 OBCREB OP SALB-OPPICBR MAKING SALE-NOTICE OF SALE-TIME OP 
 SALE— PLACE OF SALE— TERMS OF SALE-STAY OF SALE. 
 
 Contents of notice of sale. 
 Publication of notice of sale. 
 
 When sale may be made — 
 Hour of day. 
 
 Sale to be made at time ad- 
 vertised — Place of sale. 
 
 Terms and conditions of sale. 
 
 Conditions of sale sometimes 
 published. 
 482. Sale on credit. 
 
 Order staying sale. 
 
 § 469. Decree of sale— Generally. — The plaintiff having^ 
 duly procured the judgment of foreclosure and sale, and 
 entered the same, is entitled to proceed to have the mort- 
 gaged premises sold for the payment of his debt. A sale 
 under such decree is, in contemplation of the law, the act of 
 the court, although it may be made through the instrumen- 
 tality of some officer designated by statute, or appointed by 
 the court. When the sale is confirmed, it becomes the 
 act of the court, or, in other words, is a judicial sale ; but 
 until such confirmation there is no judicial sale, and no 
 title passes to the purchaser.' In New York, however, 
 
 469. 
 
 Decree of sale — Generally. 
 
 § 476. 
 
 470. 
 
 Form and contents of decree 
 
 477. 
 
 
 of sale. 
 
 478. 
 
 471. 
 
 By what officer sale to be made 
 
 
 
 — Employing auctioneer or 
 
 479. 
 
 
 deputy. 
 
 
 472. 
 
 Sale in New York City— By 
 
 480. 
 
 
 whom. 
 
 481. 
 
 473. 
 
 Duties of officer making sale. 
 
 
 474. 
 
 Discretion of the officer— Sell- 
 
 482. 
 
 
 ing in parcels. 
 
 483. 
 
 475. 
 
 Notice of sale. 
 
 
 » Thorn v. Ingram, 25 Ark. 53 
 (1867); Southern Bank v. Humph- 
 reys, 47 m. 227^,(1868); Bozza 
 V. Rowe, 30 III. 198J(1863); Penn 
 V. Heisey, 19 111. 297 (1857) ; s. c. 
 68 Am. Dec. 597 ; Ayers v. Baum- 
 garten, 15 111. 444 (1854) ; Young v. 
 Keough, 11 111. 642(1850); Formanv. 
 Hunt, 3 Dana (Ky.) 614, 621 (1835) ; 
 Hurt V. Stull, 4 Md. Ch. Dec. 391 
 
 (1851) ; Harrison v. Harrison, 1 Md. 
 Ch. Dec. 331 (1848) ; Sewall v. Cos- 
 tigan, 1 Md. Ch. Dec. 208 (1848); 
 Andrews v. Scotton, 2 Bland. Ch. 
 (Md.) 629 (1835) ; Mullikia v. Mulli- 
 kin, 1 Bland. Ch. (Md.) 538 (1834) ; 
 Iglehart v. Arminger, 1 Bland. Ch. 
 (Md.) 527 (1824) ; Wagner v. Cohen, 
 6 Gill (Md. ) 97 (1847); Mason 
 V. Osgood, 64 N. C. 467 (l»ruj; 
 
 fi63
 
 564 DECREE OF SALE GENERALLY. [§ 469. 
 
 confirmation of the referee's report of sale is not necessary 
 to pass title.' 
 
 The sale may be made by a master in chancery, a referee, 
 trustee, commissioner or sheriff; and in the federal courts 
 it is usually made by a United States marshal, or by a 
 referee specially appointed for that purpose." Whatever 
 name may be given to the officer who makes the sale, he 
 acts as the agent of the court, and must report his proceed- 
 ings in the execution of its decrees. And it has been said 
 that the sheriff, or other officer to whom the decree of sale 
 is committed, may conduct the sale, though his term of office 
 will expire before the sale can be completed.' 
 
 In this respect a sale under a mortgage foreclosure is different 
 from an ordinary sheriff's sale on execution. The latter is a 
 ministerial act in which the officer, and not the court, is 
 regarded as the vendor ; and when such a sale is made in 
 conformity with law, it is valid and passes title to the 
 purchaser.* But on a sale of mortgaged premises by a 
 referee, all the proceedings, from the order appointing 
 the referee up to the final confirmation of his report of 
 sale, including the passing of title to the vendee, and the 
 distribution of the proceeds of the sale to the persons 
 entitled thereto, are under the direction and control of the 
 court ; and the court can stay the sale, or confirm or reject 
 the referee's report, as law and justice may require.* 
 
 Vendaver v. Baker, 13 Pa. St. 131, Railroad Co., 70 U. S. (3 Wall.) 196, 
 
 126 (1850) ; Moore v. Shultz, 13 Pa. 205 (1865) ; bk. 18 L. ed. 43. 
 
 St. 103 (1850) ; 8. c. 53 Am. Dec. » Union Dime Savings Inst. v. 
 
 446 ; Yerby V. Hill, 16 Tex. 377, 381 Andariese, 19 Hun (N. Y. ) 310 
 
 (1856); Griffith v. Fowler. 18 Vt. 394 (1879) ; Cord v. Hirsch, 17 Wis. 403 
 
 (1846); Blossom V. Railroad Co., 70 (1863). 
 
 U. S. (3 Wall.) 207 (1865) ; bk. 18 L. * Harrison v. Harrison, 1 Md. Ch. 
 
 ed. 47 ; Minnesota R. R. Co. v. St. Dec. 335 (1848) ; Williamson v. 
 
 Paul Co., 69 U. S. (2 Wall.) 609 Berry, 49 U. S. (8 How.) 495, 546 
 
 (1864) ; bk. 17 L. ed. 886 ; William- (1850) ; bk. 13 L. ed. 1170, 1191. 
 
 son V. Berry, 49 U. S. (8 How.) 547 * Sessions v. Peay, 23 Ark. 39, 41 
 
 (1850); bk. 13 L. ed. 1170, 1192. (1861). See Penn's Adm'r v. ToUe- 
 
 ' See post I 525. son, 20 Ark. 652 (1859) ; Robertson 
 
 ' Heyer v. Deaves, 2 Johns. Ch. v. Haun, Freem. Ch. (Miss.) 270 
 
 (N. Y.) 154 (1816) ; Mayer v. Wick, (1839) ; Tooley v. Kane, 1 Smed. & 
 
 15 Ohio St. 548 (1864) ; Blossom v. M. Ch. (Miss.) 518, 522 (1843) ;
 
 §§ 470-471.] CONTENTS OF DECREE OF SALE. 565 
 
 § 470. Form and contents of decree of sale.— Under 
 the New York practice, in mortgage foreclosures, the decree 
 for the sale of the mortgaged premises must contain a 
 description of the property to be sold, with its particular 
 boundaries, so far as the same can be ascertained from 
 the mortgage ; and unless otherwise specially ordered by the 
 court, the judgment should direct that the mortgaged prem.- 
 ises, or so much thereof as may be sufficient to discharge the 
 mortgage debt, the expenses of the sale, and the costs of 
 the action, as provided by the Code, be sold by and under the 
 direction of the sheriff, or a referee appointed by the court ;* 
 that the plaintiff or any other party may become the pur- 
 chaser at such sale ; that the sheriff or referee appointed to 
 make the sale, execute to the purchaser a deed of the prem- 
 ises sold ; that out of the proceeds of the sale, unless other- 
 wise directed, he pay all taxes, assessments and water 
 rates, which are liens upon the property sold, and redeem 
 the property sold from any sales for unpaid taxes, assess- 
 ments or water rates which have not apparently become 
 absolute as prescribed by the Code ;* and that he also pay 
 to the plaintiff or to his attorney the amount of his debt, 
 interest and costs, or so much thereof as the purchase money 
 will pay, and that the purchaser at such sale be let into pos- 
 session of the premises on production of the referee's deed.* 
 
 § 471. By what officer sale to be made— Employing 
 auctioneer or deputy. — The sale must be made by the 
 sheriff of the county in which the mortgaged premises are 
 situated, or by some person designated by the court for that 
 purpose ; and if not so made, the sale will be irregular. It 
 
 Deaderick v. Smith, 6 Humph. person selected by the court should 
 
 (Temi.) 146 (1845). cry the sale in person ; it will be 
 
 • N. Y. Code Civ. Proc. §§ 1626, sufficient if made by an auctioneer 
 
 1676. The sale must also be made or some person employed for that 
 
 under the directions of the sheriff of purpose by such sheriff, or referee, 
 
 the county in which the premises are in his presence and under his 
 
 situated, or of a person selected by direction. Heyer v. Deaves, 2 Johns, 
 
 the court for that purpose, according Ch. (N. Y.) 154 (1816). Seepost%i7i. 
 to the judgment. It is not, however, ^ N. Y. Code Civ. Proc. § 1676. 
 
 necessary that the sheriff or other * N. Y. Supreme Court Rule 61.
 
 566 OFFICER MAKING SALE — AUCTIONEER. [§ 471. 
 
 has been said that the death of the plaintiff, after a regular 
 decree of sale has been entered in a mortgage foreclosure, 
 will not affect the power of the sheriff or referee to proceed 
 with the sale of the premises, in pursuance of the decree 
 or judgment, and to execute a deed to the purchaser; it 
 will not be necessary to revive the action and to bring in the 
 representatives of the deceased plaintiff as parties.' 
 
 Under the former chancery practice in New York, every 
 sale of mortgaged premises under a decree of foreclosure was 
 required to be made by a master in chancery, or by some 
 one selected by him in his presence and under his immediate 
 direction. The constitution of 1846 abolished the office of 
 master in chancery, and the Judiciary Act" of the following 
 year provided that any matter before referred to a clerk, 
 master or referee, might be referred to a clerk, county judge 
 or other suitable person or persons, with the same powers 
 formerly possessed by masters in chancery. 
 
 Under these provisions it was customary, when any con- 
 troversy arose or was likely to arise between the parties, as 
 to the order in which different portions of the premises 
 should be sold, to appoint a referee to make the sale, instead 
 of the sheriff.' A sale and a conveyance of the real estate 
 by such referee was governed by § TJ of the Judiciary Act 
 until the year 185 i, when, for the purpose of obviating any 
 questions which might arise concerning the power of a 
 referee to sell,* § 287 of the New York Code of Procedure*" 
 was adopted, providing that where real property was decreed 
 to be sold, it must be sold in the county where it is situated 
 by the sheriff of that county, or by a referee appointed by 
 the court specially for the purpose of making the sale. 
 
 ' Lynde v. O'Donnell, 31 How. the Code, that a foreclosure sale 
 
 (N. Y.) Pr. 34 (1861) ; s. c. 12 Abb. might be made by a referee as well 
 
 (N. Y.) Pr. 286. See also Center v. as by a sheriff; Jennings v. Jennings, 
 
 Billiughurst, 1 Cow. (X. Y.) 33 2 Abb. (N. Y.) Pr. 7, 17 (1855); 
 
 (1825) ; Cleve v. "Veer, Cro. Car. 450 Knickerbacker v. Eggleston, 3HovV. 
 
 (1625). (N. Y.) Pr. 130 (184^7). 
 
 * § 77. 5 See New York Code Civ. Proc 
 
 * Knickerbacker v. Eggleston, 3 § 1242. 
 How. (N. Y.) Pr. 130 (1847;. 
 
 * It was held in an early case under
 
 §§ 472-473.] DUTIES of officer sELLma. 667 
 
 The sale on a mortgage foreclosure must be made by the 
 officer designated by the court, or by some one selected by 
 him to act under his> supervision/ or it will be void.' Thus, 
 where a sale was directed to be made by a master in chancery 
 residing in New York city, and a sale was made by a master 
 residing in Brooklyn, the sale was set aside, although the 
 purchaser had taken his deed.' And a sale made by a person 
 deputized by the officer authorized to make such sale will 
 be irregular, if made in the absence of such officer." 
 
 § 472. Sale in New York City— By whom.— It is pro- 
 vided by statute,' that all sales of real estate made in the 
 counties of New York and Kings, under the judgment or 
 decree of a court in actions for foreclosure, shall be made by 
 the sheriff, except where both parties to the suit agree upon 
 a referee to be appointed by the court. This law was passed 
 to take the place of the law of 1869, chap. 569, which was 
 declared unconstitutional and was of doubtful validity.* 
 
 § 473- Duties of officer making sale.— The duties of a 
 referee appointed to sell in a mortgage foreclosure,' are 
 purely ministerial in their nature, and he can not vary the 
 judgment in prescribing the terms of sale, nor relieve himself 
 thereby from the performance of his duties.* It is his duty 
 
 > Heyer v. Deaves, 2 Johns. Ch. » Yates v. Woodruff, 4 Edw. Ch. 
 
 (N. T.) 154 (1816) ; Gould v. Garri- (N. Y.) 700 (1846). See Fuller v. 
 
 son, 48 111. 258 (1868). See Reynolds VanGeeson, 4 Hill (N. Y.) 171, 176 
 
 V. Wilson, 15 m. 394 (1854) ; s. c. (1843). 
 
 60 Am. Dec. 753 ; Blossom v. Mil- * Heyer v. Deaves, 2 Johns. Ch. 
 
 waukee & C. R. R. Co., 70 U. S. (3 (N. Y.) 154 (1816). 
 
 Wall.) 196, 205 (1865) ; bk. 19 L. ed. ' Laws of 1876, chap. 439. 
 
 43 ; Williamson v. Berry, 49 U. S. « Gaskin v. Meek, 42 N. Y. 186 
 
 (8 How ) 495, 544 (1850) ; bk. 12 L. (1870). See Gaskin v. Anderson, 
 
 ec[. 1170. 7 Abb. (N. Y.) Pr. N. S. 1 (1869), 
 
 It is said in Blossom v, Milwaukee affirming 55 Barb. (N. Y.) 259. 
 
 A C. R. R. Co. , srtpra, that such sales ' There is no doubt that the statute 
 
 "must be made by the person desig- imposes a duty upon the referee ; 
 
 nated in the decree, or under his O'Donnell v. Lindsay, 39 N. Y. 
 
 immediate direction and supervision, Supr. Ct. (7 J. & S.) 523, 529 (1873). 
 
 but he may employ an auctioneer to « People v. Bergen, 53 N. Y. 404 
 
 conduct the sale, if it be made in his (1873) ; s. c. 15 Abb. (N. Y.) Pr. N. 
 
 presence." See ante § 470. S. 97. 
 
 « SeeN.Y. Supreme Court Rule 61.
 
 568 DUTIES OF OFriCER SELLING. [§473. 
 
 to proceed to execute the decree of sale without delay, 
 if he is requested to do so by any of the parties to the suit 
 who will be injured by delay, regardless of any directions 
 he may receive from the plaintiff or his attorney. And 
 should the officer, under whose direction the premises are 
 ordered to be sold, neglect to proceed at once to sell the 
 same, the court will direct such officer to proceed forth- 
 with upon the application of any person who is interested 
 in the sale.' 
 
 It is the duty of the officer conducting a sale under a decree 
 of foreclosure, to attend at the time and place of the sale, and 
 (i) to announce the terms of sale, if they are not contained 
 in the published notice ; (2) to offer the premises to the 
 highest bidder, and to "receive bids as long as they are 
 offered, waiting a reasonable time after each bid is made for 
 others, and if no others are made, to strike off the premises to 
 the highest bidder; (3) after marking down the premises 
 to the highest bidder, to require him to sign a memorandum 
 of the sale, agreeing to complete the same ; (4) if at the 
 time appointed for the sale, there are no bidders, or if from 
 the few persons in attendance, or other sufficient cause, the 
 officer is satisfied that a fair price can not be obtained, to 
 postpone the sale and not sacrifice the property unneces- 
 sarily." 
 
 Where the property has been struck off to a bidder who 
 does not comply with the terms of the sale, the officer mak- 
 ing the sale may again offer the property for sale upon 
 sufficient notice, so that no one will be misled or injured.' And 
 where the highest bidder has withdrawn his bid, it is the 
 duty of the officer making the sale, to mark the premises 
 down to the next highest bidder ; and if such person leaves 
 the sale before the property is marked down to him, it is the 
 duty of the officer making the sale to suspend the pro- 
 ceedings until such bidder can be notified.* 
 
 ' Kelley v. Israel. 11 Paige Ch. (N. Pr. 294 (1855) ; s. c. 13 How. (N. Y.) 
 
 Y.) 147 (1844). Pr. 72. 
 
 « Bicknell v. Byrnes, 23 How. (N. ■« May v. May, 11 Paige Ch. (N. 
 
 Y.) Pr. 486, 487 (1862). Y.) 201 (1844). 
 
 » Lentz V. Craig, 2 Abb. (IST. Y.)
 
 § 474.] DISOEETION OF OFFIOEE SELLING. 569 
 
 It has been held, that where the party purchasing offers to 
 pay in bank notes, and specie payment is demanded, it is 
 the duty of the officer making the sale to wait a reasonable 
 time, in order to allow the bidder to comply with the terms.* 
 It has been the general practice of sheriffs, masters in chan- 
 cery and referees, in making mortgage foreclosure sales, to 
 receive current bank bills in payment.* 
 
 Where an execution is issued upon a decree of foreclosure 
 to sell mortgaged property, it is not necessary for the sheriff to 
 make a levy upon the premises before proceeding to sell 
 the same.* 
 
 § 474. Discretion of the officer — Selling in parcels. — 
 The Code requires where real property offered for sale, by 
 virtue of a decree of the court or on execution, consists of 
 two or more known lots, tracts or parcels, that such lots, 
 tracts or parcels must be separately exposed for sale, and 
 • that no more of the property shall be exposed for sale, than 
 appears to be necessary in order to satisfy the plaintiff's 
 claim.* 
 
 The present provisions of the Code* are a re-enactment of 
 a former statute,' and are only directory to the sheriff or 
 officer making the sale. A sale to a botia fide purchaser 
 will be held to be valid, although the requirements of the 
 statute may not have been complied with ; but where the 
 purchase is not made in good faith, the sale will be set 
 aside upon the application of the proper parties.'' 
 
 The provisions of the statute and the rules of practice 
 give to the referee, or other officer making the sale on 
 a mortgage foreclosure, a discretion regarding the amount 
 of property to be sold, similar to that in the case of other 
 
 ' See Baring v. Moore, 5 Paige N. T. Supreme Court Rule 61 ; 
 
 Ch. (N. T.) 48 (1835). GrofE v. Jones, 6 Wend. (N. Y.) 523 
 
 « Hall V. Fisher, 9 Barb. (N. T.) (1831) ; s. c. 23 Am. Dec. 545. 
 
 17 (1849). See Mumford v. Arm- » N. Y. Code Civ. Proc. § 1437. 
 
 strong, 4 Cow. (N. Y.) 553 (1836) ; • 2 Rev. St. 369, §38. 
 
 Baring V. Moore, 5 Paige Ch. (N.Y.) 'Wallace v. Feely, 1 N. T. 
 
 48, 53 (1835). • Civ. Proc. Rep. 126 (1881). See 
 
 « Bank of British Columbia v. GrofC v. Jones, 6 Wend. (N. Y.) 523 
 
 Page, 7 Greg. 454 (1879). (1831) ; s. c. 22 Am, Dec. 545. 
 
 * N. Y. Code Civ. Proc. § 1437 ;
 
 570 DISCRETIO]^' OF OFFICEK SELLIN^G. [§474. 
 
 sales of real estate. Under some circumstances the officer 
 will be obliged to exercise a discretion, which is judicial in 
 its nature, in deciding what is the best course to pursue 
 upon the sale, in which case an honest exercise of that 
 discretion will be as final as the decision of any judicial 
 tribunal. 
 
 Where the question of determining whether the property 
 shall be sold in parcels or as one tract rests in the sound 
 discretion of the referee, if he honestly and fairly exercises 
 that discretion, in the absence of any special circumstances 
 tending to show a clear mistake of judgment, such discreiion 
 will control and the sale will be valid.' 
 
 Although the statute and the rules of the court require 
 that no more of the real estate shall be sold than will be 
 sufificient to satisfy the judgment," yet the provisions of the 
 statute and the rules of the co.urt are only directory, and 
 failure to follow them will be merely an irregularity and will 
 not necessarily vitiate the sale, although it may be a ground 
 for setting it aside on motion of any party aggrieved who may 
 have claimed, at the time of the sale, the right to have the 
 property sold in parcels, and who has not waived his right 
 by delay in objecting to the sale on that account.' 
 
 The statute presupposes that the officer making a sale in 
 a mortgage foreclosure will ascertain the situation of the 
 property, before he sells in obedience to the decree.* 
 Where the mortgaged premises directed to be sold consist 
 of several different lots or parcels of land, which can be 
 disposed of separately without diminishing their value, 
 it is the duty of the officer making the sale to sell 
 the same in separate lots or parcels, unless otherwise 
 specially directed by the court. 
 
 ' Whitbeck v. Roe, 25 How. (N. Mclntyre v. Sanford, 9 Daly (N. Y.) 
 
 Y.) Pr. 403 (1862). 21 (1880) ; Ames v. Lockwood, 13 
 
 2 Groff V. Jones, 6 Wend. (N. Y.) How. (^ST. Y.) Pr. 555 (1856); Woods 
 
 522 (1831) ; s. c. 22 Am. Dec. 545. v. Monell, 1 Johns. Ch. (N. Y.) 503 
 
 * Cunningham v. Cassidy, 17 N. (1815). 
 Y. 276 (1858) ; s. c. 7 Abb. (N. Y.) * O'Donnell v. Lindsay, 39 N. Y. 
 
 Pr. 183 ; Wallace v. Feely, 1 N. Supr. Ct. (7 J. & S.) 523, 529 (1873). 
 Y. Civ. Proc. Rep. 126 (1881);
 
 §475.] PUBLISHING NOTICE OF SALE. 571 
 
 Thus, where a deed of trust was given on the west one hun- 
 dred acres of a quarter section of land, and the land was after- 
 wards subdivided into lots and blocks, a decree of foreclosure 
 ordering a sale of the premises was held not to require the 
 sale of the property en masse, but that it would be the duty 
 of the officer to sell the same by lots, if such mode of 
 sale would be more advantageous.' But where the officer 
 making the sale is satisfied that the property will produce a 
 greater price if sold together than if sold in parcels, he may 
 sell it together, unless otherwise directed by the court. 
 
 § 475. Notice of sale. — In most, if not all of the states, 
 the notice required to be given of a foreclosure sale is regu- 
 lated by statute ; and where so regulated, the sale will be 
 illegal, if it is made without the prescribed notice, and may 
 be set aside.* Thus, where thirty days* notice is required 
 to be given to the defendant of a sale of real estate by a 
 sheriff under a decree of foreclosure, the sale will be set 
 aside if such notice is not given.* The right of a defendant 
 in a foreclosure to all the time the decree allows him for mak- 
 ing a payment, can not be presumed to-be waived in order to 
 sustain a sale prematurely made without notice to him.* 
 
 When not regulated by statute, the notice of sale may be 
 prescribed by the decree of foreclosure, or left to the discre- 
 tion of the officer entrusted with the execution of the decree. 
 Whether prescribed by the court or determined by the 
 officer, the notice should not only fix the time of sale, but 
 also the hour of the day on which it will be made, in order 
 to prevent the setting aside of the sale in case a reasonable 
 price is not obtained for the property.* 
 
 The New York Code of Civil Procedure* provides that the 
 sale shall be made in the county where the real estate is 
 situated, and that due notice of the time and place of holding 
 
 • Chicago «fe Gt. "Western R. Co. * Shier v. Prentis, 55 Mich. 175 
 ▼. Peck, 112 Ul. 408 (1885). (1884). 
 
 * See Shier v. Prentis, 55 Mich. * Trustees of Schools v. Snell, 19 
 175 (1884) ; MiUer v. Lefever, 10 111. 156 (1857) ; 8. c. 68 Am. Dec, 
 Neb. 77 (1880). 586. See Miller v. Lefever, 10 Neb. 
 
 " Miller v. Lefever, 10 Neb. 77 77 (1880). 
 
 (1880), * N. Y. Code Civ. Pro. §§ 1434,1678.
 
 572 PUBLISHIIS-G- NOTICE OF SALE. [§ 475. 
 
 the sale shall be publicly advertised for six successive weeks 
 immediately preceding the sale, as follows : "A written or 
 printed notice thereof must be conspicuously fastened up at 
 least forty-two days before the sale, in three public places, 
 in the town or city where the sale is to take place, and also in 
 three public places in the town or city where the property is 
 situated, if the sale is to take place in another town or city. 
 A copy of the notice must be published at least once in each 
 of the six weeks immediately preceding the sale, in a news- 
 paper published in the county, if there is one, or, if there is 
 none, in the newspaper printed at Albany, in which legal 
 notices are required to be published." ' 
 
 But where the property is situated wholly or partly in a 
 city in which a daily paper is published, notice of the sale 
 may be given by the publication in such daily paper of 
 notice thereof at least twice in each week for three succes- 
 sive weeks immediately preceding the sale ; or, if in the city 
 of New York or the city of Brooklyn, in two such papers.* 
 
 Under a provision of the statute,' the judges of the various 
 courts in the city of« New York have designated The Lazv 
 Journal as the official paper in which all legal notices are to 
 be published. 
 
 The notice of sale is usually drawn and posted by the 
 plaintiff's attorney,* who should also prepare a statement of 
 the terms of sale, which are usually read with the notice 
 on the day of sale. This statement should specify the terms 
 and conditions of the sale, the time of payment of the pur- 
 chase money, what amount is to be paid on the day of sale, 
 when and where the referee's deed is to be executed and 
 delivered, what amount, if any, is to be deducted for taxes, 
 assessments, water rents and other incumbrances ; but it 
 
 ' N. T. Code Civ. Proc. § 1434. * In the sale of mortgaged property 
 » N. Y. Code Civ. Proc. § 1678. the attorney for the plaintiff is con- 
 As to sufficiency of publication with- sidered as the agent of all the parties 
 in the meaning of this section, see to the action, and the proceedings 
 Chamberlain v. Dempsey, 13 Abb. on the sale are usually supervised by 
 (N. Y.) Pr. 421 (1862) ; B.C. 22 How. him. Dalby v. Pullen, 1 Russ. & 
 (N. Y.) Pr. 356. Myl. 296 (1830). 
 • Laws of 1874, chap. 656.
 
 §§ 476-477.] NOTICE or sale. 673 
 
 reed not describe the nature and situation of the property, 
 that being fully done by the notice of sale. 
 
 §476. Contents of notice of sale.— While it is not 
 absolutely necessary, yet it is the proper practice, to insert 
 the title of the cause in the notice of sale. This is 
 usually done by stating the names of the first plaintiff, and 
 of the first defendant at length, and by adding the words 'V/ 
 tf/.," or " and others," where there are several plaintiffs or 
 several defendants.' Where land is to be sold by a referee, 
 it should be described with reasonable certainty by setting 
 forth the number of the township or tract, and the number 
 of the lot, if the lot has a number; and if it has none, by 
 some other appropriate description. It is usually best to 
 follow the description given in the decree or order of sale. 
 The referee is not at liberty to insert any further particulars 
 in such notice, whereby the value of the property will be 
 enhanced or depreciated, or the purchaser will be in any 
 way misled.* In other respects there is no rule of law 
 prescribing the form of the notice of sale. 
 
 Where the mortgaged premises consist of several tracts 
 which can be sold separately, without prejudice to the 
 parties, it is not necessary to state in the notice of sale that 
 the premises will be sold in separate parcels.' 
 
 § 477* Publication of notice of sale. — The number of 
 weeks and the number of times each week which a notice 
 of sale under a decree of foreclosure is required to be pub- 
 lished, is regulated by the statutes of the various states. 
 Thus, in Maine the notice is not required to be published 
 three weeks successively so as to continue for the space of 
 twenty-one days,* but it must appear in three consecutive 
 
 • Ray V. Oliver, 6 Paige Ch. (N. * Wilson v. Page, 76 Me. 279 
 Y.) 489 (1837). (1885). This statute has been con- 
 
 ' Marsh v. Ridgeway, 18 Abb. (N. strued to mean three consecutive 
 
 Y.)Pr. 262(1864); Laight v. Pell, 1 weekly issues of a newspaper ; not 
 
 Edw. Ch. (N. Y.) 577 (1833); Veeder that there must be a period of twenty- 
 
 V. Fonda, 3 Paige Ch. (N. Y.) 94 one days between the time of the 
 
 (1832). first publication, and the date of the 
 
 * Hoffman v. Burke, 21 Hun (N. last insertion. 
 Y.) 580 (1880).
 
 574 PUBLISIIIXG NOTICE OF SALE. [§477. 
 
 weekly issues of the paper; while under the Wisconsin 
 statute,' a notice of sale under a decree of foreclosure is 
 required to be published for six full weeks after the expira- 
 tion of one year from the date of the judgment.' 
 
 Where the published notice of sale is dated prior to the 
 expiration of the year, there will be an apparent irregularity at 
 least in the proceedings tending to the defendant's injury ; 
 but whether, upon clear proof of the regular publication of 
 the notice at and •for the time prescribed by statute, such 
 apparent irregularity will be fatal to the sale is not deter- 
 mined.* 
 
 Whether publication of a notice is required to be made 
 for three weeks, twice in each week, or for six weeks, once 
 in each week, it is not necessary that in the first instance 
 twenty-one days should elapse between the time of the first 
 publication and the time of sale, nor in the second case, that 
 forty-two days should elapse between the first publication, 
 and the day of sale, in order to render the publication of the 
 notice sufficient and the sale made thereunder valid." It 
 has been held that the notice of sale need not be inserted in 
 every edition of the paper issued on the day on which the 
 
 ' Wis. Rev. Stat. §§ 2993, 3162, full days, and when the publication 
 
 3168. is directed to be made twice a week 
 
 « Kopmeier v. O'Neil, 47 Wis. 593 for three weeks, it means that there 
 
 (1879). shall be a period of twenty one da3's 
 
 « Kopmeier v. O'Neil, 47 Wis. 593 before the sale, calculated by weeks, 
 
 (1879). during each of which, two publica- 
 
 * Market Nat. Bank v. Pacific tions shall be made, and this shall 
 Nat. Bank, 89 N. Y. 397, 399 (1883); occur without regard to the day 
 8. c. 11 Abb. (N. Y.) N. C. 104 ; of the week when the publication 
 Olcott V. Robinson, 21 N. Y. 150 was commenced." But in this case, 
 (1860) ; Sheldon v. Wright, 5 N. Y. the notice of sale of real property in 
 497 (1851) ; Steinle v. Bell, 12 Abb. the city of New York, under decree 
 (N. Y.) Pr. N. S. 171, 177 (1872) ; of foreclosure, to take place on the 
 Merritt v. Village of Rochester, 8 20th day of May, was published in 
 Hun (N. Y.) 40, 45 (1876) ; Wood v. two papers on April the 27th (Wed- 
 Terry, 4 Lans. (N. Y.) 80, 85 (1871); nesday) and 30th (Saturday), May 
 Ilackley v. Draper, 4 T. & C. (N. 4th (Wednesday), 7th (Saturday), 
 Y.) 614, 622 (1874). In the case of 11th (Wednesday) and 14th (Satur- 
 Valentine v. McCue, 26 Hun (N. Y.) day), and in one of them on May 
 456 (1882), the court say : " The 20th ; and this publication of no- 
 period of a week, therefore, is seven lice was held to be sufficient.
 
 § 477.] PUBLISHING NOTIOE OF SALE. 575 
 
 notice was published.* And it seems that the court may 
 amend the judgment during the publication of the notice of 
 sale, without affecting the validity of such notice, or the 
 validity of the title to the property sold thereunder.* 
 
 A notice of sale of property was directed to be published 
 in a designated paper, which, after the decree and before the 
 publication of the notice, was merged in another paper 
 and its name changed ; on application to the judge at 
 chambers, he directed the sale to be advertised in the same 
 paper under its new name. The publication of the notice 
 in such paper under its new name was held to be in accord- 
 ance with the decree and to be valid and sufficient.* 
 
 Under a judgment of foreclosure and sale, a notice of the 
 sale to take place on the twenty-eighth day of December was 
 published on the ninth, twelfth, sixteenth, nineteenth, twenty- 
 third and twenty-sixth of that month, and the court held 
 this to be a publication twice in each week for three weeks 
 immediately preceding the sale within the meaning of the 
 Code.* In the case of Wood v. Morehouse,* an execution 
 was issued to the sheriff on the twenty-sixth day of Septem- 
 ber, and he caused a notice of the sale thereunder to be 
 published on the following first day of November, in a news- 
 paper printed in the proper county, and to be continued once 
 a week for six successive weeks, and afterwards sold the 
 property on an adjourned day, and such publication of 
 the notice was held valid. 
 
 Proof of the due publication of the notice may be made 
 by the affidavit of any person having knowledge of the fact.* 
 In the absence of proof to the contrary, it will be presumed 
 that publication of a notice of sale made in a daily news- 
 paper was first made on the day of the date of such notice, 
 especially if such presumption does not conflict with either 
 the sheriff's certificate or the printer's affidavit.* 
 
 1 Everson v. Johnson, 32 Hun (N. Abb. Pr. 421 (1862) ; b. c. 22 How. 
 
 Y.) 115 (1880). (N. T.) Pr. 356. 
 
 » Valentine v. McCue, 26 Hun (N. " 1 Lans. (N. T.) 405 (1869) ; aff'd 
 
 Y.) 456 (1882). 45 N. Y. 368. 
 
 •Sagev. Cent. R. R. Co., 13 «Mmerv.Lefever,10Neb.77(1880). 
 
 West. Jurist, 218 (1878). ' Kopmeier v. O'NeU, 47 Wis. 693 
 
 * Cliamberlain v. Dempsey, 13 (1879).
 
 576 WHEN SALE MAY BE MADE. [§§ 478-479. 
 
 § 478. When sale may be made— Hour of day.— It is 
 
 provided in many of the states that mortgaged premises 
 shall not be sold under a judgment of foreclosure, until after 
 the lapse of a specified time from the commencement of the 
 action, or the recovery of the judgment.' Where there is such 
 a regulation, any proceedings taken for a sale before the expi- 
 ration of the prescribed period, such as publishing the notice 
 thereof, will be irregular, but not void.' And under such a 
 statute, where a party is brought in as a defendant by an 
 amended complaint, and is charged with a personal liability, 
 the statutory period after which a sale may be made will 
 run only from the date of filing the amended complaint.* 
 
 The time of day at which a sale of mortgaged premises 
 shall be made under a decree of foreclosure is usually a 
 matter resting entirely in the discretion of the referee or 
 other officer making the sale,* except that in New York the 
 sale is required by the Code of Civil Procedure^ to be made 
 at public auction between the hour of nine o'clock in the 
 morning and sunset.* Should the sale be made before sun- 
 rise in the morning or after sunset in the evening, it will be 
 absolutely void.^ 
 
 Where the lands to be sold are situated wholly or partly 
 within the city of New York, or the city of Brooklyn, the 
 sale shall be made at public auction between twelve o'clock 
 noon and three o'clock in the afternoon, unless otherwise 
 specially directed." 
 
 § 479. Sale to be made at time advertised— Place of 
 sale. — The sale of mortgaged premises in an action for 
 foreclosure must be made at the time fixed for selling the 
 
 •Burt V. Thomas, 49 Mich. 462 ^Sessions v.Peay, 23 Ark.39(1861). 
 
 (1882) ; Culver v. McKeown, 43 " N. Y. Code Civ. Proc. § 1384. 
 
 Mich. 322 (1880). See Andrews v, « See Carnrick v. Myers, 14 Barb. 
 
 Welch. 47 Wis. 132 (1879) ;;North- (N. Y.) 9 (1852). 
 
 western Mut. L. Ins. Co. v. Neeves, ' Carnrick v.Myers,14Barb.(N.Y.) 
 
 46 Wis. 147 (1879) ; Wis. Rev. Stat. 9 (1852). See Wood v. Morehouse, 
 
 §3162. 45 N. Y. 369 (1869), aff'g 1 Lans. 
 
 » See Northwestern Mut. L. Ins. (N. Y.) 405, 413 ; Hackley v. Draper, 
 
 Co. V. Neeves, 46 Wis. 147 (1879). 4 T. «& C. (N. Y.) 614, 622 (1874)-, 
 
 » Canfield v. Shear, 49 Mich. 313 Frederick v. Wheelock, 3 T. & C. 
 
 (1882). (N. Y.) 210, 212 (1874).
 
 §480.] TOIE AND PLACE OF SALE. ^"IT 
 
 same, pursuant to the notice ; and if such time has passed, 
 and a valid sale has not been made, or if the party in interest 
 elects to disregard it, the officer conducting the sale can not 
 sell again without an order of the court, unless he advertises 
 the sale de novo} 
 
 It was held in Bicknell v. Byrnes,' that where the " mort- 
 gagor, or other person interested in the premises, attends at 
 the time fixed for the sale, and a sale upon satisfactory 
 terms is made and he leaves, and thereafter, without notice, 
 the party foreclosing abandons the sale and makes a new 
 one, he may create just such an amount for deficiency, or 
 he may purchase the premises at just such a price as he 
 deems proper. Such a practice can not be tolerated." 
 
 If the officer making the sale re-advertises the property 
 before selling, an order of the court will not be necessary, 
 and such a resale, if otherwise conducted in conformity to the 
 rules regulating sales of real estate, will be valid. 
 
 As a general rule, the sale of real property under a decree 
 of the court must be made on the premises, or at the court 
 house in the county in which the lands are situated, unless 
 for good cause shown the court directs otherwise.' In New 
 York the Code provides that all sales of real property on 
 mortgage foreclosure under final judgment, shall be made 
 by the sheriff or other officer executing the decree of sale in 
 the county in which the property is situated.* 
 
 If the mortgaged premises are situated in the city of New 
 York, unless otherwise specially directed by the court, they 
 are required to be sold at public vendue at the Exchange 
 Sales Rooms, No. 1 1 1 Broadway, between the hours of 
 twelve and three o'clock in the afternoon.* 
 
 § 480. Terms and conditions of sale. — The New York 
 Code of Civil Procedure requires that the terms of sale on a 
 mortgage foreclosure shall be made known at the time of 
 the sale; if the property or any. part thereof is to be sold 
 
 » N. T. Supreme Court Rule 63. « Sessions v. Peay, 23 Ark. 39 
 
 » Bicknell v. Byrnes, 23 How. (N. (1861). 
 T.) Pr. 486 (1862). ■» N. Y. Code Civ. Proc. § 1?43. 
 
 » 23 How. (N. Y.) Pr. 489 (1862). • N. Y. Supreme Court Rule 62. 
 
 - (57)
 
 578 TEEMS OF SALE. [§ 480. 
 
 subject to any lien or charge, or to a right of dower, that 
 fact must also be made known at the time of the sale.' It is 
 the usual practice for the officer conducting such sale to 
 read the notice of sale for the purpose of informing bidders 
 of the location and general description of the property to be 
 sold ; it is also his duty to announce the terms of sale, if 
 they are not contained in the published notice.* After 
 announcing the terms of sale, the officer in charge should 
 offer the premises, or separate parcels thereof, to the 
 highest bidder.' But the officer making the sale is not 
 obliged to accept the highest bid, if he has reasons for 
 believing that the bid is not made in good faith, or that the 
 bidder is unable to comply with the terms of sale.* 
 
 As a reasonable precaution in order to insure the comple- 
 tion of the sale, or to cover the costs and expenses of a 
 resale, in case the purchaser should fail to fulfill his contract, 
 a deposit, or the payment of some portion of the bid, at the 
 time of the sale, is usually required. The amount to be 
 paid or deposited should be a sum reasonably sufficient to 
 insure the completion of the purchase or to cover the 
 expenses of a resale.* To require the immediate payment 
 of the whole purchase money in cash at the time of the sale, 
 would tend to deter bidders, and in this manner be oppres- 
 sive and unjust to the mortgagor; a sale made upon such 
 terms, unless specially ordered, may be set aside by a court 
 of equity.' 
 
 Where, by the terms of sale, the purchase money is to 
 accompany the bid, or a deposit is to be made, and the bidder 
 refuses to make such deposit or to pay the price bid when 
 demanded, the referee may at once resume the sale.^ It is 
 said that under special circumstances the sale may be 
 
 * N. T. Code Civ. Proc. § 1678. • Goldsmith v. Osborne, 1 Edw. 
 
 • Bicknell v. Byrnes, 23 How. .(N. Ch. (N. Y.) 560, 562 (1833). 
 
 V.) Pr. 486 (1862). •> See Lents v. Craig, 13 How. (N. 
 
 ' N. Y. Code Civ. Proc. § 1678. Y.) Pr. 72 (1855) ; s. c. 3 Abb. (N. 
 
 * Gray v. Veirs, 33 Md. 18 (1870). Y.) Pr. 294 ; Sherwood v. Reade, 8 
 
 • Maryland Permanent Land and Paige Ch. (N. Y.) 633 (1841). 
 Building Society of Baltimore v. 
 
 fJmith, 41 Md. 516 (1874).
 
 § 481.] TEEMS AT^D CONDITIONS OF SALE. 579 
 
 adjourned to another day and then resumed, if the deposit 
 is not made or the price bid is not paid.* Should the day 
 of sale be permitted to pass without an adjournment or the 
 completion of the sale by the purchaser, the referee may 
 re-advertise and resell the premises^ as if no notice of sale 
 had been published." 
 
 Where by the terms of the sale the price bid was to be paid 
 in cash, it has been held in a contest between bidders, where 
 the sale took place on Saturday and the money was paid 
 on the following Monday, that this was a substantial com- 
 pliance with the terms of the sale.* 
 
 Where the terms of the sale are cash and the mortgagee 
 becomes the purchaser at the sale, he can not be required to 
 pay at once in cash the whole or a part of his bid as earnest 
 money.* It seems that the holder of the mortgage may 
 comply with the terms of the sale where it is to be for cash, 
 by simply indorsing the amount of his bid on the notes 
 which he holds, and that the formality of paying the money 
 to the officer making the sale, and of receiving it back from 
 him, is unnecessary.* 
 
 But if any person other than the mortgagee becomes the 
 purchaser, where the sale is to be for cash, he must comply 
 strictly with the terms of sale, and pay the price bid in cash * 
 a note of the party entitled to the proceeds of the sale is not 
 cash, and the tender of such note will not be a compliance 
 with the terms of sale.* 
 
 § 481. Conditions of sale sometimes published. — It is 
 
 sometimes the practice to annex to the notice of sale a 
 statement of the conditions or terms of sale. This statement 
 should specify fully the terms and conditions of the sale, 
 the time of payment of the purchase money, what amount 
 in cash is to accompany the bid, and when and where the deed 
 is to be delivered. It should also state whether the sale is to 
 
 ' Hoffman on Referees, 236. * Sage v. Central R. R. Co., (Iowa), 
 
 » Robinson v. Brennan, 90 N. T. 13 West. Jurist, 218 (1878). 
 
 208 (1882); Bicknell v. Byrnes, 23 » Jacobs v. Turpin, 83111.424(1876). 
 
 How. (N. T.) Pr. 486 (1862). « Pursley v. Forth, 82 111. 327 
 
 « Jacobs V. Turpin, 83 Dl. 42^ (1876) ; Sage v. Central R. R. Co., 
 
 (1876). (Jowa), 13 West. Jurist, 218 (1878).
 
 580 CONDITIONS OF SALE. [§ 482. 
 
 be subject to taxes, assessments and water rents, for it is the 
 well settled practice of the courts to have all taxes, assess- 
 ments and water rents, which are liens on the premises 
 sold, paid out of the purchase money by the of^cer making 
 the sale, unless otherwise provided. The decree for the 
 sale of the property, in some instances, directs that these 
 liens be paid, but they are more frequently provided for by 
 the terms of the sale.* 
 
 It has been held, that, since the purchaser of lease-hold 
 property at public sale takes it subject to being dispossessed 
 for rents in arrears, it is necessary that the judgment of 
 foreclosure on a mortgage of lease-hold property, or the 
 terms of sale thereof, should provide for the payment of 
 such rents, in order to obtain the full value of the property, 
 and that the purchaser may acquire the title discharged 
 of such liens.' 
 
 § 482. Sale on credit. — Although a sale upon credit 
 might produce a greater price than a sale for cash, yet judi- 
 cial sales, it seems, are not made on credit unless with the 
 consent of the parties interested, for if the court should 
 direct that the sale be made on credit, and the mortgaged 
 land should produce more than the amount of the mortgage 
 debt, two new mortgages would follow, one to the complain- 
 ant for whose benefit the land is being sold, and the other 
 to the defendant, or to some one entitled to the surplus. 
 Such a practice would, in effect, convert one mortgage into 
 
 * See Catlin v. Grissler, 57 N. Y. in an ordinary case of mortgage 
 
 363 (1874); Robinson v. Ryan, 25 upon real property, it would not be 
 
 N. Y. 320 (1862) ; Stillman v. Van deemed an essential error. But in 
 
 Beuren, 49 N. Y. Supr. Ct. (17 J. & this case, which is a mortgage upon 
 
 S.) 86 (1883) ; N. Y. Code Civ. Proc. lease-hold property, taxes and assess- 
 
 g 1676. It was said in the case of ments should not be paid out of the 
 
 Stuy vesant v. Browning, 33 N. Y. purchase money. If the lessees have 
 
 Supr. Ct. Rep. (1 J. & S.) 203, 210 agreed to pay such liens, it is at 
 
 (1871), however, that "it is not most a mere personal covenant, and 
 
 usual to insert in the judgment a not included in their mortgage." 
 
 direction to pay taxes or assessments 2 gtiUman v, VanBeuren, 49 N. Y. 
 
 which may at the time of the sale be Supr. Ct. (17 J. & S.) 86 (1883). 
 
 a lien upon the mortgaged premises. See Catlin v. Grissler, 57 N. Y. 363 
 
 That is usually done by the referee, (1874) ; Robinson v. Ryan, 25 N. Y 
 
 or officer who makes the sale. Yet, 320 (1862).
 
 § 482.] SALES ON CEEDIT. 581 
 
 another or into several mortgages, and it might be injurious 
 rather than beneficial to the defendant.' 
 
 It seems, however, that the plaintiff may direct the referee, 
 or other officer making the sale, to sell the premises on 
 credit. If no one objects, and the referee, thus authorized, 
 sells the property on time, and such sale is confirmed by the 
 court, the purchaser will have a right to insist upon the terms 
 on which the sale was made, and can not be compelled to 
 pay cash.' Should the defendant object to having the sale 
 made on credit, the plaintiff, or the court on his application, 
 may allow the sale to be made on credit to the extent of the 
 amount due to him for principal and interest f but beyond 
 this amount, credit can not be allowed to the purchaser. 
 
 It is said in Chaffraix v. Packard,* that " the principle 
 upon which the right of a mortgage creditor to sell for cash 
 rests, is that every part of the property is mortgaged for the 
 whole of the principal debt, and in the distribution of 
 the proceeds of the pledge the holders of the different 
 installments of the same mortgage are entitled to partici- 
 pate." It has been held that where the mortgage provides 
 for the sale of the property for cash, and the mortgagee 
 makes an arrangement with the purchaser of the property to 
 allow him time on the sum due on his mortgage, the 
 mortgagor can not complain of such an arrangement, 
 whether made before or after the sale, inasmuch as he can 
 not, by any possibility, be injured by such arrangement ; it 
 therefore constitutes no ground for setting the sale aside. 
 The tendency of such an arrangement would be to increase 
 the number of bidders, and to enhance the price rather than 
 to decrease it.' Yet, it seems that the property can be 
 sold for cash to pay the notes which are due, and on credit 
 to meet unmatured notes, according to the contract of the 
 mortgage.* 
 
 1 Sedgwick v. Fish, Hopk. Ch. * 26 La. An. 173, 175 (1874). 
 
 (N. Y.) 594 (1824). » Mahone v. Williams, 39 Ala. 
 
 » Rliodes V. Dutcher, 6 Hun 453, 202, 215 (1863). 
 
 455 (1876). « Pepper v. Dunlap, 16 La. 163, 
 
 » Sedgwick v. Fish, Hopk. Ch. 170, 171 (1840). See Chaflfraix v. 
 
 «94 (1834;). Packard, 26 La. An. 172, 174 (1874).
 
 582 ORDER STAYING SALE. [§ 483. 
 
 It has been said that the court may order the premises to 
 be sold on credit without violating the obligation of the 
 mortgage contract.* And it was held by the supreme 
 court of Tennessee, in the case of Mitchell v. McKinny,' 
 where a trust deed provided that the trustee should sell 
 the property for cash, that, on a bill to foreclose, the court 
 might order a sale on time. But it was held by the supreme 
 court of Virginia, in the case of Crenshaw v. Seigfried,' that 
 where the mortgage provides that the property shall be sold 
 for cash, the court must act according to the provisions of 
 the mortgage, and can not sell on time. 
 
 § 483. Order staying sale. — In an^ action to foreclose a 
 mortgage the court will do its utmost to secure a fair and 
 advantageous sale of the mortgaged premises.* The unfor- 
 tunate debtor is not beneath the protection of the court, and 
 it will not permit the slightest advantage to be taken of him, 
 even by pursuing the strict forms of the law.^ Thus, in case of 
 any calamity, such as hostile invasion, or an epidemic pre- 
 vailing at the time and place of sale, the court will interfere 
 and postpone the sale." But the sale of mortgaged premises 
 under a decree of foreclosure will not be postponed merely 
 on account of a general depression in the business of the 
 country,' nor on account of the existence of war, because the 
 existence of war is a general calamity and is not sufficient to 
 justify the interruption of the regular administration of 
 justice by the courts in the collection of debts.' 
 
 A judicial sale made on the day of the charter election of 
 a city is not necessarily void ; but if the plaintiff has been 
 
 ' Stoney v. Shultz, 1 Hill (S. C.) « Lansing v. Goelet, 9 Cow. (N. 
 
 Eq. 465, 500 (1834) ; s. c. 27 Am. Y.) 346, 402 (1827). 
 
 Dec. 429 ; Lowndes v. Chisholm, '' IVIcGown v. Sanford, 9 Paige Ch. 
 
 2 McC. (S. C.) Eq. 455 (1826) ; s. c. (N. Y.) 290 (1841). 
 
 16 Am. Dec. 667. * Astor v. Roniayne, 1 Johns. Ch. 
 
 « 6 Heisk. (Tenn.) 83 (1871). (N. Y.) 310 (1814). It would be 
 
 » 24 Gratt. (Va.) 272 (1874). otherwise, however, if an inviisioa 
 
 * Lansing v. Goelet, 9 Cow. (N. of Ihe immediate neighborhood 
 
 Y.) 346, 402 (1827). where the property is situated was 
 
 <• King V. Piatt, 37 N. Y. 155, 160 imminent. See McGown v. Sanford, 
 
 (1867) ; 8. c. 35 How. (N. Y.) Pr. 23. 9 Paige Ch. (N. Y.) 290 (1841). 
 
 See 1 Story Eq. Jur. 239.
 
 §483.] OBDEB STAYINQ SALE. CSS 
 
 — >^ j 
 
 unnecessarily oppressive in his proceedings, the sale may be 
 set aside.* Thus, where the sale is made against the defen- 
 dant's remonstrance on a day of general election, or on a 
 day most unfavorable to a large gathering of bidders, and 
 under circumstances which give rise to the belief that free 
 competition was obstructed, the sale ought not to stand. 
 The court held in King v. Piatt,* that ** occupying the posi- 
 tion of advantage, it behooved the plaintiffs to pursue their 
 remedy with scrupulous care, lest they should inflict an 
 injury on one who was comparatively powerless. A court 
 of equity justly scrutinizes the conduct of a party, placed by 
 the law in a position where he possesses the power to sacri- 
 fice the interests of another, in a manner which may defy 
 detection, and stands ready to afford relief on very slight 
 evidence of unfair dealing, whether it is made necessary by 
 moral turpitude, or only by a mistaken estimate of others' 
 rights." 
 
 Chancellor Walworth held in the early case of McGown 
 V. Sandford,* that "it is the duty of the officer entrusted 
 with the sale of property, under a judgment or decree for 
 the payment of a debt, to put it up for sale at such a 
 time and under such circumstances as to make it bring the 
 best price, without injuring the party entitled to the pro- 
 ceeds of the sale by delaying the payment of his debt. And 
 where a master, or other officer appointed to make the sale, 
 in violation of his duty, is proceeding to sell property under 
 a decree in chancery at an improper time, when such sale 
 must necessarily sacrifice the property, as during the raging 
 of a pestilence, or while there is a threatened invasion, which 
 will destroy all chance of fair competition by deterring bid- 
 ders from attending the sale, it will unquestionably be the 
 duty as well as the right of this court to interfere. But 
 the court of chancery has no legal right to interfere for the 
 relief of an individual by arbitrarily suspending the ordinary 
 
 » King V. Piatt, 37 N. Y. 155 « 37 N. Y. 155, 160 (1867) ; s. c. 
 
 (1867) ; 8. c. 35 How. (N. Y.) Pr. 23. 35 How. (N. Y.) Pr. 23. 
 
 See Kellogg v. Howell, 62 Barb. (N. » 9 Paige Ch. (N. Y.) 290, 291 
 
 Y.) 280 (1872). (1841).
 
 584 OKDEK STATmG SALE. [§ 483. 
 
 operation of the laws for the collection of debts to meet his 
 particular case." 
 
 In an action to foreclose a mortgage, no order to stay the 
 sale shall be granted or made by a judge out of court, 
 except upon a notice of at least two days to the plaintiff's 
 attorney.* Consequently, it has been held that an order to 
 show cause, made by a judge out of court, and returnable 
 in less than two days, is irregular, if it contains a stay of 
 proceedings of sale under a judgment for foreclosure and 
 sale.' It has been said that if a subsequent purchaser desires 
 the prior mortgagee to act with reference to the order of 
 alienation of the mortgaged premises, he should give notice 
 of the facts to such mortgagee in proper time, and request 
 him to sell accordingly. If he is not a party to the proceed- 
 ings for foreclosure, and is given no opportunity therein to 
 present his equities, he may file a bill against the mortgagee, 
 and the other subsequent purchasers, where there are any, 
 staying the sale until their respective equities can be adjusted. 
 But he can not remain passive until the sale has been made 
 and confirmed, and then assert his rights against the mort- 
 gagee upon an allegation of facts of which the latter had no 
 knowledge.* 
 
 ' N. Y. Supreme Court Rule 67. * Lausman v, Drahos, 8 Neb. 457 
 
 » Asinari v. Volkening, 2 Abb. (N. (1879). 
 Y.) N. C. 454 (1877).
 
 CHAPTER XXIII. 
 
 SALE OF MORTGAGED PREMISES IN PARCELS. 
 
 DISCEETION OP COURT — WHEN TO BE MADE — PART ONLY DUE- 
 SALE FOR AN INSTALLMENT— STAYED ON PAYMENT- 
 FUTURE DEFAULTS. 
 
 § 484, 
 
 Sale in parcels — Discretion of 
 court. 
 
 Sale in parcels under the 
 New York Code. 
 
 Determining how much of 
 premises to be sold. 
 
 Sale to be made so as to pro- 
 tect subsequent liens and 
 equities. 
 
 Sale in parcels — When matter 
 of right. 
 
 489. Selling in parcels when 
 premises described in one 
 piece. 
 
 Mortgagee or mortgagor dic- 
 tating order of sale. 
 
 Discretion of officer as to 
 selling in parcels. 
 
 485. 
 
 486. 
 
 487. 
 
 488. 
 
 490. 
 
 491. 
 
 § 493. Sale of premises subdivided 
 into lots after execution of 
 mortgage. 
 
 493. Sale of moiety— Land held 
 
 by tenants in common. 
 
 494. Sale in parcels when only 
 
 part of mortgage due. 
 
 495. Sale of portion of premises 
 
 for part of debt due — Fail- 
 ure to pay subsequent in- 
 stallments. 
 
 496. Petition for order of second 
 
 sale — Reference thereon to 
 compute amount due. 
 
 497. Order for second sale. 
 
 498. Where proceedings stayed 
 
 by payment — Subsequent 
 default. 
 
 I 484. Sale in parcels — Discretion of court. — On the 
 
 foreclosure of a mortgage the court is not bound to ascertain, 
 whether it will be to the advantage of the defendants to have 
 the mortgaged premises sold in separate lots.* But the prem- 
 ises may be sold in one piece or in parcels, as the court may 
 think most likely to bring the highest price ;^ and on proof 
 that a sale in parcels will probably be injurious to the interests 
 of the defendants, the court may decree the sale of the 
 whole of the mortgaged premises in one parcel, though com- 
 posed of separate and distinct tracts or lots.* In a case where 
 the whole amount of the mortgage debt was not due, and the 
 premises were ample security for the amount due, with costs, 
 
 « Jones V. Gardner, 57 Cal. 641 (1881). 
 » Macomb v Prentis, 57 Mich. 225 (1885). 
 » Firestone v. Klick, 67 Ind. 309 (1879). 
 585
 
 586 SALE IN PARCELS OEDER OF COURT. [§ 484. 
 
 but the land could not be sold advantageously in parcels, 
 and the whole mortgage debt would become due before 
 there could be a sale under the judgment, the court held 
 that the case should be treated as though the whole debt were 
 due.' 
 
 Where the mortgaged property is in separate parcels, and 
 the amount due upon the mortgage can be realized by a 
 sale of one or more of the parcels, if it is necessary that the 
 property should all be sold together, in order to protect 
 the rights of subsequent incumbrancers, the sale will be made 
 in that manner;" and where a sale of a part of the premises 
 is made in accordance with the directions of the court, 
 and it is afterwards made to appear that the interests of the 
 parties require the sale of the whole property, the court may 
 make a supplementary order for the sale of the remainder of 
 the mortgaged premises.* And where the decree of sale directs 
 that the whole of the premises be disposed of for the 
 payment of installments due, it is within the discretion of 
 the court afterwards, in regulating the execution of its 
 decree, if the premises can be divided into parcels, to direct 
 a sale of a part only.* 
 
 If the order to sell the premises as a whole, or in parcels, 
 be erroneous, the party aggrieved may ask to have the 
 order amended. This should be done by motion, as 
 the defect can not be taken advantage of by appeal.* 
 
 Where, in a decree for the sale of mortgaged premises, 
 the court directs that the land shall be sold together, or in 
 parcels, it is the duty of the sheriff or person making 
 the sale to comply strictly with such order; and the 
 parties interested can not, by stipulation, provide for a 
 different order, although one of the defendants might be 
 greatly benefited by such change. It is to be presumed, in 
 
 ' Schreiber v. Carey, 48 Wis. 208 * American Life & Fire Ins. & 
 
 ^1879). Trust Co. v. Ryerson, 6 N. J. Eq. 
 
 » Gregory v. Campbell, 16 How. (2 Halst.) 9 (1846). 
 
 (N. Y.) Pr. 417 (1858). = Horner v. Corning, 28 N. J. Eq. 
 
 » Livingston v. Mildrum, 19 N. Y. (1 Stew.) 254 (1877). 
 440 (1859); DeForest v. Farley, 4 
 Hun (N. Y.) 640 (1875).
 
 § 485.] SALE m PARCELS ITNDEE CODK 5S7 
 
 such a case, that the court made its order with a view to the 
 rights of all parties,' and parties holding subsequent interests 
 will have a right to insist upon a compliance with the order 
 of sale as made by the court.' 
 
 § 485. Sale in parcels under the New York Code. — 
 The New York Code of Civil Procedure* provides that "where 
 a mortgage debt is not all due, and the mortgaged property is 
 so circumstanced that it can be sold in parcels without injury 
 to the interests of the parties, the final judgment must 
 direct that no more of the property be sold, in the first 
 place, than is sufficient to satisfy the sum then due, 
 with the eosts of the action and the expenses of the sale ; 
 and that upon a subsequent default in the payment of 
 principal or interest, the plaintiff may apply for an order 
 directing the sale of the residue, or of so much thereof 
 as is necessary to satisfy the amount then due, with the 
 costs of the application and the expenses of the sale. The 
 plaintiff may apply for and obtain such an order as often as 
 a default happens." 
 
 But where " it appears that the mortgaged property is so 
 circumstanced, that a sale of the whole thereof will be most 
 beneficial to the parties, the final judgment must direct that 
 the whole property be sold ; that the proceeds of the sale, 
 after deducting the costs of the action and the expenses 
 of the sale, be either applied to the satisfaction of the whole 
 sum secured by the mortgage, with such a rebate of interest 
 as justice requires, or be first applied to the payment of the 
 sum due, and the balance, or so much thereof as is necessary, 
 be invested at interest for the benefit of the plaintiff, to be 
 paid to him from time to time, as any part of the principal 
 or interest becomes due." Section 1 678 of the New York Code 
 of Civil Procedure, regulating sales upon foreclosure, pre- 
 scribes only a rule of proceeding to render the judgment of 
 foreclosure available ; and therefore the amendment of 1881,* 
 
 « Babcock v. Perry, 8 Wis. 277 » N. Y. Code Civ. Proc. §§ 1636, 
 
 (1859). 1637. 
 
 * Farmers' & Millers' Bank of ilil- * Laws of 1881, chap. 683. 
 waukee v. Luther, 14 Wis. 96 (1861).
 
 588 SALE IN PARCELS UNDER CODE. [§485. 
 
 allowing two or more buildings situated on the same city- 
 lot to be sold together, is effectual pursuant to its provisions 
 to render valid sales previously made, which would be lawful 
 according to its terms.' 
 
 These provisions of the Code of Civil Procedure simply 
 declare the rules and formulate the principles by which 
 courts of equity, without statutory provisions, are neces- 
 sarily governed in foreclosure suits;* the statute merely 
 establishes by legislative enactment the rules which already- 
 prevailed in such cases.* 
 
 It has been held, however, that the provisions of the 
 statute regarding sales in parcels are merely directory, and 
 that a sale made in disregard of such provisions is not 
 void, but only voidable, if an application is made for relief 
 within a reasonable time by the party aggrieved. But such 
 party may waive the irregularity of the sale by express 
 ratification, or by neglecting to take exceptions to it within 
 a reasonable time.* 
 
 It was held by the court in Wallace v. Feely,' that " The 
 question is whether this provision is directory merely, as 
 the provision in the former statute regulating judicial sales 
 
 ' Wallace V. Feely, 10 Daly (N. Y.) * Cunnini^ham v. Cassidy, 17 N. 
 
 331(1882). Y. 276 (1858). See Slierman v. 
 
 ' Cunningham v. Cassidy, 17 N. Willett, 42 N. Y. 146 (1870) ; Ells- 
 
 Y.) 276 (1858) ; s. c. 7 Abb. (N. Y.) worth v. Lockwood, 42 N. Y. 89 
 
 Pr. 183. See Livingston v. Mil 
 drum, 19 K Y. 440, 443 (1859) 
 Campbell v. Macomb, 4 Johns. Ch 
 (N. Y.) 534 (1820); Magruder v 
 Eggleston, 41 Miss. 284 (1866) 
 
 (1870); Husted v. Daldn, 17 Abb. 
 (N. Y.) Pr. 137 (1857) ; Griswold v. 
 Fowler, 4 Abb. (N. Y.) Pr. 238 
 (1857) ; Merchants' Ins. Co. v. Hin- 
 man, 3 Abb. (N. Y.) Pr. 455 (1856) ; 
 
 American Life & Fire Ins. & Trust Wells v. Wells, 47 Barb. (N. Y. ) 
 
 Co. V. Ryerson, 6 N. J. Eq. (2 416 (1867) ; Lamerson v. Marvin, 8 
 
 Halst.) 9 (1846) ; Wilmer v. Atlanta Barb. (N. Y.) 9 (1850) ; Wolcott v. 
 
 & R. A. L. R. Co., 2 Wood C. C. 447 Schenck, 23 How. (N. Y.) Pr. 385 
 
 (1875). (1862); Ames v. Lockwood, 13 
 
 » Cunningham v. Cassidy, 17 N. How. (N. Y.) Pr. 555 (1856); Woods 
 
 Y. 276 (1858). See Campbell v. v. Mouell, 1 Johns. Ch. (N. Y.) 503 
 
 Macomb, 4 Johns. Ch. (N. Y.) 534 (1815); American Ins. Co. v. Oakley, 
 
 (1820) ; Lyman v. Sale, 2 Johns. Ch. 9 Paige Ch. (N. Y.) 259 (1841) ; s. c. 
 
 (N. Y.) 487 (1817) ; Brinckerhoff v. 38 Am. Dec. 561. 
 
 Thallhimer, 2 Johns. Ch. (N. Y.) 486 M N. Y. Civ. Proc. Rep. 126 
 
 (1817). See post % 489. (1881).
 
 § 486.] HOW MUCH TO BE SOLD. 589 
 
 \ 
 
 was held to be.* That statute enacted that if the premises 
 consist of distinct buildings, they shall be sold separately. 
 The reason of the codifiers for substitutinsf * must * for 
 * shall ' is not apparent ; they give no explanation in their 
 note to the section. The substituted word is more impera- 
 tive than that which it replaces. As verbal alterations 
 occur frequently in the new Code without apparent reason, 
 the change in question loses much of its significance. The 
 reasons for holding the former enactment to be directory 
 merely are applicable in every respect to the new. No 
 different construction could be adopted without doing, in 
 certain cases, a great injury." 
 
 § 486. Determining how much of premises to be sold. 
 
 — On an order of reference in a mortgage foreclosure, the 
 first duty of the referee, aside from computing the amount 
 due on the mortgage, is to ascertain whether the mortgaged 
 premises are so circumstanced that they can be sold in parcels 
 without injury to the interests of the parties. A sale of the 
 whole premises in one parcel can be most beneficial to 
 the parties only when the mortgagee will receive, and the 
 mortgagor will be able to pay, from the proceeds thereof, 
 the largest amount of the mortgage debt, or when the sale 
 will leave the largest surplus after the payment of the whole 
 debt. The benefits intended by the statute should be com- 
 mon to both parties. 
 
 But the report of the referee, in regard to the manner of 
 sale, is only a part of the evidence before the court, upon 
 which it should decide whether it will or will not be most 
 beneficial to the parties to decree a sale of the whole 
 premises in one parcel in the first instance. The court may 
 look to the pleadings and receive other evidence in its 
 discretion ; it may also consider the stipulations, offers or 
 admissions of any of the parties on the hearing." In 
 determining whether the premises shall be sold together or 
 in parcels, the court should take into consideration the 
 interests of the parties having equities subject to the 
 
 » Cunningham v. Cassidy, 17 N. * Gregory v. Campbell, 16 How. 
 
 Y. 276 (1858). (N. Y.) Pr. 417 (1858).
 
 590 SALE so AS TO PEOTECT JUiHOR LIEXS. [§ 487. 
 
 mortgage, and direct the sale to be made in such a manner 
 that the rights of no party interested will be prejudiced by 
 the order of the sale.' 
 
 § 487. Sale to be made so as to protect subsequent 
 liens and equities. — A mortgage foreclosure sale is not for the 
 benefit of the complainant alone, but for the benefit of all 
 the parties who are before the court ; and where the com- 
 plainant in such a suit makes a junior mortgagee of the 
 premises a party, the court may make a decree directing 
 the sale of so much of the mortgaged premises as will be 
 sufficient to satisfy the amount due on such junior mort- 
 gage and on intermediate incumbrances, in addition to the 
 amount due on the complainant's mortgage, besides the costs 
 of the action. But it is said that before such junior mort- 
 gage can be paid, the report of the referee, or other 
 officer making the sale, must be filed and the surplus 
 moneys brought into court, so that interested persons, who 
 have not been made parties to the suit, may have an oppor- 
 tunity to file their claims to such surplus money.* 
 
 It is the duty of the court in decreeing a foreclosure of 
 the mortgaged premises, to provide that only so much 
 thereof shall be sold, and in such a manner, as that the parties 
 having equities subject to the primary lien will not be 
 prejudiced thereby. This power may be exercised as long 
 as the subject matter and the parties remain under the 
 jurisdiction of the court.* But where the court has failed 
 in a decree of foreclosure to protect the equitable rights of 
 the parties before it, it may supply the defect independently 
 of the statute by a supplementary order;* and this may be 
 done even after a portion of the premises sufficient to satisfy 
 the primary lien has been sold.* 
 
 ' Livingston v. Mildrum, 19 N. ' Livingston v. Mildrum, 19 N. T. 
 
 Y. 440 (1859). See DeForest v. Far- 440 (1859). See DeForest v. Farley, 
 
 ley, 62 N. Y. 628 (1875) ; Malcolm 62 N. Y. 628 (1875) ; Malcolm v. 
 
 V. Allen, 49 N. Y. 448 (1872) ; Allen, 49 N. Y. 448 (1872). 
 
 Beekman v. Gibbs, 8 Paige Ch. (X. * Malcolm v. Allen, 49 N. Y. 448 
 
 Y.) 511 (1840) ; Blazey v. Delius, 74 (1872) ; Livingston v. Mildrum, 19 
 
 111. 299 (1874). N. Y. 440 (1859). 
 
 ' Beekman v. Gibbs, 8 Paige Ch. * Livingston v. Mildruxa, 19 N. Y. 
 
 (N. Y.) 511 (1840). 490 (1859).
 
 § 488.] WHEN SALE IN PAEOELS MATTER OF EIGHT. 591 
 
 § 488. Sale in parcels— When matter of right.— In a 
 mortgage foreclosure the plaintiff is entitled to the sale of 
 a sufficient amount of land to pay his claim and the costs 
 of the suit, and no more ;* and the sale should be made by 
 the officer conducting it in such a manner as to pay the just 
 demands of the plaintiff without inflicting unnecessary loss 
 upon the debtor, or interfering with the rights and interests 
 of subsequent incumbrancers.* 
 
 It is a well settled principle of law, irrespective of any 
 statute, that where a tract of mortgaged land has been 
 laid out in parcels for separate and distinct enjoyment, it 
 should be sold in parcels on a decree of foreclosure.* This 
 general rule is said to rest upon the reasonable presumption, 
 sanctioned alike by observation and experience, that such 
 property will realize more when sold in parcels than in one 
 piece, because of the fact that such sale will better corres- 
 pond to the probable wants of the purchasers.* 
 
 Aside from statutory regulations touching the matter, it 
 is the primary duty of the officer making the sale to adopt 
 such a mode of sale as will probably realize the largest 
 amount, and to exercise his best judgment in determining 
 how that end can be best accomplished ; a sale in a different 
 manner may be a sufficient reason for avoiding the sale, if 
 the price received is disproportionate to the actual value 
 of the premises.* 
 
 » Ellsworth V, Lockwood, 42 K 502 (1815) ; Mahone v. Williams, 39 
 
 Y. 89 (1870) ; Hewson v. Deygert, 8 Ala. 202 (1863) ; Rowley v. Brown, 
 
 Johns. (N. Y.) 333 (1811); Tier- 1 Bin n. (Pa.) 61 (1803) ; Stead's Exrs. 
 
 nan V. Wilson, 6 Johns. Ch. (N. v. Course, 8 U. S. (4 Cr.) 403(1808); 
 
 Y.) 411 (1822) ; Jenks v. Alexander, bk. 2 L. ed. 660. 
 11 Paige Ch. (N. Y. ) 619 (1845) ; * It has been held that if there is 
 
 Mohawk Bank v. Atwater, 2 Paige no division of the tract into parcels, 
 
 Ch. (N. Y. ) 61 (1830); O'Donnell adapted for separate and distinct 
 
 V. Lindsay, 39 N. Y. Supr. Ct. (7 J. enjoyment, it is generally reasonable 
 
 & S.) 623, 530 (1873). that the defendant should show to the 
 
 • Woodhull V. Osborne, 2 Edw. referee, or other officer selling, by a 
 Ch. (N. Y.) 614 (1830). map or diagram, or in some other 
 
 * Wolcott V. Schenck, 23 How. intelligible manner, the distinct par- 
 (N. Y.) Pr. 385 (1863) ; Hewson v. eels into which the land might be 
 Deygert, 8 Johns. (N. Y.) 333 (1811); profitably divided for sale. See 
 Wood v.Monell,! Johns. Ch.(N.Y.) Woodhull v. Osborne, 2 Edw. Ch,
 
 592 
 
 PREMISES DESCRIBED IN ONE PIECE. 
 
 [§ 489. 
 
 § 489. Selling in parcels when premises described in 
 one piece. — And the rule as to selling in parcels is the same, 
 whether the land is desciibed in the mortgage in parcels or 
 as one piece.' It seems, however, that if the premises are 
 described in the mortgage as one tract, the referee, or 
 ofKicer making the sale, is not bound to sell them in parcels ;" 
 but where the premises are so situated that he can sell in 
 parcels without injury to the interests of any of the parties, 
 he may properly do so.' And it has been held, where mort- 
 gaged premises consist of two or more parcels of land which 
 have previously been held, used and conveyed together, 
 that a sale of the whole in one parcel will be valid.* 
 
 The provisions of the Code of Civil Procedure regulating this 
 matter are simply declaratory of the law on the subject, as 
 the same was enforced by the courts of chancery before the 
 enactment of the statute.* The object of the statute, as well 
 as of the chancery rule, is to insure from the sale of the 
 
 (K Y.) 614 (1830) ; Wood v. Monell, 
 1 Johns. Ch. (N. Y.) 502 (1815). 
 
 * Mahone v. Williams, 39 Ala. 
 202 (1863) ; Gray v. Shaw. 14 Mo. 
 341 (1851); Stull v. Macalester, 9 
 Ohio, 19, 24 (1839) ; Ord v. Noel, 5 
 Madd. 488 (1820). 
 
 But, "a mere error of judgment 
 in the selection of a mode of sale, 
 whereby some injury may probably 
 have resulted, ought not to be any 
 ground for the avoidance of a sale. 
 If it were, all certainty and stability 
 would be stripped from such sales, 
 and their validity would depend 
 upon mere vague speculation. The 
 rule which we have deduced from 
 Chancellor Kent's opinion [see Wood 
 V. Monell, 1 Johns. Ch. (N. Y.) 502 
 (1815); Woodhull v. Osborne, 2 
 Edw. Ch. (N. Y.) 614(1830)], is a 
 general one, adopted because it will 
 lead, usually, to a correct solution 
 of the question whether a sale should 
 be by parcels, and is designed to 
 aid in determining whether a sale 
 
 should be avoided, because it was not 
 made in that manner." Mahone v. 
 Williams, 39 Ala. 202, 218 (1863). 
 
 ' Ellsworth v. Lockwood, 43 N. 
 Y. 89 (1870). See Hewson v. Deygert, 
 8 Johns. (N. Y.)333 (1811); Tiernan 
 v. Wilson, 6 Johns. Ch. (N. Y.) 411 
 (1822); Jencks v. Alexander, 11 
 Paige Ch. (N. Y.) 619 (1845); 
 Mohawk Bank v. Atwater, 2 Paige 
 Ch. (N. Y.) 54, 61 (1830). 
 
 * Sherman v. Willett, 42 N. Y. 
 146, 150 (1870) ; Griswold v. Fowler, 
 24 Barb. (N. Y.) 135 (1857) ; s. c. 4 
 Abb. (N. Y.) Pr. 238 ; Lamerson v. 
 Marvin, 8 Barb. (N. Y.) 9 (1850). 
 
 3 Sherman v. Willett, 42 N. Y. 
 146, 150 (1870). 
 
 •* Anderson v. Austin, 34 Barb. 
 (N. Y.) 319 (1861). 
 
 ^ Campbell v. Macomb, 4 Johns. 
 Ch. (N. Y.) 534 (1820) ; Lyman v. 
 Sale, 2 Johns Ch. (N. Y.) 487 (1817); 
 Brinckerhoff v. Thallhimer, 2 Johns*. 
 Ch. (N. Y.) 486 (1817). See ante 
 §485.
 
 § 490.] MOETGAGOR DICTATING OEDEE OF SALE. 593 
 
 property the largest possible sum of money ; and a sale in 
 parcels is generally best for the interests of all parties con- 
 cerned, because it tends to accommodate the wants of the 
 bidders and to promote competition.* 
 
 The practice of selling several distinct parcels of land as 
 one piece and of offering an entire tract at one time, when a 
 portion of it would be sufificient to satisfy the judgment 
 without detriment to the interests of any of the parties to 
 the suit, has been uniformly condemned by the courts as 
 tending to the sacrifice of the property and to the oppres- 
 sion of the debtor.' 
 
 § 490. Mortgagee or mortgagor dictating order of 
 sale. — In determining the order of sale the question always 
 is, what method of sale will produce the best result. In decid- 
 ing this much necessarily depends upon the circumstances 
 of each particular case. The plaintiff has a right to have his 
 lien protected in the fullest manner possible ; and if the 
 property is of doubtful value, and he acts in good faith 
 and no party in interest is willing to furnish him additional 
 security, he may properly be allowed to designate the 
 manner in which the sale shall be made.* But where the 
 land is ample security, the desires and preferences of the 
 owner of the equity of redemption will be entitled to 
 the fullest consideration from the referee or officer making 
 the sale.* 
 
 In King v. Piatt,' the decree of foreclosure directed 
 the sale of certain lots in New York city ; the defendant 
 mortgagor presented a written request to the referee to have 
 the corner lot, which was the most valuable, sold first ; the 
 
 > See Wood v. Monell, 1 Johns. * Griswold v. Fowler, 24 Barb. 
 
 Ch. (N. Y.) 503 (1815). (N. Y.) 135 (1857) ; Brown v. Frost, 
 
 'Griffith V. Hadley, 10 Bosw. Hoff. Ch. (N. Y.) 41, 43 (1839). 
 
 (N.Y.) 587 (1862). See Cunningnam -i Walworth v. Farmers' Loan «& 
 
 V. Cassidy,17N. Y. 276 (1858) ; s. c. Trust Co., 4 Sandf. Ch. (N. Y.) 51 
 
 7 Abb. (N. Y.) Pr. 183^ Jackson (1846). SeeEllsworth v. Lockwood, 
 
 V. Newton, 18 Johns. (K Y.) 355, 43 N. Y. 89 (1870). 
 
 363(1830); Tiernan v. Wilson, 6 * 37 N. Y. 155(1867) ; s. c. 3 Abb. 
 
 Johns. Ch. (N. Y.) 411, 414 (1833) ; (N. Y.) Pr. N. S. 434 ; 35 How. (N. 
 
 "Wood V. Monell, 1 Johns. Ch. (K Y.) Pr. 23. 
 T.) 503 (1815). 
 
 (33)
 
 594 MOETGAGOE DICTATLNG ORDER OF SALE. [§491. 
 
 referee disregarded this request and directed the sale to 
 proceed in a different manner. It appearing that the request 
 was made in good faith and in the belief that it would 
 increase the amount realized from the sale of the property, 
 and no satisfactory reason for denying the request being 
 shown by the referee, the sale was set aside and a resale 
 ordered. 
 
 The mortgagee can only demand that the usual terms of 
 sale as to the time of the payment of the purchase money, 
 or so much thereof as is necessary to discharge his debt and 
 the costs of suit, be not departed from without special 
 reasons.* 
 
 And it has been held, where a party directly interested in 
 the price which the property to be sold should bring, makes 
 a reasonable request as to the order in which the parcels 
 shall be sold, with a view of enhancing the price for which 
 the property may sell, and the request is disregarded without 
 an apparently good cause, that the court will be justified in 
 setting the proceedings aside and in ordering a new sale ;* 
 and in a case where the mortgaged premises, which were 
 clearly worth more than the mortgage debt and the costs of 
 the suit, had been laid out into city lots, the decree of fore- 
 closure and sale allowed the owners of the equity of redemp- 
 tion to direct the order in which the lots should be sold.' 
 
 § 491. Discretion of officer as to selling in parcels. — 
 
 The provisions of the Code of Civil Procedure leave the 
 question as to whether the mortgaged premises shall be 
 sold as a whole, or in parcels, in the discretion of the officer 
 making such sale, in case the court does not in the decree, 
 direct the manner in which the sale shall be made. In some 
 cases the facts will be such that the officer will be called 
 upon to exercise a discretion, which is judicial in its nature,* 
 in which case an honest exercise of that discretion will be as 
 
 " Brown v. Frost, Hoff. Ch. (N. » Walworth v. Farmers' Loan «& 
 
 T.) 41 (1839) ; Vandercook v. Co- Trust Co.,"4 Sandf. Ch. (N, Y.) 51 
 
 hoe's Savings Institute, 5 Hun (N. (1846). 
 
 T.) 641 (1875). '•Where the decree directs the 
 
 • King V. Piatt, 37 N. T. 155 referee or officer making the sale, ta 
 
 (1867). inquire and ascertain in what order
 
 §491.] DISCRETION OF EEFEREE SALE IN PAEOELS. 595 
 
 final as the action of any judicial tribunal.' In those cases 
 in which it is proper for the officer making the sale, to 
 determine whether the property shall be sold in parcels, 
 it seems that the parties to the action are entitled to what- 
 ever possible benefit might follow from the judicious 
 exercise of that discretion.' And it seems that where the 
 officer making the sale, instead of exercising his discretion, 
 relies upon the purchaser for his information, the sale may 
 be treated as invalid.* 
 
 Thus, it has been held where the mortgaged premises 
 are contiguous and adjoining and appear always to have 
 been controlled by a single person, that it is in the sound 
 discretion of the referee conducting the sale of such premises 
 on a mortgage foreclosure to sell the same in one piece or in 
 parcels, and that the careful and honest exercise of such 
 discretion will not be disturbed by the court directing the 
 sale.* 
 
 Whether the property on a mortgage foreclosure sale is 
 to be sold as an entirety or in parcels, is in some cases 
 determined by the court — generally through a referee — while 
 in other cases it is left to the discretion of the officer 
 making the sale. When the method of sale is determined 
 by the court, the order of sale sometimes directs the form 
 and manner of the division of the property, and designates 
 the order in which the parcels shall be offered for sale.* 
 
 The order of the sale may be based upon the facts shown 
 at the hearing, or upon the consent of the parties ;' and 
 
 the different parcels of the mortgaged (1873); Russell v. Conn, 20 N. Y. 83 
 
 premises should be sold under the de- (1859). 
 
 cree, in order to protect the equitable * O'Donnell v. Lindsay, 39 N. Y. 
 
 rights of the several persons claiming Supr. Ct. (7 J. & 8.) 523, 530 (1873). 
 
 to have interests therein, or liens on * Whitbeck v. Rowe, 25 How. (N. 
 
 the respective parcels, such referee Y.) Pr. 403 (1862). See Waldo v. 
 
 or other officer, in determining this Williams, 3 111, (2 Scam.) 470 (1840); 
 
 question, acts as a quasi judge of Benton v. Wood, 17 Ind. 260 (1861) ; 
 
 the court. Snyder v. Stafford, 11 White v. Watts, 18 Iowa, 74 (1864) ; 
 
 Paige Ch. (IST. Y.) 71 (1844). Lay v. Gibbons, 14 Iowa, 377 (1862). 
 
 1 O'Donnell v. Lindsay, 39 N. Y. » Bard v. Steele, 3 How. (N. Y.) 
 
 Supr. Ct. (7 J. & S.) 529 (1873). Pr. 110 (1847); Cissna v. Haines, 18 
 
 » O'Donnell v. Lindsay, 39 K Y. Ind. 496 (1862) ; Brugh v. Darst, 16 
 
 Supr. a. (7 J. & S. ) 523, 530 Ind. 79 (1861).
 
 596 SUBDIVIDING AFTER MORTGAGING. [§ 492. 
 
 where an order is once made, it will not be disturbed without 
 good cause therefor being first shown.' Where the statute 
 directs that only so much of the mortgaged premises shall 
 be sold as will pay the amount due to the plaintiff and the 
 costs of the suit, if a division of the property into parcels is 
 possible, the statute will control the case,' the court being 
 required simply to determine whether the property can be 
 subdivided without injury to the parties in interest. 
 
 § 492. Sale of premises subdivided into lots after 
 execution of mortgage, — Where lands have been mortgaged 
 as an undivided tract or parcel, and are subsequently cut 
 up into lots for the convenient occupation of the mort- 
 gagor, or for the purpose of sale, the mortgagor will have 
 no right upon foreclosure to insist that the mortgagee shall 
 sell the premises in lots, according to the map, instead of 
 selling the whole as one undivided tract according to the 
 description contained in the mortgage,' because by the terms 
 of the mortgage the w^hole premises are pledged for the 
 , payment of the mortgage debt, and the contract of 
 ithe parties is, that in case of non-payment, the whole land 
 I shall be sold ; and no court has any power to alter or impair 
 that contract in any particular, or to direct that only a part 
 of the land shall be sold, and that the remainder shall be given 
 laway or dedicated to the public. The mortgagor can not, 
 by laying out the mortgaged premises in village lots, bounded 
 upon and intersected by streets, withdraw from the lien of 
 the mortgage the land included in the streets.* 
 
 « Cord V. Southwell, 15 Wis. 211 v. Lockwood, 43 K Y. 89 (1870) ; 
 
 (1862). Lane v. Conger, 10 Hun (N. Y.) 1 
 
 ' Vaughn v. Nims, 36 Mich. 297 (1877) ; Ellsworth v. Lockwood, 9 
 
 (1877). Hun (N. Y.) 548 (1877). 
 
 * Bank of Ogdensburg v. Arnold, * Griswold v. Fowler, 24 Barb. 
 
 5 Paige Ch. (N. Y.) 38 (1835). (N. Y.) 135 (1857) ; s. c. 4 Abb. (N. 
 
 » Griswold v. Fowler, 24 Barb. Y.) Pr. 238. See Hubbell v. Sibley, 
 
 (N. Y.) 135 (1857) ; 8. c. 4 Abb. 5 Lans. (N. Y.) 51 (1871) ; Lane v. 
 
 (N. Y.) Pr. 238; Lamerson v. Conger, 10 Hun (N. Y.) 1 (1877); 
 
 Marvin, 8 Barb. (N. Y.) 9 (1850) ; Ellsworth v. Lockwood, 9 Hun (N. 
 
 Hubbell V. Sibley. 5 Lans. (N. Y.) Y.) 548 (1877). 
 51 (1871), distinguishing Ellsworth
 
 §§ 493-494.] SALE OF molety — tenants. 597 
 
 § 493. Sale of moiety— Land held by tenants in com- 
 mon. — Where land is held by tenants in common, and they 
 unite in executing a joint mortgage to secure a joint and 
 several debt, one of them can not compel the mortgagee to 
 receive half the debt and to proceed against his co-tenant's 
 moiety for the collection of the other half of the mortgage 
 debt ; and this is true, notwithstanding he may tender a suffi- 
 cient bond of indemnity against eventual loss. And on a 
 foreclosure of the mortgage against both mortgagors, 
 a decree will not be made for a sale of the undivided moieties 
 separately for the respective half parts of the debt.' 
 
 But it seems that where tenants in common mortgage 
 their land for a joint debt and afterwards make a partition 
 of the land, each half will be chargeable primarily with one- 
 half of the debt and one-half of the costs of the suit.* This 
 is presumably on the principle that equity will require each 
 portion of the mortgaged premises to bear its own propor- 
 tion of the mortgage debt. 
 
 Where the owner of an undivided half of real estate mort- 
 gaged the same, and the land was afterwards partitioned, 
 it was held that the portion of the land set off to the mort- 
 gagor must first be sold. In such a case, where the officer 
 making the sale was tendered the whole amount of the debt 
 and costs, for which sale was directed to be made of the 
 undivided half set off to the mortgagor, but refused such bid 
 and sold the whole mortgaged premises, the court set the 
 sale aside.* The equitable effect of the sale of an undivided 
 one-half of mortgaged premises by the mortgagor, and the 
 payment of the purchase money to him, is to cast the burden 
 of the payment of the mortgage debt primarily on the 
 remaining half, if that is sufficient to pay the incumbrance.* 
 
 § 494. Sale in parcels when only part of mortgage 
 due. — The Code of Civil Procedure provides that where a 
 part only of the mortgage debt has become due, and the 
 
 • Frost V. Frost, 8 Sandf . Ch. (N. » Quaw v. Lameraux, 36 Wis. 626 
 T.) 188 (1846). (1875). 
 
 • Rathbone v. Clarke, 9 Paige Ch. * Schrack v. Shriner, 100 Pa. St 
 (N. Y.) 648 (1842). 451 (1882).
 
 598 SALE WHEN PAET OF MOETGAGE DUE. [§494. 
 
 mortgaged property is so situated that it can be sold in 
 parcels without injury to the interests of the parties, the 
 final judgment must direct that no more of the property be 
 sold, in the first place, than will be sufficient to satisfy the 
 sum due with the costs and expenses of the sale.* The fact 
 that the premises are a meager security for the debt and are 
 depreciating in value for want of proper care, will not 
 justify a sale of the entire premises for a debt, only a portion 
 of which is due.' It seems that under such circumstances, 
 in order to secure a sale of the whole property, it is necessary 
 that it should be alleged in the pleadings and decided by the 
 court that the premises can not be divided without manifest 
 injury to the parties concerned.' If a part only of the debt 
 is due and the premises are so situated that they can not be 
 divided, the whole premises should be directed to be sold * 
 and the decree should provide for the payment of the money 
 to the mortgagee for the extinction of the debt, unless some 
 safe course more beneficial to the mortgagor is suggested to 
 the court.' 
 
 Where there is a sale of the whole premises for an install- 
 ment due, such sale exhausts the remedy of the mortgagee 
 and passes a clear title to the purchaser,' because, as against 
 
 ' N. Y. Code Civ. Proc. § 163G ; v. Redwood, 9 Port. (Ala.) 70, 96 
 
 Long V. Lyons, 54 How. (N. Y.) Pr. (1839). 
 
 129 (1875). See Caufman v. Sayre, * Poweshiek Co. v. Denison, 36 
 
 2 B. Mon. (Ky.) 202 (1841). It has Iowa, 244, 248 (1873) ; s. c. 15 Am. 
 
 been said that where there is no Rep. 521. See Packer v. Rochester 
 
 statutory requirement, a court of & S. R. R. Co., 17 N. Y. 287 (1858), 
 
 equity will order a sale in parcels Holdeq v. Sackett, 12 Abb. (N. Y.) 
 
 ■where the premises consist of differ- Pr. 473 1861) ; Lansing v. Goelett, 
 
 ent tracts, which are together worth 9 Cow. (N. Y.) 346 (1827). See also 
 
 more than the amount secured. Bradford v. Harper, 25 Ala. 387 
 
 Ryerson v. Boorman, 7 K J. Eq. (1854); Kelly v. Payne, 18 Ala. 371 
 
 (3 Halst.) 167, 640 (1849). (1850); Hobby v. Pemberton, Dudley 
 
 "Blazey V. Delius, 74 111. 299 (Ga.)212(1831); Marston v. Marston. 
 
 (1874). 45 Me. 412 (1858) ; Haynes v. Wel- 
 
 2 Blazey v. Delius, 74 111. 299 lington, 25 Me. 458 (1845) ; Brown 
 
 (1874). V. Tyler, 72 Mass. (8 Gray), 135 
 
 * N. Y. Code Civ. Proc. § 1637. (1857) ; s. c. 69 Am. Dec. 239 ; 
 
 « Walker v. Hallctt, 1 Ala. 379, 393 Ritger v. Parker, 62 Mass. (8 Cush.) 
 
 (1840). See Knapp v. Burnham, 11 145 (1851) ; Glower v. Rawlings, 
 
 Paige Ch. (N. Y.) 330 (1844) ; Levert 17 Miss. (9 Smed. & M.) 122 (1847);
 
 § 495.] SALE FOE PAET DUE — ^FUTUEE SALES. 599 
 
 the mortgagee, the presumption is, in all cases, that the 
 property sells for its full value.' In such a case the mortgagee 
 is entitled to retain from the proceeds of the sale enough to 
 satisfy unpaid installments, though not yet due.' Where 
 judgment of foreclosure is rendered upon a mortgage secur- 
 ing both matured and unmatured notes, and the land is 
 ordered to be sold as not divisible, the plaintiff may bid the 
 whole amount due and to become due on the mortgage, 
 besides the costs of the action, and upon paying the costs 
 and simply receipting for the whole amount of the judg- 
 ment, the same will constitute a valid payment. 
 
 § 495. Sale of portion of premises for part of debt 
 due — Failure to pay subsequent installments. — Where a 
 portion of the mortgage debt is not yet due, and the judg- 
 ment directs that so much of the mortgaged premises be 
 sold as will be sufficient to pay the amount then due on the 
 mortgage, with the costs of the suit, and there has been 
 a sale of such separate portion, the judgment will remain in 
 force as a security against any subsequent default. And if 
 there should be a default subsequent to the judgment in the 
 payment of any portion of the interest or any installment of 
 the principal, the court will, upon a proper petition of the 
 plaintiff, due notice having been served upon the parties 
 interested, by further order founded upon the first judgment, 
 direct a sale to be made of so much of the mortgaged prem- 
 ises as will be necessary to satisfy the amount of interest, or 
 the installment of the principal then due, together with the 
 costs of the petition and of the subsequent proceedings there- 
 on. And this proceeding may be repeated as often as a 
 subsequent default is made.* 
 
 Stark V. Mercer, 4 Miss. (3 How.) man v. Ely, 6 "Wis. 244 (1858) ; 
 
 377 (1839) ; Carter v. Walker, 2 Hope v. Booth, 1 Barn. & Ad. 498 
 
 Ohio St. 339 (1853) ; West Branch (1830). 
 
 Bank v. Chester, 11 Pa. St. 282 > Escher v. Simmons, 54 Iowa, 
 
 (1849) ; 8. C. 57 Am. Dec. 547 ; Mc- 269 (1880). 
 
 Call V. Lenox, 9 Serg. & R. (Pa.) « Fowler v. Johnson, 26 Minn. 338 
 
 302 (1823) ; Pierce v. Potter, 7 Watts. (1880). 
 
 (Pa.) 477 (1838) ; Berger v. Hiester, « N. Y. Code Civ. Proc. § 1636. 
 
 6 Whart. (Pa.) 210 (1840) ; Hodson See Malcolm v. Allen, 49 N. Y. 443 
 
 V. Treat, 7 Wis. 263 (1859); Tall- (1872).
 
 600 OEDEELNG SECOND SALE. [§496. 
 
 It would seem that the provisions of the Code of Civil 
 Procedure, relating to a foreclosure sale for installments 
 not due at the commencement of the suit, apply only to 
 the foreclosure of mortgages executed to secure the pay- 
 ment of money by installments, and can not be applied 
 to mortgages conditioned for the performance of covenants 
 other than for the payment of money.' Thus, in an action 
 brought to foreclose a mortgage, conditioned merely for the 
 support of the mortgagee, no relief can be granted for 
 neglect to support after the commencement of the action, 
 except by a new foreclosure, if only a portion of the premises 
 were sold.' 
 
 § 496. Petition for order of second sale — Reference 
 thereon to compute amount due. — Where a portion of the 
 premises have been sold for an installment due, and there 
 has been a subsequent default, the plaintiff should apply by 
 petition to the court for a subsequent sale of the residue of 
 the premises, or so much thereof as may be necessary to pay 
 the installment or interest then due, besides the costs of the 
 proceeding. Such a petition should bear the title of the action 
 and be addressed to the court in which the judgment of 
 foreclosure was obtained. It should contain all the essential 
 points upon which the previous order for sale was founded, 
 and should recite the judgment, and the continuance thereof 
 as security for subsequent defaults. It should also set forth 
 briefly the facts in the case showing the amount of the 
 installment or interest due, the time when it became due, 
 and other particulars for the full information of the court. 
 It should be verified on the oath of the petitioner and contain 
 a prayer for the relief desired, the same as other petitions. 
 Due notice of application to the court for the second sale 
 should be served upon all the parties interested who have 
 appeared in the action.'' 
 
 If all the parties are adults, and have been personally 
 served, the court will order a second sale on a petition without 
 
 ' Ferguson v. Ferguson, 2 N. Y, ^ Morrison v. IMorrison, 4 Hun 
 
 360 (1849), modifying 3 Barb. Ch. (N. Y.) 410 (1875) ; Ferguson- v. 
 (N. Y.) 616. Ferguson, 2 N. Y. 360 (1849),
 
 § 497.] OEDEB FOR SECOITD SALE. 601 
 
 a reference ; but if any of the defendants are absentees or 
 infants who are not represented in the action, the court will 
 not proceed and order a second sale without a reference. 
 
 The referee will have duties and authority similar to those 
 of a referee appointed to compute the amount due upon an 
 application for judgment on default.' If there are further 
 installments yet to become due, the referee should ascertain 
 whether the premises still remaining unsold can be sold in 
 parcels without prejudice to the interests of the parties. But 
 where, upon a bill for the foreclosure of a mortgage payable 
 by installments, some of which were not due and payable at 
 the time of granting the decree of sale, the referee appointed 
 by the court upon the first reference, reported that the prem- 
 ises could not be sold in parcels, it seems that it will not be 
 necessary to obtain another report upon that subject pre- 
 vious to obtaining a second order of sale to pay installments 
 which have become due subsequently to the decree.' 
 
 § 497. Order for second sale. — If there has been a 
 second reference, on the coming in of the referee's report, 
 the order for a second sale will follow as a matter of course, 
 as under the original order of reference, and the manner of 
 conducting the sale will be the same. The second order 
 of sale should refer to, and be founded upon the first 
 judgment, and should in a similar manner direct the sale of 
 the mortgaged premises, or so much thereof as will be 
 necessary to satisfy the amount due, besides costs, and the 
 payment of the same to the petitioner ; it should also contain 
 all the other essential requisites of a judgrrient in fore- 
 closure. 
 
 The report of the referee to compute the amount due, 
 must be filed and confirmed before the plaintiff will be 
 entitled to apply for an order of sale founded upon it. In 
 those cases where any of the defendants attend before the 
 referee and contest the reference, the order of the court, 
 together with the petition and the report of the referee upon 
 
 » Knapp V. Burnham, 11 Paige Ch. (N. T.) 330 (1844). 
 » Knapp V. Bumham, 11 Paige Ch. (N. T.) 330 (1844). 
 » Knapp V. Burnham, 11 Paige Ch. (N. Y.) 330 (1844).
 
 602 SALE STAYED BY PAYMENT. [§ 498. 
 
 which it was founded, and all the other orders and papers 
 in the proceedings must be filed before applying for an order 
 of sale.' 
 
 § 498. Where proceedings stayed by payment— Sub- 
 sequent default. — The New York Code of Civil Procedure 
 provides," where an action is brought to foreclose a mortgage 
 upon real property, upon which a portion of the principal 
 or interest is due, and a portion of either is to become due, 
 and after a final judgment directing a sale is rendered, 
 but before the sale is made, that if the defendant pays into 
 court the amount due for principal and interest, and the 
 costs of the action, together with the expenses of the pro- 
 ceedings to sell, if any, all proceedings upon the judgment 
 must be stayed ; but that upon a subsequent default in the 
 payment of principal or interest, the court may make an 
 order directing the enforcement of the judgment for the 
 purpose of collecting the sum then due. 
 
 If after such stay, the defendant makes default in the 
 payment of any subsequent installment of principal or 
 interest when it becomes due, the plaintiff may apply to the 
 court upon petition, setting forth the default subsequent to 
 the judgment, the amount due on the mortgage, and the 
 time when it became due, and ask that leave be granted 
 to enforce his judgment by a sale of the mortgaged premises. 
 
 The application must be made to the court upon due 
 notice to all parties who have appeared in the action ; all 
 the proceedings are substantially the same as those in the 
 case of a failure to pay subsequent installments, where a por- 
 tion of the premises have been sold to pay an installment 
 due, except that a reference in this case is not necessary, as 
 the judgment fixes the rights of the parties ; if the facts are 
 not disputed, the order follows as a matter of course.' 
 
 » Knapp V. Burnham, 31 Paige Ch. (N. Y.) 330 (1844). 
 • N. Y. Code Civ. Proc. § 1634, 1635. 
 » N. Y. Code Civ. Proc. § 1635.
 
 CHAPTER XXIV. 
 
 SALE IN INVERSE ORDER OF ALIENATION. 
 
 GENERAL RULE-DETERMINING ORDER OF SALE-COURT DIRECTING 
 
 ORDER-EQUITABLE RIGHTS BETWEEN SUBSEQUENT GRANTEES 
 
 AND LIENORS. 
 
 § 499. Rule for selling in inverse 
 order of alienation. 
 
 500. Rule in Iowa, Kentucky and 
 
 Georgia. 
 
 501. Rule where conveyances by 
 
 grantees of mortgagor. 
 503. Determining order of sale 
 where various grantees — 
 Equities between them. 
 
 503. Directions by court for the 
 
 order of sale. 
 
 504. Application to the court for 
 
 directions. 
 
 505. Equitable rights between sub- 
 
 sequent grantees and lienors. 
 
 506. Equities between grantees — 
 
 Time of acquiring title. 
 
 507. Rights of successive subse- 
 
 quent mortgagees — New 
 Jersey rule. 
 
 508. Rights of purchaser of part 
 
 of mortgaged premises sub- 
 ject to mortgage. 
 
 509. Order of sale in parcels where 
 
 subsequent grantee of part 
 has assumed mortgage. 
 
 510. When rule for sale in inverse 
 
 order does not apply. 
 
 511. Contribution according to 
 
 value — Valuation, when 
 made. 
 
 512. Where the mortgagee has 
 
 other securities and there 
 are subsequent mortgagees. 
 
 513. Rule where portions alienated 
 
 have been released. 
 
 514. Rule for order of sale where 
 
 the mortgage covers home- 
 stead and other lands. 
 
 § 499. Rule for selling in inverse order of alienation. — 
 
 Upon a sale of mortgaged premises in an action for fore- 
 closure, if the mortgagor, subsequent to the execution of 
 the mortgage, has made successive transfers of separate 
 parcels of the mortgaged premises to different persons, that 
 portion, if any, still remaining in his hands, must first be 
 sold to satisfy the mortgage debt and the costs and expenses 
 of the action ; and if a sufificient sum for that purpose is not 
 realized from such sale, then the various portions of the 
 mortgaged lands conveyed by the mortgagor must be sold 
 in the inverse order of their alienation, according to the 
 equitable rights of the different grantees as among themselves, 
 until a sufficient sum is realized to satisfy the mortgage debt. 
 The same principle of equity is applicable to subsequent 
 incumbrances upon different portions of the mortgaged 
 
 603
 
 604 SALE IN LNYERSE ORDER OF ALIENATION. [§ 499. 
 
 premises, either by mortgage or by judgment,' as well as to 
 sales of parcels of the equity of redemption,* because 
 subsequent incumbrances are deemed sales within the rule 
 above stated.* 
 
 This rule has been adopted throughout the states of the 
 Union, and now prevails in New York,* Alabama,* Colo- 
 rado,* Florida,' Illinois,* Indiana,* Maine," Massachusetts," 
 
 ' Bernhardt v. Lymburner, 85 N. 
 Y. 173 (1881) ; Stuy vesant v. Hall, 3 
 Barb. Ch. (N. Y.) 151, 155 (1847) ; 
 New York Life Insurance and Trust 
 Co. V. Milnor, 1 Barb. Ch. (N. Y.) 
 353 (1846) ; Snyder v. Stafford, 11 
 Paige Ch. (N. Y.) 71 (1844) ; Fassett 
 V. Mulock, 5 Colo. 466 (1880) ; 
 Conrad v. Harrison, 3 Leigh (Va.) 
 533 (1833). 
 
 « Steere v, Childs, 15 Huu N. Y. 
 511 (1878) ; Dodds v. Snyder, 44 111. 
 53 (1867). 
 
 2 Milligan's Appeal, 104 Pa. St. 
 508 (1883). See Fassett v. Mulock, 
 5 Colo. 466 (1880). 
 
 * Bernhardt v. Lymburner, 85 N. 
 Y. 173 (1881) ; Hopkins v. Wolley, 
 81 N. Y. 77 (1880) ; Barnes v. Mott, 
 64 N. Y. 397. 403 (1876) ; Chapman 
 V. West, 17 N. Y. 135 (1858) ; In- 
 galls V. Morgan, 10 N. Y. 178 (1854); 
 Howard Ins. Co. v. Halsey, 8 N. Y. 
 271 (1853) ; s. c. 59 Am. Dec. 478 : 
 Crafts V. Aspinwall, 3 N. Y. 389 
 (1849); McDonald v. Whitney, 3 
 N. Y. Week. Dig. 529 (1876); 
 Woods V. Spalding, 45 Barb. (N. Y.) 
 608 (1866); Lafarge Fire Ins. Co. 
 V. Bell, 33 Barb. (N. Y.) 54 (1856) ; 
 St. John V. Bumpstead, 17 Barb. 
 (N. Y.) 103 (1853) ; Weaver v. 
 Toogood, 1 Barb. (N. Y.) 338 (1847) ; 
 Ferguson v. Kimball, 3 Barb. Ch. 
 (N. Y.) 616 (1846); Stuyvesant v. 
 Hall. 3 Barb. Ch. (N. Y.) 151 (1847); 
 New York Life Ins. & Trust Co. v, 
 Milnor, 1 Barb. Ch. (N. Y.) 353 
 (1846) ; Ex parte Merrian, 4 Den. 
 
 (N. Y.) 354 (1847); VanSlyke v. 
 VanLoan, 36 Hun (N. Y.) 344 
 (1882) ; Coles v. Appleby, 22 Hun 
 (N. Y.) 73 (1880) ; Steere v. Childs, 
 15 Hun (N. Y.) 518 (1878) ; Clowes 
 V. Dickenson, 5 Johns. Ch. (N. Y.) 
 335 (1837) ; 8. c. 9 Cow. (N. Y.) 
 403; Gill v. Lyon, 1 Johns. Ch. 
 (N. Y.) 447 (1815); Kellogg v. Rand. 
 11 Paige Ch. (N. Y.) 59 (1844) ; 
 Rathbone v. Clark, 9 Paige Ch. (N. 
 Y.) 648 (1843) ; Schryver v. TeUer, 
 9 Paige Ch. (N. Y. ) 173 (1841); 
 Farmers' Loan & Trust Co. v. 
 Maltby, 8 Paige Ch. (N. Y.) 361 
 (1840) ; Patty v. Pease, 8 Paige Ch. 
 (K Y.)377 (1840) ; 8. c. 35 Am. Dec. 
 683 ; Skeel v. Spraker. 8 Paige Ch. 
 (K Y.) 183 (1840) ; Guion v. Knapp, 
 6 Paige Ch. (N. Y.) 35 (1836) ; s. c. 
 29 Am. Dec. 741 ; Jenkins v. Freyer, 
 4 Paige Ch. (N. Y.) 47 (1833) ; Gou- 
 verneur v. Lynch, 3 Paige Ch. (N. 
 Y.) 300 (1830) ; James v. Hubbard, 
 1 Paige Ch. (N. Y.) 228(1828) ; New 
 York Life Ins. & Trust Co. v. Cut- 
 ler, 3 Sandf. Ch. (N. Y.) 176 (1845). 
 
 » Mobile M. D. & M. Ins. Co. v. 
 Huder, 35 Ala. 713 (1860). 
 
 « Fassett v. Mulock, 5 Colo. 466 
 (1880). 
 
 ' Ritch V. Eichelberger 13 Fla. 
 169 (1869). 
 
 •Niles V. Harmon, 80 111. 396 
 (1875) ; Moore v. Chandler, 59 111. 
 466 (1871); Sumner v. Waugh, 56 
 111. 531 (1869) ; Tompkin v. Wiltber- 
 ger, 56 111. 385 (1870) ; Lock v. Ful- 
 ford, 52 Bl 166 (1869) ; Dodds y.
 
 § 499.] SALE LN INVERSE OEDER OF ALIEXATION'. 
 
 605 
 
 Michigan,' Minnesota,* New Hampshire,' New Jersey,* Ohio,' 
 Pennsylvania," South Carohna/ Texas,' Vermont," Virginia," 
 
 Snyder, 44 HI. 53 (1867); Iglehart 
 V. Crane, 42 111. 261 (1866) ; Matte- 
 son V. Thomas, 41 111. 110 (1866) ; 
 McLaurie v. Thomas, 39 111. 291 
 ,(1866) ; Marshall v. Moore, 36 HI, 
 321 (1865). 
 
 • Evansville Gas Light Co. v. 
 State, 73 Ind. 219 (1881) ; Medsker 
 V. Parker, 70 Ind. 509 (1880); Mc 
 Cullum V. Turpie, 32 Ind. 146 
 (1869); Aiken v. Bruen, 21 Ind. 137 
 (1863) ; Williams v. Perry, 20 Ind. 
 437 (1863) ; Cissna v. Haines, 18 Ind. 
 496(1842) ; Day v. Patterson, 18 Ind. 
 114(1862). 
 
 " Sheperd v. Adams, 32 Me. 63 
 (1850) ; Holden v. Pike, 24 Me. 427 
 (1844). 
 
 " Beard v. Fitzgerald, 105 Mass. 
 134 (1870) ; Pike v. Goodnow, 94 
 Mass. (12 Allen), 474(1866) ; George 
 v. Wood, 91 Mass. (9 Allen), 80 
 (1864) ; Kilbom v. Robbins, 90 Mass. 
 ►(8 Allen), 466 (1864) ; George v. 
 Kent, 89 Mass. (7 Allen), 16 (1863) ; 
 Chase v. Woodbury, 60 Mass. (6 
 Cush.) 143 (1850) ; Allen v. Clark, 
 34 Mass. (17 Pick.) 47 (1835). But 
 see Parkman v. Welch, 36 Mass, 
 (19 Pick.) 231 (1837). 
 
 ' McVeigh v, Sherwood, 47 Mich. 
 645 (1882); Sager v. Tupper, 35 
 Mich. 134 (1876) ; McKinney v. Mil- 
 ler, 19 Mich. 142 (1869); Ireland v. 
 Woolman, 15 Mich. 253 (1867); 
 Cooper V. Bigly, 13 Mich. 463 
 <1865) ; Briggs v. Kaufman, 2 Mich. 
 N. P. 160 (1871) ; Mason v. Payne, 
 Walk. Ch. (Mich.) 459 (1844). 
 
 ' Johnson v. Williams, 4 Minn. 
 260, 268 (1860). 
 
 » Mahagan v. Mead, 63 N. H. 570 
 (1885) ; Brown v. Simons, 44 N. H. 
 475 (1863). 
 
 * HiU V. McCarter, 27 N. J. Eq. 
 
 (12 C. E. Gr.) 41 (1876); Mutual L. 
 Ins. Co. of N. T. V. Boughrum, 24 
 N. J. Eq. (9 C. E. Gr.) 44 (1873) ; 
 Mount V. Potts, 23 N. J. Eq. (8 C. 
 E. Gr.) 188 (1872); Weatherby v. 
 Slack, 16 N. J. Eq. (1 C. E. Gr.)491 
 (1864) ; Keene v. Munn, 16 N. J. 
 Eq. (1 C. E. Gr.) 398 (1863) ; Gaskill 
 V. Sine, 13 N. J. Eq. (2 Beas.) 400 
 (1861) ; s. c. 78 Am. Dec. 105 ; Win- 
 ters V. Henderson, 6 N. J. Eq. (2 
 Halst.) 31 (1846) ; Wikoff v. Davis, 
 4 N. J. Eq. (3 H. W. Gr.) 224 (1842); 
 Britton v. Updike, 3 N. J. Eq. (2 H. 
 W. Gr.) 125 (1834); Shannon v. 
 Marselis, 1 N. J. Eq. (Saxt.) 413 
 (1831). 
 
 ' Stemberger v. Hanna, 42 Ohio 
 St. 305 (1884) ; Nellons v. Truax, 6 
 Ohio St. 97 (1856) ; Gary v. Folsom, 
 14 Ohio, 365 (1846) ; Commercial 
 Bank of Lake Erie v. Western 
 Reserve Bank, 11 Ohio, -J 44 (1842) ; 
 s. c. 38 Am. Dec. 789. But see 
 Green v. Ramage, 18 Ohio, 428 
 (1849); 3. c. 51 Am. Dec. 458. 
 
 «Milligan's Appeal, 104 Pa. St. 
 503 (1883) ; Carpenter v. Koons, 20 
 Pa. St. 222 (1852) ; Warren v. Sen- 
 nett, 4 Pa. St. 114 (1846) ; Cowden's 
 Estate, 1 Pa. St. 267 (1845) ; Pres- 
 byterian Corporations v, Wallace, 3 
 Rawle (Pa.) 109 (1831) ; Donley v. 
 Hays, 17 Serg. & R. (Pa.) 400 (1828); 
 Nailer v. Stanley, 10 Serg. & R. 
 (Pa.) 450 (1823); s. c. 13 Am. Dec. 
 691. 
 
 ' Norton v. Lewis, 3 S. C. 25 
 (1871) ; Stoney v. Shultz, 1 Hill (S. 
 C.) Eq. 465 (1834); s. c. 27 Am. 
 Dec. 429 ; Meng v. Houser, 13 Rich, 
 (S. C.) Eq. 210 (1867). 
 
 8 Rippetoe v. Dwyer, 49 Tex. 498 
 (1878); Miller v, Rogers, 49 Tex. 
 398 (1878).
 
 606 
 
 SALE IN INVEESE OEDER OF ALIENATION. [§ 500. 
 
 and Wisconsin.' The same rule also prevails in England.' 
 But a different rule obtains in Iowa, Kentucky and Georgia.* 
 
 § 500. Rule in Iowa, Kentucky and Georgia.— The 
 
 courts of Iowa, Kentucky and Georgia hold, contrary to the 
 general rule above stated, that where several parts of a 
 mortgaged estate are conveyed in distinct parcels to differ- 
 ent persons, at different times, the several owners must 
 contribute to the payment of the mortgage debt pro rata, 
 according to the value of their respective portions of the 
 property.* 
 
 The supreme court of Iowa, in stating the arguments in 
 favor of this rule in Bates v. Ruddick,^ said : *' When we come 
 to settle the question, however, as between two grantees 
 purchasing the different parcels of the incumbered premises, 
 nt different times, there is no more moral obligation on 
 the one to pay than on the other. Both of them have 
 purchased premises that are alike affected by a lien, which 
 neither created nor undertook to pay. The purchased 
 premises are liable to be sold, because of the failure of their 
 grantor to discharge his undertaking, and not because of 
 any failure on their part. In such cases their interest is 
 common, their rights are equal and there should be an 
 
 » Eoot V. Collins, 34 Vt. 173 (1861); 
 Lyman v. Lyman, 32 Vt. 79 (1859). 
 
 '0 Jones V. Myrlck, 8 Gratt. (Va.) 
 179 (1851); Henkle v. Allstadt, 4 
 Gratt. (Va.) 284 (1848) ; Conrad v. 
 Harrison, 3 Leigh. (Va.) 532 (1832). 
 
 ' Aiken v. Milwaukee & St, P. R. 
 Co.. 37 Wis. 469 (1875); State of 
 "Wisconsin v. Titus, 17 Wis. 241 
 (1863) ; Worth v. Hill, 14 Wis. 559 
 (1861); Ogden v. Glidden, 9 Wis. 
 46 (1859). 
 
 » See Hartley v. O'Flaherty, 
 Lloyd & Goold Cas. Temp. Plun- 
 kett, 208 (1835) ; Averall v. Wade, 
 Lloyd & Goold Cas. Temp. Suyden, 
 252 (1836); Hamilton v. Royse, 2 
 Sch. & Lef. 315 (1806). But see 
 Barnes v. Racster, 1 Young & C. 
 C. R. 401 (1842). 
 
 « See vost § 500. 
 
 < Huff V. Farewell, 67 Iowa, 298 
 (1885) ; Barney v. Myers, 28 Iowa, 
 472 (1870); Griffith v. Lovell, 26 
 Iowa, 226 (1868) ; Massie v. Wilson, 
 16 Iowa, 391 (1864) ; Bates v. Rud- 
 dick, 2 Iowa, 423 (1856) ; s. c. 65 
 Am. Dec. 174 ; Campbell v. John- 
 son, 4 Dana (Ky, ) 182 (1836); 
 Hughes V. Graves, 1 Litt. (Ky.) 317 
 (1822) ; Poston v. Eubanks, 3 J. J. 
 Marsh. (Ky.) 44 (1829) ; Dickey v. 
 Thompson, 8 B. Mon. (Ky.) 312 
 (1848); Burk v. Chrisman, 3 B. 
 Mon. (Ky.) 50 (1842); Hunt v. 
 McConnell, 1 T. B. Mon. (Ky.) 219 
 (1824). See also Stanly v. Stocks, 
 1 Dev. (N. C.)Eq. 314(1829); Borden 
 V. Grady, 37 Ga. 660 (1868). 
 
 » 2 Iowa, 423 (1856).
 
 § 501.] EXTLE SALES BY GEANTEES OF MOETGAGOE. 607 
 
 equality of burden. It is difficult for us to see why the last 
 purchaser, any more than the first, sits in the seat of the 
 grantor." 
 
 In Kentucky, in the case of Dickey v. Thompson,' Chief 
 Justice Marshall held it to be decided by authority, even if not 
 by reason, so far as that state is concerned, that the rule as 
 to the application of property to the satisfaction of a 
 mortgage in the inverse order of its transfer by the mort- 
 gagor, does not prevail, but that the transferees must 
 contribute ratably. 
 
 In Barden v. Grady,* the supreme court of Georgia held 
 that, inasmuch as a judgment binds all the property of the 
 defendant from its date, equity will not compel the plaintiff 
 to levy on that portion of the property last sold by the 
 mortgagor, and sell that part, before he can proceed against 
 property previously sold. 
 
 § 501. Rule where conveyances by grantees of mort- 
 gagor. — The rule, that if successive sales of portions of 
 mortgaged lands are made by the mortgagor to different 
 persons, the part unsold shall first be liable to satisfy the 
 mortgage debt, and after it, the parcels alienated in 
 the inverse order of the sales, applies also to successive 
 conveyances with warranty by the mortgagor's grantees.' 
 Thus, where the grantee of a mortgagor conveys the mort- 
 gaged premises in separate parcels, and the grantees of such 
 parcels subsequently convey them in parcels, the parcels 
 subsequently conveyed will be subject to sale in the invers'a 
 order of their conveyance.* 
 
 The same rule applies where there are general liens upon 
 the entire mortgaged premises and subsequent incumbrances 
 on separate parcels thereof, in which case the general liens 
 are primarily chargeable on the parcels in the inverse order 
 of the dates of the subsequent incumbrances.* This rule. 
 
 » 8 B. Mon. (Ky.) 312, 319 (1847). » Mahagan v. Mead, 63 N. H. 570 
 
 •37 Ga. 660 (1868), overruling (1885). 
 
 Gumming v. Gumming, 3 Ga. 460 < Hiles v. Goult, 30 N. J. Eq. (3 
 
 (1847). See Knowles v. Lawton, 18 Stew.) 40 (1878), See Guion v. 
 
 Ga. 476 (1855); Hammond v. Myrick, Knapp, 6 Paige Ch. (N. Y.) 35 (1836). 
 
 14 Ga, 77 (1858). » Schry ver v. Teller, 9 Paige Ch.
 
 60S OfiDEK OF SALE VAEIOUS GllANTEES. [§502. 
 
 however, will not be enforced in any case where its applica- 
 tion would work injustice to any party.' 
 
 § 502. Determining order of sale where various gran- 
 tees — Equities between them. — In a contest between 
 successive purchasers as to whose premises shall be sold 
 first to pay the mortgage debt, the order of sale will be 
 determined prima facie by the dates when their respective 
 titles vested; but the holder of a junior conveyance may 
 show that, prior to the execution and delivery of the senior 
 conveyance, he was in the actual and open possession of 
 the parcel of land purchased by him, under a contract 
 of sale, and that he had so far performed his part of the con- 
 tract as to be entitled to a specific performance thereof prior 
 to the date of the record title held by a senior grantee.' The 
 rule providing for the sale of parcels of mortgaged premises 
 in the inverse order in which the conveyances thereof were 
 made, has been said to rest upon the principle, that where 
 the mortgagor sells a part of the mortgaged premises with- 
 out reference to the incumbrance, it is right between 
 him and the purchaser, that the part still held by the 
 mortgagor should first be applied to the payment of the debt.* 
 
 The supreme court of Illinois* has held, that "where the 
 owner of land mortgaged conveys a portion of it with 
 warranty, it is his duty to protect the grantee against the 
 mortgage; and, in foreclosing the mortgage, it is just and 
 right that it should be satisfied, if may be, out of the 
 portion of the land which remains in the mortgagor, and 
 that it should be first charged with the debt. This protects 
 the interest of the purchaser of the part, and makes the 
 
 (N. Y.) 173 (1841). See Stuyvesant (1861) ; s. c. 78 Am. Dec. 105 ; 
 
 V. Hall, 2 Barb. Ch. (N. Y.) 151 Messervey v. Barelll, 2 Hill (S. C.) 
 
 (1847). Eq. 567 (1837). See Dickey v. 
 
 > Hill V. McCarter, 27 N. J. Eq. Thompson, 8 B. Mon. (Ky.) 314 
 
 (12 C. E. Gr.) 41 (1876). (1847) ; Blight v. Banks, 6 T. B. 
 
 « Sternberger v. Hanna, 42 Ohio Mon. (Ky.) 197 (1827) ; s. c. 17 Am. 
 
 St. 305 (1884). Dec. 136 ; Blackledge v. Nelson, 2 
 
 » Lock V. Fulford, 52 111. 166 Dev. (N. C.) Eq. 66 (1831); Me^vey's 
 
 (1869) ; Hoy v. Bramhall. 19 N. J. Appeal, 4 Pa. St. 80 (1846). 
 
 Eq. (4 C. E. Gr.) 563 (1868) ; Gaskill * Niles v. Harmon, 80 111. 396, 
 
 V. Sine, 13 N, J. Eq. (2 Beas.) 400 399 (1879).
 
 § 503.] OEDER OF SALE — VAEIOUS GRANTEES. 609 
 
 mortgagor but pay his own debt out of his own land. It 
 saves such purchaser from loss and injury, and does no 
 harm to any one else. And should the mortgagor convey 
 the portion remaining in him to a second purchaser, he 
 takes the land as it was in the hands of the mortgagor, 
 subject to the equity of being first charged with the pay- 
 ment of the mortgage debt, and it is thus equitable that the 
 portion of the land held by the second purchaser should 
 first be sold for the satisfaction of the debt, before resort is 
 had to the land of the first purchaser." 
 
 The portion of the mortgaged premises retained by the 
 mortgagor, being regarded as equitably charged with the 
 payment of the debt, if the mortgagor afterwards sells 
 another parcel thereof, the second purchaser will take his 
 parcel charged with the payment of the mortgage debt, 
 as between him and the purchaser of the first lot ; but as 
 between such second purchaser and his vendor, the land still 
 retained by the mortgagor will be primarily liable for the 
 payment of the whole debt. The same principle will apply 
 to every successive alienation throughout the entire order 
 thereof.* 
 
 Where it has been established by statutory enactment, or 
 by the decisions of the courts, in the case of the sale of mort- 
 gaged premises on foreclosure, where portions thereof have 
 been sold by the mortgagor at various times subsequent to the 
 execution of the mortgage, that the parcels shall be subject 
 to sale in the inverse order of their alienation, it is held that 
 this rule, being a rule of property, is binding on the courts 
 of the United States sitting in that state.* 
 
 § 503. Directions by court for the order of sale. — If the 
 
 original mortgagor or his grantee has made several successive 
 conveyances of portions of the mortgaged premises, to dif- 
 ferent persons, the court, upon judgment of foreclosure and 
 
 1 Iglehart v. Crane, 43 111. 261 Gr.) 491 (18G4) ; Wikofl v. Davis, 4 
 
 (1866). SeeIngallsv.]Morgan,10N.Y. K J. Eq. (3 H. W. Gr.) 224 (1842). 
 
 178 (1854) ; Thompkins v. Wilkbur- = Orvis v. Powell, 98 U. S. (8 Otto), 
 
 ger, 56 111. 385 (1870) ; Matteson v. 176 (1878) ; bk. 25 L. ed. 238 ; s. c. 8 
 
 Thomas, 41 111. 110 (1866) ; Weatli- Cent. L. J. 74. 
 erby v. Slack, 16 N. J. Eq. (1 C. E.
 
 610 COURT DrRECTLNG OEDER OF SALE. [§503. 
 
 sale, will decree that the parcels shall be sold in the inverse 
 order of their alienation, as shown by the dates of the respec- 
 tive conveyances.* In Erie County Savings Bank v. Roop,* it 
 was held that " courts of equity have long exercised the power 
 of directing, in foreclosure actions, the order in which the 
 different parcels of the mortgaged premises shall be sold, 
 arising out of the equities of the different parties interested 
 in the equity of redemption as between themselves."* This 
 rule is applicable, however, only where the mortgage was 
 originally a lien resting uniformly upon the whole of the 
 land.* 
 
 In granting a decree of foreclosure and for the sale of 
 mortgaged premises, directions as to the order in which the 
 diferent parcels of the mortgaged premises shall be sold, 
 will be given as a matter of course, upon information that 
 separate portions of such premises are held or claimed by 
 different persons under conveyances or incumbrances which 
 are subsequent to the mortgage of the plaintiff.' In a 
 case where, upon judgment of foreclosure and sale, a motion 
 was made for directions as to the manner of selling the 
 mortgaged property, and such directions were given as the 
 equities of the parties required, it was held that no error was 
 committed ; but a motion for such directions can not be first 
 made in an appellate court.* 
 
 In case there are conflicting claims, among junior judg* 
 ment creditors, to the surplus that may arise from the sale 
 of mortgaged premises, should the parcels be sold in any 
 special manner, such creditors should apply to the court, 
 previously to the sale under the decree, for directions that 
 
 > Hart V. Wandle, 50 N. T. 381 Clark, 9 Paige Ch. (N. T.) 648 
 
 (1872). See Erie Co. Sav. Bank v. (1842) ; Jumel v. Jumel, 7 Paige Ch. 
 
 Roop, 48 N. Y. 292 (1872) ; New York (N. Y.) 591 (1839). 
 
 L. Ins. & T. Co. V. Milnor, 1 Barb. * Evansville Gas Light Co. v. 
 
 Ch. (N. Y.) 353 (1846) ; National State State, 73 Ind. 219 (1881). 
 
 Bank v. Hibbard, 45 How. (N. Y.) ' New York L. Ins. & T. Co. v. 
 
 Pr. 280 (1873) ; Evansville Gas Light Milnor, 1 Barb. Ch. (N. Y.) 353 
 
 Co. V. State, 73 Ind. 219 (1881). (1846). 
 
 » 48 N. Y. 292, 299 (1872). • Haggerty v. Byrne, 75 Ind. 499 
 
 •SeeFergusonv, Kimball, 3 Barb. (1881). See Medsker v. Parker. 70 
 
 Ch. (N. Y.) 616 (1846) ; Rathbone v. Ind. 509 (1880).
 
 § 504.] APPLICATION TO COUET FOE DIEECTIONS. 611 
 
 the premises be sold in such manner as will enable them to 
 settle their respective claims upon the reference for the 
 distribution of the surplus. 
 
 § 504. Application to the court for directions. — Where 
 a party to an action brought to foreclose a mortgage and to 
 obtain a sale of the mortgaged premises, desires to have the 
 parcels of such premises sold in a particular order, he should 
 ask to have a clause to that effect inserted in the decree of 
 sale.' An application for directions in the judgment as to 
 the order of sale, should be made at the trial or at a special 
 term of the court ; failure to give directions for such order 
 of sale will not be a sufficient ground for a reversal of the 
 judgment on appeal.* 
 
 If a person wishing a clause inserted in the decree 
 directing the order in which the referee shall sell the prem- 
 ises, neglects to apply to the court at the time the decree 
 is rendered, or at a special term thereafter, he may apply to 
 the referee personally, requesting the sale to be made in a par- 
 ticular order ; and if such request be proper, and is disregarded 
 by the referee without reason, the person aggrieved may, 
 after sale, move to set the same aside.* 
 
 Where an application is made at the trial for the insertion 
 of directions in the decree of sale as to the order in which 
 the parcels shall be sold, the proper form of decree is that 
 the referee or other ofificer making the sale of the mortgaged 
 premises, shall sell the parcels thereof in the inverse order 
 of their alienation, and according to equity as between the 
 several defendants, leaving the officer making the sale to set- 
 tle the details of the order of sale upon principles of equity.* 
 
 It was held in the case of Knickerbacker v. Eggleston,^ 
 that where a controversy exists between different defendants 
 
 ' Vandercook t. Cohoes Savings * Vandercook v. Colioes Savings 
 
 Institution, 5 Hun (N.Y.) 641 (1875); Institution, 5 Hun (N. Y. ) 641 
 
 Bergen v. Backhouse, 7 N. Y. Week. (i'875). 
 
 Dig. 113 (1878). * Rathbone v. Clark, 9 Paige Ch, 
 
 » Bergen v. Backhouse, 7 N. Y. (N. Y.) 648 (1842). 
 
 Week. Dig. 113(1878) ; Vandercook * 3 How. (N. Y.) Pr. 130 (1847). 
 V. Cohoes Savings Institution, 5 Hun 
 (N.Y.) 641 (1875).
 
 612 RIGHTS OF JUNIOR LIENORS. [§ 505. 
 
 in relation to the order in which the several portions of the 
 mortgaged premises shall be sold, instead of directing 
 a reference preHminary to the decree to settle the order of 
 the sale of the different parcels, a provision should be inserted 
 in the decree of sale referring it to some suitable person to 
 make the sale, and directing that if it shall appear to such 
 referee that separate parcels of the mortgaged premises have 
 been conveyed or incumbered by the mortgagee, or by those 
 claiming under him subsequent to the lien of the complain- 
 ant's mortgage, then the referee shall sell the mortgaged 
 premises in parcels, in the inverse order of their alienation, 
 according to the equitable rights of the parties who are sub- 
 sequent grantees or incumbrancers, as such rights shall be 
 made to appear to the officer making the sale. 
 
 § 505. Equitable rights between subsequent grantees 
 and lienors. — Where the entire mortgaged premises are to 
 be sold, it can make but little difference which parcel is sold 
 first. The proceeds will go into a common fund and be 
 taken into court to be distributed according to the equitable 
 rights of the parties to the suit.' If apart of the mortgaged 
 premises is incumbered by a second mortgage, and the 
 residue thereof is sold and conveyed absolutely, subsequent 
 to such second mortgage, the part mortgaged should be 
 sold first and the surplus proceeds of that sale, beyond the 
 amount of principal and interest due on the second mort- 
 gage, should be applied in payment of the first mortgage 
 before resorting to the sale of the part of the premises which 
 was conveyed absolutely.' 
 
 The right to have the lands which have been sold by the 
 mortgagor charged on foreclosure with the payment of 
 the mortgage debt in the inverse order of alienation, is 
 not strictly a legal but an equitable right, and is governed 
 by those equitable principles by which courts of equity 
 protect the rights of sureties or those who stand in the 
 relation of sureties.* And the rights and duties of the party 
 
 • Snyder v, Stafford, 11 Paige Ch. » Kellogg v. Rand, 11 Paige Ch. 
 
 (N. Y.) 71 (1844). See Oppenheimer (N. Y.) 59 (1844). 
 V. Walker, 3 Hun (N. Y.) 30 (1874). » Guion v. Knapp, 6 Paige Ch
 
 § 506.] EQUITIES BETWEEN GRANTEES. 613 
 
 who holds the mortgage under foreclosure will not be 
 affected, unless he is informed of the facts upon which the 
 equitable rights of the parties depend, or unless he has sufifi- 
 cient notice of the probable existence of the rights to make 
 it his duty to ascertain whether such equitable rights do, in 
 fact, exist.* 
 
 § 506. Equities between grantees — Time of acquiring. 
 
 — Where subsequent to the execution of a mortgage, the 
 mortgaged premises are sold by the mortgagor in separate 
 parcels at different times to different purchasers, who have 
 no notice of the mortgage, and one of the parties takes a 
 conveyance executed and delivered prior to the giving of 
 a deed to another party, whose later conveyance is first 
 recorded, upon a sale on foreclosure of the mortgage, the 
 purchaser w:hose deed was first executed and delivered will 
 take precedence over the party whose deed was executed 
 last but recorded first, and he will have a prior equity in 
 respect to the order in which the several parcels are to 
 be sold.' 
 
 This rule does not apply, however, in case there has been 
 a condemnation of a part of the mortgaged lands for a 
 public use under the power of eminent domain. Thus, in 
 a case where, after five mortgages had been given on a tract 
 of land, a small strip thereof was condemned and taken for 
 a railroad, and the owner paid therefor, the court held that 
 the decree on foreclosure should order, first, the sale of all 
 the land, except the strip condemned for the railroad, to 
 satisfy, in their order, all five of the mortgages, and in case 
 of a deficiency, then the sale of that strip.* 
 
 (N.T.) 35, 42(1836). See Bernhardt v. v. Pease, 8 Paige Ch. (N. Y.) 277, 
 
 Lymburner, 85 N. Y. 172, 175 (1881). 285 (1840) ; s. c. 35 Am. Dec. 683 ; 
 
 ' Guion V. Knapp, 6 Paige Ch. Stuyvesant v. Hone, 1 Sandf. Ch. 
 
 (N. Y.) 35, 42 (1836). See Colgrove (K Y.) 419. 423 (1844). 
 
 V. Tallman, 67 K Y. 95, 98 (1876) ; » Ellison v. Pecare, 29 Barb. (N. 
 
 Howard Ins. Co. v. Halsey, 8 N. Y. Y.) 333 (1859) ; YanSlyke v. Van 
 
 271,273(1853); Kendall v. Niebuhr, Loan, 26 Hun (N. Y.) 344 (1882); 
 
 45 N. Y. Supr. Ct. (13 J. & S.) 543, Meacham v. Steele, 93 111. 135 (1879j; 
 
 551 (1879) ; s. c. 58 How. (N. Y.) Lausman v. Drahos, 8 Neb. 457 
 
 Pr. 156, 163 ; Stuyvesant v. Hall, (1879). 
 
 2 Barb. Ch. (N. Y.) 151 (1847) ; Patty » Foster v. Union Nat. Bank of
 
 614 EIGHTS OF SUCCESSIVE JUNIOR MORTGAGEES. [§507. 
 
 Where land which has been mortgaged is subsequently- 
 sold in parcels under executions issued upon various judg- 
 ments, upon a foreclosure of the mortgage, the parcels 
 should be liable to sale in the inverse order of the dates 
 when the respective judgments became liens, and not of the 
 dates of the actual sales and the times when the convey- 
 ances were made.* But, it would seem, where the adminis- 
 trator of a deceased mortgagor obtains an order of the 
 probate court for the sale of a portion of the mortgaged 
 premises to pay debts other than those secured by the 
 mortgage, and which have been allowed against the estate, 
 that the residue of the mortgaged premises owned by the 
 heirs of the mortgagor must be first resorted to for the satis- 
 faction of the mortgage, that portion held by the purchaser 
 at an administrator's sale being only secondarily liable.' 
 
 § 507. Rights of successive subsequent mortgagees — 
 New Jersey rule. — It is held in New Jersey that the rule 
 for selling in the inverse order of alienation does not apply 
 to the holders of subsequent mortgages. Thus, where a 
 party holds a second mortgage upon part of the premises 
 embraced in a first mortgage, upon the remaining part 
 whereof another person holds a second mortgage, he will be 
 entitled to have the two parcels sold separately under 
 proceedings to foreclose the first mortgage, if such a sale can 
 be made without prejudice to the rights of the plaintiff ; yet, it 
 the property be sold in such a manner, the proceeds of the 
 sales of the several parcels must pay their just proportion of 
 the amount due on the first mortgage, besides the costs, 
 according to their respective values.* 
 
 And it seems that where the plaintiff's mortgage covers 
 several parcels of land, which have been conveyed by subse- 
 quent incumbrances, the decree of foreclosure of the first 
 mortgage may direct the whole of the property to be sold, 
 and the proceeds to be applied to satisfy the subsequent 
 
 Rahway, 34 N. J. Eq. (7 Stew.) 48 vania. See Carpenter v. Koons, 30 
 
 (1881). Pa. St. 222 (1852). 
 
 ' Wood V. Spalding, 45 Barb. (N. 2]yiooi.evcijaiidler,59 01.466(1871). 
 
 T.) 602 (1866). It would seem that » Pancoast v. Duval, 26 N. J. Eq. 
 
 a different rule prevails in Penusyl- (11 C. E. Gr.) 445 (1875).
 
 § 508.] SALE — SUBJECT TO MORTGAGE. 615 
 
 incumbrances, after payment of the complainant's mortgage, 
 and this may be done, although the complainant's mort- 
 gage be satisfied by the sale of only a part of the prem- 
 ises.* 
 
 Where a part of the mortgaged premises has been mort- 
 gaged a second time, and the residue thereof has been sold 
 and conveyed absolutely, the mortgage being but a qualified 
 conveyance of the property and the mortgagor still retaining 
 an interest therein, the part mortgaged should be sold on the 
 foreclosure of the prior mortgage before resorting to that 
 part which was conveyed absolutely ; and this is true whether 
 the sale of a portion of the mortgaged premises was made 
 prior or subsequent to the execution of the second mort- 
 gage.* 
 
 § 508. Rights of purchaser of part of mortgaged 
 premises subject to mortgage. — Where, in a conveyance 
 of real estate, it is expressly stated that it is agreed by and 
 between the parties to such conveyance, that the premises 
 conveyed are subject to a mortgage, and to all sums due 
 and to become due thereon, as between the grantor and the 
 grantee, the entire mortgaged premises remain the primary 
 fund for the payment of the mortgage debt. And should 
 the grantee afterwards be compelled to pay the entire debt 
 to the mortgagee, he will be entitled in equity to be subro- 
 gated to the rights of the latter and to re-imburse himself 
 out of the whole mortgaged premises.* 
 
 And a subsequent purchaser of the premises thus con- 
 veyed will take them subject to the same equity, although 
 his deed may not in terms refer to the Hen of the mort- 
 gage, nor describe the lands as conveyed subject to such 
 lien.* The purchaser of an equity of redemption, at a 
 judicial sale, takes the land burdened with the mortgage, 
 and he will have no right, therefore, to ask that some other 
 
 ' Ely V. Perrine, 2 N. J. Eq. (1 H. » Jumel v. Jumel, 7 Paige Ch. (N. 
 
 W. Gr.) 396 (1841). T.) 591 (1839). 
 
 - Kellogg V. Rand, 11 Paige Ch. •• Jumel v. Jumel, 7 Paige Ch. (N. 
 
 (N. Y.) 59 (1844) ; Sager v. Tupper, T.) 591 (1839). 
 35 Mich. 134 (1876).
 
 616 SALE — GEANTEE ASSUMI]S'G MORTGAGE. [§509. 
 
 fund be applied to the discharge of the mortgage debt in 
 order to reheve his estate.* 
 
 § 509. Order of sale in parcels where subsequent 
 grantee of part has assumed mortgage. — Where the 
 owner of mortgaged premises sells a portion thereof to 
 a purchaser who assumes and agrees to pay, as a part of the 
 purchase price, the whole or a part of the mortgage debt, 
 the purchaser is legally and equitably bound to pay off and 
 to satisfy such mortgage ;' by such assumption he becomes 
 the principal debtor, and the part of the land conveyed to 
 him the primary fund out of which the mortgage is to be 
 paid, the mortgagor remaining simply a surety, and the 
 remainder of the property being liable only secondarily.' 
 
 The purchaser, therefore, is bound to protect the mortga- 
 gor and his grantees from all liability on account of the mort- 
 gage debt.* And should the mortgagor or his grantee be 
 compelled to pay the mortgage debt, or any part thereof, 
 he will be entitled to an assignment of such mortgage to 
 enable him to obtain satisfaction out of the land of the 
 party who assumed the payment thereof.^ 
 
 The grantee of a portion of the mortgaged premises, 
 where a former grantee of the remainder thereof has assumed 
 and agreed to pay the existing incumbrance, is not bound, 
 to take any notice of an action to foreclose the mortgage ; it 
 is the duty of the grantee who assumed and agreed to pay 
 the mortgage to appear therein and to protect the interests 
 of his surety, and if he fails to do so and a subsequent 
 grantee of another portion of the premises is consequently 
 deprived of his land, such purchaser will be liable to him in 
 damages,* because the obligation on the part of the purchaser 
 who assumed and agreed to pay the mortgage debt is not 
 affected by the subsequent conveyance from the mortgagor. 
 
 » Krueger v. Ferry, 41 N. J. Eq. 325 (1887) ; Mirhigan State Ins. Co. 
 
 (14 Stew.) 482 (1S86). v. Soule, 51 Mich.^312 (1883). 
 
 « Torrey v. Bank of Orleans, 9 * Wilcox v. Campbell, lOG N. Y. 
 
 Paige Ch. (N. Y.) 649 (1842). See 325 (1887). 
 
 Warren v. Boynton, 2 Barb. (N. Y.) » Halsey v. Reed, 9 Paige Ch. (N. 
 
 13 (1847). Y.) 446 (1842). 
 
 » Wilcox V. Campbell, 106 N. Y.
 
 § 510.1 SALE — GEAirrEE ASSUMING MOETGAGB. 617, 
 
 ! 
 
 Where such purchaser fails to protect the residue of the 
 land from sale under the mortgage, he will be liable alike to 
 the mortgagor and to his grantee for the damages thus 
 caused. The measure of damages will be the fair value ofi 
 the land.* 
 
 In an action to foreclose a mortgage covering two farms, 
 it appeared that L., the mortgagor, conveyed one of the 
 farms to K., who agreed to pay $2,500 of the mortgage 
 as part of the purchase money. L. had contracted to 
 purchase a piece of land of B., who agreed to take the 
 bond of K. secured by a mortgage on the farm so to be con- 
 veyed to him for part of the purchase price, and concur- 
 rent with the conveyance from L. to K. the latter exe- 
 cuted his bond and mortgage to B. who conveyed to L. 
 as agreed. B. knew, when he took his mortgage, of the 
 existence of the prior mortgage and of K.'s assumption to 
 pay a portion thereof. The court held that the judgment 
 properly directed the sale first of the farm conveyed to K., 
 and that the circumstances under which the mortgage to B. 
 was given did not change the equitable rights of the parties.* 
 
 § 510. When rule for sale in inverse order does not 
 apply. — The rule that parcels of mortgaged property alien- 
 ated subsequently to the execution of the mortgage, are to 
 be sold in the inverse order of their alienation, does not 
 apply where the purchaser of one of the parcels has assumed 
 and agreed to pay the mortgage debt ;* and where a mort- 
 gagor sells a portion of the mortgaged premises, and in the 
 deed of conveyance expressly stipulates, that it is "subject 
 to the payment by the said grantee of the existing liens 
 upon said premises," the rule does not apply.* 
 
 • Wilcox V. Campbell, 106 N. T. (1842) ; Halsey v. Reed, 9 Paige Ch. 
 825 (1887). (N. T.) 446 (1842) ; Ross v. Haines, 
 
 » Wilcox V. Campbell, 106 N. Y. 5 N. J. Eq. (1 Halst.) 632 (1847) ; 
 
 825(1887). Engle v. Haines, 5 K J. Eq. (1 
 
 » Bowne v. Lynde, 91 N. T. 93 Halst.) 186 (1845) ; s. c. 43 Am. Dec. 
 
 (1883). 624. 
 
 • Warren v. Boynton, 2 Barb. (N. * Brisco v. Power, 47 111. 447 
 T.) 13 (1847) ; Torrey v. Bank of (1868) ; Hoy v. Bramball, 19 N. J. 
 Orleans, 9 Paige Ch. (N. T.) 649 Eq. (4 C. E. Gr.) 563 (1868).
 
 618 PARCELS KOT SOLD IN INVERSE ORDER. [§511. 
 
 And if by the terms of the sale of a part of the mortgaged 
 premises, the mortgage is to remain a common charge upon 
 the whole premises, and is to be paid by the mortgagor 
 and the purchaser, and there is no special agreement as to 
 the proportion which each one shall pay, the parcels will 
 be subject to their pro rata share of the incumbrance.* 
 Where a purchaser of a portion of the mortgaged premises 
 assumes and agrees to pay the mortgage debt, or a specified 
 portion thereof, and afterwards conveys the part purchased 
 to a person who has notice of his agreement and obligation, 
 the equitable rights of such second purchaser will be as 
 fully bound as are those of his vendor." 
 
 Thus, where after the execution of a mortgage, a 
 portion of the premises were sold to a party who assumed 
 and agreed to pay the mortgage, and such purchaser after- 
 wards mortgaged the part purchased to a party having notice 
 of the assumption, it was held that such parcel remained the 
 primary fund for the payment of the debt,* and that the 
 remaining portion of the premises covered by the first 
 mortgage, was merely security for the payment of the 
 balance of the debt, if any, remaining after exhausting 
 the primary fund.* 
 
 § 511. Contribution according to value— Valuation, 
 when made. — Where land which has been mortgaged is 
 subsequently conveyed to different parties, the mortgage 
 remaining a common charge upon the whole land so that each 
 part will be required to bear its due proportion of the debt, 
 equity will compel every part to a just contribution. Such 
 contribution will be enforced /r<? rata according to the value 
 of the several parcels. It has been said that in making the 
 
 »Brisco V. Power, 47 111. 447 » Steere v. Childs, 15 Hun 511 
 
 (1868) ; Hoy v. Bramhall, 19 N. J. (1878). 
 
 Eq. (4 C. E. Gr.) 563 (1868). * Warfield v. Crane, 4 Abb. Ct. 
 
 ^Torrey v. Bank of Orleans, 9 App. Dec. (N. Y.) 525(1868) ; Woods 
 
 Paige Ch. (N. Y.) 649 (1843) ; Ptoss v. Spalding, 45 Barb. (N. Y.) 607 
 
 V. Haines, 5 K J. Eq. (1 Halst.) 633 (1866) ; Stuyvesant v. Hall, 2 Barb. 
 
 (1847): Engle V. Haines, 5 N. J. Eq. Ch. (N. Y.) 151 (1847); Steere v. 
 
 (1 Halst.) 186 (1845) ; s. c. 43 Am. Childs. 15 Hun (N. Y.) 511, 518 
 
 Dec. 624. (1878).
 
 §512.] contributiojS^ — valuation of parcels. C19 
 
 apportionment of the burden which each parcel should bear, 
 due regard should be had to the relative value of each parcel 
 at the date of the mortgage.' 
 
 But in some cases it is held that the distribution of the 
 burden of paying the mortgage should be according to the 
 value of the parcels when they are sold." Chancellor Kent 
 has held that the parcels are bound to contribute according 
 to their actual relative value, and not according to the 
 prices for which they are sold at the sheriff's sale," from 
 which it has been inferred by some courts that the relative 
 value of the parcels is to be estimated at the time when they 
 are called upon for contribution.* 
 
 § 512. Where the mortgagee has other securities and 
 there are subsequent mortgagees. — Where a mortgage 
 has been executed upon a whole tract of land and subse- 
 quently another mortgage is executed upon a portion of the 
 land, the first mortgagee will be required to exhaust that 
 portion of the land not covered by the second mortgage 
 before resorting to the latter portion.* And where a mort- 
 gagee holds a mortgage on two tracts of land securing his 
 
 ■ Stevens v. Cooper, 1 Johns. Ch. c. 8 Am. Dec. 554 ; Stevens v. 
 
 (N. Y.) 425 (1815) ; s. c. 7 Am. Dec. Cooper, 1 Johns. Ch. (N. Y.) 425 
 
 499 ; Morrison v. Beckwith, 4 T. B. (1815); s. c. 7 Am. Dec. 499 ; Cheese- 
 
 Mon. (Ky.) 73 (1827) ; s. c. 16 Am. brough v. Millard, 1 Johns. Ch. 
 
 Dec. 736. See Lyon v. Bobbins, 45 (N. Y.) 409 (1815) ; s. c. 7 Am. Dec. 
 
 Conn. 513(1878); Dickey V. Thomp- 494; James v. Hubbard, 1 Paige 
 
 son, 8 B. Men. (Ky.) 312 (1847); Ch. (N. Y.) 228, 235(1825) ; Terry v. 
 
 Hall V. Morgan, 79 Mo. 47 (1883). Rosell, 33 Ark. 478 (1877) ; Andreas 
 
 2 Burk V. Chrisman, 3 B. Mon. v. Hubbard, 50 Conn. 351 (1882) ; 
 (Ky.) 50 (1842). Chicago & G. AV. R. Co. v. Peck. 
 
 3 Cheesebrough v. Millard, 1 112 111. 408(1 8S5); Swift v. Conboy, 
 Johns. Ch. (N. Y.) 409 (1815) ; s. c. 12 Iowa, 444 (1861) ; Sibley v. 
 7Am. Dec. 494. Baker, 23- Jlich. 312 (1871) : Trow- 
 
 * Dickey V. Thompson, 8 B. Mon. bridge v. Harleston, Walk. Ch. 
 
 (Ky.) 312, 316 (1847). (Mich.) 185 (1843); Warwick v. Ely, 
 
 5 See lugalls v. Morgan, 10 N. Y. 29 N. J. Eq. (2 Stew.) 82 (1878) ; 
 
 178(1854); Torkifc Jersey Steamboat Ramsey's Appeal, 2 Watts (Pa.) 228 
 
 Ferry Co. v. Associates of the Jer- (1834); Fowler v. Barksdale, Harp. 
 
 sey Co., Hopk. Ch. (N. Y.) 460 (S. C.) Eq. 164 (1824); Scott v. 
 
 (1824); Evertson v. Booth, 19 Johns. Webster, 44 Wis. 185 (1878). Sea 
 
 (X. Y.) 486 (1822) ; Hayes v. Ward, also Lanoy v. Athol, 2 Atk. 444, 
 
 4 Johns. Ch. (N. Y.) 123 (1819) ; s. 446 (1742); Wright v. Nult, 1 H.
 
 620 EIGHTS OIT SUBSEQUENT MORTGAGEES. [§ 512. 
 
 debt, and there have been subsequent conveyances or mort-- 
 gages of one of the tracts, he will be required to exhaust his 
 remedies against the portion which has not been mortgaged 
 or conveyed before resorting to the other portion.' 
 
 If the mortgagee of the north half of a lot of land, having 
 notice that it is equitably chargeable with, and of sufficient 
 value for the payment of a prior mortgage upon the whole 
 lot, becomes the purchaser of such prior mortgage, he can 
 not, in equity, enforce it against the remainder of the lot.* In 
 such a case the north half, being chargeable with the pay- 
 ment of the mortgage upon the whole lot, must first be 
 applied to that purpose ; and if it is sufficient to satisfy the 
 debt in full, the mortgage will be held discharged as to 
 the remainder of the premises.' 
 
 But a trustee mortgagee, whose mortgage is a senior lien 
 on land, can not be deprived of such lien, merely because he 
 may have a right to satisfy the mortgage debt out of a bond 
 executed by his predecessor in the trust, by virtue of which 
 the mortgage came to him.* 
 
 It has been held, where there are mortgages of lands and 
 of chattels to secure the payment of the same debt, and the 
 mortgagee seizes the chattels after condition broken, that a 
 subsequent purchaser of the land from the mortgagor will 
 have a right to compel the mortgagee to apply the value of 
 the chattels seized to the satisfaction of the mortgage debt ; 
 and that if he loses the chattels by his neglect, he will be 
 compelled to deduct their value from the amount due, and 
 the mortgage can be foreclosed only for the balance remain- 
 ing unpaid after such deduction.* 
 
 Bl. 150 (1789) ; Aldrich v. Cooper, * Shuey v. Latta, 90 Ind. 136 
 
 8 Ves. 382, 395 (1803) ; Averall v. (1883). 
 
 Wade, Lloyd & Goold, Cas. Temp. * Moody v. Haselden, 1 S. C. (N. 
 
 Sugden, 252 (1835). S.) 129 (1869). See Fowler v. Barks- 
 
 > Raun V. Reynolds, 11 Cal. 14 dale. Harp. (S. C.) Eq. 164 (1824) : 
 
 (1858) ; Andreas v. Hubbard, 50 Gist v. Pressley, 2 Hill (S. C.) Eq. 
 
 Conn. 351(1882); Burpee v. Parker, 318 (1835); Gadberry v. McClure, 
 
 24 Vt. 567 (1852). 4 Strob. (S. C.) Eq. 175 (1850) ; Bank 
 
 « Mclntire v. Parks, 59 N. H. 258 of Hamburg v. Howard, 1 Slrob. 
 
 (1879). (S. C.) Eq. 173 (1846). 
 
 « Mclntire v Parks, 59 N. H. 258 
 (1879),
 
 § 513.] 
 
 POETION ALIENATED RELEASED. 
 
 621 
 
 § 513. Rule where portions alienated have been 
 released. — From the equitable doctrine of the sale of mort- 
 gaged premises in the inverse order of alienation subsequent 
 to the execution of the mortgage, it follows as a corollary 
 that if the mortgagee, with actual notice of the fact of the 
 subsequent conveyances of the parts of the mortgaged prem- 
 ises, releases from the mortgage one or more parcels of the 
 premises primarily liable, he thereby releases pro rata the por- 
 tion secondarily liable,' and he can not enforce his lien against 
 the residue without deducting the value of the part released 
 from the amount due on the mortgage.' 
 
 In case the value of the property released is equal to the 
 full amount of the mortgage debt, the mortgagee will, of 
 course, lose his debt so far as the lien of his mortgage is 
 concerned. But it has been held that where the subsequent 
 purchasers or mortgagees are not prejudiced by the release, 
 as where the mortgagor had no title to the lot released at the 
 time the first mortgage was executed, this rule will not 
 apply.* 
 
 • Iglehart v. Crane, 42 HL 261, 
 268 (1866). 
 
 • Stuy vesant v. Hall, 2 Barb. Ch. 
 (N. Y.) 151 (1847); Stevens v. 
 Cooper, 1 Johns. Ch. (N. Y.) 425 
 (1815); s. c. 7 Am. Dec. 499; 
 Cheesebrough v. Millard, 1 Johns. 
 Ch. (N. Y.) 409 (1815) ; a c. 7 Am. 
 Dec. 494 ; Patty v. Pease, 8 Paige 
 Ch. (N. Y.) 277 (1840) ; 8. c. 35 Am, 
 Dec. 683 ; Skeel v. Spraker, 8 Paige 
 Ch. (N. Y.) 195 (1840); Guion v. 
 Knapp, 6 Paige Ch. (N. Y.) 35 
 (1836) ; Bu-nie v. Main, 29 Ark. 591 
 (1874); Iglehart v. Crane, 42 HI. 
 261, 268 (1866) ; Matteson v. Thomas, 
 41 111. 110 (1866) ; Taylor v. Short, 
 Adm'r, 27 Iowa, 361 (1869) ; George 
 T. Wood, 91 Mass. (9 Allen), 80 
 (1864); Chase v. Woodbury, 89 
 Mass. (6 Cush.) 143 (1850); Park- 
 man T. Welch, 36 Mass. (19 Pick.) 
 231 (1837); James v. Brown, 11 
 Mich. 25 (1862) ; Harrison v. Guerin, 
 
 27 N. J. Eq. (11 C. E. Gr.) 219 
 (1876) ; Mount v. Potts, 23 N. J. Eq. 
 (8 C. E. Gr.) 188 (1872) ; Hoy v. 
 Bramhall, 19 N. J. Eq. (4 C. E. Gr.) 
 563 (1868) ; Vanorden v. Johnson, 
 14 N. J. Eq. (1 McCar.) 376 (1862) ; 
 Gaskill V. Sine, 13 N. J. Eq. (2 
 Beas.) 400 (1861) ; s. c. 78 Am. Dec. 
 105 ; Reilly v. Mayer, 12 N. J. Eq. 
 (1 Beas.) 55 (1858) ; Blair v. Ward, 
 10 N. J. Eq. (2 Stockt.) 119 (1854) ; 
 Mickle V. Rambo, 1 N. J. Eq. (1 
 Saxt.) 501 (1832) ; Shannon v. Mar- 
 selis, 1 N. J. Eq. (1 Saxt.) 413 (1831); 
 Taylor v. Maris, 5 Rawle (Pa.) 51 
 (1835) ; Miller v. Rogers, 49 Tex. 
 398 (1878); Lyman v. Lyman, 32 
 Vt. 79 (1859) ; Deuster v. McCamus, 
 14 Wis. 307 (1861). But see Stuy- 
 vesant v. Hone, 1 Sandf. Ch. (N. Y.) 
 419 (1844). 
 
 * Taylor v. Short's Adm'r, 27 
 Iowa, 361 (1869) ; s. c. 1 Am. Rep. 
 280.
 
 622 PABCELS ATTRV ATFn KEIXASED. [§ 514. 
 
 A creditor having a Hen upon two parcels of land may 
 release the lien from one without impairing his legal claim 
 upon the other, if he has no reason to suppose that such 
 discharge will interfere with the equitable rights of any other 
 person.' To affect the mortgagee, he must have actual 
 notice of the subsequent transfer of a portion or portions of 
 the mortgaged premises, before a release by him of a portion 
 of such premises will bar his right to foreclose his mortgage 
 upon the remaining portion.* 
 
 A mortgagee is not required to search the records from 
 time to time to ascertain whether subsequent incumbrances 
 have been placed upon the mortgaged premises, or whether 
 a portion thereof has been transferred ;* furthermore, the 
 record is not constructive notice to the prior mortgagee 
 of such incumbrance/ And where an attorney has been 
 employed by a mortgagee to foreclose a mortgage upon a 
 particular piece of property, and such attorney learns, from 
 other sources, and not in connection with his business of 
 foreclosing the mortgage on such property, that there are 
 subsequent mortgages or conveyances of a part of the 
 mortgaged premises, such knowledge of the attorney will 
 not be deemed notice to his client, the prior mortgagee.' 
 
 § 514. Rule for order of sale where the mortgage 
 covers homestead and other lands. — Where the mort- 
 gage covers the homestead of a family, together with other 
 
 ' Stuyresant v. Hone, 1 Sandf , Bimie v. Main, 29 Ark. 591 (1874) ; 
 
 Ch. CN". T.) 419 (1844) ; Guion v. Ritch v. Eichelberger, 13 Fla. 169 
 
 Knapp. 6 Paige Ch. (X. T.) 35, 43 (1869); Cliasev. Woodbuiy,60:Mass. 
 
 (1836). (6 Cush.) 143 flSoO); James v. Brown, 
 
 * Stuyresant V. Hall, 2 Barb. Ch. 11 :Mich. 25 (1862); Brown v. 
 
 ON". Y.) 151 (1847) ; King v. Mc- Simons, 44 2s. H. 475 (1863j ; Shan- 
 
 Vickar, 8 Sandf. Ch. (N. T.) 192 non v. IMarselis, 1 N. J. Eq. (1 
 
 (1846) ; Blair v. Ward, 10 X. J. Eq. Saxt.) 413 (1S31) ; Taylor v. Maris, 
 
 (2 Stockt.) 119 (1854). 5 Rawle (Pa.) 51 (1835) ; Lyman v. 
 
 » Howard Ins. Co. v. Halsey, 8 N. Lyman, 32 Yt 79 (1859). 
 
 T. 271 (1853) ; Talmage v. Wilgers, * Howard Ins. Co. v. Halsey, 8 N. 
 
 1 X. Y. Leg. Obs. 42 (1842). ^See Y. 271 (1853; ; Talmage v. Wilgers, 
 
 Cheesebrough v. :Millard, 1 Johns. 1 N. Y. Leg. Obs. 42 (1842). 
 
 Ch. (N. Y.)^409 (1815) ; 8. c. 7 Am. » Howard Ins. Ck>. v. Halsey, 8 N. 
 
 Dec. 494 ; Stuyvesant v. Hone. Y, 271 (1853). 
 1 Sandf. Ch. (N. Y.) 419 (1844);
 
 514.] OEDER OF SALE HOMESTEAD LANDS. 623 
 
 lands, the mortgagor will have no right to require, and the 
 court will not be warranted in granting, an order directing 
 that the other lands be sold first and that the homestead be 
 resorted to only in case there is a deficiency.* The mort- 
 gagee may release the other land and still retain his Hen 
 upon the homestead.' And this is true although the 
 remainder of the property mortgaged, without the home- 
 stead, is sufficient to satisfy the mortgage.* 
 
 And it has been said that where the mortgage covers the 
 homestead together with other lands, the mortgagor will have 
 no right to require the latter property to be sold for the pay- 
 ment of the mortgage debt before resorting to the homestead.* 
 The fact that a part of the property is a homestead does not 
 alter the rule requiring a party having security on two 
 funds first to exhaust his remedy against the fund upon 
 which he alone is secured, if there is another party having 
 security on the other part.* 
 
 ' Dodds V. Snyder, 44 HI. 53 ative relief to her upon answer, but 
 
 (1867) ; Cimpman v. Lester, 12 Kan. is for the benefit of the complainant, 
 
 592 (1874) ; Searle v. Chapman, 121 and is ■warranted imder the prayer 
 
 Mass. 19 (1876); White v. Polleys, 20 in the bill for "such other and fur- 
 
 Wis. 503 (1866); Jones v. Dow, 18 ther relief as equity may require." 
 
 "Wis. 241 (1864). » Chapman v. Lester, 12 Kan. 592 
 
 But a contrary rule prevails in (1874). See Dodds v. Snyder, 44 
 
 some of the states. See McLaughlin HI. 53 (1867) ; Searle v. Chapman, 
 
 V. Hart, 46 Cal. 639 (1873) ; Dickson 121 Mass. 19 (1876). 
 
 V. Chom, 6 Iowa, 19 (1858). It is said » Searle v. Chapman, 121 Mass. 17 
 
 in the case of Hall v. Harris, 113 111. (1876). 
 
 410,413 (1885), that on the foreclosure * See Chapman v. Lester, 12 Kan. 
 
 of such a mortgage there can be no 592 (1874) ; Searle v. Chapman, 121 
 
 sale until the homestead is assigned Mass. 19 (1876) ; White v. Polleys, 
 
 to the widow ; and that a decree of 20 Wis. 503 (1866). 
 
 foreclosure directing an assignment * In re Sauthofi, 7 Biss. C. C. 167 
 
 of the homestead before sale of the (1876). 
 residue is not the granting of affirm-
 
 CHAPTER XXV. 
 
 CONDUCT OF SALE. 
 
 PERSONAL ATTENDANCE OF REFEREE— DISCRETIONARr POWERS ON 
 
 SALE— ADJOURNMENTS— WHO MAY PURCHASE— REPORT OF 
 
 SALE BY REFEREE-CONFIRMATION THEREOF. 
 
 515. Personal attendance of the 
 
 officer conducting the sale. 
 
 516. Discretionary powers of re- 
 
 feree to sell — Powei's of 
 loan commissioners. 
 
 517. Postponement and adjourn- 
 
 ment of sale. 
 
 518. Publishing notice of adjourn- 
 
 ment — Adjourning sale un- 
 der statutory foreclosure. 
 
 519. Holding sale open. 
 
 520. Who may purchase on a 
 
 foreclosure sale. 
 
 521. Purchase by mortgagee. 
 523. Memorandum of sale. 
 
 523. Report of officer making sale. 
 
 524. What referee's report should 
 
 show. 
 
 525. Confirmation of referee's re- 
 
 port. 
 
 526. Referee's report should state 
 
 amount of deficiency. 
 
 527. Substituted or supplemental 
 
 report of referee — Notice 
 to defendant. 
 
 § 515. Personal attendance of the officer conducting 
 the sale. — It is the duty of the referee appointed by the 
 court to conduct the sale on a mortgage foreclosure, to 
 attend the sale in person at the time and place appointed. 
 The sale must be made at public auction, to the highest 
 bidder, unless the court has otherwise directed. It must 
 be made by the ofificer appointed by the decree of foreclosure 
 and sale, or designated by the statute,' or under his immedi- 
 ate personal supervision and direction;' he must receive 
 bids as long as they are offered, waiting a reasonable length 
 of time after a bid is made for others, and if no other is 
 made he must strike off the premises to the highest bidder." 
 
 In Heyer v. Deaves,* it was held that all sales of mort- 
 gaged premises under a decree of the court must be made 
 
 ' Heyer v. Deaves, 2 Johns. Ch. R. R. Co., 70 U. S. (3 Wall.) 196, 
 
 (N. Y.) 154 (1816). See May v. 
 May, 11 Paige Ch. (N. Y. ) 201 
 (1844). 
 * Blossom V. Milwaukee «& Chicago 
 
 205 (1865) ; bk. 18 L. ed. 43. 
 
 3 Bicknell v. Byrnes, 23 How. (N. 
 Y.) Pr. 486 (1862). 
 
 * 2 Johns. Ch. (N. Y.) 154 (1816). 
 
 QZi
 
 § 516.] OFilCEB SELLING MUST BE PRESENT. 625 
 
 by a master,* or under his immediate direction," and if such 
 officer fails to be present and to direct such sale, it will be 
 irregular and may be set aside upon motion. The court 
 held in that case, that " the statute intended that such sales 
 should be under the immediate direction of a known and 
 responsible public officer. An under or deputy master is 
 not an officer known in the law." The case of Heyer v. 
 Deaves was distinguished in Connolly v. Belt,' where the 
 court held that " neither the New York statute nor that 
 case is applicable to the present case, which is a sale under 
 a common deed of trust. The time, place, terms and 
 conditions were such as were deemed by the trustee most 
 for the interest of the parties concerned in the said sale, as 
 appears by the answer of the trustee ; and a sale made by 
 an agent of the trustee, according to the terms and condi- 
 tions at the time and place prescribed, is a sale by the 
 trustee, there being no law requiring him to be present 
 personally at the auction." The distinction, it seems, is 
 between what involves a discretion and a power to do a 
 certain specific act. In the former case the trustee must 
 act in person ; in the latter case he was authorized to 
 delegate his power.* 
 
 § 516. Discretionary powers of referee to sell — Powers 
 of loan commissioners. — The reason for requiring the 
 presence and personal supervison of the officer delegated to 
 make the sale, is said to be that the statute imposes a duty 
 upon such officer, and presupposes that he will ascertain the 
 
 • The old master in chancery has * Powell v. Tuttle, 8 N. T. 
 
 been supplanted by the modern 396 ( 1850 ). Thus, where an 
 
 referee. administrator is authorized by a 
 
 « See Reynolds v. Wilson, 15 111. decree of court to sell land for the 
 
 394 (1854) ; Blakey v. Abert, 1 Dana payment of debts, the sale must be 
 
 (Ky.) 185 (1883) ; Meyer v. Bishop, made by him personally or by his 
 
 27 K J. Eq. (12 C. E. Gr.) 145 agent in his presence. Sebastian v. 
 
 (1876) ; Blossom v. Milwaukee & C. Johnson, 72 111. 283 (1874) ; s. c. 23 
 
 R. Co., 70 U. S. (3 Wall.) 205 (1865); Am. Rep. l45. See Berger v. Duff, 
 
 bk. 18 L. ed. 43, 46 ; Williamson v. 4 Johns. Ch. (N. Y.) 368 (1820) ; 
 
 Berry, 49 U. S. (8 How.) 495, 544 Taylor v. Hopkins, 40 111. 442 
 
 (1850); bk. 12 L. ed. 1170, 1191. (1866). 
 
 » 5 Cr. C. C. 405, 408 (1838). 
 
 (40)
 
 626 DISCKETIONARY POWERS OF REFEREE. [§516. 
 
 situation of the property before the time of the sale, and 
 will sell it as the best interests of the parties may require. 
 Again, there may be cases in which the exercise of his 
 discretionary powers will become necessary, in which case the 
 honest exercise of such discretion is said to be as final as a 
 decision in like cases of any judicial tribunal.' And in such 
 cases it seems that the parties have a legal right to whatever 
 possible benefit may follow from the honest exercise of such 
 discretion.' 
 
 The exercise of such discretion can not be delegated, and 
 for that reason a sale made by a person delegated by the 
 referee, or other officer, in his absence, may be set aside 
 as irregular, on a direct application made in the course of 
 the proceedings, although a deed made by the officer will 
 pass the title to the premises and will be valid and effective 
 in collateral proceedings, as the act of an officer de facto} 
 
 Thus, it has been held that the New York statute, creating 
 the office of loan commissioners, and investing such officers 
 -\ith certain discretionary powers and providing for the loan- 
 ing of moneys on mortgage security and for the foreclosure of 
 such mortgages on failure to pay the interest or principal, 
 invests them with a special authority and must be strictly pur- 
 sued ;* consequently the sale of mortgaged premises made by 
 one loan commissioner in the absence of his associates has been 
 held to be irregular, and to be ineffective to pass the title of the 
 premises to the purchaser,* 
 
 ' O'Donnell v. Lindsey, 38 N. Y. Bishop, 27 N. J. Eq. (12 C. E. Gr.) 
 
 Supr. Ct. (7 J. «& S.) 523, 529(1873), 141 (1876). See also People v. 
 
 citing Litchfield v. Register, 76 U. S. Collins, 7 Johns. (N. Y.) 549 (1811) ; 
 
 (9 Wall.) 577 (1869) ; bk. 19 L. ed. Potter v. Luther, 3 Johns. (N. Y.) 
 
 682 ; The Secretary v. McGarrahan, 431 (1808) ; Wilcox v. Smith, 5 
 
 76 U. S. (9 Wall.) 311 (1868) ; bk. 19 Wend. (N. Y.) 231 (1830) ; s. c. 21 
 
 L. ed. 64 ; Gaines v. Thompson, 74 Am. Dec. 213 ; State v. Carroll, 38 
 
 U. 8. (7 WaU.) 349 (1868) ; bk. 19 Conn. 449 (1871) ; 9 Am. Rep. 409. 
 L. ed. 62. ♦ Powell v. Tuttle, 3 N. Y. 396, 
 
 « O'Donnell v. Lindsey, 39 N. Y. 400 (1850). See Sherwood v. Reade, 
 
 Supr. Ct. (7 J. «& S.) 523, 529. 530 7 Hill (N, Y.) 431 (1844) ; Sharpe 
 
 (1873). See RusseU v. Conn, 20 N. v. Speir, 4 Hill (N. Y.) 76 (1843) ; 
 
 Y. 81 (1859). Downing v. Rugar, 21 Wend. (N. 
 
 » Meyer v. Patterson, 28 N. J. Y.) 178 (1839) ; s. o. 34 Am. Dec 
 
 Eq. (1 Stew.) 239 (1877) ; Meyer v. 223.
 
 §517.] POSTPONING AND ADJOURNING SALE. 627 
 
 In the case of King v. Stow,* it was said that the assent 
 of the absent commissioner was to be presumed, as no 
 dissent was afterwards expressed by him, and he united in 
 the deed to the purchaser, and that though it was the duty 
 of both commissioners to be present at the sale, yet the 
 absence of one of them from necessity or just cause would 
 not affect the validity of a sale otherwise regular and fair. 
 But this case was directly overruled by the decision in 
 Powell V. Tuttle.' 
 
 § 517. Postponement and adjournment of sale.— The 
 sale of mortgaged premises may be postponed from time to 
 time, or an adjournment may be had to another place, unless 
 the place of sale is fixed by the decree of foreclosure,* in the 
 discretion of the referee or other officer making the sale, 
 either for want of bidders or for any other reasonable cause, 
 inducing him to believe that a future day or another place 
 will be more favorable for making an advantageous sale.* 
 
 The application for a postponement or adjournment gener- 
 ally comes from some one or more of the interested parties 
 and is not infrequently made by the plaintiff's attorney ; but 
 the referee possesses a discretionary power in the matter and 
 should not be governed by the directions of the plaintiff's 
 attorney, nor by the request of other parties ; there may be 
 occasions when it will be the duty of the officer to adjourn 
 the sale without the request of any one, and even against the 
 express wishes of a party in interest.' The referee is not a 
 
 » York V. Allen, 30 N. Y. 104, 111 Bank of Maryland v. Clarke, 28 
 
 (1864) ; Pell v. Ulmar, 18 N. Y. 139, Md. 145 (1867). 
 
 144 (1858) ; s. c. 21 Barb. (N. Y.) * Tinkom v. Purdy, 5 Johns. 
 
 500; Olmstead v. Elder, 5 N. Y. (X. Y.) 345 (1810) ; Russell v. Rich- 
 
 144, 147 (1851) ; Powell v. Tuttle, ards, 11 Me. (2 Fairf.) 371 (1834) ; 
 
 3 N. Y. 396 (1850). s. c. 25 Am. Dec. 254 : Warren v.' 
 
 • 6 Johns. Ch. (N. Y.) 323 (1822). Leland, 9 Mass. 265 (1812) ; Strong 
 
 » 3 N. Y. 396 (1850). v. Catton, 1 Wis. 471 (1853); Rich"^ 
 
 ' Richards v. Holmes, 59 U. S. ards v. Holmes, 59 U. S. (18 How.) 
 
 (18 How.) 143 (1855) ; bk. 16 L. ed. 143 (1855) ; bk. 16 L. ed. 320. 
 
 320. The Maryland courts have * Tinkom v. Purdy, 5 Johns. (N. 
 
 gone so far as to confirm a sale ad- Y.) 345 (1810) ; Astor v. Romayne, 
 
 joumed to a place different from 1 Johns. Ch. (N. Y.) 310 (1814) ; 
 
 that named in the decree. Farmers' McGown v. Sandford, 9 Paige f.'h.
 
 628 ADVEKTISLNG ADJOURNilEXT OF SALE. [§518. 
 
 mere agent of the plaintiff, but an officer of the court, 
 having a legal duty to perform and a quasi-judicial discretion 
 to exercise. In case he acts unreasonably, the sale may be 
 set aside and a resale ordered.* 
 
 It was held by the supreme court of the United States 
 in Blossom v. Milwaukee and Chicago Railroad Company,' 
 where the decree was to the effect that the premises should 
 be sold at a certain time, unless the mortgagor should pre- 
 viously pay the mortgage debt, that a few brief adjournments 
 for the purpose of enabling the mortgagor to make arrange- 
 ments to pay the amount due on the mortgage, were allowed 
 for a sufficient cause, although made at the request of the 
 plaintiff's solicitor. 
 
 § 518. Publishing notice of adjournment — Adjourning 
 sale under statutory foreclosure. — In case a sale is post- 
 poned or adjourned, the statute requires that a notice of 
 such postponement must be published in the paper or papers 
 wherein the notice of sale was published.* The day to 
 which the sale is adjourned should be announced at the 
 time of the adjournment ;* but if this can not be done on 
 account of an injunction, or for other reasons, a general 
 adjournment may be made and the day to which the sale is 
 adjourned subsequently advertised.* But where the defen- 
 dant has procured a stay of proceedings which is vacated 
 on the day of the sale, because such stay was improperly 
 granted, the sale will not be set aside and a resale ordered, 
 simply because the party procuring tlie stay had made no 
 preparation to attend the sale.* 
 
 (N. Y.) 290 (1841) ; Ward v. James, « N. Y. Code Civ. Proc. § 1678. 
 
 8 Hun (N. Y.) 526 (1876) ; Russell See also LaFarge v. VanWageneu, 
 
 V. Richards, 11 Me. (2 Fairf.) 371 14 How. (N. Y.) Pr. 54 (1857). 
 
 (1834); 8. c. 26 Am. Dec. 532; « LaFarge v. VanWagenen, 14 
 
 Richards v. Holmes, 59 U. S. (18 How. (N. Y.) Pr. 54 (1857). 
 
 How.) 143, 147(1855); bk. 16 L.ed. 'LaFarge v. VanWagenen, 14 
 
 820. How. (N. Y.) Pr. 54 (1857). 
 
 ' Breese v. Bushby, 13 How. fN". • Peck v. New Jersey & N. Y. R 
 
 Y.) Pr. 485, 4.89 (1855). Co., 22 Hun (N. Y.) 129 (1880). 
 
 « 70 U. S. (3 Wall.) 196 (1865) ; 
 bk. 18 L. ed. 43.
 
 § 519.] ADviri^TisrNrG adjoueishvient of sale. C29 
 
 The proceedings in the statutory foreclosure of a mort- 
 gage will not be void because the day of sale specified in 
 the advertisement happens to be on Sunday. The mort- 
 gagee or the officer having charge of the sale may postpone 
 it before the advertised day of such sale to a subsequent 
 day without affecting the regularity thereof.' And where 
 the day, not a legal holiday, fixed for the sale of the mort- 
 gaged premises, is afterwards appointed to be a legal holiday, 
 the referee, or other officer making the sale, may adjourn the 
 sale to another day.* 
 
 Where, upon a statutory foreclosure, the mortgagee 
 attends upon the day of sale mentioned in the advertisement 
 and the sale is adjourned to another day, it must be made 
 on the day to which it is adjourned ; and if there is a 
 variance between the day announced at the adjournment 
 and the day published in the newspapers, the sale will be 
 irregular.' It is questionable whether a sale can be post- 
 poned before the day upon which it is advertised to occur.* 
 And it has been held that where a notice of postponement 
 of sale has been given prior to the day on which it is adver- 
 tised to occur, and the sale is afterwards made on the day 
 originally advertised, such sale will be irregular and void.' 
 
 § 519. Holding sale open.— A defendant to a foreclosure 
 bid off the premises at the sale and asked for time to produce 
 the money, and two days' time was given him for that pur- 
 pose. The sale was held open for that length of time, and 
 
 ' Saylos V. Smith, 12 Wend. (N. the owner of the equity of redemp- 
 
 Y.) 57 (1834) ; s. c. 27 Am. Dec. 117 ; tion, see Neptune Ins. Co. v. Dorsey, 
 
 Westgate v. Handlin, 7 How. (N. 3 Md. Ch. 334 (1850). 
 
 Y.) Pr. 372 (1853). See Bunce v. * See Jackson v. Clark, 7 Johns. 
 
 Eced,16Barb.(N.Y.)347,349(1853\ (N. Y.) 217 (1810); Frederick v. 
 
 5 White V. Zust, 28 N. J. Eq. (1 Wheelock, 3 T. & 0. (N. Y.) 210 
 
 Stew.) 107 (1877). (1874). 
 
 3 Miller v. Hull, 4 Den. (N. Y.) « See Jackson v. Clark, 7 Johns. 
 
 104 (1847); LaFarge v. Van Wag- (N. Y.) 217 (1810); Frederick v. 
 
 cnen. 14 How. (N. Y.) Pr. 54, 58 Wheelock, 3 T. &. C. (N. Y.) 210 
 
 (1857) ; Lantz v. Worthington, 4 Pa. (1874). See Miller v. Hull, 4 Den. 
 
 St. 153 (1846). As to commissions (N. Y.) 104 (1847) ; LaFarge v. Van 
 
 and expenses, in the case of an ad- Wagenen, 14 How. (N. Y.) Pr. 64 
 
 journmeut made at the request of (1857).
 
 630 HOLDING SALE OPEN. [§ 520. 
 
 a public announcement thereof was made at the time. The 
 party failed to make good his bid, and a new sale was there- 
 upon made at the time to which it was held open ; such sale 
 was held to be regular and could not be set aside as a matter 
 of right at the instance of the defendant who first bid off 
 the premises, where he had no equities entitling him to a 
 resale.' 
 
 It has been held, where property on a foreclosure is struck 
 off to a purchaser who offers to pay in good bank bills, but 
 specie is demanded, that it is the duty of the officer 
 making the sale to hold it open a sufficient length of time 
 to enable such purchaser to obtain specie instead of bank 
 bills.' 
 
 § 520. Who may purchase on a foreclosure sale.— The 
 Code of Civil Procedure' provides that a referee or other 
 officer conducting the sale in a mortgage foreclosure, or a 
 guardian of an infant party to the action shall not, nor shall 
 any person for his benefit, directly or indirectly, purchase, 
 or be interested in the purchase of, any of the property 
 sold, except that a guardian may, when he is lawfully 
 authorized so to do, purchase for the benefit of his ward.* 
 
 Under the provisions of the rules of practice,' the decree of 
 foreclosure and sale must contain a clause providing that the 
 plaintiff or any other party to the suit may become the pur- 
 chaser of the premises on such sale ; this rule, however, will 
 not permit one defendant to bid in premises belonging to 
 another and to hold them against the latter contrary 
 to equity.* 
 
 A person other than the debtor, who has become the 
 owner of the land which is subject to the lien of the mort- 
 gage, may become the purchaser at a foreclosure sale, and 
 as such purchaser acquire a valid title ;' but one who, as 
 
 ' Isbell V. Kenyon, 33 Mich. 63 * N. Y. Supreme Court Rule 61. 
 
 (1875). • Bennett v. Austin, 81 N. Y. 308 
 
 « Baring v. Moore, 5 Paige Ch. (1880). 
 (N. Y.) 48 (1835). '' Chautauqua Bank v. Risley, 19 
 
 » N. Y. Code Civ. Proc. § 1679. N. Y. 369 (lb59) ; s. c. 75 Am. Dec. 
 
 * Lefevre v. Laraway, 22 Barb. 347. 
 (N. Y.j 167 (1856).
 
 §521.] WHO MAY PURCHASE AT SALE. 631 
 
 trustee, holds the legal title to the lands, subject to a mort- 
 gage, can not individually acquire an interest therein by 
 taking an assignment of the bid of the purchaser on a fore- 
 closure sale under such mortgage and by taking a deed from 
 the referee, because a trustee can not gain an advantage to 
 himself to the detriment of those for whom he is trustee.' 
 Until the sale to the original purchaser is consummated by 
 payment and delivery of the deed, the disability of the 
 trustee to take title, individually, is absolute." 
 
 A tenant in common with the plaintiff, having no duties 
 towards him other than such as necessarily arise from the 
 co-tenancy, is not prevented from purchasing the premises for 
 his own benefit at a foreclosure sale.' Any of the defen- 
 dants may purchase the mortgaged property of a co-defen- 
 dant ;* the plaintiff's attorney may become a purchaser at 
 such sale, and when he bids off the property in his own 
 name, and takes the certificate from the referee in his 
 own name, the presumption will be that the purchase was on 
 his own account.* 
 
 § 521. Purchase by mortgagee. — By the general rules 
 of practice in New York," it is required that a provision shall 
 be inserted in every decree of foreclosure and sale of mort- 
 gaged property, allowing the plaintiff or any other party to 
 
 > Toole V. McKiernan, 48 N. Y. v. Boylan, 25 Wis. 679 (1870) ; 
 
 Supr. Ct. (16 J. & S.) 163 (1882); Piatt v. Oliver, 2 McL. C. C. 313 
 
 TenEyck v. Craig, 62 N. Y. 406, 420 (1840). 
 
 (1875) ; Willcox v. Smith, 26 Barb. » T^Qig ^ McKiernan, 48 N. Y. 
 
 (N. Y.) 352 (1858) ; New York Cent. Supr. Ct. (16 J. & S.) 163 (1882). 
 
 Ins. V. National Protection Ins. Co., * Streeter v. Shultz, 45 Hun (N. 
 
 20 Barb. 470 (1854); Conger v. Y. ) 406 (1887), explaining Van 
 
 Ring, 11 Barb. (N. Y.) 364 (1851); Home v. Fonda, 5 Johns. Ch. (N. 
 
 Chapin v. Weed, Clarke Ch, (N. Y.) Y.) 388, 407 (1821). 
 
 464 (1841) ; Fellows v. Fellows, 4 * Neilson v. Neilson, 5 Barb. (N. 
 
 Cow. (N. Y.) 698 (1825) ; Matthew- Y.) 565 (1849). 
 
 son V. Johnson, Hoff. Ch. (N. Y.) » Chappell v. Dann, 21 Barb. (N. 
 
 564 (1840); Rogers v. Rogers, Y.) 17 (1855) But see Gardiner v 
 
 Hopk. Ch. (N. Y.) 525 (1825) ; Van Ogden, 22 N. Y. 327 (1860) ; s. c. 
 
 Home V. Fonda, 5 Johns. Ch. (N. 78 Am. Dec. 192 ; Squier v. Norris, 
 
 Y.) 407 (1821) ; Levy v. Brush, 1 1 Lans. (N. Y.) 282 (1869). 
 
 Sweeney (N. Y.) 663 (1869) ; Wright « N. Y. Supreme Court Rule 61. 
 V. Ross. 36 Cal. 432 (1868) ; Phelan
 
 632 PURCHASE BY MOKTGAGEE. [§ 521. 
 
 become a purchaser at such sale ; and the plaintiff may also 
 buy in any outstanding title and hold it against the mortgagor.' 
 This privilege is frequently necessary, in order to prevent a 
 sacrifice of the mortgagee's interests.* Where, by statutory 
 provision, or by the permission of the court, the mortgaged 
 premises are purchased by the mortgagee or his assignee 
 under a decree of foreclosure, such purchase does not extin- 
 guish the mortgage debt nor any balance that may remain 
 unpaid.* 
 
 In those cases where, on the sale of mortgaged premises, 
 the mortgagee becomes the purchaser, he is presumed to 
 take the title with notice of the defects, if any, in the fore- 
 closure proceedings.* And the mortgagee who becomes a 
 purchaser under a decree of foreclosure will not be allowed 
 to object to the title, on the ground that persons in posses- 
 sion of the property without title were not made parties to 
 the action.' 
 
 In Alabama, where it is intended to give the owner of a 
 reversionary or other interest in the land, who is a party to 
 the record, the right to become a bidder at the sale of such 
 real estate, a provision to that effect must be inserted in the 
 decree of foreclosure and sale. Where a purchaser of real 
 estate executes to his vendor a purchase money mortgage, 
 and afterwards sells the land to a third person who assumes 
 and agrees to pay the balance due to the vendor on the pur- 
 chase money mortgage, and agrees further that the land shall 
 remain bound by the mortgage, such purchaser will not be 
 within the rule prohibiting a mortgagee from purchasing at 
 his own sale.* 
 
 Where a rule prevails against a purchase by the mort- 
 gagee at his own sale, if the mortgagee, through an agent. 
 
 • TenEyck v. Craig, 62 N. T. 406, « Edwards v. Sanders, 6 S. C. 316 
 
 421 (1875) ; Williams v. Townsend, (1875). 
 
 31 N. Y. 415 (1865) ; Cameron v. " Boyd v. Ellis, 11 Iowa, 97, 102 
 
 Irwin, 5 HUl (N. Y.) 280 (1843) ; (1860) ; Corriell v. Doolittle, 2 G. 
 
 Shaw V. Bunny, 2 DeG., J. & S. Greene (Iowa), 385, 389(1849). 
 
 468 (1864) ; s. c. 13 W. R. 374. ' Ostrom v. McCann, 21 How. (N. 
 
 « Holcomb V. Holcomb, 11 N. J. Y.) Pr. 431, 433 (1860). 
 Eq. (3 Stockt.) 281 (1857).
 
 §§ 522-523.] AEEMOEAia)UM OF SALE. 633 
 
 becomes the purchaser at the sale under the mortgage, the 
 mortgagor may avoid such sale, although no other person 
 can.' 
 
 § 522. Memorandum of sale. — It is not essential to the 
 validity of a sale of premises on mortgage foreclosure, that 
 the purchaser sign a memorandum of sale.* If the officer 
 making the sale signs the memorandum, it will be sufficient 
 to make the sale valid under the statute of frauds.* Should 
 the purchaser sign the memorandum of sale, by which he 
 agrees to comply with the conditions thereof, such memoran- 
 dum does not constitute a contract, either with the officer 
 making the sale or with the plaintiff in the foreclosure, and 
 no action can be maintained upon it.* The purchaser by 
 signing the memorandum of sale simply subjects himself to 
 the jurisdiction and control of the court for the purpose of 
 enforcing the specific performance of the purchase according 
 to the terms thereof, or of making him answer in damages 
 for non-compliance therewith.* 
 
 § 523. Report of officer making sale. — The general 
 requirement that a judicial sale of real estate shall be reported 
 to the court on the oath of the person making the same, and 
 confirmed by the court before a conveyance is executed, 
 does not apply to mortgage foreclosures.* The referee or 
 officer who makes the sale in a mortgage foreclosure acts 
 simply as the agent of the court ; and after he has disposed 
 
 • McNeiU V. McNeill, 36 Ala. 109 * Miller v. Collyer, 36 Barb. (N. 
 ^860) ; 8. c. 76 Am. Dec. 320. T.) 250 (1862) ; Willets v. VanAlst. 
 
 » Edmondson v. Welsh, 27 Ala. 26 How. ( N. T. ) Pr. 825, 346 
 
 578(1855). (1863,. 
 
 « Bicknell v. Byrnes, 23 How. (N. « Miller v. Collyer, 36 Barb. (N. 
 
 Y.) Pr. 486 (1862). See Wadsworth Y.) 250 (1862) ; WiUets v. VanAlst, 
 
 v. Lyon, 93 N. Y. 201, 219 (1883) ; 26 How. (N. Y.) Pr. 325 (1863). In 
 
 45 Am. Rep. 109 ; Miller v. Collyer, re D&vis, 7 Daly (N. Y.) 1, 8 (1877) ; 
 
 36 Barb. (N. Y.) 250 (1862) ; WiUeta Miller v. Burke, 6 Daly (N. Y.) 171, 
 
 V. VanAlst, 26 How. (N. Y.) Pr. 179 (1875) ; Graham v. Bleakie, 2 
 
 325 (1863) ; National Fire Ins. Co. Daly (N. Y.) 55 (1866). 
 
 V. Loomis, 11 Paige Ch. (N. Y.) 431 * Agricultural Ins. Co. v. Barnard. 
 
 (1847). 96 N. Y. 525 (1884). 
 
 • Bicknell v. Byrnes, 23 How. (N. 
 Y.) Pr. 486 (1863).
 
 Giii EEPOKT OF REFEREE SELLING. [§524. 
 
 of the mortgaged premises and distributed the proceeds 
 thereof according to the directions of the judgment, he must 
 make a report of the sale and his proceedings to the 
 court. 
 
 The report should be prepared and filed by the officer mak- 
 ing the sale as soon as practicable after the disposition of 
 the proceeds of the sale, as directed by the judgment. 
 The report of the referee may be excepted to. An error in 
 reciting the date of a decree of foreclosure in such report of 
 sale is immaterial, where the record furnishes the means 
 of correcting it.' To sustain a report of sale as against 
 exceptions filed to it, affidavits showing that the terms of 
 sale were different from those reported, are inadmissible.* 
 
 § 524. What referee's report should show. — The 
 referee's report should be a complete history of his pro- 
 ceedings, and should show that every direction given in 
 the judgment has been fully executed. It should contain a 
 statement of his fees and of the necessary expenses con- 
 nected with the sale, and should be accompanied b)- 
 proper receipts or vouchers for all payments and disburse- 
 ments. All receipts and vouchers should be attached to the 
 report and filed with the clerk, and a note of the day of 
 filing the report should be entered by the clerk in the proper 
 book under the title of the cause. The report will become 
 absolute and stand in all things confirmed, unless exceptions 
 thereto are filed and served within eight days after service 
 of notice of filing the same.* 
 
 Where the judgment directs the officer making the sale to 
 report any deficiency that may arise, and the proceeds of 
 the sale are not sufficient to satisfy the mortgage, with the 
 costs and expenses, his report should set forth that fact and 
 specify the amount of such deficiency. 
 
 Where there is a surplus, a report of the sale can not 
 be filed or confirmed unless accompanied by a proper 
 voucher for the surplus moneys, showing that they have 
 
 ' Ruggles V. First Nat. Bank of Centreville, 43 Mich. 193(1880) 
 « Koch V. Purcell, 45 N. Y. Supr. Cl. (13 J. & S.) 102 {IH'.O). 
 * N. Y. Supreme Court Rule 30.
 
 § 525.] CONFIRMTNG EEPORT OF SALE. 035 
 
 been paid to the proper parties or deposited pursuant to the 
 directions of the judgment.* 
 
 § 525. Confirmation of referee's report. — In some states 
 no title passes to the purchaser until the sale is confirmed by 
 the court.* It seems, however, that where a deed has been 
 executed and delivered without a confirmation of the sale by 
 the court, long continued possession under it will render the 
 title valid.* 
 
 When the report of the referee, or other oflEicer making 
 the sale, is filed, any party to the action may enter an order, 
 of course, confirming the same, unless cause against the 
 same is shown within eight days ; if no exceptions are filed 
 and served within that time, the report of sale will become 
 absolute, without notice or further order.* An order of 
 confirmation is appealable.* Until the report of the sale 
 is confirmed, any person aggrieved may make a summary 
 application to the court for a resale, provided he has just 
 grounds to sustain such application.* 
 
 Under the New York practice, it seems that it is not 
 necessary for the plaintiff to give notice to any party of the 
 filing of the report of the officer making the sale ; neither is 
 it necessary for him to obtain an order confirming the report, 
 preliminary to the issuing of an execution to collect any 
 deficiency specified in the report, and which is provided for 
 in the decree of foreclosure and sale ;^ yet it certainly is the 
 safer practice to give notice of the filing of the report, and 
 after waiting eight days for the filing of exceptions thereto, 
 
 • New Tork Supreme Court Rule * Tarrans v. Hicks, 32 Mich. 307 
 
 61. (1875). See N. Y. Supreme Court 
 
 > Mills V. Ralston, 10 Kan. 206 Rule 30. 
 
 (1872); Young V. Keogh, 11 lU. 642 » Koehler v. Ball, 2 Kan. 160 
 
 (1850); Busey v. Hardin, 2 B. (1863) ; Detroit Fire «& Marine Ins. 
 
 Mon. (Ky.) 407 (1842) ; Allen v. Co. v. Renz, 33 Mich. 298 (1876). 
 
 Poole, 54 Miss. 323 (1877); Gowan 'Brown v. Frost, 10 Paige Ch. 
 
 V. Jones, 18 Miss. (10 Smed. & M.) (N. Y.) 243 (1843). See Strong v. 
 
 164 (1848) ; Hays' Appeal, 51 Pa. St. Dollner, 2 Sandf . (N. Y.) 444, 448 
 
 58 (1865). (1849). 
 
 3 Gowan v. Jones, 18 Miss. (10 ' Moore v. Shaw, 15 Hun (N. Y.) 
 
 Smed. & M.) 164 (1848). See post 428 (1878); aff'd 77 N. Y, 512 
 
 chap, xxvii. (1879).
 
 636 CONFIRMING REPORT OF SALE. [§526. 
 
 to move the court upon the usual notice at a special term 
 for an order confirming the report.' 
 
 In some states, however, confirmation of a sale can 
 be regularly made only after due notice of motion to 
 the parties adversely interested, that they may show cause 
 against it.' It is said in Williamson v. Berry,* that " notice 
 of the motion is given to the solicitors in the cause, and 
 confirmation 7tist is ordered by the court — to become 
 absolute in a time stated — unless cause is shown against it. 
 Then, unless the purchaser calls for an investigation by the 
 master, it is the master's privilege and duty to draw the deed 
 for the purchaser, reciting in it the decree for the sale, his 
 approval of it, and the confirmation by the court of the sale 
 in the manner that such confirmation has been ordered." 
 The supreme court of the United States say in the case last 
 quoted, that " before a purchaser can get a title, he must 
 get a report from the master that he approves the sale, or 
 that he was the best bidder, accordingly as the sale may 
 have been made, either privately or at auction."* 
 
 But in the more recent case of Blossom v. Milwaukee and 
 Chicago Railroad Company," the same court held that a 
 bidder at a public auction, whose bid has not been accepted, 
 — the sale being adjourned for a sufficient cause, and finally 
 discontinued — can not insist on leave to pay the amount of 
 his bid, and on an order confirming the sale to him, even 
 though his bid was the highest and best bid, and covered 
 the full amount of the decree, together with the costs of 
 such sale. 
 
 The question of usury can not be raised on a motion for 
 confirmation.' 
 
 § 526- Referee's report should state amount of defi- 
 ciency. — It seems that where a judgment in an action to 
 
 » Moore v. Shaw, 15 Hun (N. Y.) (8 How.) 495, 496 (1850) ; bk. 12 L. 
 
 428(1878). See joos< chap, xxvii. ed. 1170. 
 
 « Branch Bank of Mobile v. Hunt, * 70 U. S. (3 Wall.) 19C (1865) ; 
 
 8 Ala. 876 (1845). bk. 18 L. ed. 43. 
 
 « 49 U. S. (8 How.) 495, 546 (1850); « Smith v. Myers, 41 Md. 425, 
 
 bk. 12 L. ed. 1170. 434 (1874). 
 
 * Williamson v. Berry, 49 U. S.
 
 § 527.] STATDsra defioienoy. 637 
 
 foreclose a mortgage provides, " that if the proceeds of the 
 sale be insufficient to pay the amount so reported to be due 
 to the plaintiff, that said referee specify the amount of such 
 deficiency in his report of the sale, and that the defendant 
 pay the same to the plaintiff," it is not necessary to apply 
 to the court for an order confirming the report of the referee 
 before issuing execution against the defendant for the 
 amount of the deficiency ; nor does it appear to be necessary 
 to enter any further judgment upon the filing of said report.* 
 But the better practice appears to be to have the report of 
 the referee confirmed and to enter judgment for the 
 deficiency.' 
 
 It was formerly the practice in New York to have the 
 report of the referee or other officer making the sale con- 
 firmed before issuing an execution for any deficiency ; but 
 that practice was the result of a rule of chancery and is not 
 provided for by the present Code.* A failure under the 
 present practice to procure a confirmation before issuing 
 execution for a deficiency, is a mere irregularity at most, and 
 being purely a question of practice, the decision of the court 
 below will be final.* 
 
 § 527. Substituted or supplemental report of referee — 
 Notice to defendant. — After the report of the referee or 
 other officer making the sale has been duly confirmed, leave 
 to file a substituted report of the sale, the original report 
 having been lost, and to enter a personal judgment for any 
 deficiency not realized by the sale, should not be allowed, 
 except upon notice to the defendant or some one entitled to 
 represent him.* 
 
 » Moore v. Shaw, 15 Hun (N. T.) Y.) 428 (1878) ; afE'd 77 N. Y. 513 
 
 428 (1878) ; afE'd 77 N. Y. 512 (1879). (1879). 
 
 See N. Y. Code Civ. Proc. § 1627. * N. Y. Code Civ. Proc. § 721, 
 
 * Springsteene v. Gillett, 30 Hun sub. 12 ; Moore v, Shaw, 77 N. Y. 
 
 (N. Y.) 260 (1883) ; Moore v. Shaw, 512 (1879), aff'g 15 Hun (N. Y.) 428. 
 
 77 N. Y. 512 (1879), afi'g 15 Hun » Chicago & G. W. R. L. Co. v. 
 
 (N. Y.) 428 (1878). Peck, 112 111. 408 (1885). 
 
 » See Moore v. Shaw, 15 H;m (N.
 
 CHAPTER XXVI. 
 
 SETTING SALE ASIDE AND RESALE. 
 
 GENERAL PRINCIPLES — WHO MAY APPLY FOR — GROUNDS FOR — 
 EFFECT OF— TERMS IMPOSED-RESALE. 
 
 528. General principles — When 
 
 sale will not be set aside. 
 
 529. Discretion of court. 
 
 530. Who may have sale set aside. 
 
 531. How sale may be set aside. 
 533. Time of making application 
 
 for resale. 
 
 When application for resale 
 will be granted — When de- 
 nied. 
 
 When sale may be set aside 
 where plaintiff is purchaser. 
 
 What advance must be bid 
 on resale. 
 
 What sufficient grounds for 
 setting sale aside. 
 
 537. Irregularity in conduct of sale. 
 
 538. Not set aside because of few 
 
 bidders. 
 Inadequacy of price. 
 Motion to set sale aside for 
 
 inadequacy of price. 
 
 533. 
 
 534. 
 
 535. 
 
 536. 
 
 539 
 
 540, 
 
 S 541. 
 
 543. 
 543. 
 544. 
 
 545. 
 
 546. 
 547. 
 
 548. 
 549. 
 
 Accident and surprise grounds 
 
 for setting sale aside. 
 Fraud and misconduct. 
 False statements generally. 
 Misleading statements and 
 
 representations by referee 
 
 or plaintiff. 
 Negligence in objecting, and 
 
 acquiescence in sale. 
 Objections waived by delay. 
 Excusable mistakes as 
 
 grounds for setting sale 
 
 aside. 
 Terms imposed. 
 Effect upon purchaser of 
 
 order setting sale aside. 
 Setting sale aside for benefit 
 
 of infants. 
 
 550 
 551, 
 552. Proceedings on resale. 
 
 Appeal from order on appli- 
 cation for resale. 
 
 § 528. General principles — When sale will not be set 
 aside. — A sale made in a mortgage foreclosure will not, as a 
 rule, be disturbed where it was fairly made and is free from 
 fraud, and there is an absence of all circumstances which would 
 justify setting it aside.* Some good reason must always be 
 shown to justify an interference with the sale. If there is no 
 legal right to relief,'' as a matter of course, the application 
 
 » McCotter v. Jay, 30 N. Y. 80 
 (1864); Lefevre v. Laraway, 22 Barb. 
 (N. Y.) 167 (1856); Gardiner v. 
 Schermerhorn, Clarke Ch. (N. Y.) 
 101 (1839) ; Whitbeck v. Rowe, 25 
 How. (N. Y.) Pr. 403 (1862) ; White 
 
 V. Coulter. 1 Hun (N. Y.) 857, 364 
 (1874) ; American Ins. Co. v. Oakley, 
 9 Paige Ch. (N. Y.) 496 (1842) ; s. c. 
 38 Am. Dec, 561 ; Duncan v. Dodd, 
 2 Paige Ch. (N. Y.) 99 (1830). 
 * It is said in McCotter v. Jay, 30 
 
 638
 
 § 528.] WHEN SALE NOT SET ASIDE. 639 
 
 will be addressed to the sound discretion of the court, 
 and the court must consider the equities of all parties inter- 
 ested, in order that substantial justice may be done.* 
 
 It has been said that a foreclosure sale should not be set 
 aside merely because some irregularity was committed in its 
 conduct, such as selling a homestead together with other 
 mortgaged premises without inquiring whether the home- 
 stead could be sold separately, unless it is clearly shown 
 that some injury was sustained because of such irregularity.' 
 
 Where a foreclosure sale is regular, it will not be set 
 aside because the newspaper in which the notice of the sale 
 was published, was one of limited circulation and not calcu- 
 lated to give that general information which should be 
 afforded in such cases f and the facts that a party to the suit, 
 who is entitled to the surplus money arising on a sale of 
 the mortgaged premises, is so far deprived of his eye-sight 
 as not to be able to read a newspaper, and that he did not 
 for that reason see the advertisement of the sale, and conse- 
 quently did not attend such sale, and the property was sold 
 at a sacrifice, do not constitute a sufficient ground for setting 
 the sale aside.* 
 
 Where the plaintiff in an action for foreclosure was described 
 as an administrator, and as such prosecuted the action to 
 judgment, after proper service on all the defendants, it was 
 held that the judgment and a sale under it could not be assailed 
 because of an irregularity, or even want of jurisdiction, in 
 granting the letters of administration to him.* It has also 
 been held that a sale should not be set aside, because the 
 officer conducting it failed to make his report thereof at 
 the next term of the court after the sale ;' nor because the 
 
 N. T. 80 (1864), that where fore- (1872). See Warren v. Foreman, 
 
 closure proceedings are entirely 19 Wis. 35 (1865). 
 
 regular and free from fraud, they * Wake v. Hart, 12 How. (N. Y.) 
 
 can not be disturbed or set aside Pr. 444 (1855). 
 
 without some legal reason. * Parkhurst v. Cory, 11 N. J. Eq. 
 
 1 Wiley V. Angel, Clarke Ch. (N. (3 Stockt.) 233 (1856). 
 
 T.) 217 (1840). See Tripp v. Cook, » Abbott v. Curran, 98 N. Y. 665 
 
 26 Wend. (N. Y.) 143 (1841) ; Cole (1885). 
 
 V. Miller, 60 Ind. 463 (1878). « Walker v. Schum, 42 111. 463 
 
 •Lloyd V Frank, 30 Wis. 306 (1867).
 
 640 DISCEETION OF COURT. [§529. 
 
 judgment was entered for too large an amount,' for, on an 
 application to set aside a sale made in a foreclosure, the court 
 can not inquire into the regularity of such action, nor whether 
 the sum for which judgment was entered is greater or less than 
 it should have been." 
 
 The fact that the original mortgagee, who assigned his 
 mortgage and guaranteed its payment, and who was made a 
 party to the foreclosure, did not know of the time and place of 
 the sale, will not be a good ground for setting it aside, 
 because such mortgagee was bound to use due diligence in 
 ascertaining the day of the sale in order to protect his rights.* 
 
 § 529. Discretion of court. — The supreme court, having 
 control over its own judgments and all proceedings there- 
 under, and having power to exercise this control at the 
 instance of any person whose rights are injuriously affected 
 by such proceedings,* has power to set aside and vacate a 
 sale of land made under a judgment upon a foreclosure of 
 a mortgage by an officer thereof, and to order a resale, 
 although there may be no fraud, and the sale was regular in 
 all respects.' 
 
 An application for a resale is always addressed to the 
 sound discretion of the court of- original jurisdiction, and 
 an order granting or denying such a resale is not appeal- 
 able.' The court held in Wakeman v. Price,^ that " such 
 relief, where the proceedings have been regular, can not be 
 claimed as a matter of right, but simply as a matter of 
 favor. It must, therefore, rest in the discretion of the 
 
 ' Young V. Bloomer, 22 How. (N. • Goodell v. Harrington, 76 N". T. 
 
 Y.)Pr. 383(1861) ; Bullard v. Green, 547 (1879) ; Hale v. Clauson, 60 N. 
 
 10 Mich. 268 (1862). Y. 339, 341 (1875) ; Crane v. Stiger, 
 
 s Bullard v. Green, 10 Mich. 268 58 N. Y. 625 (1874) ; Buffalo Sav. 
 
 (1862). Bank v. Newton. 23 N. Y. 160 
 
 3 McCotterv.Jay, 30 N.Y. 80(1864). (1861); Wakeman v. Price, 3 N. 
 
 * Goodell V. Harrington, 76 N. Y. Y. 334 (1850) ; Bergen v. Snedeker, 
 
 647 (1879); Kellogg v. Howell, 62 8 Abb. (N. Y.)]Sr. C. 50 (1879); Nu- 
 
 Barb. (N. Y.) 280 (1872) ; Gould v. gent v. Nugent, 54 Mich. 557 (1884) ; 
 
 Mortimer, 26 How. (N. Y.) Pr. 167 Adams v. Haskell, 10 Wis. 123 
 
 (1863). (1859). 
 
 « Hale V. Clauson, 60 N. Y. 339, ' 3 N. Y. 334, 335 (1850). 
 841 (1875).
 
 § 530.] DISCRETION 01 COURT. 641 
 
 court to grant or refuse it. It is simply a question of 
 practice in the lower court — as clearly so as an order grant- 
 ing or denying a motion to open a default, to dissolve an 
 injunction, or to allow costs." 
 
 Where a sale is reported by the referee and the purchaser 
 refuses to comply with its terms, the court may, upon 
 an application by the plaintiff, or by other persons inter- 
 ested, order that cause be shown why the terms of the 
 sale should not be complied with ; and if sufficient cause is 
 not shown, the court, after considering all the circumstances 
 of the sale, may either ratify or set it aside, as justice in the 
 case may seem to require.' If the sale is ratified and 
 the party still fails to comply with its terms, the court may 
 proceed summarily to direct a resale of the property at the 
 risk of the first purchaser.' 
 
 But the first sale having been reported by the referee, or 
 other officer making it, no order affecting the rights of the 
 purchaser should be granted without notifying him and 
 affording him an opportunity of opposing the motion for a 
 resale.* Parties desiring to have a mortgage foreclosure sale 
 set aside must move promptly after they become aware of 
 the facts of which they complain.* 
 
 § 530. Who may have sale set aside. — Every person 
 whose rights are injuriously affected by a judgment of fore- 
 closure or by a proceeding thereunder, has a right to have it 
 set aside or amended on motion, even though he is not a 
 party to the suit ; and hence, he may apply to the court for 
 a resale of the premises.* To be entitled to apply for a 
 resale, the party need not have a specific lien upon the 
 land ;• it will be sufficient if he has an interest or right in 
 
 ' Schaefer v. O'Brien, 49 Md. 253 547 (1879) ; Kellogg v. Howell, 63 
 
 (1878). Barb. (K Y.) 280 (1872) ; Gould v. 
 
 « Schaefer v. O'Brien, 49 Md. 253 Mortimer, 26 How, (K Y.) Pr. 167 
 
 (1878). (1863) ; 8. c. 16 Abb. (N. Y.) Pr. 
 
 » Schaefer v. O'Brien, 49 Md. 253 448 ; Fuller v. Brown, 85 Hun (N. 
 
 (1878). Y.) 162 (1885). 
 
 * Lyon V. Brunson, 48 Mich. 194 « Goodell v. Harrington, 76 N. Y. 
 (1882). 547 (.879). 
 
 * Goodell V. Harrington, 76 N. Y.
 
 642 WHO MAY HAVE SALE SET ASIDE. [§530. 
 
 the property, which may be affected by the sale.* A creditor 
 of the mortgagor, whose debt will be affected,' a judgment 
 creditor whose lien will be destroyed,* a subsequent judg- 
 ment creditor whose judgment would be rendered worthless, 
 if the judgment under which the sale was made is fraudu- 
 lent,* a junior incumbrancer whose right of action accrues 
 subsequently to the commencement of the foreclosure under 
 which the sale is made, and who is not a party to such action,* 
 or a party who is primarily liable for the payment of the 
 mortgage debt or of any deficiency, who is not made a party 
 to the suit, may move to have the sale set aside, if it did not 
 produce enough to satisfy his claim or to relieve him from 
 personal liability.* 
 
 It has been held that a party who has no interest in 
 the mortgaged premises, but who is personally liable for 
 any deficiency arising upon the sale, has no right to ask 
 for a resale, if he and the representatives of his surety are 
 discharged from liability for the deficiency to the extent of 
 the full value of the premises, over and above the amount 
 brought at the former sale.^ An owner of the equity of 
 redemption in mortgaged lands, who has made a general 
 assignment for the benefit of his creditors, still retains an 
 interest in the land, and may apply to have a sale of the 
 lands made under a foreclosure set aside, notwithstanding 
 such assignment.* 
 
 * Goodell V. Harrington, 76 N. * See Brown v. Frost, 10 Paige 
 T. 547 ( 1879 ). See Rohrback v. Ch. (N. T.) 243 (1843) ; American 
 Germania Ins. Co., 63 N. Y. 47 Ins. Co. v. Oakley, 9 Paige Ch. (N. 
 (1875). Y.) 259 (1841). 
 
 » Fuller V. Brown, 35 Hun (N. Y.) • Bodine v. Edwards, 2 N. Y. 
 
 162, 165 (1885). Leg. Obs. 231 (1843) ; s. c. 3 Ch. 
 
 « Kellogg V. Howell, 62 Barb. (N. Sent. 46. See Shuler v. Maxwell, 38 
 
 Y.) 280, 284(1872); Fuller v. Brown, Hun (N. Y.) 240 (1885). 
 
 35 Hun (N. Y.) 162, 165 (1885); ' Bodine v. Edwards, 2 N. Y. Leg. 
 
 May V. May, 11 Paige Ch. (N. Y.) Obs. 231 (1843) ; 8. c. 3 Ch. Sent 
 
 201 (1844). See American Ins. Co. 46. 
 
 V. Oakley, 9 Paige Ch. (N. Y.) 259 ^ Delaware, L. & W. R. Co. ▼. 
 
 (1841). Scranton, 34 K J. Eq. (7 Stew.) 42fc 
 
 * See Kellogg v. Howell, 62 Barb. (1881). 
 (N. Y.) 280. 283 (1872) ; Chappel v. 
 Chappel, 12 N. Y. 215 (1855).
 
 § 531.] HOW SALE SET ASIDE. 643 
 
 Each case will be governed by its own peculiar circum- 
 stances,' but it may be stated as a general rule on which 
 courts act in setting aside sales made on mortgage fore- 
 closures and in ordering resales of the property, that equity 
 will not allow fraud or unfairness on the part of any person 
 connected with the sale," nor on the part of the purchaser.* 
 
 But where property is regularly advertised and fairly sold 
 by a referee, or other ofiRcer of the court, such sale will not 
 be set aside, and a resale ordered, on motion of parties inter- 
 ested in the proceeds of the sale, in order to protect them 
 against the consequences of their own negligence, where they 
 are adults and were competent to protect their rights on 
 the sale.* Where the party making the motion has been 
 guilty of laches, he can not have relief ; and where the period 
 prescribed by statute, within which an action in equity to 
 redeem from a mortgage can be brought, has been permitted 
 to expire, the court has no power to set the sale aside.' 
 
 § 531. How sale may be set aside. — When it would 
 be inequitable to permit the sale to stand, the proper 
 remedy for the party aggrieved is by a summary application 
 to the court on motion in the original suit, for an order 
 setting the sale aside and directing a resale of the premises.* 
 Notice of the motion for a resale should be given to all 
 persons who have appeared in the suit, and to all persons 
 who have any interest in the property sold or in the pro- 
 ceeds of the sale, as well as to the purchaser at the sale which 
 it is sought to set aside.' 
 
 > Francis v. Church, Clarke Ch. (N. Y.) 515 (1874) ; s. c. 46 How. 
 
 (N. Y.) 475 (1841). See Lefevre v. (N. Y.) Pr. 441. See Francis v. 
 
 Laraway, 23 Barb. (N. Y.) 167 Church.ClarkeCh. (N.Y.) 475 (1841); 
 
 (1856). Nicholl v. Nicholl, 8 Paige Cli. (N. 
 
 « Stahl V. Charles, 6 Abb. (N. Y.) Y.) 349 (1840) ; Warren v. Foreman, 
 
 Pr. 348 (1857). 19 Wis. 35 (1865). 
 
 » Murdock v. Empie, 19 How. (N. * McCotter v. Jay, 30 N. Y. 80 
 
 T.) Pr. 79 (1860). (1864) ; Kellogg v. Howell, 62 Barb. 
 
 * American Ins. Co. v. Oakley, 9 (N. Y.) 280, 283 (1872) ; Gould v. 
 
 Paige Ch. (K Y.) 259 (1841) ; 8. 0. Mortimer, 26 How. (K Y.) Pr. 167 
 
 88 Am. Dec. 561. See McCotter v. (1863); s. c. 16 Abb. (N. Y.) Pr. 448. 
 
 Jay, 30 N. Y. 80 (1864). ' Robinson v. Meigs, 10 Paige Ch. 
 
 » Depew V. Dewey, 2 T. & C. (N. Y.) 41 (1843).
 
 641 HOW SALE SET ASIDE. [§ 531 
 
 It seems that where a party was so connected with a fore- 
 closure, that he could have moved in that action to set the 
 sale aside, he can not subsequently maintain a suit to accom- 
 plish the same object.' And while it may be questionable 
 whether, after a sale on foreclosure, the defendants can have 
 such sale set aside in opposing the purchaser's motion for 
 confirmation, yet there will be no error in setting such sale 
 aside upon an order procured by a defendant requiring the 
 purchaser to show cause why a resale should not be had.* 
 
 In the early case of Brown v. Frost,* it was held that an 
 original bill in chancery can not be filed by a party to a fore- 
 closure to set aside a master's sale under a decree, when 
 the same relief could have been obtained by a summary 
 application to the court in the action for foreclosure.* Chan- 
 cellor Walworth held in this case, that it would seriously 
 affect the interests of those whose property was to be sold 
 by a referee on a mortgage foreclosure, if it was understood 
 that questions affecting the rights of the parties to the suit 
 could be litigated and determined in collateral suits, " for," 
 said the chancellor, " no man of ordinary prudence would 
 bid what he believed to be the fair cash value of the property, 
 at a master's sale, if he might be subjected to the expense 
 and delay of a protracted chancery suit to determine whether 
 the proceedings of the master had been strictly regular."* 
 
 This doctrine seems to be questioned in Hackley v. 
 Draper ;' and in the case of Vandercook v. Cohoes Savings 
 Institution,^ it is said that an action may be brought to set 
 
 ' Gould V. Mortimer, 26 How. (N. 5 Hun (N. Y.) 641 (1875); Amer- 
 
 Y.)Pr. 167, 169(1863); B.C. 16 Abb. ican Ins. Co. v. Oakley, 9 Paige 
 
 (N. Y.) Pr. 448. Ch. (N. Y.)259 (1841); Nicholl 
 
 'Hubbard v. Taylor, 49 Wis. 68 v. Nicholl, 8 Paige Ch. (N. Y. ) 
 
 (1880). 349 (1840) ; Requa v. Rea, 2 Paige 
 
 3 10 Paige Ch. 243 (1843). Ch. (N. Y.) 339 (1831); Collier v. 
 
 * The same doctrine is held in Mc Whipple, 13 Wend. (N. Y.) 224 
 
 Cotter V. Jay, 30 N. Y. 80 (1864^ ; (1834). Compare Hackley v. Draper, 
 
 Kellogg V. Howell, 62 Barb. (N. Y.) 60 N. Y. 88, 93 (1875). 
 
 280 (1872) ; Libby v. Rosekrans, 55 b ggg Brown v. Frost, Hofl. Ch. 
 
 Barb. (N. Y.) 202, 219, 220 (1869) ; (N. Y.) 41 (1839). 
 
 Smith V. American Ins. Co., Clarke <'60 N. Y. 88, 93 (1875). 
 
 Ch. ( N. Y. ) 307 ( 1840 ) ; Van- i 5 Hun (N. Y.) 641 (1875). 
 dercook v. Cohoes Sav. Institution,
 
 § 532.] TIME OP APPLYING TOE KESALE. 645 
 
 aside a sale made under a decree of foreclosure, if the sale was 
 fraudulently conducted to the prejudice of any party inter- 
 ested in the property, even though such person may have a 
 concurrent remedy by motion. 
 
 It was held in an early case, where the officer making the 
 sale neglected to give security for the faithful discharge of his 
 duties, as required by law, and assumed to act as such officer 
 and to sell the premises under a decree of foreclosure, and 
 the report of the sale was confirmed by the court, that the 
 remedy of the party aggrieved was by an application in 
 the action for foreclosure, to have the sale set aside for 
 irregularity. But such an objection, when raised in a fore- 
 closure, can not be heard unless promptly made.' 
 
 §532. Time of making application for resale.— An 
 objection to a sale should be made promptly ; if made after 
 a great lapse of time, a good excuse must be shown for the 
 delay.' As a general rule, the proper time for making an 
 application for a resale is before the confirmation of the 
 report of the officer who conducted the sale ;' but under special 
 circumstances the court may set the sale aside and order a 
 resale, even after the confirmation of the report.* 
 
 Where a party moving for a resale has been guilty of 
 laches, relief will not be granted in the absence of a good 
 excuse or of an explanation of the delay ;' and if the period 
 prescribed by the statute, within which an action in equity 
 
 > Nicholl V, Nicholl, 8 Paige Ch. » Brown v. Frost, 10 Paige (N. 
 
 (N. Y.) 349 (1840). Y.) 243 (1843). See Strong v. Doll'- 
 
 * Lockwood V. McGuire, 57 How, ner, 2 Sandf. (N. Y.) 444 (1849) • 
 
 (N. Y.) Pr. 266 (1879) ; Nicholl v. Morice v. Durham, 11 Ves. 57 
 
 Nicholl, 8 Paige Ch. (N. Y.) 349 (1805); Watson v. Birch, 2 Ves. 53 
 
 (1840) ; Hoyt v. Pawtucket Inst, of (1793). 
 
 Savings, 110 111. 390 (1884), See Mc- < See Lansing v. McPherson, 3 
 
 Hany v, Schenk, 88 HI. 357 (1878) 
 
 Bush V. Sherman, 80 111. 160 (1875) 
 
 Munn V. Burges, 70 111. 604 (1873) 
 
 Dempster v. West, 69 111. 613 (1873) 
 
 Burr V. Borden, 61 HI. 389 (1871) 
 
 Beach v. Shaw, 57 111. 17 (1870) 
 
 Hamilton v. Lubukee, 51 HI. 415 (K Y.) Pr. 266 (1879) 
 
 (1869) ; Cox V. Montgomery, 36 HI. 
 
 896 (1864). 
 
 Johns. Ch. (N. Y.) 424 (1818); 
 Ryder v. Gower, 6 Bro. P. C. 306 
 (1766) ; Price v. Moxon, cited 2 Dan. 
 Ch. Pr. 1290 (1754); Watson v. 
 Birch, 2 Ves. 52 (1793). 
 ' Lockwood V. McGuire, 57 How.
 
 646 TIME OF APPLYma FOR RESALE, [§532. 
 
 maybe brought to redeem from a mortgage, has expired, the 
 court will not set the sale aside ;* because, as has been 
 said, " the courts have found it to be a duty, where a party 
 has lost his rights by lapse of time under statutory 
 provisions relating to them, to deny a motion made for 
 relief after the time for affording the redress claimed has 
 been allowed to expire without an application being made 
 to secure it. Any other course would result in a nullifica- 
 tion of the statutes, for it would be doing by indirect means, 
 what in substance the legislature has provided should not be 
 done by any means."" 
 
 It was held in the case of Fuller v. Brown,' that the 
 statutory limitation of one year has no application to a 
 motion to set a sale aside and for a resale, and that " the 
 question of laches and its effect are dependent upon 
 the circumstances of each particular case involving the con- 
 sideration of them. It would be more strictly applied, as 
 against a purchase in good faith, by a stranger to the pro- 
 ceedings, than to a party privy to it and not a bona fide 
 purchaser. Also when the rights of third parties had inter- 
 vened, which would be affected by giving relief." If there 
 has been no substantial change in the situation, which would 
 make the granting of the relief asked result to the injury of 
 the purchaser, the question of laches will have less impor- 
 tance.* 
 
 A mortgagor should avail himself without delay of all 
 irregularities in a sale of the mortgaged premises, whether 
 made by an officer of the court under a decree of foreclosure 
 and sale, or by the mortgagee under a power in the mort- 
 gage. Thus, it has been held where the former owner 
 
 » Depew V. Dewey, 46 How. (N. (N. Y.) Pr. 93 (185G) ; Humphrey v. 
 
 Y.) Pr. 441 (1874) ; s. c. 3 T. & C. Chamberlain, 11 N. Y. 274 (1854). 
 
 (N. Y.) 515. 3 35 Hun (N. Y.) 162, 166 (1885). 
 
 * Depew V. Dewey, 46 How. (N. * See In re Woolsey, 95 N. Y. 
 
 Y.) Pr. 441, 446 (1874) ; s. c. 2 T. & 135, 144 (1884) ; McMurray v. Mc- 
 
 C. (N. Y.) 515. See Salles v. Butler, Murray, 66 N. Y. 176 (1876) ; Lock- 
 
 27 K Y. 638 (1863) ; Wait v. Van wood v. McGuire, 57 How. (N. Y.) 
 
 Allen, 22 N. Y. 319 (1860); Fry v. Pr. 266 (1879) ; Vielc v. Judson, 15 
 
 Bennett, 16 How. (N. Y.) Pr. 385 Hun (K. Y.) 328 (1878). 
 (1858); Mars ton v. Johnson, 13 How.
 
 § 533.] WHEN RESALE GRANTED. 647 
 
 knew of the sale shortly after it was made, and neglected to 
 redeem the property by paying the sum due from him, 
 that a delay of four years in filing a bill to set such sale aside 
 on the ground of alleged irregularities and inadequacy of 
 price, was such laches as to bar the relief sought/ 
 
 § 533- When application for resale will be granted — 
 When denied. — A resale of mortgaged premises may be 
 ordered in case the sale was improperly, unfairly or unlaw- 
 fully conducted, and that fact is made to appear to the 
 court." A resale may also be ordered if there was a defect 
 of parties to the suit,* or if several parcels were sold in 
 a lump,* because the parties interested in such sale have a 
 right to expect and to require that the property shall be 
 offered and sold in the usual manner, and in accordance with 
 the requirements of law. If it appears that the property 
 has been sacrificed by the failure of the officer making the sale 
 to comply with such requirements, the parties injured will 
 be entitled to relief by a resale.* 
 
 A resale will be ordered where there were no bidders 
 present at the sale except the auctioneer ;' or where the 
 purchaser refuses to comply with the terms of sale.'' But if 
 the purchaser is financially responsible, the court may make 
 an absolute order that he complete the purchase, or that an 
 
 ' Hoyt V. Pawtucket Inst, of Sav- * Brown v. Frost, 10 Paige Ch. (J?, 
 
 ings, 110 111. 390 (1884) ; Hamilton Y.) 243 (1843). See Lansing v. Mc- 
 
 v.^Lubukee, 51 111. 415 (1869). Pherson. 3 Johns. Ch. (N. Y.) 434 
 
 « King V. Piatt, 37 K Y. 155 (1818); Billington v. Forbes, 10 Paige 
 
 (1867) ; 8. c. 35 How. (N. Y.) Pr. 23 ; Ch. (N. Y.) 487 (1843) ; American 
 
 8 Abb. (N. Y.) Pr. N. S. 434; Ins. Co. v. Oakley, 9 Paige Ch. 
 
 Marsh v. Ridgway, 18 Abb. (N. Y.) (N. Y.) 259 (1841) ; Requa v. Rea, 3 
 
 Pr, 262(1864) ; Lefevre v. Laraway, Paige Ch. (N. Y.) 339 (1831) ; Tripp 
 
 23 Barb. (N. Y.) 167 (1856) ; Griffith v. Cook, 26 Wend. (N. Y.) 146 
 
 V. Hadley, 10 Bosw. (N. Y.) 587 (1841) ; Bixly v. Mead, 18 "Wend. 
 
 (1862) ; Wolcott V. Schenck, 28 (N. Y.) 611 (1836) ; GrofE v. Jones, 6 
 
 How. (N. Y.) Pr. 385 (1862) : Lents Wend. (N. Y.) 522(1831). 
 
 V. Craig, 18 How. (N. Y.) Pr. 73 « Campbell v. Swan, 48 Barb. (N. 
 
 (1855) ; s. c. 2 Abb. (N. Y.) Pr. 294. Y.) 109 (1865). 
 
 » Verdin v. Slocum, 71 N. Y. 345 ' Graham v. Bleakie, 2 Daly (N. 
 
 (1877). T.) 55, 60 (1866). 
 
 * Ames V. Lockwood, 13 How. 
 (N. Y.) Pr. 555 (1856).
 
 648 WHEN KESALE GRANTED. [§533. 
 
 attachment issue against him.' If the sale is ratified and 
 the purchaser still refuses to complete his purchase, the 
 court may proceed in a summary way by an order, and 
 direct a resale of the property at the risk of the purchaser at 
 the first sale.' 
 
 Upon an application for a resale of property in a mortgage 
 foreclosure, all the facts connected with the sale and with 
 the equitable interests of the various parties will be taken 
 into consideration by the court.* When a mortgage fore- 
 closure sale is fair and free from fraud, accident or surprise, 
 a resale will not be ordered ; especially, if the equities of 
 the case are in favor of the purchaser, as where he has 
 a subsequent lien which will be imperiled by a resale.* 
 
 In Haines v. Taylor,* the court held that "the rule is 
 distinctly and clearly laid down in numerous cases, that the 
 court will not interfere except in very special cases ; and 
 never when the mortgagor is an adult and has an opportunity 
 of attending the sale and taking care of his interests, and the 
 sale is fairly made.'" Where foreclosure proceedings are 
 entirely regular and free from fraud, the sale will not be set 
 aside without some legal reason. Mere want of knowledge 
 of the time and place of the sale on the part of one who was a 
 party to the foreclosure, and who was bound for that reason 
 to use due diligence in obtaining information of the sale in 
 order to protect his rights, affords no sufficient reason for a 
 resale.^ 
 
 A resale in a mortgage foreclosure will not be ordered 
 merely because the property was not sold in separate parcels. 
 
 1 Graham v. Bleakie, 2 Daly (N. * 3 How. (N.Y.)Pr. 206, 207(1848). 
 T.) 55, 60 (1866). See Miller v. Coll- « See JlcColter v. Jay, 30 N. Y. 80 
 yer, 36 Barb. (N. Y.) 250 (1862) ; (1864) ; White v. Coulter, 1 Huu (N. 
 Saunders v. Gray, 4 Myl. & C. 515 Y.) 357 (1874); Livingston v. Byrne, 
 (1811); Lansdown v. Elderton, 14 11 Johns. (N. Y. ) 555 (1814); 
 Ves. 512 (1808). Billington v. Forbes, 10 Paige Ch. 
 
 2 Schaefer v. O'Brien, 49 Md. 253 (N. Y.) 487 (1843) ; American Ins. 
 (1878). Co. V. Oakley, 9 Paige Ch. (N. Y.) 
 
 3 Wiley V. Angle, Clarke Ch. (N. 259 (1841) ; Duncan v. Dodd, 2 Paige 
 Y.) 217 (1840). Ch. (N. Y.) 101 (1830). 
 
 * Gardiner V. Schermerhorn, Clarke ' McCotter v. Jay, 30 N. Y. 80 
 
 Ch. (N. Y.) 101 (1839). (1864).
 
 §§ 534-535.] WHEN SALE MAY BE SET ASIDE. 649 
 
 if it appears that no request to sell in parcels was made of the 
 referee, and that the premises, although consisting of several 
 lots, have been so built upon as really to constitute but one 
 parcel.' The transfer of a bid made at foreclosure sale is 
 not a good ground for a resale.* 
 
 § 534- When sale may be set aside where plaintiff is 
 purchaser. — A mortgagee has an equal right with disinter- 
 ested parties to purchase the mortgaged premises, and the 
 mere fact that he purchased the premises at a low price, 
 will constitute no ground for setting the sale aside where it 
 was fair and open, and the bidders were in no way deceived.' 
 Yet a sale will be set aside and a resale ordered upon less 
 evidence of fraud, surprise, accident or misconduct of the 
 officer conducting the sale, if the plaintiff or mortgagee is 
 the purchaser, and the rights of third parties or bona fide 
 purchasers do not intervene, than where a stranger to the 
 suit is the purchaser.* 
 
 In the case of Tripp v. Cook,' the court held that 
 "where the mortgagee or complainant himself becomes 
 the purchaser, the court has not always held the sale so 
 conclusive as where the property has been purchased by 
 one who was an entire stranger to the suit, who had bid 
 for the purpose of investment merely." Where the mort- 
 gagee becomes the purchaser of the premises at a sum less 
 than the amount of his mortgage, the sale may be opened on 
 motion of the person who is bound to make good the defi- 
 ciency, upon the payment of a reasonable advance upon the 
 price at which the premises were publicly sold.' 
 
 § 535. What advance must be bid on resale. — Before a 
 sale made in pursuance of a judgment of foreclosure has 
 been confirmed, the court may open the biddings and order 
 
 1 McLaughlin v. Teasdale, 9 Daly Y.) 280 (1872) ; Tripp v. Cook, 26 
 (N. Y.) 23 (1880). Wend. (N. Y.) 143(1841). See Nugent 
 
 2 Culver V. McKeowu, 43 Micli. v. Nugent, 54 Mich. 557 (1884); 
 322 (1880). Campbell v. Gardner, 11 N. J. Eq. (3 
 
 ^Mott V. Walkley, 3 Edw. Ch. Stock.) 423 (1857). 
 
 (N. Y.) 590 (1842). See N. Y. Su- ' 26 Wend. (N. Y.) 143, 145(1841). 
 
 premc Court Ruh; 61. « Littell v. Zuntz, 3 Ala. 256 (1841); 
 
 <Kull'J"^'^ V. Howell, 62 Barb. (N. 6. c. 36 Am. Dec, 415. See Mott
 
 650 
 
 WHAT ADVANCE BID ON RESALE. 
 
 a resale, at the instance of any one who is liable for the 
 deficiency, on his offering a sufficient advance over the sum 
 received, and paying the costs of the former sale.* Under 
 the English practice it seems that while the court does not 
 confine itself to a particular rate per centum, ten pounds per 
 centum has been adopted as the prevailing rule.' But this 
 practice has never been generally adopted in this country,* 
 because its tendency is considered prejudicial to the fair con- 
 duct of judicial sales.* In this country, neither before nor 
 after the confirmation of the report of sale, will a resale be 
 ordered merely upon an offer of an increase of price.* 
 
 But in Alabama, where property is sold under a decree of 
 foreclosure and is purchased by the mortgagee, the biddings 
 will be opened and a resale ordered before a confirmation of 
 the sale, if an advance of not less than ten per centum upon 
 
 V. Walkley, 8 Edw. Ch. (N. Y.) 590 
 (1842); Woodhull v. Osborne, 2 
 Edw. Ch. (N. T.) 614 (1836) ; Lans- 
 ing V. McPherson, 3 Johns. Ch. (N. 
 Y.) 424 (1818). 
 
 ' See Lansing v. McPherson, 3 
 Johns. Ch. (N. Y.) 424 (1818) ; Far- 
 low V. Weildon, 4 Madd. 460 (1819). 
 It is said in a note to Farlow v. 
 Weildon, that " when biddings are 
 opened, the person who opens them 
 pays all the costs of the former 
 purchaser ; and I am informed that 
 he has been allowed the costs of an 
 agent who traveled a considerable 
 distance for the purpose of buying 
 for his principal." 
 
 * Garstone v. Edwards, 1 Sim. & 
 Stu. 20 (1822). In this case it is said 
 that the cases of Brooks v. Snaith, 
 3 Ves. & B. 144 (1814), and White v. 
 Wilson, 14 Ves. 151 (1807), and Ex 
 parte Partington, 1 Ball. & B. 209 
 (1809), establish the fact that where 
 an advance so large as five hundred 
 pounds is offered, the court will act 
 upon it though it be less than ten 
 pounds per centum. 
 
 « Woodhull V. Osborne, 2 Edw. 
 Ch. (N. Y.) 614 (1836). See Lefevre v. 
 Laraway, 22 Barb. (N. Y.) 167, 173 
 (1856) ; Lansing v. McPherson, 8 
 Johns. Ch. (N. Y.) 424 (1818) ; Wil- 
 liamson V, Dale, 3 Johns. Ch. (N. 
 Y.) 290 (1818) ; Duncan v. Dodd, 2 
 Paige Ch. (N. Y.) 99(1830); CoUier 
 V. Whipple, 18 Wend. (N. Y.) 224 
 (1834); Jackson v. Warren, 33 Bl. 
 381 (1863) ; Forman v. Hunt, 8 Dana 
 (Ky.)614 (1835) ; Delaware, L. & W 
 R. Co. V. Scranton, 34 N. J. Eq. 
 (7 Stew.) 429, 432 (1881) ; Adams v. 
 Haskell, 10 Wis. 123 (1859). 
 
 * Delaware, L. & W. R. Co. v. 
 Scranton, 84 N. J. Eq. (7 Stew.) 429 
 (1881) ; Conover v. Walling, 15 N. 
 J. Eq. (2 McCar.) 173, 178 (1852). 
 
 * Lefevre v. Laraway, 22 Barb. 
 (N. Y.) 167, 173 a856). See Brown v. 
 Frost, 10 Paige Ch. (N. Y.) 243, 249 
 (1843) ; American Ins. Co. v. Oak- 
 ley, 9 Paige Ch. (N. Y.) 259 (1841) ; 
 Tripp v. Cook, 26 Wend. (N. Y.) 
 143 (1841) ; Collier v. Whipple, 13 
 Wend. (N. Y.) 224 (1834); Adams v. 
 Haskell, 10 Wis. 123 (1859).
 
 § 536.] GEOUNDS FOR SETTING SALE ASIDE. 651 
 
 the former sale is offered and the money is deposited in 
 court ; but it seems that a resale will not be ordered where 
 the deposit is less than two hundred dollars.* 
 
 § 536. What sufficient grounds for setting sale aside. 
 — It has been said that equity is ready to receive the excuses 
 of the mortgagor, not only to allow him time to procure the 
 money due on the mortgage before foreclosure, but also to 
 open the foreclosure, if he shows any good reason why he 
 did not appear.' If the referee sells the property under a 
 decree of foreclosure at an improper time, or in such a man- 
 ner as to prevent a fair competition, or if from any other 
 cause it is inequitable that such sale should be permitted to 
 stand, the sale will be set aside on motion.* 
 
 Thus, where a sale under a statutory foreclosure was made 
 when no person was present, except the officer conducting the 
 sale who bid in the property on behalf of the mortgagee, 
 the sale was set aside.* And where the officer making the 
 sale disregards the written request and instructions of 
 the plaintiff and sells the property at a great sacrifice, the sale 
 may be set aside, if the purchaser knew of such written 
 instructions.* A sale may be set aside, especially before con- 
 firmation, for fraud, unfairness or irregularity,' or for want 
 of notice ;' but it seems not for mere inadequacy of price,* 
 unless it results in a clear sacrifice.' 
 
 The confirmation of the referee's report, it seems, will cure 
 all irregularities in proceedings for the sale of mortgaged 
 
 » Littell V. Zuntz, 2 Ala. 256(1841); » Requa v. Rea, 2 Paige Ch. (N. 
 
 B. c. 36 Am. Dec. 415. T.) 339 (1831). 
 
 * Golden v. Fowler, 26 Ga. 451, • Forman v. Hunt, 3 Dana (K7.) 
 
 463(1858). 614(1835). 
 
 « Marsh v. Ridgway, 18 Abb. (N, 
 
 Y.) Pr. 262 (1864) ; Lefevre v. Lara- (1884). 
 
 way, 22 Barb. (N. T.) 167 (1856) 
 Griffith V. Hadley, 10 Bosw. (N, 
 Y.) 587 (1863) ; Wolcott v. Schenck; 
 23 flow. (N. Y.) Pr. 385 (1862) 
 Brown v. Frost, 10 Paige Ch. (N, 
 
 ' Nugent T. Nugent, 54 Mich. 657 
 
 " American Ins. Co. v. Oakley, 9 
 Paige Ch. (N. Y.) 259 (1841) ; s. c. 
 38 Am. Dec. 561 ; Henderson r. 
 Lowry, 5 Yerg. (Tenn.) 240 (1833) ; 
 Hill V. Hoover, 5 Wis. 354 (1856) ; 
 
 Y.) 243 (1843). 8. c. 68 Am. Dec. 70 ; Strong v. 
 
 * Campbell v. Swan, 48 Barb. 109 Catton, 1 "Wis. 471 (1853) ; West v. 
 (1865). Davis, 4 McL. C. C. 241 (1847).
 
 652 WHAT GOOD GROUNDS FOE RESALE. [§537. 
 
 premises and in the conduct of such sale ; but it will 
 not cure a defect arising from want of jurisdiction of the 
 court, either over the cause of action or the parties inter- 
 ested. Mere accident or mistake, which will generally 
 invalidate a contract, may be a good ground for setting a sale 
 aside even after confirmation.' But clearer and stronger 
 evidence of fraud or misconduct, or of other causes for 
 rendering the sale invalid, will be required to set a sale aside 
 after than before confirmation.* 
 
 § 537* Irregularity in conduct of sale. — Any irregularity 
 by the referee in the conduct of a mortgage sale under a 
 decree of foreclosure, will be a sufficient ground for setting 
 it aside.' Where the officer making the sale sells upon 
 terms other than those authorized by the decree, the sale 
 will be irregular, and for that reason may be set aside on 
 the application of any injured party.* A sale will also be set 
 aside where its terms are very different from the usual terms 
 of statutory sales, or are unjust and oppressive towards the 
 mortgagor, as where the officer making the sale requires full 
 payment and performance by the purchaser within an hour's 
 time after the sale, or requires that the payment shall be 
 made in specie.* 
 
 The parties interested in the property to be sold under a 
 mortgage foreclosure, have the right to expect that it will 
 be offered and sold in the usual manner, and in a way that 
 will produce a fair competition among the bidders. If the 
 property consists of several parcels, which, under the rule, 
 ought to be sold separately, and they are sold together, the 
 sale may be set aside on the application of any person 
 aggrieved.* 
 
 » Garrett v. Moss, 20 111. 549 » Goldsmith v. Osborne, 1 Edw. 
 
 (1858). Ch. (N. Y.) 560, 563 (1838) ; Leiits v, 
 
 ' See Jackson v. Warren, 32 111. Craig, 13 How. (N. Y.)Pr. 72(1855); 
 
 831 (1863). 8. c. 2 Abb. (N. Y.) Pr. 294. 
 
 - Lansing v. McPherson, 8 Johns. * Cunningham v. Cassidy, 17 N. 
 
 Ch. (N. Y.) 424 (1818). Y. 276 (1858) ; American Ins. Co. v. 
 
 3 See Forman y. Hunt, 3 Dana Oakley, 9 Paige Ch. (N. Y.) 259 
 
 (Ky.) 614 (1835). (1841) ; s. c. 38 Am. Dec. 561 ; 
 
 * Hotchkiss V, Clifton Air Cure, 4 Merchants' Ins. Co. of New York 
 
 Eeyes (JN. Y.) 170 (1868). City v. Hinman. 3 Abb. (N. Y.) Pr.
 
 § 538.J FEW BIDDEKS NO GROUND FOPw RESALE. 653 
 
 § 538. Not set aside because of few bidders. — It seems 
 that the facts, that the day on which a sale was advertised to 
 take place was rainy and inclement, and that parties who 
 would have bid on the premises, or a portion thereof, were 
 consequently kept away and that only a few bidders were 
 present, do not constitute an adequate cause for setting the 
 sale aside.' 
 
 But, in the case of Roberts v. Roberts,' it was held where 
 the day on which a sale was advertised to take place was so 
 inclement as to deter bidders from attending, and there was 
 but one bidder present, who lived at the place of sale and 
 to whom the premises were sold, that the sale should be set 
 aside without inquiring into the sufficiency of the price for 
 which the land was sold. 
 
 And it was held in Campbell v. Swan,* where no bidders 
 were present at the sale, except the auctioneer, who bid in 
 the property on behalf of the mortgagee, that the sale was 
 void. The court held that " sales at public auction are 
 regulated by certain well-known rules, which are necessary 
 to create competition and enhance bids for the property. 
 No one would regard a sale at auction as a fair sale, if the 
 auctioneer should cry off the property to himself. It is 
 going far enough to allow the attorney to become the 
 auctioneer when his client is a bidder at the sale. But if 
 the sale was unobjectionable for the reason that the attorney 
 cried off the property to his client, who was not present, 
 then I think it should be held void, upon the ground that it 
 was not a sale of the premises at public auction within the 
 meaning of the statute. It might have been good if 
 the plaintiff had been present to bid in the property ; but 
 it does not satisfactorily appear, nor is it found by the 
 referee, that any one was present when the attorney offered 
 the property for sale and struck it off to himself on behalf 
 
 455 (1856) ; Griffith v. Hadley, 10 ' Fairfax v. Muse, 4 Miinf. (Va.) 
 
 Bosw. (N. Y.) 587 (1862) ; Wolcott 124 (1813). 
 
 V. Schenck, 23 How. (N. Y.) Pr. « 13 Gratt. (Va.) 639 (1857). 
 
 885 (1862) ; Breese v. Busby, 13 « 48 Barb. (N. Y.) 109 (1865). 
 
 How. (N. Y.) Pr. 485 (1855) ; Quaw 
 
 V. Lameraux, 36 Wis. 626 (1875).
 
 654 
 
 INADEQUACY OF PKICE RESALE. 
 
 li ocjy. 
 
 of his client who was absent. There can be no legal 
 auction if no one is present but the auctioneer, and the sale 
 should be postponed." 
 
 § 539. Inadequacy of price. — Mere inadequacy of the 
 price brought by the mortgaged premises on a foreclosure 
 sale is not a sufficient ground for ordering a resale of the 
 premises, unless the inadequacy is so great as to be 
 evidence of unfairness or fraud.' It was held by the 
 supreme court of Illinois, in the case of Cleaver v. Green,' 
 that it is not to be expected that property will bring as 
 much at a forced sale as if sold privately by judicious 
 advertising and management, and the fact that it does not, 
 is not a sufficient reason for setting a sale aside, where 
 there is no unfairness or fraud, and where there is no such 
 inadequacy of price as to raise a presumption of fraud. 
 
 In the case of O'Donnell v. Lindsay," it is said that "to set 
 a sale aside, there must, in addition to inadequacy of con- 
 sideration, be some other excuse, such as surprise, ignorance, 
 
 « O'Donnell v. Lindsay, 39 N. T. 
 Supr. Ct. (7 J. i& S.) 523, 532 (1873). 
 See Howell v. Mills. 53 N. Y. 322 
 (1873) ; King v. Morris, 2 Abb. (N. 
 Y.) Pr. 296, 298 (1855) ; Kellogg v. 
 Howell, 62 Barb. (N. Y. ) 280 
 (1872); Lefevre v. Laraway, 22 
 Barb. (k. Y.) 167 (1856) ; Francis 
 V. Church, Clarke Ch. (N. Y.) 475, 
 478 (1841) ; Gardiner v. Schermer- 
 horn, Clarke Ch. (N. Y.) 101 (1839) ; 
 Mott V. Walkley, 8 Edw. Ch. (N. Y.) 
 590 (1842) ; Woodhull v. Osborne, 2 
 Edw. Ch. (N. Y.) 614 (1836) ; Gould 
 V. Gager, 24 How. (N. Y.) Pr. 440 
 (1863) ; s. c. 18 Abb. (N. Y.) Pr. 32; 
 Murdock v. Empie, 19 How. (N. 
 Y.) Pr. 79 (1860) ; s. c. 9 Abb. (N. 
 Y.) Pr. 283; In re Eider, 23 Hun 
 (N. Y.) 91 (1880); Livingston v. 
 Byrne, 11 Johns. (N. Y.) 555 (1814); 
 American Ins. Co. v. Oakley, 9 
 Paige Ch. (N. Y.) 259 (1841) ; s. c. 
 88 Am. Dec. 561 ; Duncan v. Dodd, 
 
 2 Paige Ch. (N. Y.) 99 (1830); March 
 V. Ludlum, 3 Sandf. Ch. (N. Y.) 35 
 (1845); Tripp v. Cook, 26 Wend. 
 (N. Y.) 143 (1841); Collier v. 
 Whipple, 13 Wend.(N.Y.)224 (1834); 
 Central Pac. R. R. Co. v. Creed, 
 70 Cal. 497 (1886) ; Garrett v. Moss, 
 20 Ul. 549 (1858) ; Wing v. Hayford, 
 124 Mass. 249 (1878); King v. 
 Bronson, 122 Mass. 122(1877); Lalor 
 V. McCarthy, 24 Minn. 417 (1878) : 
 Kline v. Vogel, 11 Mo. App. 211 
 (18 — ); Wetzlerv. Schaumann, 24 N. 
 J. Eq. (9 C. E. Gr.) 60 (1873) ; Hen- 
 derson V. Lowry, 5 Yerg. (Tenn.) 
 240 (1833) ; Klein v. Glass, 53 Tex. 
 37 (1880) ; Hill v. Hoover, 5 Wis. 
 354 (1856) ; Strong v. Catton, 1 Wis. 
 471 (1853) ; Dryden v. Stephens, 19 
 W. Va. 1 (1881) ; West v. Davis, 4 
 McL. C. C. 241 (1847). 
 
 » 107 Dl. 67 (1883). 
 
 » 39 N. Y. Supr. Ct. (7 J. & S.)523, 
 532 (1873).
 
 ^ 540.J INADEQUACY OF PEICE EESALE. 
 
 655 
 
 mistake or inadvertence. It will be seen, however, from the 
 cases that a great inadequacy has refined the ingenuity of 
 the learned judges in extracting from the facts of the cases, 
 sufficient to justify annulHng the sale.*" 
 
 § 540. Motion to set sale aside for inadequacy of 
 
 price. — In an application to set aside a sale of mortgaged 
 premises and for a resale, on the ground of inadequacy of con- 
 sideration, the moving party should show the true market 
 value of the property and not its speculative value.* A motion 
 to set aside a sale made in a mortgage foreclosure is addressed 
 
 > See King v. Piatt, 37 N. T. 155 
 (1867) ; McCotter v. Jay, 30 N. Y. 
 80 (1864) ; O'DonneU v. Lindsay, 39 
 N. Y. Supr. Ct. (7 J. & S.) 523. 533 
 (1873) ; Dwight's Case, 15 Abb. (N. 
 Y.) Pr. 259 (1862) ; King v. Morris, 
 2 Abb. (N. Y.) Pr. 296 (1855); 
 Lefevre v. Laraway, 22 Barb. (N. 
 Y.) 167 (1856) ; Griffith v. Hadley, 
 
 10 Bosw. (N. Y.) 588 (1862) ; Francis 
 V. Church, Clarke Ch. (N. Y.) 475 
 (1841) ; Gardiner v. Schermerhorn, 
 Clarke Ch. (K Y.) 105 (1839); 
 Whitbeck v. Rowe, 25 How. (N. Y.) 
 Pr. 403 (1862) ; Murdock v. Empie, 
 19 How. (N. Y.) Pr. 79 (1860); 
 Soule V. Ludlow, 3 Hun (N. Y.) 503 
 (1875) ; Howell v. Baker, 4 Johns. 
 Ch. (N. Y.) 118 (1819) ; Lansing v. 
 McPherson, 3 Johns. Ch. (N. Y.)426 
 (1818) ; Williamson V, Dale, 3 Johns, 
 Ch. (N. Y.) 292 (1818) ; Osgood v. 
 Franklin, 2 Johns. Ch. (N. Y.) 23 
 (1816); Jencks V. Alexander, 11 Paige 
 Ch. (N.Y.) 619 (1845) ; May v. May, 
 
 11 Paige Ch. (N. Y.) 203 (1844) ; Bil- 
 lington V. Forbes, 10 Paige Ch. (N. 
 Y.) 487 (1843) ; Brown v. Frost, 10 
 Paige Ch. (N. Y.) 244(1843) ; Amer- 
 ican Ins. Co. V. Oakley, 9 Paige 
 Ch. (N. Y.) 259 (1841) ; s. c. 38 Am. 
 Dec. 561 ; Requa v. Pea, 3 Paige 
 Ch. (N. Y.) 340 (1&31) ; Duncan v. 
 Dodd, 2 Paige Ch. (X. Y.) 9'9 (1830); 
 Hoppock V. Conklin, 4 Sandf . Ch. 
 
 (N. Y.) 582 (1847) ; White v. Coulter, 
 3 T. & C. (N. Y.) 608 (1874) ; Mulks 
 V. Allen, 12 Wend. (N. Y.) 253 
 (1834) ; Ontario Bank v. Lansing, 2 
 Wend. (N. Y.) 261 (1829) ; Littell v. 
 Grady, 38 Ark. 584 (1882) ; Webber 
 V. Curtiss, 104 lU. 309 (1882) ; Mon- 
 tague V. Dawes, 96 Mass. (14 Allen), 
 369 (1867) ; Vail v. Jacobs, 62 Mo. 
 130 (1876) ; Delaware, L. & W. R. 
 Co. V. Scranton, 34 N. J. Eq. (8 
 Stew.) 429, 432 (1881) ; Kloepping v. 
 Stellmacher, 21 N. J. Eq. (6 C. E. 
 Gr.) 328 (1871) ; Marlatt v. Warwick, 
 18 N. J. Eq. (3 C. E. Gr.) 108 (1866); 
 Smith V. Duncan, 16 N. J. Eq. (1 C. 
 E. Gr.) 340 (1863); Eberhart v. 
 Gilchrist. 11 N. J. Eq. (3 Stockt.) 
 167 (1856) ; Howell v. Hester, 4 N. 
 J. Eq. (3 H. W. Gr.) 266 (1843); 
 Mercereau v. Prest, 3 N. J. Eq, (3 
 H. W. Gr.) 460 (1836) ; Seaman v, 
 Riggins, 2 N. J. Eq, (1 H. W. Gr.) 
 214 (1839); Crane v. Conklin, 1 
 N, J. Eq. (Saxt.) 346 (1831) ; Sim- 
 mons' Ex'rs V, Yandergift, 1 IST. J. 
 Eq. (Saxt.) 55 (1830) ; Bank of New 
 Brunswick v. Hassert, 1 N, J. Eq. 
 (Saxt.) 1 (1830) ; Peacock v. Evans, 
 16 Ves. 512 (1809) ; How v. Weldon, 
 3 Ves. Sr. 516 (1754). 
 
 « Barnes v. Stoughton. 3 T. & C. 
 (N. Y.) 675 (1874). See White v. 
 Coulter, 3 T. & C. (K Y.) 608 
 (1874) ; 8. c. 1 Hun (N. Y.) 357,
 
 656 SUEPEISE GROUND FOR RESALE. [§ 541, 
 
 to the sound discretion of the court, and in the absence of 
 evidence of an abuse of such discretion, the order granted on 
 the apphcation will not be appealable ;' and it has been said 
 that where an order is made in a foreclosure suit setting 
 aside a sale, and directing a reference to ascertain the 
 equities of the parties, reserving to either party the right to 
 move for confirmation on the coming in of the report, such 
 order is not appealable.' 
 
 § 541. Accident and surprise grounds for setting sale 
 aside. — Surprise is one of the grounds upon which courts 
 will interfere and order a resale, if a party has suffered loss 
 in consequence of the property's having been sold at a sacri- 
 fice ;* but, as a general rule, where the surprise is due 
 to the person's own negligence, and is of such a character 
 that it could have been avoided by the exercise of ordinary 
 prudence, the court will not interfere ; neither will it inter- 
 fere where the surprise was not caused by the misconduct or 
 inadvertence of the complainant or of a third person, but was 
 due to the negligence and inattention of the party com- 
 plaining.* 
 
 Accident is also one of the causes for ordering a resale. 
 A sale of mortgaged premises will be set aside and a 
 resale ordered, where the owner of the equity of redemp- 
 tion appealed in good faith from the judgment of foreclosure 
 and sale, but owing to the imperfect justification of his 
 sureties in the undertaking given on appeal, the sale was not 
 stayed, and the plaintiff proceeded and sold the premises 
 
 ' Buffalo Savings Bank v. New- the ground of mistake and surprise. 
 
 ton, 23 N. Y. IGO (1861) ; "Wakeman Such an order, when it involves no 
 
 V. Price, 3 N. Y. 334 (1850) ; Hazle- strict legal right, is within the diacre- 
 
 ton V. Wakeman, 3 How. (N. Y.) tionary power of the court." See 
 
 Pr. 357 (1848) ; White v. Coulter, 1 Bergen v. Sneddeker, 8 Abb. (N. Y.) 
 
 Hun (N.Y.) 357(1874). Seepost §551. N. C. 50 (1879). 
 
 " Dows V. Congdon, 28 N. Y. 122 « Parkhurst v. Cory, 11 N. J. Eq. 
 
 (1883). The court held that "it (3 Stockt.) 233 (1856). 
 
 neither, in effect, determines the ■• Parkhurst v. Cory, 11 K J. Eq. 
 
 action in which it was made, nor (3 Stockt.) 233 (1858). See Francis 
 
 prevents a judgment from which v. Church, Clarke Ch. (N. Y.) 475, 
 
 an appeal might be taken. It is 478 (1841) ; Brown v. Frost, 10 
 
 gubstuulially an order for resale on Paige Ch. (N, Y.) 243 (1S43).
 
 § 542.] SUEPRISE GROUND FOR RESALE, 657 
 
 without notifying the owner, or returning the undertaking, 
 bidding off the property himself for much less than its real 
 value, and entering a judgment for deficiency against the 
 owner.' 
 
 The court will interfere to set aside a judicial sale 
 for inadequacy of price where there was accident or sur- 
 prise upon one side and advantage taken of it on the other, 
 and where, unless the court affords relief, the loss will 
 be irreparable.' Thus, where the owner of the premises 
 covered by the mortgage was a non-resident of the state, 
 and was ignorant of the proceedings to foreclose such mort- 
 gage until after the sale of the premises under the decree, 
 and the agent to whom he had confided the care of the 
 property had become insane, in consequence of which 
 the premises were sold at a price far below their value, the 
 sale was set aside and a resale ordered.' 
 
 The defendant in a foreclosure is not required to exercise 
 more than ordinary prudence and diligence in protecting his 
 interests at the sale; and if he uses as much diligence as is 
 reasonably practicable under all the circumstances, he will 
 be excusable. Thus, where a defendant intends to be pres- 
 ent at the sale and is prepared to bid for his protection, but 
 is prevented through unforeseen circumstances from attend- 
 ing, and the property is sold to the complainants for less 
 than its value, the sale will be vacated.* 
 
 § 542. Fraud and misconduct. — A sale under a decree of 
 foreclosure will be set aside and a resale ordered, where there 
 has been fraud or misconduct on the part of the purchaser 
 or of any person connected with or directing the sale, or 
 where any party in interest has been misled or surprised by 
 the misconduct of the purchaser or of the person directing the 
 sale.* But where a sale is set aside on account of the mere con- 
 structive fraud of the purchaser, both he and the mortgagor 
 
 ' Gould V. Libby, 24 How. (N. Y.) * Hoppock v. Conklin, 4 Sandf. 
 
 Pr. 440 (1863). Ch. (N. Y.) 583, 586 (1847). 
 
 » Gould V. Gager, 18 Abb. (N. Y.) ' Gardiner v. Schermerhorn, Clark* 
 
 Pr. 33 (1863). Ch. (N. Y.) 101 (1839). 
 
 ' Thompson v. Mount, 1 Barb. Ch, 
 (N. Y.) 607 (1846).
 
 658 FRAUD AND MISCONDUCT RESALE. ^ 543. 
 
 are entitled to be re-instated in the same position they occu- 
 pied before the sale.' 
 
 It was held in the case of King v. Piatt,* that while the 
 law secures to the creditor his just demand and sequestrates 
 the property of the debtor to satisfy it, still it sedulously 
 guards his interests in all the various steps taken leading to 
 a sale of the property, and it will not tolerate the slightest 
 undue advantage over him even by pursuing the strictest 
 form of the law ; and that, occupying the position of advan- 
 tage, it behooves the complainants to pursue their remedy 
 ■with scrupulous care lest they should inflict an injury on 
 one who is comparatively powerless; and further, that "a 
 court of equity justly scrutinizes the conduct of a party 
 placed by the law in a position where he possesses the power 
 to sacrifice the interests of another in a manner which may 
 defy detection, and stands ready to afford relief on very 
 slight evidence of unfair dealing, whether it is made neces- 
 sary by moral turpitude or only by a mistaken estimate of 
 others' rights." 
 
 Where a purchaser at a foreclosure sale, by misrepresenta- 
 tion and deception, misleads the owner, and assuming to act 
 for him, obtains an adjournment of the sale, inducing the 
 parties to remain away therefrom, and he thereby becomes 
 the purchaser at a nominal price, the sale will be set aside at 
 the expense of such purchaser.* 
 
 § 543* False statements generally. — Where a plaintiff 
 or his agent, by an oral promise which he refused to keep, 
 induced the defendant to refrain from bidding, and was 
 thereby enabled to purchase the property for a price less 
 than its value, the sale was set aside.* And in Murdock v. 
 Empie,* where a person who had been the agent of the 
 owner, acting in the interests of the person who afterwards 
 purchased the property, made statements to the junior 
 mortgagees which induced them to remain away from the 
 
 > Trotter v. White, 26 Miss. 88 * Banta v. Maxwell, 13 How. (N. 
 
 (1853). T.) Pr. 479 (1855). 
 
 « 37 N. T. 155, 160 (1867). » 19 How. (N. T.) Pr. 79 (1859) ; 
 
 * See Slocum v. Slocum, 3 How. s. c. 9 Abb. (N. Y.) Pr. 283. 
 (N. T.) Pr. 178 (1847).
 
 § 544.] FALSE STATEMENTS RESALK 659 
 
 sale, so that the property sold for less than its value, the sale 
 was set aside. 
 
 A sale will generally be set aside if the complainant 
 misleads the defendants by false statements and by promising 
 to have the sale adjourned, and afterwards becomes the 
 purchaser of the property at a price much less than its 
 value.' And in Billington v. Forbes," where a co-defendant 
 took an improper advantage of the illness of the mortgagor, 
 which prevented him from attending the sale and obtaining 
 a postponement thereof, and became the purchaser of the 
 mortgaged premises at less than one-third of their real value, 
 the sale was set aside and a resale ordered. 
 
 In another case," where the plaintiff bid off a parcel of land 
 and another parcel was subsequently put up by his direction, 
 and he then canceled his bid on the first parcel directing the 
 two parcels to be sold together, and became the purchaser 
 thereof, the sale was set aside. And in May v. May,* where 
 the property was sold for a tenth of its value, bidding hav- 
 ing been discouraged by some one, though there was no 
 evidence connecting the purchaser with the fraud, the sale 
 was set aside on the application of a judgment creditor 
 whose lien was foreclosed and barred by the action. 
 
 § 544. Misleading statements and representations by 
 referee or plaintiff. — A sale of mortgaged premises may be 
 set aside where judgment creditors were prevented from 
 attending and bidding at the sale, in consequence of an 
 impression received from the master that the sale was not 
 to take place on the day appointed, although there was no 
 collusion between the officer conducting the sale and the 
 purchaser, provided the judgment creditors will make an 
 advance at the resale upon the bid at which the property was 
 struck off, to an amount sufificient to cover their demands.' 
 
 And where the premises were sold to the mortgagee at 
 a price greatly below their value, if the mortgagor or 
 
 > Francis v. Church, Clarke Ch. » Woodruff v. Bush, 8 How. (N. 
 
 (N. Y.) 475 (1841). T.) Pr. 117 (1853). 
 
 « 10 Paige Ch. (N. T.) 487 (1843). •* 11 Paige Ch. (N. T.) 201 (1844), 
 
 See May V.May, 11 Paige Ch.(N.Y.) 'Collier v. Whipple, 13 Wend. 
 
 201 (1844;. (N. Y.) 224 (1834).
 
 660 MISLEADING STATEMENTS BY liEFEUEE. [§ 545. 
 
 those standing in his place were misled by the mortgagee 
 or by a third person even, in reference to the foreclosure 
 of the mortgage, in consequence of which they did not 
 attend the sale, a resale will be ordered.' And if the notice 
 of the place where the sale is to be held is so indefinite that 
 the agents of the parties, who are present in the building 
 for the purpose of attending and bidding at the sale, do not 
 know where it is to be held, and are not aware of its pro- 
 gress, the sale will be set aside.* 
 
 A sale may be set aside on the ground of surprise and 
 misapprehension created by the conduct of the purchaser 
 or of some person interested in the sale,* or by the conduct of 
 the officer who has charge of the sale,* or where such ofificer 
 makes an announcement at the sale which is calculated to 
 deter bidders, and to impair the price that might otherwise 
 be offered. Where the officer making the sale disobeyed 
 his instructions through ignorance of his duty, and sold the 
 property to parties who were acquainted with his instruc- 
 tions, for much less than its real value, the court set the sale 
 aside and refused to indemnify the purchasers.* 
 
 It is intimated in Gardiner v. Schermerhorn,* that where 
 the defendant misunderstands his liability, this will in some 
 instances be a sufficient ground for vacating the sale. Tkis 
 was a case in which the mortgaged premises had been sold 
 under a new court rule, which changed the practice as to the 
 publication of the notice of sale and with which the mort- 
 gagee was not familiar. 
 
 § 545. Negligence in objecting, and acquiescence in 
 sale. — Although a sale may be unauthorized or irregular, 
 yet the defendant by failing to object thereto within a 
 
 ' Tripp V. Cook, 26 Wend. (N.Y.) See also Lansing v. McPherson, 3 
 
 143(1841). Johns. Ch. (N. Y.) 424 (1818); 
 
 * Kellogg V. Howell, 62 Barb. (N. Brown v. Frost, 10 Paige Ch. (N. 
 y.) 280 (1872). Y.) 243 (1843) ; Tripp v. Cook, 26 
 
 » Lefevre v. Laraway, 22 Barb. Wend. (N. Y.) 143 (1841) ; Collier 
 
 (N. Y.) 167, 173 (1858). See Gould v. v. Whipple, 13 Wend. (N. Y.) 224, 
 
 Gager, 18 Abb. (N. Y.) Pr. 32 (1863). 227 (1834). 
 
 * Stahl V. Charles, 5 Abb. (N. Y.) * Requa v. Rea, 2 Paige Ch. (N. 
 Pr. 348 (1857) ; Lefevre v. Laraway, Y.) 339 (1831), 
 
 22 Barb. (N. Y.) 167, 173 (1856). * Clarke Ch. (KY.) 101, 104(1839).
 
 §546.] AOQUrESOENOE WAIVi:S EIGHT TO EESALE. 661 
 
 reasonable time, may lose his right to have it set aside, 
 acquiescence in the sale operating as an estoppel. Thus, in 
 a case where the sale of a portion of the premises was not 
 authorized by the judgment, but the owner of the equity 
 of redemption acquiesced therein and neglected to object 
 to the proceedings had for the distribution of the surplus, it 
 was held that such owner was estopped from questioning 
 the validity of the title acquired by the purchaser under 
 such sale.' 
 
 In a recent California case,* it appeared that the party 
 knew of the time and place of the sale, but that he 
 neglected to give any instructions to his agent in reference 
 thereto until the day preceding the sale, when he telegraphed 
 to him and wrote to the officer of the court deputized to 
 make the sale, offering to purchase the property for the 
 amount of the judgment and costs, and instructing them to 
 make a bid to that effect at the sale. Because of atmos- 
 pheric disturbances neither the telegram nor the letter 
 was received by the parties to whom they were sent until 
 after the sale. The sale was made to the respondent 
 for a less price than that offered by the plaintiff ; but 
 the plaintiff accepted the purchase money and kept it for 
 five months, when, without offering to return the money, he 
 moved to set the sale aside on the ground of surprise ; the 
 motion was held to have been properly denied. 
 
 § 546. Objections waived by delay. — The law presumes 
 all sales valid and effectual.* Where a sale made under a 
 judgment of foreclosure is irregular or voidable for any 
 reason, the party aggrieved must move to have the sale set 
 aside within a reasonable time, for it will not be disturbed 
 if he becomes guilty of laches.* And where the period pre- 
 scribed by statute, within which an action may be brought 
 in equity to redeem the premises, has been allowed to 
 
 ' McBride v. Lewisohn, 17 Hun * Depew v. Dewey, 46 How. (N. 
 
 (N. Y.) 525 (1879). Y.) Pr. 441 (1874) ; Rigney v. SmaU, 
 
 « Central Pac. R. Co. v. Creed, 70 60 111. 416 (1871) ; Roberts v. Tlem- 
 
 Cal. 497 (1886). ing, 53 111. 196 (1870) ; Hamilton v. 
 
 8 Rigney v. Small, 60 IlL 416 Lubukee, 51 111. 415 (1869). 
 (1871).
 
 662 OBJECTIONS WAIVED BY DELAY. [§547. 
 
 expire without an application for a resale, the court will 
 have no power to set the sale aside.' But mere delay 
 on the part of the plaintiffs in asserting their rights, where 
 the action is commenced within the time limited for the 
 commencement of such actions and where the defendant 
 has not been prejudiced by the delay, will not affect or 
 defeat the plaintiff's right of action." 
 
 A delay of four years after the mortgagor had knowledge 
 of the sale, has been held to preclude him from maintaining 
 against subsequent purchasers, a bill to redeem on the 
 alleged ground of a defective notice of the sale and inade- 
 quacy of price." Where between seven and eight years had 
 elapsed, the court declined to inquire whether the price bid 
 was inadequate, or whether the premises should have been 
 sold in parcels.* And where exceptions to the report of the 
 ofificer making the sale of the mortgaged premises were 
 taken ten years after the approval and confirmation of the 
 report of sale, they were held to come too late, unless 
 it was made to appear that some positive injury had 
 resulted." 
 
 Where a mortgagor informs another person that he has 
 no title to the mortgaged premises and that a foreclosure had 
 been held and the time for redemption had expired, and 
 thereby induces such other person to buy the certificate of 
 foreclosure sale, he will be estopped from afterwards ques- 
 tioning the regularity of the sale as against such purchaser.* 
 
 § 547. Excusable mistakes as grounds for setting sale 
 aside. — The excusable mistake of a party in interest is a 
 ground for vacating a sale and ordering a resale, if such 
 mistake caused the property to bring a less price than it 
 
 ' Depew V. Dewey. 46 How. (N. * McMurray v. McMurray, 66 N. 
 
 Y.) Pr. 441 (1874). See also Salles T. 175 (187G). 
 
 V. Butler, 27 N. Y. 638 (1863) ; Wait » Hamilton v. Lubukee, 51 111. 
 
 V. YauAllen, 22 N. Y. 319 (1860) ; 415 (1869). 
 
 Humphrey v. Chamberlain, 11 N". * Roberts v. Fleming, 53 111. 196 
 
 Y. 274 (1854) ; Fry v. Bennett, 16 (1870). 
 
 How. (N. Y.) Pr. 385 (1858) ; Mars- * Garrett v. Moss, 20 111. 549(1858). 
 
 ton V. .Johnson, 13 How. (N. Y.) Pr. « Curyea v. Berry, 84 111. 600 
 
 93 (1856). (1877). "
 
 § 547.] EXCUSABLE MISTAKES EESALE. 663 
 
 Otherwise would.* Thus, where the owner of an equity of 
 redemption appealed in good faith from a judgment of fore- 
 closure, but owing to the imperfect justification of the 
 sureties to the undertaking given on the appeal, the sale was 
 not stayed, and the plaintiff proceeded to sell the premises 
 without notifying the owner, or returning the undertaking to 
 him, bidding off the premises himself for one-third less than 
 their real value, and taking a decree against the owner for 
 the deficiency, the sale was set aside and a resale ordered.' 
 
 And where the proper undertaking to stay proceedings 
 pending an appeal from a judgment of foreclosure, was 
 served and filed some time after the service of the notice of 
 appeal, and was returned on the ground that it was not 
 served in time and was not in due form, and the defendant 
 thereupon made a special motion to stay the proceedings 
 founded on such undertaking, which motion was denied on 
 the ground that it was not necessary, and the plaintiff 
 proceeded to sell the premises, the sale was vacated on 
 terms and the proceedings stayed until decision upon the 
 appeal.* 
 
 It has been said that where an undertaking given to stay 
 proceedings, pending an appeal from a decree of foreclosure, 
 's in substantial, though not exact, compliance with the 
 requirements of the Code, the plaintiff should move to set 
 it aside ; and if, without doing so or giving notice of the 
 defect, he proceeds to sell the premises under the judgment, 
 the sale must be set aside and a resale ordered.* 
 
 In Williamson v. Dale,' where the executors of the 
 mortgagor were innocently misled and induced to believe 
 that the sale of the mortaged premises would not take 
 place on the day appointed, there being no culpable 
 
 ' Williamson V. Dale, 3 Johns. Ch. Pr. 440 (1863) ; s. c. mb nom. (Jould 
 
 (N. Y.) 290 (1818). See Parfitt v. v. Gager, 18 Abb. (N. T.) Pr. 33. 
 
 Warner, 13 Abb. (N. T.) Pr. 471 See^o««§551. 
 
 (1861) ; King v. Morris, 2 Abb. (N. « Smith v. Heermance, 18 How. 
 
 Y.) Pr. 296 (1855) ; Gould v. Gager, (N. Y.) Pr. 261 (1859). 
 
 24 How. (N. Y.) Pr. 440 (1863) ; < Parfitt v. Warner, 13 Abb. (N. 
 
 Smith V. Heermance, 18 How. (N. Y.) Pr. 471 (1861). See post § 551. 
 
 Y.) Pr. 261 (1859). » 3 Johns. Ch. (N. Y.) 290 (1818). 
 
 * Gould V. Libby, 24 How. (N. Y.)
 
 664 TEEMS IMPOSED ON RESALE. [§§ 548-540. 
 
 negligence on their part, the court, under all the circum- 
 stances of the case, ordered the sale to be set aside on the 
 ground of surprise, though the sale was perfectly regular 
 and open and no unfair intention was imputed to the mort- 
 gagee or his solicitors ; but the court added, as a condition, 
 that the defendant should pay to the purchaser all his costs 
 and expenses, and the costs of the application for a resale. 
 
 § 548. Terms imposed. — A sale of mortgaged premises 
 made under the directions of the court in a mortgage fore- 
 closure will be set aside and a resale ordered only upon 
 terms. The proper terms to be imposed depend, of course, 
 upon the circumstances of each particular case.' Where the 
 conditions and circumstances are such that the court is com- 
 pelled to set a sale aside and to order that the property be 
 resold, the former purchaser must be fully and liberally 
 indemnified for all damages, costs and expenses to which he 
 has been subjected." These include the deposit or percent- 
 age paid by him on the sale, the expense of investigating 
 the title, the costs of the motion for repayment, if he is 
 compelled to make a motion,' the interest on his deposit 
 and on as much of the purchase money as he has kept on 
 hand ready for payment, together with all the reasonable 
 costs and expenses which he has paid or been subject to in 
 opposing the application for a resale.* 
 
 But where a purchaser employs counsel and instructs him 
 to insist upon his right to retain an unconscientious advan- 
 tage obtained by him in the sale and purchase of the prem- 
 ises, through the fraud of some one, he can not have costs 
 allowed him for an unsuccessful resistance of the motion to 
 set the sale aside.* 
 
 § 549. Effect upon purchaser of order setting sale 
 aside. — On becoming a purchaser at a foreclosure sale, a 
 party submits himself to the jurisdiction of the court as to 
 
 ' Francis v. Church, Clarke Ch. » Raynor v. Selmes, 52 N. T. 579 
 
 (N. Y.) 475 (1841). (1873). 
 
 * Duncan v. Dodd, 2 Paige Ch. * Duncan v. Dodd, 2 Paige Ch. 
 
 (N. Y.)99(1830). See May v. May, H (N. Y.) 99, 102 (1830). 
 Paige Cli. (N. Y.) 201, 204 (1844).
 
 § 549.] EFFECT ON puhohasee of resale. 665 
 
 all matters connected with the sale or relating to him in the 
 character of purchaser.' And all persons who acquire title 
 from and under him, take it subject to the same jurisdiction. 
 A conveyance to a bona fide purchaser does not take away or 
 affect the jurisdiction of the court, although it may be a 
 circumstance which will influence the court in the exercise 
 of its discretion in granting an order to set the sale aside ; 
 because a grantee takes the place of his grantor and con- 
 sents to the same jurisdiction, under and subject to which 
 the title is held. He has notice of the source of his grantor's 
 title and knowledge of the power of the courts over a title 
 thus acquired, and takes no better nor more perfect title as 
 against the interference of the court than his grantor had.' 
 An order setting aside a sale made under a decree of 
 foreclosure destroys the title of the purchaser at such sale, 
 and consequently that of his grantees.* In all cases where 
 the sale is set aside, the purchaser is entitled to be restored 
 to the same position he occupied before the purchase, and 
 is entitled to be re-imbursed for the amount paid on the 
 purchase.* 
 
 It has been held, where the purchaser took possession 
 of the property and made improvements thereon, after 
 being informed by the officer making the sale that the facts 
 would be submitted to the court, and without waiting for 
 the confirmation of the report of sale, that he was not entitled 
 to indemnity therefor.' If the purchaser enters into posses- 
 sion before the sale is set aside, he will be required to account 
 
 » May V. May, 11 Paige Ch. (N. & S. 381 (1823) ; Lansdown v. Elder- 
 
 T.) 201, 204 (1844). ton, 14 Ves. 512 (1808). 
 
 *» Hale V. Clauson, 60 N. Y. 341 = Hale v. Clauson, 60 N. T. 341 
 
 (1875); Cazet v. Hubbell, 36 N. Y. (1875). 
 
 677 (1867) ; Miller v. CoUyer, 36 » Freeman v. Munns, 15 Abb. (N. 
 
 Barb. (N. Y.) 250. 254 (1862) ; In re Y.) Pr. 468 (1863); affirmed 30 How. 
 
 Davis, 7 Daly (N. Y.) 1, 8 (1877) ; (N. Y.) Pr. 592 ; Insurance Co. v. 
 
 Willets V. VanAlst, 26 How. (N. Y.) Sampson, 38 Obio St. 672 (1883) ; 
 
 Pr. 325, 844 (1864) ; Brasber's Exr's McBain v. McBain, 15 Obio St. 337 
 
 v.Cortlandt, 2 Jobns. Cb. (N. Y.) (1864). 
 
 605 (1817) ; Requa v. Rea, 2 Paige * Trotter v. Wbite, 26 Miss. 88 
 
 Cb. (N. Y.) 339 (1831) ; Crane v. (1853). See ante § 548. 
 
 Stiger, 2 T. &. C. (N. Y.) 577, 579 » Requa v. Rea, 2 Paige Cb. (N. 
 
 (1874) ; Casamojor v. Strode, 1 Sim. Y.) 339 (1831).
 
 666 EFFECT OF RESALE OX PURCHASER. [§ 550 
 
 for the rents and profits received by him while in posses- 
 sion, for the benefit of the mortgagor or the owner of the 
 equity of redemption.* 
 
 In the case of Fort v. Roush,* where a portion of the 
 mortgaged premises was purchased by the mortgagee, and 
 the sale as to him was set aside on account of his fraudulent 
 conduct, and the mortgagor sought to charge him with the 
 value of the use and occupation of such part while it was 
 in his possession under such purchase, and also with damages 
 for waste, the supreme court of the United States held that 
 a judgment should be rendered against him only for so much 
 of the sum found to be due for such use and damages as 
 exceeded the amount necessary to satisfy the decree. 
 
 Where a person interested in the property is not made a 
 party to the foreclosure, but subsequently to the sale redeems 
 the property, the purchaser will be liable to account for the 
 rents and profits, and he will be under a like obligation in case 
 of the foreclosure of an outstanding incumbrance in another 
 suit, acquiring in such case only the rights of a mortgagee 
 in possession." 
 
 § 550. Setting sale aside for benefit of infants. — Infant 
 owners will be relieved by a resale, where their property has 
 been sacrificed through the misapprehension or neglect of 
 their natural or statutory guardian." And where it is 
 apparent that a resale will benefit the infant owners, such 
 order may be made on the motion of the court in its capacity 
 of universal guardian of all infants, and by virtue of its 
 obligation to exercise a general superintendence and pro- 
 tective jurisdiction over their persons and property.* 
 
 In Duncan v. Dodd,' where the property, which was the only 
 estate belonging to two infant children, had been sold under 
 
 ' Raun V. Reynolds, 15 Cal. 459 * Lefevre v. Laraway, 22 Barb. 
 
 1860) ; a c. 18 Cal. 275 (1861) ; Fort (N. Y.) 167 (1856) ; Gardiner v. 
 
 Y. Roush, 104 U. B. (14 Otto), 142 Schermerhorn, Clarke Cli. (N. Y.) 
 
 (1881) ; bk. 26 L. ed. 664. 101 (1839). 
 
 « 104 U. S. (14 Otto;, 142 (1881) ; ^ Lefovre v. Laraway, 22 Barb, 
 
 bk. 26 L. ed. 664. (N. Y.) 167 (1856). 
 
 « Walsh V. Rutgers Fire Ins. Co., ^ 2 Paige Ch. (X. Y.) 99 (ISCO). 
 13 Abb. (N. Y.) Pr. 33 (1861).
 
 § 551.] SETTING salt; aside foe INEAin'S. 667 
 
 a decree of foreclosure for half its value to satisfy a debt 
 nearly equal to the amount of the bid, a resale was ordered 
 upon security being given that the premises should produce 
 fifty per centum advance upon such resale, and that interest 
 on the whole purchase money should be paid to the pur- 
 chaser, together with the reasonable costs and expenses 
 which he had incurred in consequence of the purchase. 
 
 Where the property rights of infants are concerned, the 
 courts will exercise a most vigilant care in protecting their 
 interests and will hold their guardians, and all who are 
 engaged in managing or disposing of their property, not 
 only to a rigid adherence to principles of good faith, but to 
 the strict performance of every duty ; and where there is 
 a collusive arrangement to prevent competition at a judicial 
 sale, such a sale will be injurious to the interests of the 
 infants, and will be a fraud in equity, and relief will be 
 granted against such fraud by ordering a resale.* 
 
 But it seems that the court will not set aside a judicial sale 
 on the ground that the guardian of the infants who are 
 interested, failed to attend the sale, unless it is shown that 
 in consequence of such non-attendance the property sold at 
 a less price than it would have brought if the guardian had 
 been present ; and, where the sale was well attended and 
 fairly conducted, it should not be set aside, even at the 
 instance of the infants, unless it is made to appear that 
 upon the resale, their share of the proceeds, after indem- 
 nifying the purchaser at the first sale, will be materially 
 increased.' 
 
 § 551. Appeal from order on application for resale. — 
 The granting of an order for a sale of mortgaged premises is 
 a matter resting in the sound discretion of the judge who 
 hears the motion ;* but it is thought that, notwithstanding 
 this fact, the order granting or denying the motion for a 
 resale is appealable to the general term/ though not to the 
 
 > HoweU V. MUls, 53 JT. Y. 823 « See Howell v. Mills, 53 N. T- 
 
 (1878). 822, 333 (1873). 
 
 « Stryker v. Storm, 1 Abb. (N. T.) * See Fisher v. Hersey, 78 N. T. 
 
 Pr. N. S. 424 (1866). 387 (1879). But it was held in Touns
 
 668 
 
 APPEAL FROM OEDER FOR RESALE. 
 
 [§ 551. 
 
 court of appeals.* By the section of the Code,' providing 
 for appeals from orders of a judge to the general term, one 
 of the cases in which an appeal may be taken is where the 
 order involves the merits of the action or some part thereof, 
 or affects a substantial right. It is thought that an order 
 granting or refusing a resale affects the substantial rights of 
 the parties to the action, and that any party considering 
 himself aggrieved is entitled to appeal to the general term 
 from such order.* 
 
 A motion in the supreme court to vacate a sale of real 
 estate made on a mortgage foreclosure, where the sale was 
 regularly made, is addressed to the sound discretion and 
 favor of the court, and the order made on such a motion is 
 not therefore appealable beyond the general term.* Where 
 fraud is alleged, upon facts casting such a degree of suspicion 
 upon the fairness of the sale as to render it, in the judgment 
 
 V. Bloomer, 22 How. (N. Y.) Pr. 383, 
 that where no irregularity is alleged 
 against the judgment or sale such 
 an order is not appealable to the 
 general term. 
 
 ' Hale V. Clauson, 60 N. Y. 341 
 (1875) ; Dows V. Congdon, 28 N. Y. 
 122 (1863) ; Briggs v. Bergen, 23 K 
 Y. 162 (1861) ; Wakeman v. Price, 
 3 N. Y. 334 (1850) ; Bergen v. Sned- 
 ecker, 8 Abb. (N. Y.) N. C. 50 
 (1879), reversing 18 Hun (N. Y.) 
 355 ; Hazleton v. Wakeman, 3 How. 
 (N. Y.) Pr. 357 (1848). 
 
 « N. Y. Code Civ. Proc. §§ 1347, 
 1348. 
 
 * See Central Nat. Bank v. Clark, 
 34 N. Y. Supr. Ct. (2 J. & S.) 487 
 (1872) ; Dollard v. Taylor, 33 N. Y. 
 Supr. Ct. (1 J. & S.) 496 (1871); 
 People V. New York Cent. K. Co., 
 29 N. Y. 418, 421 (1864) ; In re 
 Duff, 41 How. (N. Y.) Pr. 350 
 (1870) ; s. c. 10 Abb. (N. Y.) N. S. 
 Pr. 416. 
 
 * Buffalo Sav. Bank v. Newton, 
 23 N. Y. 160 (1861); AVakeman v. 
 
 Price, 3 N. Y. 334 (1850) ; Hazleton 
 V. Wakeman, 3 How. (N. Y.) Pr. 
 357 (1848) ; McReynolds v. Munns, 
 2 Keyes (N. Y.) 214 (1865). See 
 Peck v. New York & N. J. R. Co., 
 85 N. Y. 246 (1881); Goodell v. 
 Harrington, 76 N. Y. 547 (1879); 
 Hale V. Clauson, 60 N. Y. 339 
 (1875); Crane v. Stiger, 58 N. Y. 
 625 (1874); Dows v. Congdon, 28 
 N. Y. 122 (1863). In King v. Piatt, 
 2 Abb. App. Dec. (N. Y.) 527 
 (1867), it is said that an appeal 
 may be taken to the court of appeals 
 from an order of the general term, 
 affirming an order of the special 
 term denying a motion to set aside a 
 judicial sale made under a judgment; 
 that such an order is final and affects 
 a substantial right; and that it is an 
 order made upon a summary appli- 
 cation in an action after judgment ; 
 that such an order is not purely 
 discretionjiry with the court below 
 in such a sense as to prevent it from 
 being reversed.
 
 § 552.] PROCEEDES^GS 01^ EE3ALE. 669 
 
 of the court, expedient to order a resale, although the 
 alleged fraud may not be clearly established, the order of 
 the special term setting aside a sale under such circum- 
 stances will be reviewable at general term ; but as a rule, 
 when only the rights of the parties to the action are 
 involved, no appeal can be taken from the order granting or 
 denying a motion for a resale.' It is well established that 
 orders for resales made upon grounds which are discretion- 
 ary, will not be reviewed by the court of appeals ;* but it is 
 thought that where orders granting or refusing resales 
 i nolve matters of legal right, they may be reviewed in the 
 court of appeals, the same as if presented upon exceptions.* 
 
 § 552. Proceedings on resale. — Where a sale in a mort- 
 gage foreclosure is set aside and a resale is ordered, the 
 proceedings upon the resale will be the same as those upon 
 the original sale.* The proceedings should be commenced 
 de novo, as though the first sale had never taken place. 
 
 » Fisher v. Hersey, 78 N. Y. 387 (1837) ; Rowley v. VanBenthuysen, 
 
 (1879). 16 Wend. (N. Y.) 370 (1836). 
 
 « HoweU V. Mills, 53 N. Y. 323, » See Howell v. Mills, 53 K Y. 
 
 331 (1873). See Dows v. Congdoa, 323 (1873). 
 
 28 N. Y. 123 (1863) ; Wakeman v, * 3 Wait's Pr. 378. See William- 
 Price, 3 N. Y. 334 (1850) ; Candee son v. Dale, 3 Johns. Ch. (N. Y.) 
 V. Lord, 2 N. Y. 269 (1849) ; Rogers 290(1818). 
 V. Holly, 18 Wend. (N. Y.) 350
 
 CHAPTER XXVIL 
 
 CONFIRMING SALE AND ENFORCING PURCHASE. 
 
 CONFIRMATION OF SALE— ENFORCING BID AGAINST PURCHASER — 
 
 DEFECTS IN TITLE— MARKETABLE TITLE— WHEN PURCHASER 
 
 WILL BE EXCUSED FROM COMPLETING PURCHASE. 
 
 553. Every foreclosure sale must 
 
 be confirmed. 
 
 554. Practice of confirming sales 
 
 in New York. 
 
 555. Notice and application for 
 
 confirmation — Objections 
 to and corrections of ref- 
 eree's report. 
 656. Effect of confirmation of 
 sale — Lapse of time equiva- 
 lent to confirmation. 
 
 557. Setting aside confirmation of 
 
 sale — Discretion of the 
 court. 
 
 558. Enforcing sale against pur- 
 
 chaser. 
 
 559. Proceedings where purchaser 
 
 refuses or neglects to com- 
 plete his purchase. 
 
 560. Enforcing sale by attachment 
 
 against purchaser. 
 
 561. When bidder will be excused 
 
 from completing his pur- 
 chase. 
 
 562. Defects of title unknown to 
 
 purchaser at time of sale. 
 
 § 563. Defects of title existing prior 
 to the mortgage under fore- 
 closure. 
 
 564. When purchaser presumed 
 
 to know condition of title. 
 
 565. Irregularities prior to judg- 
 
 ment excusing purchaser. 
 
 566. Enforcement of purchase 
 
 where there are lunatic 
 defendants. 
 
 567. Enforcement of purchase 
 
 where there are infant 
 defendants. 
 
 568. Formal irregularities no ex- 
 
 cuse to purchaser. 
 
 569. Reference to investigate title. 
 
 570. Purchaser entitled to market- 
 
 able title. 
 
 571. Partial failure of title will 
 
 excuse purchaser. 
 
 573. Rights of assignee of pur- 
 chaser's bid. 
 
 573. Right of bidder to have sale 
 completed. 
 
 § 553. Every foreclosure sale must be confirmed. — It 
 
 is a general rule in this country,* as well as in England,' that 
 a sale made under a decree of foreclosure, is not complete 
 
 » See Wells v. Rice, 34 Ark. 346 
 (1879) ; Dills v. Jasper, 38 HI. 263 
 (1864) ; Allen v. Poole, 54 Miss. 323 
 (1877) ; Gowan v. Jones, 18 Miss. 
 (10 Smed. & M.) 168 (1848) ; Tooley 
 V. Gridley. 11 Miss. (8 Smed & M.) 
 514 (1844) ; s. c. 41 Am. Dec. 628 ; 
 Hay's Appeal, 51 Pa. St. 61 (1865) ; 
 
 Allen V. Elderkin, 63 Wis. 637 
 (1885) ; Welp v. Gunther, 48 Wis. 
 543 (1880) ; Woehler v. Endter, 46 
 Wis. 301 (1879). 
 
 » Twigg V. Fifleld, 13 Ves. 617 
 (1807). In re Minor, 11 Yes. 659 
 (1805). 
 
 670
 
 § 554J CONFrRMING SALE. 671 
 
 until it has been confirmed by the court.' At such a sale 
 the bidder merely agrees to purchase the property, pro- 
 vided the sale shall be approved by the court ;' and until 
 the sale is reported to and confirmed by the court, it will be 
 incomplete, and the bidder will be under no obligation to 
 accept the deed of the oflScer conducting the sale.* 
 
 The acceptance of the bid confers no title on the pur- 
 chaser, — not even an absolute right to have the purchase 
 completed. The bidder is nothing more than a preferred pur- 
 chaser, or proposer for the purchase, subject to the approval 
 of the court.* It seems, however, where the purchaser 
 enters into possession under a deed of the oflficer making the 
 sale, that continued possession thereunder will be equiva- 
 lent to a confirmation of the sale by the court.* 
 
 In Illinois a somewhat different doctrine prevails. It was 
 held in the case of Jackson v. Warren,* that on a sale of 
 mortgaged premises under a decree of foreclosure, a valid 
 and binding contract is made when the hammer falls ; that 
 in the absence of fraud, mistake or some irregularity, the 
 bidder is entitled to a deed on the payment of the purchase 
 money ; and that a person holding such a deed is prima 
 facie the legal owner of the premises. This is also the doc- 
 trine and the practice in New York. 
 
 § 554. Practice of confirming sales in New York. — 
 
 Under the present practice in New York, and in some other 
 slates, if the proceedings in an action for foreclosure have 
 
 * Formerly in Wisconsin, however, (1864) ; Young v. Keogh, 11 111. 642 
 
 the purchaser was entitled to posses- (1850) ; Mills v. Ralston, 10 Kan. 
 
 8ion on producing the deed of the 206 (1872) ; Busey v. Hardin, 2 B. 
 
 officer making the sale. See Loomis Mon. (Ky.) 407 (1842); Allen v. 
 
 V. Wheeler, 18 Wis. 524 (1864). Poole, 54 Miss. 323 (1877); Go wan v. 
 
 » Dills V. Jasper, 33 111. 272 (1864); Jones, 18 Miss. (10 Smed. & M.) 164 
 
 Blossom V. Milwaukee & C. R. Co.. (1848) ; Tooley v. Gridley, 11 Miss. 
 
 70 U. S. (3 WaU.) 196 (1865) ; bk. 18 (1848); (3 Smed. & M.) 493 (1844); s. c. 
 
 L. ed. 43. 41 Am. Dec. 628; Blossom v. Milwau- 
 
 8 See Dills v. Jasper, 33 111. 272 kee & C. R. Co., 70 U. S. (3 Wall.) 
 
 (1864) ; Martin v. Kelly, 59 Miss. 196 (1865) ; bk. 18 L. ed. 43. 
 
 652(1882). ^Gowan v. Jones, 18 Miss. (10 
 
 < See Wells v. Rice, 34 Ark. 346 Smed. & M.) 164 (1848). 
 
 (1879) ; Dills v. Jasper, 33 111. 262 « 32 HI. 331 (1863).
 
 672 CONFLRMING SALES IN NEW TORK. [§ 555. 
 
 ^een regular, the title to the property passes to the pur- 
 chaser upon the delivery of the usual referee's deed,' and 
 the purchaser will be entitled to possession of the premises 
 on the production of such deed.* A formal confirmation of 
 the sale is not required, a supreme court rule* providing 
 that the report of the referee shall become absolute, and 
 stand as in all things confirmed, unless exceptions thereto 
 are filed and served within eight days after service of notice 
 of the filing of said report,* 
 
 § 555' Notice and application for confirmation— Objec- 
 tions to and corrections of referee's report. — In some states 
 a confirmation of the sale in mortgage foreclosure proceed- 
 ings can be regularly made only after notice to the parties 
 adversely interested, in order that they may show cause 
 against it.* On an application for the confirmation of a 
 referee's report of sale, the court should be satisfied that the 
 sale was made in accordance with the requirements of 
 the decree of foreclosure.* Where it appears from an 
 examination of the report of the sale, that the proceedings 
 of the officer making it were in all respects in conformity 
 with the judgment and the provisions of the statute, and no 
 extrinsic circumstances of equity appear, it is the duty of 
 the court to confirm the sale.* The usual order nisi, provid- 
 ing that the sale stand confirmed, unless cause for setting it 
 aside be shown within a specified time, is a sufficient order 
 
 ' Stimson v. Arnold, 5 Abb. (N. prevailed in Wisconsin. Loomis v. 
 
 Y.) N. C. 377(1878) ; Fort v. Burch, Wheeler, 18 Wis. 524 (1864). 
 
 6 Barb. (N. Y.) 60 (1849) ; Fuller v. » N. Y. Supreme Court Rule 30. 
 
 VanGeesen, 4 Hill (N. Y.) 171 (1843); * It is suggested in ISIoore v. Shaw, 
 
 aff'd 1 How. App. Cas. (N. Y.) 240 15 Hun (N. Y.) 428 (1878), that it 
 
 (1847). Compare Terpenning v. may be necessary to have the report 
 
 Agricultural Ins. Co., 14 Hun (N. confirmed, in order to perfect the 
 
 Y.) 299 (1878). title as between the mortgagor and 
 
 2 Mitchell V. Bartlett, 51 N. Y. the purchaser. 
 
 447 (1873) ; Stimson v. Arnold, 5 * Branch Bank v. Hunt, 8 Ala. 876 
 
 Abb. (N. Y.) N. C. 377 (1878); (1845). 
 
 K Y. Supreme Court Rule 61 ; « Moore v. Titman, 33 111. 358. 366 
 
 Brown v. Marzyck, 19 Fla. 840 (1864). 
 
 (1883) ; Petty v. Mays, 19 Fla. 652 ' New England Mortgage Security 
 
 (1883). The same doctrine formerly Co. v. Smith, 25 Kan. G22, 624
 
 § 556.] PKACTICE ON C02\^ilEiIING SALES. 673 
 
 of confirmation ;' and where there is no fraud or collusion, 
 it can not be attacked collaterally,* although it may be 
 appealed from.* 
 
 Where exceptions are filed to the report of the sale made 
 by the referee under a decree of foreclosure, it is not good 
 practice in directing the correction of such report, to order 
 that on filing the corrected report the said sale be in all 
 respects confirmed ; yet such an order of confirmation will 
 not render the proceedings void.* A foreclosure sale will 
 not become absolute, so long as objections duly taken to the 
 report of the referee, or other officer making the sale, are on 
 file and undisposed of.* 
 
 § 556. Effect of confirmation of sale — Lapse of time 
 equivalent to confirmation. — The report of a sale made 
 under a decree of foreclosure in New York, may be con- 
 firmed by the court at special term.* A referee's report of 
 sale becomes the act of the court when confirmed.'' It seems 
 that the confirmation of a sale made under a foreclosure, 
 cures all irregularities in the proceedings to obtain the 
 decree of sale, and in the conduct of the sale itself ; but it 
 will not make good a defect arising from a want of jurisdic- 
 tion of the court, either of the cause of action or of any of 
 the parties interested ; and in every instance such an acci- 
 dent or mistake as would generally invalidate a contract, 
 will be a sufficient ground for setting a sale aside even after 
 confirmation.* 
 
 It has been suggested that the lapse of a long period of 
 time'will be equivalent to a confirmation by the court of a 
 
 (1881). See Moore v. Pye, 10 Kan. ■* Ruggles v. National Bank of 
 
 246(1872); White-crow v. White- Centreville, 43 Mich. 192 (1880). 
 
 wing, 3 Kan. 276 (1865) ; Challiss v. " Howard v. Bond, 42 Mich. 131 
 
 Wise, 2 Kan. 193 (1863) ; Koehler (1879). 
 
 V. Ball, 2 Kan. 160 (1863). « See Swarthout v. Curtis, 4 N. Y. 
 
 ' Torrans v. Hicks, 32 Mich. 307 415 (1850) ; s. c. 45 Am. Dec. 345 ; 
 
 (1875). 5 How. (N. Y.) Pr. 198. 
 
 « Torrans v. Hicks, 32 ]Mich. 307 ' McGowan v. Newman, 4 Abb. 
 
 <1875) ; McKeighan v. Hopkins, 14 (N. Y.) N. C. 80 (1878). 
 
 Neb. 361 (1883). s See Dills v. Jasper, 33 111. 263 
 
 » Koehler v. Ball, 2 Kan. 160 (1864). 
 (1863) ; Detroit F. & M. Ins. Co. v. 
 Kenz, 33 Mich. 298 (1876). 
 
 f43)
 
 674 SETTING ASIDE COXriR:\rATION OF SALE. [§ 557. 
 
 sale made under a decree of foreclosure, where the purchaser 
 has entered into possession of the property under the deed of 
 the ofificer making the sale ;' so that even in those states where 
 confirmation by the court is required to complete the sale, 
 if a deed is executed and delivered without confirmation, 
 and the purchaser enters into possession, long continued 
 possession under such deed will render the title valid. The 
 confirmation of a sale of mortgaged premises on which there 
 are growing crops, relates back to the date of the sale and 
 entitles the purchaser to control the crops from that time, if 
 no equities intervene, and if due notice has been given to 
 interested parties.' 
 
 § 557. Setting aside confirmation of sale— Discretion 
 of the court. — It is discretionary with the court whether a 
 sale of mortgaged premises under a decree of foreclosure 
 shall be set aside or confirmed ;* and this power will be exer- 
 cised as the circumstances of the case and the interests of the 
 parties may demand. Where an application is made for the 
 confirmation of a sale, it must appear to the satisfaction of 
 the court that the sale was conducted in accordance with the 
 requirements of the decree,* and that due notice of the sale 
 was given.* It must also appear that notice of the application 
 for confirmation has been given to all parties who have 
 appeared in the action, in order that they may have an 
 opportunity to oppose it.* 
 
 It has been held under the Kansas statute, that upon an 
 application for the confirmation of a sale in foreclosure pro- 
 ceedings, if it appears that the proceedings of the officer have, 
 in all respects, been in conformity with the decree of the 
 court and the provisions of the statute, and that there are no 
 
 » See G«>wan v. Jones, 18 Miss. * Moore v. Titraan, 33 Dl. 358, 366 
 
 (10 Smed. & M.) 164 (1848). (1864). 
 
 • Ruggles V. First Nat. Bank of * Perrien v. Fetters, 35 Mich. 233 
 
 Centreville, 43 Mich. 192 (1880). (1876). 
 
 « Goodell V. Harrington, 76 N. Y. « Branch Bank v. Hunt, 8 Ala. 
 
 647 (1879) ; Hale v. Clawson, 60 N. 876 (1845) ; Williamson v. Berry, 49 
 
 Y. 339 (1875) ; Crane v. Stiger, 58 U. S. (8 How.) 495, 546 (1850) ; bk. 
 
 N. Y. 625 (1874) ; Buffalo Savings 12 L. ed. 1170. 
 Bank v. Newton, 23 N. Y. 160 
 (1861). See ante chap. xxvi.
 
 § 558.] 
 
 ENTORCING SALE AGAINST BIDDER. 675 
 
 extrinsic circumstances of an equitable character requiring 
 the interference of the court, the sale should be confirmed ;' 
 and that the court has no right against sound discretion to 
 release the purchaser from his bid or to permit a tender to be 
 made by the mortgagor after the sale.* 
 
 § 558. Enforcing sale against purchaser. — Where there 
 is no defect in the title to property sold under a decree of 
 foreclosure, if the purchaser refuses or neglects to pay the 
 purchase money and to take the title, or otherwise to comply 
 with the terms of sale, he may be compelled to do so by an 
 order of the court, for the purchaser at a foreclosure sale 
 becomes a quasi party to the suit, and subjects himself to 
 the jurisdiction of the court, so far as the completion of the 
 sale is concerned.* 
 
 In a case where the judgment of sale was in the ordinary 
 form, making no reference, however, to contingent outstand- 
 ing interests, but a notice thereof was given at the sale, 
 which was made subject to such interests, it was held that 
 an order compelling the purchaser to complete such pur- 
 chase was proper ; that an amendment of the judgment was 
 not necessary, inasmuch as it furnished adequate authority 
 for the sale of the property covered by the mortgage ; and 
 that no wrong was done to the purchaser in compelling him 
 to pay for exactly what he bought.* 
 
 The fact that the party making the purchase acted merely 
 as the agent of another person, will not relieve him from lia- 
 bility, if he made the bid in his own name.* By becoming a 
 
 « New England Mortgage Security Paige Ch. (N. Y.) 339 (1831); Coulter 
 
 Ck), V. Smith, 25 Kan. 623 (1881) ; v. Henderson, 27 Miss. 685, 689 
 
 lloore V. Pye, 10 Kan. 246, 250 (1854); Ogilvle v. Richardson, 14 
 
 (1872) ; Challiss v. Wise, 2Kau. 193 Wis. 157 (1861) ; Wood v. Mann, 3 
 
 (1863). Sunin. C. C. 318 (1838) ; Casamajor 
 
 « New England Mortgage Security v. Strole, 1 Sim. & S. 381 (1823) ; 
 
 Co. V. Smith, 25 Kan. 622 (1881). Lansdown v. Elderton, 14 Ves. 513 
 
 « Cazet V. Hubbell, 36 N. Y. 677 (1808). 
 (1867). See Miller v, Collyer, 36 * Cromwell v. Hull, 97 N. Y. 209 
 
 Barb. (N. Y.) 250 (1863) ; Graliam (1884). 
 
 V. Bleakie, 2 Daly (N. Y.) 55 (1866); » Ogilvle v. Richardson, 14 Wis. 
 
 Brasher v. Cortlandt, 2 Johns. Ch. 157 (1861). 
 (N. Y.) 605 (1817) ; Requa v. Rea, 3
 
 676 BIDDER REFUSING TO COMPLETE SALE. [§ 559. 
 
 purchaser at a foreclosure sale, the bidder subjects himself to 
 the jurisdiction of the court and may be compelled to com- 
 ply with the conditions of the sale ; and neither mere lapse 
 of time nor the death of one of the parties will be a bar to 
 such relief, if the purchaser has taken possession of the 
 premises.' In some states, before a party purchasing at a 
 foreclosure sale can be required to complete his purchase, 
 he must be accepted as a purchaser by the court and the sale 
 must be confirmed.* 
 
 The proper tribunal to enforce the purchaser's undertakings 
 to complete his purchase, is the court which made the decree 
 of sale.' The application for that purpose may be made by 
 motion. Where the purchaser neglects to comply with the 
 terms of the sale within a reasonable time, the court will not 
 give him the benefit of his purchase if a resale will be more 
 beneficial to the parties ;* neither will the court compel him 
 to take the title where the parties to the action have delayed 
 the completion of the sale so long that he will lose the 
 benefit of his purchase.* 
 
 § 559- Proceedings where purchaser refuses or neg- 
 lects to complete his purchase. — Where the purchaser at 
 a mortgage foreclosure sale neglects or refuses to complete 
 his contract according to the terms of sale, a resale may be 
 ordered, in which case such purchaser will be liable for the 
 costs of such resale, and for the deficiency, if any.' Where a 
 resale is ordered on refusal of the purchaser to complete his 
 contract because of irregularities in the foreclosure, he will 
 not be charged with the expenses of correcting such irregu- 
 larities." 
 
 » Cazet V. HubbeU, 36 N. Y. 677 chants' Bank v. Thomson, 55 N. Y. 
 
 (1867). See Merchants' Bank v. 7(1873). 
 
 Thomson, 55 N. Y. 7 (1873). « Riggs v. Pursell, 74 N. Y. 370 
 
 « Schaefer v. O'Brien, 49 Md. 253 (1878)^ Miller v. Collyer, 36 Barb. 
 
 (1878). ( N. Y. ) 250 ( 1862 ) ; Graham v. 
 
 » See "Wood v. Mann, 3 Sumn. C. Bleakie, 2 Daly (N. Y.) 55 (1866) ; 
 
 C. 318 (1838). Wood v. Mann, 3 Sumn. C. C. 318 
 
 * Jackson v. Edwards, 7 Paige Ch. (1838). 
 
 (N. Y.) 386 (1839). i Knight v. Moloney, 4 Hun (N. 
 
 * Jackson v. Edwards. 7 Paige Y.) 33 (1875). 
 Ch. (N. Y.) 386 (1839). See Mer-
 
 § 560.] ATTACHMENT AGATN-ST PUKCHASEK. 677 
 
 A resale ordered in such a case should be upon the same 
 terms upon which the first sale was made ; and where the terms 
 of the resale differ materially from those of the first sale, the 
 purchaser at the first sale will be relieved from all liability 
 for any deficiency on the second sale.* A purchaser who 
 neglects to complete his contract, or who wrongfully refuses to 
 do so, will be chargeable with the taxes imposed subsequently 
 to his refusal to complete the purchase and before the resale, 
 such taxes being within the spirit and the letter of the contract 
 which throws upon such purchaser the " difference in costs 
 and expenses on the resale," because such additional taxes 
 are legitimately a part of the difference between the sums 
 realized.* 
 
 § 560. Enforcing sale by attachment against pur- 
 chaser. — Where the purchaser is responsible, the court may 
 summarily order him to complete his purchase ; and on his 
 neglect or refusal so to do, it may issue an attachment 
 against his person on motion in the action in which the 
 decree of sale was granted.* This is the proper practice 
 where there is reason to believe that the purchaser is acting 
 in collusion with the mortgagor to hinder or prevent the 
 sale.* 
 
 The fact that the plaintiff is entitled to have the property 
 resold on failure of the purchaser to complete the pur- 
 chase, or that he may bring an action against the purchaser 
 for damages, will not deprive the court of the right to 
 enforce the performance of the terms of sale by attach- 
 ment ; and while there is an option as to remedy, such 
 
 > Riggs V. PurseU, 74 N. Y. 370 qua v. Rea, 2 Paige Ch. (N. Y.) 339 
 
 (1878). (1831) ; Andersen v. Foulke. 2 Harr. 
 
 » Ruhe V. Law, 8 Him (N. Y.) 251 & G. (Md.) 346 (1828) ; Richardson 
 
 (1876). See also Chase v. Chase, 15 v. Jones, 3 Gill. <fc J. (Md.) 163 
 
 Abb. (N. Y.) K C. 91 (1884). (1831); s. c. 22 Am. Dec. 393; 
 
 » Merchants' Bank v. Thomson, Wood v. Mann, 3 Sumn. C. C. 318 
 
 65 N. Y. 7 (1873) ; Cazet v. Hubbell, (1838) ; Lansdown v. Elderton, 14 
 
 86 N. Y. 677 (1867) ;, Miller v. Coll- Ves. 512 (1808) ; Savile v. Savile, 1 
 
 yer, 36 Barb. (N. Y.) 250 (1862) ; P. Wms. 745 (1721). 
 Graham v. Bleakie, 2 Daly (N. Y.) * Graham v. Bleakie, 2 Daly (N. 
 
 65 (1866) ; Brasher v. Cortlandt, 2 Y.) 55, 60 (1866). 
 Johns. Ch. (N. Y.) 505 (1817) ; Re
 
 678 WHEN BIDDER EXCUSED. [§561, 
 
 option lies with the court or with the mortgagee, and 
 not with the purchaser.' And it has ever been held, where 
 the purchaser has made the cash payment required and 
 given a bond or other security for the deferred payments, 
 and the sale has been confirmed by the court, that upon the 
 failure of the purchaser to pay the bond, he may be required 
 to show cause why the land should not be resold for the 
 payment of the purchase money ; and upon the return of 
 such order a decree may be made for the sale of the land.' 
 
 § 561. When bidder will be excused from completing 
 his purchase. — It is a well established rule that a purchaser 
 at a foreclosure sale will not be compelled to accept a doubt- 
 ful title,* or a mere equitable estate.* The court will not 
 compel him to take a title which may expose him to a suit 
 either at law or in equity.* A marketable title must be 
 offered to him. Consequently, if there is a defect in the 
 title which can not be remedied, or if there is a well-founded 
 doubt as to the validity of the title, the court will not require 
 a purchaser to complete his purchase.* But if the defects in 
 
 ' Wood V. Mann, 3 Sumn. C. C. Wright. 3 Harr. & McH. (Md.) 326 
 
 318 (1838). See Cazet v. Hubbell, (1793) ; Butler v. O'Hear. 1 Desaus. 
 
 36 N. Y. 677 (1867). (S. C.) Eq. 382 (1794) ; 8. c. 1 Am. 
 
 "Clarksonv. Read, ISGratt. (Ya.) Dec. 671; Thompson v. Tod, 1 
 
 288 (1859). But see Richardson v. Pet. C. C. 380 (1817) ; Stapylton v. 
 
 Jones. 3 Gill. & J. (Md.) 163 ; s. c. Scott, 16 Ves. 272 (1809) ; Shapland 
 
 22 Am. Dec. 393. decided in 1831, v. Smith, 1 Bro. C. C. 75 (1780) ; 
 where it was held that when a bond Cooper v. Denne, 1 Ves. Jr. 565 
 has been given and the sale confirm- (1792) ; s. c. 4 Bro. C. C. 80 ; Lowes 
 ed, the purchaser and his sureties can v. Lush. 14 Ves. 547 (1808) ; Frank- 
 not be compelled to pay the bond in a lin v. Brownlow, 14 Ves. 550 (1808). 
 summary way under an order by the * Abel v. Heathcote, 2 Ves. Jr. 
 court of chancery. The court held 98 (1793). 
 
 the bond to be a legal contract to be ' Morris v. Mowatt, 2 Paige Ch. 
 
 enforced in an action at law. (N. Y.) 586 (1831) ; 8. c. 22 Am Dec. 
 
 * See Beckenbaugh v. Nally, 32 661 ; Cooper v. Dennie, 1 Ves. Jr. 
 
 Hun (N. Y.) 160 (1884) ; Piser v. 565 (1792) ; s. c. 4 Bro. C. C. 80, 86. 
 
 Lockwood, 30 Hun (N. Y.) 6 (1883); « Seymour v. DeLancy, Hopk. 
 
 Lockman v. Reilley, 29 Hun (N. Y.) Ch. (N. Y.) 436 (1824) ; s. c. 16 Am. 
 
 434 (1882); Morris v, Mowatt, 2 Dec. 552; Morris v. Mowatt. 2 
 
 Paige Ch. (N. Y.) 586 (1881) ; s. c. Paige Ch. (N. Y.) 586 (1831) ; 8. c. 
 
 23 Am. Dec. 661 ; Turner v. Clay, 22 Am. Dec. 661 ; Jackson v. Ed- 
 3 Bibb (Ky.) 52 (1813) ; Perkins V. wards. 23 Wend. (N. Y.) 498, 509
 
 § 561.] BIDDER EXCUSED FROM TAKLN'G TITLE. 679 
 
 the title can be corrected, and the purchaser is tendered a 
 confirmatory deed which remedies such defects, he can not 
 refuse to accept the title.' 
 
 The purchaser at a foreclosure sale can not be compelled 
 to complete his purchase, if the court had no jurisdiction 
 of the subject matter of the action, or the proceedings are for 
 any reason void, or a necessary defendant has not been 
 properly served with the summons.' Where by the terms of a 
 sale under a decree of foreclosure the property was to be sold 
 free from all incumbrances, and all taxes and assessments 
 were to be paid out of the purchase money, but it afterwards 
 appeared that an assessment for a large amount against the 
 property for opening and macadamizing an avenue through 
 the premises had not in fact been confirmed by the city at the 
 time of the sale, although the work had been completed 
 more than three years before the sale ; it was held that the 
 purchasers at the sale, who had bid off the property under 
 the belief that such assessment had been confirmed, and 
 that they would receive their lots discharged of the expenses 
 thereof, were not bound to take the property subject to the 
 assessment for such improvements.' 
 
 And it has been held that where land is sold by a referee 
 under a decree of foreclosure, the court will not require the 
 purchaser to complete the purchase unless he will obtain 
 such an interest in the premises and in the buildings thereon, 
 as he had a right to expect from the terms of the sale.* 
 
 It is said to be the correct practice in Illinois for the 
 officer exposing the property for sale to report the largest 
 bid to the court for its approval, and that although the bid 
 
 (1839). See Graham v. Bleakie, 2 Daly (1877), reversing 9 Hun (N. Y.) 150; 
 
 (N. Y.) 55 (1866) ; Banister v. Way, Cook v. Farren, 34 Barb. (N. Y.) 95 
 
 Dick. 686 (1787) ; Harding v. Hard- (1861) ; B. c. 21 How. (N. Y.) Pr. 
 
 ing, 4 Myl. & C. 514 ( 1839 ) ; 286 ; 12 Abb. (N. Y.) Pr. 359. See 
 
 Saunders v. Grey, 4 Myl. & C. 515 Alexander v. Greenwood, 24 Cal. 505 
 
 (1811) : Tanner v. Radford, 4 Myl. (1864) ; McKernan v. Neff, 43 Ind. 
 
 & C. 518 (1834) ; Hodder v. Ruffin, 503 (1873). 
 
 1 Ves. «& B. 544 (1813). a Post v. Leet, 8 Paige Ch. (N. Y.) 
 
 ' Graham v. Bleakie, 2 Daly (N. 337 (1840). 
 
 Y.) 55 (1866). * Seaman v. Hicks, 8 Paige Ch. 
 
 « Yerdin v. Slocum, 71 N. Y. 345 (N. Y.) 655 (1841).
 
 680 UIs^KNOWK DEFECTS OF 'JTILE AS EXCUSE. [§562 
 
 may have been accepted by the officer making the sale, yet a 
 resale of the property and the approval by the court of 
 such resale will operate as a rejection of the first bid, and 
 end the liability of the bidder.' 
 
 § 562. Defects of title unknown to purchaser at time 
 of sale. — When there is a defect in the title to the premises, 
 which is unknown to the purchaser at the time of the sale, 
 he will not ordinarily be compelled to complete the pur- 
 chase." An outstanding inchoate right of dower in the prem- 
 ises is such a defect as will excuse a purchaser from com- 
 pleting the sale.* So also is a prior mortgage or other 
 lien or charge upon the premises.* When a purchaser is 
 discharged from all liability to complete his purchase, 
 because of defects in the title of which he had no knowledge 
 at the time of the sale, he will be entitled to be re-imbursed 
 for all proper disbursements connected with his purchase, 
 which include the deposit made by him at the time of his 
 purchase, with interest from the time it was made, and the 
 expenses of examining the title, together with the costs 
 of the motion for repayment, if he was put to such 
 costs.' 
 
 This payment is to be made out of the funds of the case, if 
 there are any.* If there are no funds of the case in court, the 
 plaintiff will be ordered to pay the purchaser the amount of 
 such disbursements ;' he may also recover the amount 
 thereof in a direct suit or upon a resale.' It has been said 
 that this doctrine rests upon the ground suggested by Lord 
 
 »Dms V. Jasper, 33 111. 262 Y.) Pr. 243; Seaman v. Hicks, 8 
 
 (1864). Paige Ch. (N. Y.) 655 (1841). 
 
 » Fryer v. Rockefeller, 63 N. Y. ^ Raynor v. Selmes, 52 N. Y. 579 
 
 268 (1875) ; Merchants' Bank v. (1873) ; Morris v, Mowatt, 2 Paige 
 
 Thomson, 55 N. Y. 7 (1873). Ch. (N. Y.) 586, 593 (1831) ; B. C. 22 
 
 8 Simar v. Canaday, 53 N. Y. 298 Am. Dec. 661. 
 
 (1873); 8. c. 13 Am. Rep. 523; « Reynolds v. Blake, 2 Sim. «fc S. 
 
 Mills V. VanVoorhies, 20 N. Y. 412 117 ( 1824 ) ; Attorney-Genesal v. 
 
 (1859) ; Shiveley's Admrs. v. Jones, Kewark, 8 Sim. 71 (1836). 
 
 6 B. Mon. (Ky.) 274 (1845) ; Fitts v. ' Smith v. Nelson, 2 Sim. & S. 
 
 Hoitt, 17 N. H. 530 (1845). 557 (1826). 
 
 * Hirsch v. Livingstone, 3 Hun * Berry v. Johnson, 2 Younge <fe 
 
 (N. Y.) 9 (1874) ; s. c. 48 How. (N. Coll. 564 (1837).
 
 §§ 563-564.] UNKNOWN detects of title. 681 
 
 Eldon in Lechmere v. Brasier,' that the suitor must pay for 
 the mistakes of the court.' But when a defect in the pro- 
 ceedings results from the plaintiff's negligence in omitting 
 to make all persons interested in the mortgaged property- 
 parties to the suit, such expenses can not be deducted from 
 the surplus money arising from a second sale, but must be 
 paid by the party at fault." 
 
 § 563. Defects of title existing prior to the mortgage 
 under foreclosure. — A purchaser at a sale under a decree of 
 foreclosure will not be relieved from his bid on account 
 of defects in the title to the property, of which he had notice 
 at the time of such sale ; and the court will not permit him to 
 abandon his bid, if the title of which he had knowledge is 
 delivered to him. 
 
 In the case of Riggs v. Pursell,* the court held that if 
 "every minute and critical objection to a judicial sale is 
 suffered to prevail, it will be attended with much incon- 
 venience and embarrassment. A purchaser claiming to be 
 discharged from his contract, should, therefore, make out a 
 fair and plain case for relief, and it is not every defect in the 
 subject sold, or variation from the description, that will avail 
 him. He will not be suffered to speculate at such sales and, 
 if he happens to make a bad bargain, to repudiate it or aban- 
 don his purchase on some nice but immaterial objection. If 
 he gets substantially what he bargains for, he must complete 
 the purchase and take his deed ; and in some cases the 
 court will compel him to take a compensation for any 
 deficiency; the court will weigh the object and inducement 
 of the purchaser, and looking to the merits and substantial 
 justice of each case, if the sale be fair, relieve or not from 
 the purchase according as the character of the transaction 
 and circumstances may appear to require."* 
 
 § 564. When purchaser presumed to know condition 
 of title. — A purchaser buys the title of the mortgagor as 
 
 ' 2 Jac. & W. 287 (1821). * 66 N. Y. 193 (1876). 
 
 « See Raynor v. Selmes, 52 N. Y. * See King v. Bardeau, 6 Johns, 
 
 679 (1873). Ch. (N. Y.) 38 (1822) ; 8. c. 10 Am. 
 
 » Raynor v. Selmes, 52 N. Y. 579 Dec. 312 ; Weems v. Brewer. 2 
 
 (1873), reversing s. c. 7 Lans. 440. Harr. & G. (Md.) 890 (1828i.
 
 652 PUKOHASEK PKlfiSUMED TO KNOW TITLE. [§564. 
 
 it existed at the time of the execution of the mortgage, and 
 nothing more ; and, since the foreclosure cuts off only the 
 equity of redemption, the purchaser acquires only the title 
 of the mortgagee and the mortgagor at the time of the execu- 
 tion of the mortgage. The purchaser takes the risk as to all 
 claims affecting the title to the property which existed prior 
 to the execution of the mortgage under foreclosure,' 
 
 Where a mortgage purports to cover an estate in fee, 
 while in fact it covers only a leasehold interest, and the 
 judgment, following the terms of the mortgage, erroneously 
 directs a sale of the fee title, the purchaser will be held 
 bound by such sale, if he had notice of the leasehold title of 
 the mortgagor at the time of the sale, because the sale 
 under the judgment of foreclosure can transfer only the 
 title which the mortgagor had.* 
 
 The purchaser at a foreclosure sale is presumed to know 
 the condition of the title on which he bids. Where a 
 mortgage, which contains no covenant of warranty, is fore- 
 closed, and the relation of mortgagor and mortgagee is 
 extinguished by a sale of the mortgaged premises, the 
 mortgagor will be under no obligation to protect the title of 
 the purchaser; nor will he be precluded from subsequently 
 acquiring an outstanding or paramount title.* The pur- 
 chaser is chargeable with notice of all the defects and 
 irregularities in the foreclosure proceedings which appear of 
 record, and is bound to take notice of the fact that a junior 
 mortgagee, or other subsequent lienholder of record, was not 
 made a party to the foreclosure, and that for that reason he 
 has a right to redeem from the sale.* 
 
 And where a purchaser at a sale under a decree of fore- 
 closure has paid the purchase money and the sale has been 
 
 » See Riggs v. Pursell, 66 N. Y. U. S. (3 Otto), 434 (1876) ; bk. 23 L. 
 
 193 (1876) ; Fryer v. Rockefeller, 63 ed. 964. See N. T. Code Civ. Proc. 
 
 N. Y. 268 (1875), affirming 4 Hun § 1632. 
 
 (N. Y.) 800; Holden v. Sackett, 'Graham v. Bleakie, 2 Daly (N. 
 
 12 Abb. (N. Y.) Pr. 473 (1861); Y.) 55 (1866). 
 
 Strong V. Waddell, 56 Ala. 471 » Jackson v. Littell, 56 N. Y. 108 
 
 (1876) ; Boggs V. Fowler, 16 Cal. 559 (1874). 
 
 (1860) ; 8. c. 76 Am. Dec. 561 ; * McKeman r. NefP, 43 Ind. 503 
 
 Osta'berg v. Union Trust Co.. 93 (1873). See Piel v. Baryer, 30 Ind.
 
 § 565.] WHAT lEREGXJLAKITIES EXCUSE BIDDEB. 6S3 
 
 confirmed, he can not call upon the mortgagee, in the 
 absence of any express covenants by him, to return 
 the money received in satisfaction of the mortgage debt, or 
 any part of it, on the ground that the title to the property 
 was defective, and that he has been forced to pay a large 
 sum of money to perfect it ; his only remedy will be on the 
 covenants in the several conveyances preceding the convey- 
 ance to the mortgagee.* 
 
 § 565. Irregularities prior to judgment excusing pur- 
 chaser. — When all persons having any claim upon the 
 property are made parties to the action and the court has 
 jurisdiction of the case, the purchaser will be required to 
 take the title, even though the court may have made an 
 erroneous decision upon the merits, for the reason that no 
 one except the parties to the action could, in such a case, 
 question the purchaser's title, and they are bound by the 
 judgment.* Where a purchaser at a sale under a decree of 
 foreclosure is himself a party to the action, he can not ques- 
 tion the regularity of the decree. If such a decree is irregular, 
 so that the purchaser can not obtain a good title to the 
 premises, his most direct remedy will be an application to 
 the court on motion to have the decree set aside.* 
 
 After the confirmation of the sale, errors in the decree or 
 in the proceedings under it, will afford no ground for relief.* 
 But where the court had no jurisdiction of the action, the 
 purchaser may have relief, even after confirmation, because 
 of the defect arising out of such want of jurisdiction.* After 
 a decree and sale in a mortgage foreclosure, the validity of 
 
 ZSi (1868); Alexander v. Green- « Concklin v. Hall, 2 Barb. Ch. (N. 
 
 wood, 24 Cal. 505 (1864), T.) 136 (1847). 
 
 > McMurray v. Brassfield, 10 * Daniel v. Leitch, 13 Gratt. (Va.) 
 
 Heisk. (Tenn.) 529 (1873). 195 (1856) ; Worsham v. Hardaway's 
 
 « DeForest V. Farley, 62 N. Y. 628 Adm'r, 5 Gratt. (Va.) 60 (1848); 
 
 (1875) ; Blakeley v. Calder, 15 N. T. ThrelkeWs v. Campbell, 2 Gratt. 
 
 617 (1857) ; Gaskin v. Anderson, 55 (Va.) 198 (1845) ; 8. c. 44 Am. Dec. 
 
 Barb. (N. T.) 259 (1869); s. c. 7 384. 
 
 Abb. (N. Y.) N. S. 1 ; Graham v. » Boggs v. Hargrave, 16 Cal. 559 
 
 Bleakie, 2 Daly (N. Y.) 55 (1866) ; (1860) ; s. c. 76 Am. Dec. 561. 
 Ogden V. Walters, 12 Kan. 282 (1873); 
 Milla V. Ralston, 10 Kan. 206 (1872).
 
 CS4 ENFORcma sale — lunatic defendants. [§566. 
 
 the mortgage can not be questioned,' for where the decree is 
 valid and the sale of the land and the execution of the deed 
 are regular, the purchaser at a foreclosure sale acquires a good 
 title to the premises, although, as against the mortgagor, the 
 decree under which the sale was made may be erroneous.* 
 
 Where the order of sale under a decree of foreclosure was 
 issued without authority, this irregularity will not affect the 
 title of a purchaser without notice thereof, if he has paid the 
 purchase money and received his deed.* 
 
 § 566. Enforcement of purchase where there are 
 lunatic defendants. — A decree of foreclosure, rendered 
 upon the personal service of the summons in the action 
 upon persons alleged to be insane,* but against whom no 
 proceedings have been instituted to ascertain their mental 
 condition, is neither erroneous nor irregular,* and a purchaser 
 at a sale made pursuant to such a decree will not be excused 
 from taking the title,* because an obligation entered into by 
 an insane person to secure borrowed money of which he has 
 had the benefit is valid, when the mortgagee acted in good 
 faith and without knowledge or information of the mental 
 condition of the mortgagor.* 
 
 Thus, it was held in Prentiss v. Cornell," that a purchasei 
 at a foreclosure sale will be compelled to accept the title, 
 although two of the defendants were lunatics for whom no 
 committees had been appointed, if it does not appear from the 
 record that they are lunatics. The court said : "Assuming 
 
 ' Gest V. Flock, 2 N. J. Eq. (1 H. T. ) 424 ( 1852 ) ; Sternbergh v. 
 
 "W. Gr.) 108 (1838). Schoolcraft, 2 Barb. (N, T.) 153 
 
 « Splahn V. Gillespie, 48 Ind. 397 (1848). 
 
 (1874). « Prentiss v. Cornell, 96 N. Y. 
 
 » Splahn V. Gillespie, 48 Ind. 397 665 (1884), aff'g 31 Hun (N. Y.) 167. 
 
 (1874). ' Mutual Life Ins. Co. v. Hunt, 79 
 
 * It would seem that the same N. Y. 541 (1880), afl'g 14 Hun (N. 
 
 principle applies also to those cases Y.) 169. Legal obligations may be 
 
 where persons have been adjudged to enforced against lunatics and idiots 
 
 be lunatics. See Sternbergh v. whether their mental capacity has 
 
 Schoolcraft, 2 Barb. (N. Y.) 153 been judicially determined or not. 
 
 (1848); Robertson v. Lain, 19 Wend. Sanford v. Sanford, 63 N. Y. 553 
 
 (N. Y.) 649 (1839). (1875). 
 
 » Crippen v. Culver, 13 Barb. (N. « 31 Hun (N. Y.) 167 (1883).
 
 §537.] ENFORCING SALE INFANT DEFENDANTS. 685 
 
 that these defendants were non sui juris at the commence- 
 ment of this action, they were, nevertheless, liable to be 
 sued. The mental incapacity, or incompetency, of parties 
 presents no interference with the enforcement of legal 
 liabilities. The institution of legal proceedings against 
 lunatics is not inhibited. They may be sued and actions 
 may be maintained against them, and whether their insanity 
 will constitute a defence depends on the circumstances of 
 the case."* The question relates solely to the jurisdiction 
 of the court and to the regularity of the proceedings. The 
 personal service of the summons and complaint conferred 
 jurisdiction of these persons and the judgment rendered was 
 held to be not even erroneous.* 
 
 § 567. Enforcement of purchase where there are 
 infant defendants. — Where, in an action brought to fore- 
 close a mortgage, an infant defendant was not served with the 
 summons, but a guardian ad litem, whom his mother pro- 
 cured to be appointed for him, appeared in the action and 
 put in an answer, and the purchaser at the sale refused to 
 complete his purchase because the infant defendant had not 
 been served, the court held that there was too much doubt 
 about the validity of the proceedings to warrant an order 
 compelling the purchaser to accept the referee's deed.* 
 
 In an action brought in New York to foreclose a mortgage, 
 one of the defendants who owned an interest in the premises, 
 was an infant under the age of fourteen years, residing with 
 his mother in New Jersey. The summons was not served 
 upon him, either personally or by publication, but was per- 
 sonally served upon his mother in New York. The mother, 
 after such service and upon her own application, was 
 appointed guardian ad litem by order of the court, with 
 authority to appear and defend. The infant and the mother 
 both appeared and put in a general answer. Upon applica- 
 tion to compel a purchaser at the sale made under the 
 
 > Sanford v. Sanford, 63 K Y. T.) 428(1852); Sternbergh v. School- 
 
 553 (1875) ; Mutual Life Ins. Co. v. craft, 2 Barb. (N. Y.) 153 (1847). 
 
 Hunt, 14 Hun (N. Y.) 169 (1878); » Ingersoll v. Mangam, 24 Hun 
 
 aff'd 79 N. Y. 541. (N. Y.) 202 (1881) ; aff'd 84 N. Y. 
 
 •' Crippen v. Culver, 13 Barb. (N. 623.
 
 686 FORMAL IRREGULARITIES NO EXCUSE. [§568. 
 
 judgment and decree to complete his purchase, it was held 
 that the court had no jurisdiction over the infant defendant 
 to appoint ?i guardian ad lite jn, as such infant had not been 
 made a party to the action, that an appearance by the 
 guardian was not an appearance by the infant, that the judg- 
 ment therefore was not binding upon him, that the sale 
 under such judgment did not convey a good title, and that 
 the application to compel the purchaser to complete his 
 purchase was properly denied.* 
 
 §568. Formal irregularities no 'excuse to purchaser. 
 
 — In a mortgage foreclosure mere formal irregularities, which 
 can not result in injury to the purchaser, do not constitute 
 sufficient defects to justify him in refusing to complete the 
 sale. Should he refuse to accept the title for such reasons, so 
 that a resale is ordered, he will be charged with the expenses 
 thereof and the deficiency, if any.' Thus, on a mortgage 
 foreclosure, in which both the purchaser at the sale and his 
 wife were parties, and the wife being an infant, appeared by 
 an attorney, and the purchaser, after having paid the ten per 
 centum required at the time of making his bid, refused to 
 complete his contract on the ground that the interest of 
 his wife in the premises was not foreclosed, it was held that 
 as the effect of the conveyance to him would be to give the 
 wife the same interest which would have been foreclosed 
 had she properly appeared in the action, he was not injured 
 by the irregularity complained of and was bound to com- 
 plete the purchase.* 
 
 Where there are mere formal irregularities in a foreclosure, 
 they will be deemed to be waived by a defendant who, with 
 full notice thereof, surrenders possession of the premises to 
 the purchaser at the s?.le for a valuable consideration.* 
 Where irregularities occur, the proper remedy is by an 
 appeal from the order of confirmation. Where a sale under 
 a mortgage foreclosure is irregular, because made during a 
 
 ' IngersoU v. Mangam, 84 N. Y. « Knight v. Moloney, 4 Hun (N. 
 
 622 (1881) ; N. Y. Code Civ. Proc. Y.) 33 (1875). 
 
 § 416. •» Trilling v. Schumitsch, 67 Wis. 
 
 « Knight V. Moloney, 4 Hun (N. 186 (1886). 
 
 Y.) 33 (1875). \
 
 § 569.] EEFERElSrCE TO INVESTIGATE TITLE. GS7 
 
 term of the county court Instead of the circuit court, as 
 required by law, it does not operate as an assignment of the 
 mortgage debt Itself to the purchaser, so that he can both 
 hold the land and collect the residue of the debt from the 
 mortgagor. 
 
 § 569. Reference to investigate title. — Upon the return 
 of an order requiring a purchaser at a sale in a mortgage 
 foreclosure to show cause why he should not complete the 
 purchase, the court may appoint a referee to ascertain 
 whether a marketable title is offered ; and if it appears from 
 the referee's report that such a title is not offered, or is of 
 doubtful validity, the court will not compel him to complete 
 the purchase." A purchaser will not be compelled to 
 take a title where the proceedings are for any reason void, 
 as where the court has not had jurisdiction of the action, 01 
 where a party in interest has not been served with the sum- 
 mons,' or a subsequent incumbrancer has not been made a 
 party to the suit.* 
 
 Where the defects in the title to the premises sold can be 
 corrected, and releases are procured within a reasonable time, 
 or other things are done to remedy the defects in the title, 
 the purchaser can not refuse to complete his purchase.* It 
 has been said that while a purchaser, who has discovered a 
 defect in his title at the proper time, may be relieved from 
 his purchase by asking a rescission of the sale, yet he can not, 
 while retaining his bid, ask to have his title perfected by the 
 application of the proceeds of the sale to the claims ol 
 incumbrancers not parties to the action.* 
 
 ' Wells V. Lincoln County, 80 Mo. » Cook v. Farren, 34 Barb. (N. Y.] 
 
 424 (1883). 95 (1861) ; s. c. 12 Abb. (N. Y.) Pr. 
 
 « Graham v. Bleakie, 2 Daly (K 359 ; 21 How. (N. Y.) Pr. 286. 
 
 Y.) 55, 58 (1866) ; Ormsby v. Terry, * Verdin v. Slocum, 71 N. Y. 348 
 
 6 Bush (Ky.) 553 (1869) ; Banister (1877), reversing 9 Hun (N. Y.) 150. 
 
 V. Way, Dick. 686 (1787) ; Saunders ' Graham v. Bleakie, 2 Daly (N. 
 
 V. Grey, 4 Myl. & C. 515 (1811); Y.) 55 (1866). See Coffin v. Cooper, 
 
 Tanner v. Rapford, 4 Myl. & C. 518 14 Ves. 205 (1807). 
 
 (1834) ; Harding v. Harding, 4 Myl. « Duvall v. Speed, 1 Md. Ch. Dec. 
 
 & C. 514 (1839) ; Hodder v. Ruffin, 229, 235 (1848). 
 1 Ves. & B. 544 (1813).
 
 688 mark:etable title must be offered. [§ 570. 
 
 §570. Purchaser entitled to marketable title.— A pur- 
 chaser of land under a decree of foreclosure is entitled to a 
 marketable title,' and can not be compelled to accept a deed 
 which gives him only a doubtful title, or leaves him to the 
 hazards of a contest with other parties which may seriously 
 affect the value of the property.' A title open to reasonable 
 doubt is not a marketable title.* 
 
 A purchaser will not be compelled to accept a title which 
 is so doubtful that it may expose him to litigation, even 
 though such title may be considered good by the court. 
 And if there is a reasonable chance that some third person 
 may raise a question as to the title of the estate after the 
 completion of the contract, the court will not compel a 
 bidder to complete his purchase.* 
 
 It has been said that a title may be doubtful, that is to say, 
 unmarketable, because of the uncertainty of some matter of 
 fact appearing in the course of the examination of it ; and 
 that if, after all reasonable proofs have been produced, the 
 court does not feel called upon to instruct the jury to find 
 against the title, there is not a reasonable doubt as to its 
 validity.* A mere possibility that the purchaser may be 
 disturbed on account of some alleged defect in the title, is 
 not a sufficient objection.' 
 
 ' Fleming v. Burnham, 100 N. Y. gation might be changed by a new 
 
 1(1885). Lord Eldon held in an early inquiry, or are open to opposing 
 
 case, that a purchaser is entitled to de- inferences. 
 
 mand not merely a marketable title, * Post v. Bernheimer, 31 Hun (N. 
 
 but one which he can take with Y.) 247 (1883). See Shriver v. Shriver, 
 
 reasonable certainty. Lowes v. 8G N. Y. 575 (1881) ; Lockman 
 
 Lush, 14 Ves. 547 (1808). v. Reilley, 29 Hun (K Y.) 434 
 
 » Jordan v. Poillon, 77 N. Y. 518 (1883) ; Richmond v. Gray, 85 Mass. 
 
 (1879). (3 Allen), 25 (1861); Garnett r. 
 
 » Fleming v. Burnham, 100 K Y. Macon, 6 Call. (Va.) 368 (1825) ; 
 
 1,10(1885); People V. Board of Stock Christian v. Cabell, 22 Gratt. (Va.) 
 
 Brokers, 92 N.Y. 98(1883); Jordan 82 (1872); Emery v. Grocock, 6 
 
 V. Poillon, 77 N. Y. 518 (1879). Madd. 54 (1821) ; Smith v. Death, 5 
 
 Andrews, J., says in Fleming v. Madd. 371 (1820); Lowes v. Lush, 
 
 Burnham, that it would be specially 14 Ves. 547 (1808). 
 
 unjust to compel a purchaser to take * Shriver v. Shriver, 86 N. Y. 575, 
 
 a title, the validity of which depends 584 (1881) ; Emery v. Grocock, 6 
 
 upon a question of fact, when the Madd. 54 (1821). 
 
 facts presented upon the investi- « Post v. Bernheimer, 81 Hun (N. •
 
 §§ 571-572.] PARTIAL TAILUKE OF TITLE. 689 
 
 § 571. Partial failure of title will excuse purchaser.— 
 
 Where a purchaser does not obtain the same premises which 
 he had reason to believe he would under the terms of the sale, 
 he will not be required to complete his purchase.* Thus, 
 in Beckenbaugh v. Nally' a purchaser was relieved from his 
 bid, where the terms of sale stated that the premises would be 
 sold " subject to the lease of the present upland of said 
 property, to expire May i, 1884," and at the time of the 
 sale a brick building, claimed to be worth $5,000, was stand- 
 ing upon the upland, and by the terms of his lease the 
 tenant was entitled to remove the building, of which right 
 no notice was given at the time of the sale. 
 
 Where several parcels of real estate are sold upon fore- 
 closure as an entirety, for an entire sum of money, and the 
 purchaser obtains title to only a part of the parcels sold, 
 the rule of caveat emptor is applicable, and no correct rule 
 can be prescribed for the measure of the purchaser's dam- 
 ages, if such partial failure of title affords him any cause of 
 action against the mortgagor or judgment defendant.* 
 
 § 572. Rights of assignee of purchaser's bid. — A pur- 
 chaser at a foreclosure sale may make a valid transfer of his 
 bid to a third person before the execution of a deed of the 
 premises; and, upon the application of the assignee, the 
 court may direct the officer making the sale to execute a 
 conveyance immediately to such assignee, subject to the 
 equitable rights or liens of other persons, as against the origi- 
 nal purchaser,which became vested prior to such assignment.* 
 
 T.) 247 (1883); Hayes v. Harmony (1859) ; Wood v. Mann, 3 Sumn. C. 
 
 Grove Cemetery, 108 Mass. 400 C. 318 (1838) ; Vale v. Davenport, 
 
 (1871). 6 Ves. 615 (1802); Rigby v. McNam- 
 
 » Riggs V. Pursell, 66 N. Y. 193 ara, 6 Yes. 515 (1801). 
 (1876) ; Beckenbaugh v. Nally, 32 Where a purchaser under a decree 
 
 Hun (N. Y.) 160 (1884). of foreclosure agreed to sell the 
 
 * 32 Hun (N. Y.) 160 (1884). property purchased to a third per- 
 
 * Parker v. Rodman, 84 Ind. 256 son and died before doing so, his 
 (1882). heirs being abroad, the court ordered 
 
 * Proctor V. Farnam, 5 Paige Ch. a conveyance to the substituted pur- 
 (N. Y.) 614 (1836). See ]\IcClure v. chaser, and the payment of the 
 Englehardt, 17 111. 47 (1855) ; Splahn money into court. Pearce v. 
 V. Gillespie, 48 Ind. 397 (1874) ; Pearce, 7 Sim. 138 (1834). 
 Ehleringer v. Moriarty, 10 Iowa, 78 
 
 («)
 
 690 BIDDER HAVESTG SALE ENEOECED. [§573. 
 
 If there is more than one assignee of the bid, upon motion 
 in the action in which the sale was made, the court will 
 decide between them which is entitled to the deed of con- 
 veyance/ But where the purchaser declines to take the 
 title and requests the master to transfer his bid to the com- 
 plainant, who had agreed to take his place, it has been held 
 that the master should resell the property, and not allow the 
 complainant to take it at the purchaser's bid and receive a 
 deed.* 
 
 §573' Right of bidder to have sale completed. — 
 Where a sale is made by a referee in a manner not authorized 
 by the judgment, parties who in good faith have bid off the 
 property upon the terms offered by the referee, and who 
 have made a payment accordingly, can not be compelled to 
 pay any sum in addition to the amount of such bid, upon 
 the ground that such sum is required to make the bid cor- 
 respond with the terms, upon which alone the referee was 
 authorized to make the sale.* And it has been held, that 
 where a referee, under a decree of foreclosure, with the 
 consent of the parties in interest, sells the property on 
 credit in order to obtain a larger price therefor, the purchaser 
 will have the right to insist upon the terms of his purchase, 
 and can not be compelled to pay cash.* Where a referee 
 sells the premises upon terms not authorized by the decree, 
 the remedy of parties aggrieved will be by motion to 
 vacate the sale and for a resale.* 
 
 Where by reason of delay, arising from an imperfect title, 
 the circumstances of the transaction and of the parties have 
 materially changed, the purchaser will not be required to 
 complete his purchase.* If a defective title causes delay in 
 completing a sale, the purchaser will not be required to 
 
 ' Proctor V. Famam, 5 Paige Ch. » Hotchkiss v. Clifton Air Cure, 4 
 
 (N. Y.) 614 (1836). Keyes (N. Y.) 170 (1868). 
 
 * Thompson v. Dimond, 3 Edw. • Merchants' Bank v. Thomson, 55 
 Ch. (N. Y.) 298(1839). N. Y. 7 (1873); Taylor v. Long- 
 
 » Hotchkiss V. Clifton Air Cure, 4 worth, 89 U. S, (14 Pet.) 173 (1840) ; 
 
 Keyes (N. Y.) 170 (1868). bk. 10 L. ed. 405. 
 
 * Rhodes v. Dutcher, 6 Hvm (N. 
 Y.) 453 (1876).
 
 § 573.] BIDDER HAVING SALE ENFORCED. 691 
 
 pay interest upon the purchase money until the title is 
 perfected.' If, however, he accepts the rents and profits of 
 the premises from the day of sale, he will be chargeable 
 with interest on the purchase money. But in such cases, it 
 is at the option of the purchaser whether to take the rents 
 and profits and pay interest, or to relinquish the rents and 
 profits and to be exempt from the payment of interest.' 
 
 An appeal from an order refusing a resale of the premises 
 will not interfere with the right of the purchaser to have the 
 sale completed. And the appellant will not be entitled to 
 an order staying the purchaser from completing his purchase 
 and taking possession of the property, without giving secur- 
 ity for the payment of the rents and profits of the premises 
 in the meantime, and that no waste shall be committed." 
 
 An application by a purchaser at a foreclosure sale to be 
 relieved from his purchase, must be made within a reason- 
 able time, and when so made, the application will ordinarily 
 be granted, if the purchaser parted with his money under a 
 mistaken notion of the law, although he may have had full 
 knowledge of the facts.* 
 
 ' Merchants' Bank v. Thomson, 55 * American Insurance Co. v. Oak- 
 
 N. Y. 7 (1873). ley, 9 Paige Ch. (N. Y.) 496 (1842) ; 
 
 * Merchants' Bank v. Thomson, s. c. 38 Am. Dec. 561. 
 
 55 N. Y. 17 (1873) ; Diar v. Glover, * Barnard v. Wilson, 66 Cal. 351 
 
 HofE Ch. (N. Y.) 71 (1839). See 1884). 
 Worrall v. Munn, 53 N. Y. 185 (1873).
 
 CHAPTER XXVIIL 
 
 DELIVERING DEED— PASSING TITLE— OBTAINING 
 POSSESSION. 
 
 EEFEREE'S DEED-ESTATE CONVEYED— REQUISITES OF DEED-^TITLB 
 
 OP PURCHASER — FIXTURES — EMBLEMENTS — RENTS —APPEAL 
 
 AND REVERSAL — DELIVERY OF POSSESSION - WRIT OF 
 
 ASSISTANCE-SUMMARY PROCEEDINGS. 
 
 574. General principles. 
 
 575. Provisions for letting pur- 
 
 chaser into possession — 
 Rents. 
 
 576. Effect and force of referee's 
 
 deed. 
 
 577. Estate conveyed and interests 
 
 passed by referee's deed. 
 
 578. Execution and delivery of 
 
 deed. 
 
 679. Requisites of sheriff's or 
 
 referee's deed. 
 
 680. Error in description in mort- 
 
 gage — Correcting in deed. 
 
 58L Variance of description in 
 mortgage, decree and deed. 
 
 682. Title of purchaser relates 
 
 back to time of executing 
 mortgage — Reserving case- 
 ment. 
 
 683. Time for redemption — Effect 
 
 on title of purchaser. 
 
 584. All fixtures pass to purchaser 
 
 under referee's deed. 
 
 585. Exceptions to above rule. 
 
 586. All permanent improvements 
 
 pass under referee's deed. 
 
 § 587. All emblements puss under 
 referee's deed. 
 
 588. Right of purcliaser to rents. 
 
 589. Appeal and reversal — Effect 
 
 on purcliaser's title. 
 
 590. Delivering possession of 
 
 premises to purchaser. 
 
 591. Possession obtained by sum- 
 
 mary process. 
 
 592. Provisions of Code for obtain- 
 
 ing posse.><sion. 
 
 593. Writ of assistance — When 
 
 granted. 
 
 594. "^'rit of assistance — How 
 
 obtained. 
 
 595. Against whom possession de- 
 
 livered. 
 
 596. Who entitled to writ of assis- 
 
 tance. 
 
 597. Writ of assistance improperly 
 
 granted. 
 
 598. Writ against tenants in pos- 
 
 session. 
 
 599. Writ of assistance not granted 
 
 against holder of paramount 
 title. 
 
 600. Summary proceedings under 
 
 New York Code. 
 
 § 574. General principles. — Immediately after the sale 
 is concluded, if the purchaser pays the amount bid and 
 complies with the terms of sale, the ofificer who made the 
 sale may execute and deliver to him a deed of the premises.' 
 
 • Jackson v. Warren, 33 111. 331 (1863). 
 692
 
 § 574.] INTKODUOTOKY. 6^3 
 
 It is not necessary to make a report of the sale, nor to have 
 the report confirmed, before the deed is executed. It has 
 been said that the referee's deed passes the title to the 
 premises to the purchaser at the moment of its delivery, 
 although the sale may not have been confirmed ;' but a legal 
 title can not vest under a deed until its delivery.' 
 
 It has been said that the property is at the risk of the 
 purchaser from the date of the delivery of the deed by 
 the officer of the court, and that he can not repudiate the 
 contract, although the sale may afterwards be set aside for 
 irregularity.' The person holding such a deed has been said 
 to be prima facie the legal owner of the land described in 
 it.* According to the English doctrine, a purchase at a 
 foreclosure sale is not complete until the report of the officer 
 making such sale has been confirmed ; and the practice 
 there is to withhold the deed until the entry of the final 
 order of confirmation.' 
 
 Where a deed is delivered before the sale is confirmed, 
 the confirmation relates back to the date of the sale and 
 gives effect to the deed from that time.' While the decisions 
 in this country are not uniform, it is thought that the better 
 practice is to report the sale and to have it confirmed before 
 delivering the deed. Yet in those states where time is 
 allowed for redemption after the sale, it is the practice to 
 delay the report until the deed has been executed and 
 delivered.^ In such cases the mortgagor will waive all merely 
 technical objections to the sale by failing to have it set aside 
 before the time for redemption expires.' 
 
 » Fort V. Burch, 6 Barb. (N. Y.) » Jones v. Burden, 20 Ala. 383 
 
 60 (1849). See MtcheU v. Bartlett, (1852). 
 
 51 N. Y. 447 (1873), aff'g 52 Barb. * Jackson v. Warren, 32 Dl. 331 
 
 (N. Y.) 319 ; Fuller v. VanGeesen, (1863). See Simerson v. Branch 
 
 4 Hill (N. Y.) 171 (1843) ; Jones v. Bank at Decatur, 12 Ala. 205 (1847). 
 
 Burden, 20 Ala. 382 (1852), See * Ex parte Minor, 11 Ves. 559 
 
 ante chap, xxvii for the New York (1805). 
 
 practice, which requires the delivery * Lathrop v. Nelson, 4 Dill. C. 0. 
 
 of the deed before the confirmation 194 (1877). 
 
 of the sale. ' Walker v. Sebum, 42 HI. 462 
 
 « Mitchell V. Bartlett, 51 N. Y. 447 (1867). 
 
 «g'3[3\ * Fergus v. Wood worth, 44 111.
 
 694 LETTING PURCHASER INTO POSSESSION. [§575. 
 
 § 575. Provisions for letting purchaser into possession 
 — Rents. — Where the decree in a foreclosure provides that 
 the purchaser shall be let into possession upon producing 
 the deed of the referee, or other officer making the sale, the 
 purchaser does not acquire the title or the right to the pos- 
 session of the land, or to the rents and profits thereof, 
 until the delivery of such deed ; up to the time of such 
 delivery the owner of the equity of redemption is entitled 
 to the possession and to the rents and profits of the land.' 
 
 Where mortgaged premises are sold under a decree of 
 foreclosure, the owner of the equity of redemption will be 
 entitled to the rents, issues and profits of the premises until 
 the purchaser becomes entitled to possession ; and where 
 the rent is payable between the day of sale and the time when 
 the purchaser will be entitled to the possession, such rent 
 will belong to the owner of the equity of redemption, and 
 not to the purchaser at the sale.' But it has been held, 
 where an assignee in bankruptcy of the mortgagor, by order 
 of the bankrupt court, joined in the sale of the mortgaged 
 premises under a power of sale contained in the mortgage, 
 that the purchaser at such sale was entitled, as against the 
 assignee in bankruptcy, to the rents and profits of the prop- 
 erty sold for the period intervening between the day of sale 
 and the day of the confirmation thereof by the bankrupt 
 court,' 
 
 Where a decree of foreclosure directs the sale of the 
 premises, and that the purchaser at the sale be let into 
 possession upon the delivery of the usual referee's deed, the 
 purchaser will be entitled to a writ of assistance or other 
 
 374 (1867) ; Walker v, Schura, 42 v. Turner, 11 Paige Ch. (N. Y.) 436 
 
 HI. 462 (1867). (1845) ; Clason v. Corley, 5 Sandf. 
 
 » Mitchell V. Bartlett, 51 K Y. 447 ( N. Y. ) 447 ( 1852 ) ; Whitney v. 
 
 (1873), aff'g 52 Barb. 319 ; Strong Allen, 21 Cal. 233 (1862). But see 
 
 V. DoUner, 2 Sandf. (N. Y.) 444 McDevitt v. Sullivan, 8 Cal. 593 
 
 (1849). (1857). See also Peck v. Knicker- 
 
 * Cheney v. Woodruff, 45 N. Y. bocker Ice Co., 18 Hun (N. Y.) 183 
 
 98 (1871) ; Whalin v. White, 25 N. (1879). 
 
 Y. 462 (1862) ; Miner v. Beekman, » Lathrop v. Nelson, 4 Dill. C. 0. 
 
 11 Abb. (N. Y.) Pr. N. S. 147 (1S70); 194 (1^77). 
 fi. c. 42 How. (N. Y.) Pr. 33 ; Astor
 
 § 57t).j EFFECT OF EEFEREe's DEED. 695 
 
 proper process of the court, requiring the delivery of the 
 premises to him, as against all defendants who were served 
 with the summons ; this rule also prevails as against a 
 defendant who Is not mentioned in the decree by name, as well 
 as against one whose name is not mentioned in the officer's 
 deed.* Where the sale is consummated by the delivery of 
 the deed, it passes the entire estate held by the mortgagor 
 at the date of the mortgage as against all defendants.' The 
 right of the purchaser to the possession of the premises 
 under his deed, will not be affected by the fact that, pend- 
 ing the action, the plaintiff executed to one of the defendants 
 a conveyance of the whole of the premises embraced in the 
 decree.* 
 
 § 576. Effect and force of referee's deed. — It is pro- 
 vided by the Code,* that a conveyance upon a sale made 
 pursuant to a final judgment in an action to foreclose a 
 mortgage upon real property, vests in the purchaser the same 
 estate only that would have vested in the mortgagee, if the 
 equity of redemption had been foreclosed.* Such a convey- 
 ance is as valid as if it had been executed by the mortgagor 
 and the mortgagee, and is an entire bar against each of 
 them and against each party to the action who was duly 
 summoned, and against every person claiming from, through 
 or under a party to the action, by title accruing after the 
 filing of the notice of the pendency of the action.' The sale 
 of the mortgaged premises and the confirmation thereof by 
 the court, terminates the right of the owner of the equity 
 of redemption to pay the debt and redeem the estate.^ 
 
 The provision of the Code, declaring a conveyance an 
 '* entire bar," refers to rights and interests in the equity of 
 redemption and not to interests paramount to the title 
 of both the mortgagor and the mortgagee." Thus, where 
 
 > Frisbie v. Fogarty, 34 Cal. 11 * N. Y. Code Civ. Pioc. g 1632. 
 
 (1867). " Lawrence v. Delano, 3 Sandf. 
 
 « Montgomery v. Middlemiss, 21 (N. Y.) 333 (1849). 
 Cal. 103 (1862) ; Belloe v. Rogers, 9 « N. Y. Code Civ. Proc. §1632. 
 
 Cal. 125 (1858). ' Brown v. Frost, 10 Paige Ch. 
 
 » Montgomery v. Middlemiss, 21 (N. Y.) 243, 247 (1843). 
 Cal. 103 (1862). « Rector v. Mack, 93 K Y. 488
 
 606 ESTATE CONVEYED BY KEFEKEe's DEED. [§577. 
 
 persons holding prior mortgages or liens are not made 
 parties to a foreclosure, or if made' parties and no purpose is 
 indicated in the complaint to have the amount of their 
 incumbrances ascertained and paid out of the proceeds of 
 the sale, their prior liens will not be affected.* And a pur- 
 chaser at a legal tax sale of land, upon which there was a 
 mortgage at the time of such sale, will not be affected by 
 a subsequent foreclosure of such mortgage and by a sale of 
 the mortgaged premises, unless he is made a party to the 
 foreclosure.* 
 
 § 577. Estate conveyed and interests passed by 
 referee's deed. — A purchaser at a mortgage foreclosure 
 sale acquires all the title and interest of both the mortgagor 
 and the mortgagee in and to the property.' The court 
 undertakes to dispose of the interests of the parties to the 
 suit in the land, and the purchaser acquires those interests 
 whatever they may be.* And it has been said that a sheriff's 
 sale of real estate, under a judgment recovered by a scire 
 facias upon a mortgage, passes to the purchaser the title 
 
 (1883) ; s. c. 45 Am. Rep. 260. See 128 (1848) ; Powesheik County v. 
 
 Smith V. Roberts, 91 N. Y. 470 Denni&on, 36 Iowa, 244 (1873) ; s. 
 
 (1883) ; Emigrant Industrial Savings c. 14 Am. Rep. 521 ; Brown v. 
 
 Bank v. Goldman, 75 N. Y. 127 Tyler, 74 Mass. (8 Gray), 135 (1857); 
 
 (1878) ; Rathbone v. Hooney, 58 N. s. c. 69 Am. Dec. 239 ; Young v. 
 
 Y. 463 (1874); Lewis v. Smith, 9 N. Brand, 15 Neb. 601 (1884) ; Carter 
 
 Y. 502 (1854); s. c. 61 Am. Dec. v. Walker, 2 Ohio St. 339 (1853). 
 
 706 ; Fryer v. Rockefeller, 4 Hun The purchaser at a foreclosure sale 
 
 (N. Y.) 800 (1875). See N. Y. Code acquires the rights of the mortgagee, 
 
 Civ. Proc. § 1632. so far as he has any claim or interest 
 
 ' Bache v. Doscher, 67 N. Y. 429 in the premises for the security of 
 
 (1876), affirming 41 N. Y. Supr. his debt, and also so much of the 
 
 Ct. (9 J. & S.) 150. See ante chap. ix. equity of redemption as is not 
 
 ° Becker v. Howard, 66 N. Y. 5 bound by the lien of a senior in- 
 
 (1876), affirming 4 Hun (N. Y.) 359. cumbrance. Watson v. Dundee 
 
 ^Rector v. Mack, 93 N. Y. 488 Mortgage and Trust Investment Co., 
 
 (1883) ; s. c. 45 Am. Rep. 260. 12 Oreg. 474 (1885). See Sellwood 
 
 See Westbrook v. Gleason, 79 N. v. Gray, 11 Oreg. 535 (1884). 
 
 Y. 23 (1879); Slattery v. Schwan- ■» Leech v. Hillsman, 8 Lea (Tenn.) 
 
 necke, 44 Him (N. Y.) 75 (1887) ; 747 (1882) ; Zollman v. Moore, 21 
 
 McMillan v. Richards, 9 Cal. 365 Gratt. (Va.) 313 (1871) ; Tallman v. 
 
 (1858) ; Taylor v. Kearu, 68 111. Ely, 6 Wis. 244 (1858) ; Gillett v. 
 
 339 (1873); Hamilton v. State, 1 Ind. Eaton, 6 Wis. 30 (1858).
 
 § 577.] ESTATE CONTEYED BY KEFEKEE's DEED. 697 
 
 to the mortgaged premises discharged of all equities, — even 
 of those of which the mortgagee had no notice or knowl- 
 edge.* 
 
 The purchaser takes the title of the mortgagor and the 
 mortgagee as it existed at the time of the execution of 
 the mortgage, subject to all its qualifications,' because the 
 vendee of mortgaged premises under a sheriff's deed stands 
 upon the equities of the mortgagee.' But a deed can not 
 pass a greater interest than that which is authorized by the 
 judgment, although by its terms it may include premises 
 mentioned in the mortgage, but which were subsequently 
 released by the mortgagee from the lien thereof.* 
 
 If his title was a mere equity or a right to own the prop- 
 erty upon th6 payment of the purchase price, such interest is 
 all that can be transferred by the foreclosure.* If the mortgage 
 was upon a lease for a term of years, the purchaser becomes 
 the assignee of the lease.* If the property has been previ- 
 ously sold by the mortgagor upon contract, and his vendee 
 is in possession, the purchaser will take the position of the 
 mortgagor as to the vendee ; and upon default in the payment 
 of the money due upon the contract, he may turn him out of 
 possession.^ 
 
 > Landell's Appeal, 105 Pa. St. Ritger v. Parker, 62 Mass. (8 Cush.) 
 
 152 (1884). A foreclosure deed to 145 (1851) ; s. c. 54 Am. Dec. 744 ; 
 
 the mortgagee gives him the same Carter v. Walker, 2 Ohio St. 339 
 
 estate as the foreclosure of the (1853) ; Frische v. Kramer, 16 Ohio, 
 
 equity of redemption, and is as 125 (1847) ; s. c. 47 Am. Dec. 368 ; 
 
 effectual against the owner of the DeHaven v. Landell, 31 Pa. St. 
 
 equity as if he executed such deed. 120 (1858) ; West Branch Bank v. 
 
 Ruggles V. First Nat. Bank of Chester, 11 Pa. St. 282 (1849) ; s. c. 
 
 Centreville, 43 Mich. 192 (1880). 51 Am. Dec. 547 ; Hodson v. Treat, 
 
 ' Vroom V. Ditmas, 4 Paige Ch, 7 Wis. 263 (1859). 
 
 (N. Y.) 526, 531 (1834) ; McMiUan v. « Berryhill v. Kirchner, 96 Pa. St. 
 
 Richards, 9 Cal. 365 (1858) ; s. c. 70 489 (1880). 
 
 Am. Dec. 655 ; Taylor v. Keam, 68 * Laverty v. Moore, 32 Barb. (N. 
 
 HI. 339 (1873) ; Hamilton v. State, 1 Y.) 347 (1860) ; affirmed 83 N. Y. 
 
 Ind. 128 (1848) ; Powesheik County 658. 
 
 V. Dennison, 36 Iowa, 244(1873); s. c. » Stewart v. Hutchinson, 29 How. 
 
 14 Am. Rep. 521 ; Marston v. Mars- (N. Y.) Fr. 181 (1864). 
 
 ton, 45 Me. 413 (1858) ; Haynes v. « Kearney v. Post, 1 Sandf. (N. 
 
 Wellington, 25 Me. 458 (1845); Y.) 105 (1847). 
 
 Brown v. Tyler, 74 Mass. (8 Gray), ' Chute v. Noris, 31 Barb. (N. Y.) 
 
 135 1857) ; s. c. 69 Am. Dec. 239 ; 511 (1860). See Smith v. Roberts, 91
 
 698 EXECUTION AJ<rD DELIVERY OF DEED. (_§ 578. 
 
 And where persons holding prior liens are not made 
 parties to the action, or, if made parties, no purpose is 
 indicated in the complaint to have their liens ascertained 
 and paid out of the proceeds of the sale, their rights will 
 not be cut off.' 
 
 § 578. Execution and delivery of deed. — The referee or 
 sheriff making a sale of mortgaged premises under a decree 
 of foreclosure, is required to execute a deed of the premises 
 to the purchaser on such sale.* The deed may be executed 
 and delivered before the sale is confirmed ;* it will take 
 effect immediately upon delivery, and divests all parties to 
 the action of the title from the time of the sale.* 
 
 The court will not order the officer making a sale to 
 execute and deliver a deed to the purchaser until the whole 
 of the purchase money has been paid into court, even where 
 a junior mortgagee is the purchaser and a portion of the 
 money which is not paid in belongs to such purchaser as 
 surplus money, and will therefore shortly have to be returned 
 to him.* When the deed is not ready to be delivered at the 
 time fixed for that purpose, the remedy of the purchaser is 
 by motion for leave to pay the money into court and to 
 compel the referee to complete the sale by delivering the 
 deed." 
 
 K Y. 470 (1883) ; Emigrant Indus- ' See Mitchell v, Bartlett. 51 N. 
 
 trial Savings Bank v. Goldman, 75 Y. 447 (1873), aff'g 52 Barb. (N. 
 
 K Y. 127 ( 1878 ) ; Rathbone v. Y.) 319 ; Fort v. Burch, 6 Barb. 
 
 Hooney, 58 N. Y. 463 (1874); (N. Y.) 60 (1849); Fuller v. Van 
 
 Lewis V. Smith, 9 N. Y. 502 (1854) ; Geesen, 4 Hill (N. Y.) 171 (1843) ; 
 
 8. C. 61 Am. Dec. 706 ; Dwight v. Jones v. Burden, 20 Ala. 382 (1852) ; 
 
 Phillips, 48 Barb. (K Y.) 116 (1865). Walker v. Sebum, 42 111. 462 (1867) ; 
 
 ' Emigrant Industrial Savings Jackson v. Warren, 32 111. 331 
 
 Bank v. Goldman, 75 N. Y. 127 (1863). 
 
 (1878); Bache v. Doscher, 67 N. Y. ■• McLaren v. Hartford Ins. Co., 5 
 
 429 (1876), affirming 41 N. Y. N. Y. 151 (1851) ; Fort v. Burch, 6 
 
 Supr. Ct. (9 J. & S.) 150 ; Becker v. Barb. (N. Y.) 60 (1849) ; Fuller v. 
 
 Howard, 66 K Y. 5(1876), affirm- V.uiGeesen, 4 Hill (K Y. ) 171 
 
 ing 4 Hun (N. Y.) 359; Walsh (1843). 
 
 V. Rutger's Fire Insurance Co., 13 ^ Battershall t. Davis, 23 How. 
 
 Abb. (N. Y.) Pr. 33 (1861). See ante (X. Y.) Pr. 383 (1861). 
 
 Chap. ix. « Clason v. Corley, 5 Sandf. (N. 
 
 • N. T. Supreme Court Rule 61. Y.) 447 (1852).
 
 §§579-580.] EEQUISITES or SHERIIT's DEED. 699 
 
 §579. Requisites of sheriff's or referee's deed.— The 
 Code provides that where property is sold pursuant to a 
 decree or a judgment, which specifies the particular party or 
 parties, whose right, title or interest is directed to be sold, 
 the deed must distinctly state in the granting clause thereof 
 whose right, title or interest was sold, without naming in 
 that clause any of the other parties to the action ; otherwise, 
 the purchaser will not be bound to accept the conveyance, 
 and the officer executing it will be liable for such damages 
 as the purchaser may sustain by the omission, whether he 
 accepts or refuses the conveyance.' 
 
 This provision of the Code has been held to apply to a 
 deed executed at a mortgage foreclosure sale, as well as to 
 a deed executed upon the sale of property pursuant to an 
 execution.' A referee selling under a decree of foreclosure 
 is required to comply with said provision of the Code, by 
 inserting in the deed of conveyance the names of the 
 parties who executed the mortgage foreclosed, and by stat- 
 ing that all the right, title and interest which said mortgagors 
 had at the time of the execution of the mortgage, was sold 
 and thereby conveyed.* 
 
 § 580. Error in description in mortgage— Correcting 
 in deed. — Where there is a mistake in the description of 
 the property as given in the mortgage, it may be corrected 
 by a proper proceeding before foreclosure, or in the action 
 to foreclose the mortgage ; but where such mistake has been 
 carried into the decree of foreclosure, and into all the proceed- 
 ings thereunder, a purchaser at the sheriff's sale can not 
 maintain an action to correct the decree and the subsequent 
 proceedings, although the sheriff at the sale may have 
 pointed out, as the property which he was selling, the prop- 
 erty that ought to have been described in the mortgage, 
 because the authority of the sheriff to sell is limited to the 
 property actually described in the decree and order of sale.* 
 
 » N. Y. Code Civ. Proc. § 1244. (N. Y.) N. C. 88 (1S77) ; 8. c. 12 
 
 • Randell v. Von EUert, 12 Hun Hun (N. Y.) 577. 
 
 (N. Y.) 577 (1878). * Sliller v. Kolb, 47 Ind. 220(1874). 
 » Randell v. Von Ellert, 4 Abb.
 
 700 EEKOR IN DESCRIPTION CORRECTLNG. [§581. 
 
 A purchaser at a mortgage foreclosure sale can not acquire 
 the title to lands not described in the mortgage, although 
 such lands may be described in the complaint and judgment.' 
 And where, by mistake, real estate belonging to one person 
 is mortgaged by another as his property, and is sold under 
 a decree of foreclosure to a purchaser who has no notice of 
 such mistake, it has been held that such purchaser can not 
 have the sale set aside and recover the purchase money bid 
 and paid by him for such property at the sale.' 
 
 Where, by inadvertence, the referee's deed embraces the 
 whole mortgaged premises, a portion of which had previously 
 been released from the lien of the mortgage, and was 
 excepted from the operation of the decree of foreclosure, 
 the purchaser will acquire no title to the portion so released.* 
 And the same would be true even if the portion of the 
 premises so released were embraced in the decree, but were 
 not offered at the sale.* 
 
 § 581. Variance of description in mortgage, decree and 
 deed. — In a New York case it appeared that there was a 
 clerical error in the decree of foreclosure, which consisted in 
 giving a distance in the description of the premises as 
 "about 193 feet, 4 inches," instead of "about 123 feet, 4 
 inches," which was the correct distance. The mortgage 
 described the premises sold correctly, and they were cor- 
 rectly described in the lis pendens and in all the proceedings 
 except the judgm.ent. Following the words of description 
 in the judgment was a reference to a deed, executed by the 
 plaintiff to the defendant, in which the description was 
 correct. The referee sold the premises described in the 
 mortgage, and there was no pretence that the purchaser was 
 misled. The report of sale was correct in its description, 
 and, after the sale, an order of the court, amending the 
 judgment by correcting the erroneous description of 
 the premises, was entered nunc pro tunc, upon consent 
 
 ' Hoopes V. Auburn Water Works • Laverty v. Moore, 33 Barb. (N. 
 
 Co., 37 Hun (N. Y.) 568, 574 (1885). Y.) 347 (1860). 
 
 » Neal V. Gillaspy, 56 Ind. 451 * Laverty v. Moore, 33 N. Y. 658 
 
 (1877) ; 6. c. 26 Am. Rep. 37. (1865), aff'g 32 Barb. (N. Y.) 347.
 
 § 5S2.J VAEIAI^CE m DESCRIPTION CORRECTmO. 701 
 
 of all the parties who had appeared in the action. On motion 
 to compel the purchaser to accept the title, it was held that 
 the court had ample power to make such amendment.' 
 
 Where a parcel of land was sold under a decree of fore- 
 closure and conveyed to the purchaser under an erroneous 
 impression that the mortgage covered the entire tract, the 
 value of the entire tract having been bid and paid, and 
 the purchaser having been placed in possession thereof, and it 
 was afterwards discovered that, from a mistake in the 
 description, the mortgage did not cover the entire premises 
 intended to be mortgaged and that by reason thereof the 
 legal title failed, it was held that the purchaser was entitled 
 to be protected in the peaceable possession of the land pur- 
 chased.' But it is the general rule that the title of a 
 purchaser at a mortgage foreclosure sale is co extensive 
 with the description contained in the mortgage, the bill to 
 foreclose, and the decree under which the sale is made.* 
 
 § 582. Title of purchaser relates back to time of 
 executing mortgage — Reserving easement. — The title 
 of the purchaser at a sale under a decree of foreclosure relates 
 back to the date of the delivery of the mortgage, as against 
 all intervening purchasers and incumbrancers who were 
 made parties to the action, or who became interested in the 
 i^r&m.\sts pendente lite.* All incumbrances and liens, and all 
 
 » Wood V. Martin, 66 Barb. (N. 242 ; Fuller v. VanGeesen, 4 Hill 
 
 Y.) 241 (1873). See Hogan v. Hoyt, (N. Y.) 171 (1843) ; Klock v. Cronk- 
 
 37 N. Y. 800 (1867) ; Hotaling v. hite, 1 Hill (N. Y.) 107 (1841) ; 
 
 Marsh, 14 Abb. (N. Y.) Pr. 161 Bissell v. Payn, 20 Johns. (N^. Y.) 3 
 
 (1862) ; Alvord v. Beach, 5 Abb. (N. (1822) ; Jackson v. Dickenson, 15 
 
 Y.) Pr. 451 (1857); Woodruff v. Johns. (N. Y.) 309 (1818); s. c. 8 
 
 Wicker, 2 Bosw. (N. Y.) 613 (1858); Am. Dec. 336; Jackson v. Bull, 1 
 
 Close V. Gillespey, 3 Johns. (N. Y.) Johns. Cas. (N. Y.) 81 (1799) : 
 
 618(1808). Lathrop v. Ferguson, 22 Wend. (N. 
 
 » Waldron v. Leston, 15 N. J. Eq. Y.) 216 (1889) ; Nellis v. Latlirop, 
 
 (2McCart.)126(1862). See DeEimer 22 Wend. (N. Y.) 121, 122 (1839); 
 
 V. Cantillon, 4 Johns. Ch.(K Y.)85 s. c. 34 Am. Dec. 285; People's 
 
 (1819). Savings Bank v. Hodgon, 64 Cal. 
 
 • McGee v. Smith, 16 N. J. Eq. 95 (1883) ; Ruggles v. First Nat. 
 (1 C. E. Gr.) 462 (1863). Bank, 43 Mich. 192 (1880) ; Gamble 
 
 * Jackson v, Ramsay, 3 Cow. (N. v. Horr, 40 Mich. 561 (1879). 
 Y.) 75 (1824); s. c. 15 Am. Dec.
 
 703 DEED EFEECTIVE FKOM DATE OE MORTGAGE. [§ 583. 
 
 conditions, reservations and restrictions which the mort- 
 gagor may have imposed upon the property subsequently to 
 the execution of the mortgage, will be extinguished.' 
 
 Thus, a plaintiff, being the owner of a lot which was 
 subject to a mortgage, conveyed it to M., reserving an 
 easement therein for light and air to the windows of 
 its church adjoining, M. assuming the mortgage. M. 
 conveyed the lot, through a third person, to his wife, subject 
 ■to the same mortgage, but without an assumption on 
 her part to pay the amount thereof. Upon foreclosure of 
 the mortgage, the wife of M. became the purchaser. In an 
 action to restrain her from obstructing the light and air to the 
 windows of said church, it was held that under her foreclosure 
 deed, Mrs. M. acquired an absolute title, unincumbered by the 
 easement, that she owed no duty to the plaintiff or mort- 
 gagee, requiring her to pay off the mortgage, and that there 
 were no equitable rights against her which would prevent her 
 from asserting her title." It seems that in such a case the 
 plaintiff, to save its easement, should have appeared in 
 the foreclosure suit, and bid the full amount of the mortgage 
 debt and costs upon the sale, subject to the easement.* 
 
 § 583. Time for redemption— Effect on title of pur- 
 chaser. — In those states where a period of time is allowed 
 for redemption, after the sale of the premises under a mort- 
 gage foreclosure, a purchaser of land at such sale acquires 
 no legal title, nor right to be invested with a legal title, until 
 the period for redemption has expired.* He can not main- 
 tain an ejectment or other possessory action on his certificate 
 of purchase,* for he will not be entitled to possession until 
 the officer making the sale has executed and delivered to 
 him a deed of the premises.* 
 
 ' King V. McCully, 38 Pa. St. 76 * Rockwell v. Servant, 63 IlL 424 
 
 (1860). See Rector v. Mack, 93 N. (1872) ; Delahay v. McConnel, 5 111. 
 
 Y. 488 (1883) ; Davis v. Connecticut (4 Scam.) 156 (1842). 
 
 Mut. Life Ins. Co., 84 111. 508 (1877). « RockweU v. Servant, 63 111. 424 
 
 « Rector v. Mack, 93 N. Y. 488 (1872). 
 
 (1883). « O'Brian v. Fry, 83 HL 87, 274 
 
 » Rector v. Mack, 93 N. Y. 488 (1876) ; Bennett v. Matson, 41 HL 
 
 (1883). 333(1866).
 
 § 584.] FIXTURES PASS UNDER REEEREe's DEED. 703 
 
 He acquires no title to the premises until the period for 
 redemption has passed, and he is entitled to his deed. His 
 deed, when executed, will relate back to the time of the sale in 
 order to cut off intervening incumbrances. His title will 
 become absolute only when his right to a deed accrues; 
 until such time, he will have only an unmatured right to a 
 deed.' 
 
 § 584. All fixtures pass to purchaser under referee's 
 deed.— The rules as to fixtures which pass to a purchaser on 
 a mortgage foreclosure sale are the same as those which 
 govern a conveyance from a grantor to a grantee." What- 
 ever is attached to the freehold and would pass under a deed 
 as between a vendor and a vendee, will pass as between a 
 mortgagor and a mortgagee.' When a mortgagor, subse- 
 quently to the execution of a mortgage, places maclimery 
 or other fixtures upon the mortgaged premises, the pur- 
 chaser of such premises, at a foreclosure sale, will, therefore, 
 acquire title to the fixtures as a part of the realty.* 
 
 » Stephens v. Illinois Mutual Fire 
 Ins. Co., 43 m. 327, 331 (1867). 
 See Johnson v. Baker, 38 111. 98 
 (1865) ; Sweezy v. Chandler, 11 IlL 
 445 (1849). 
 
 » Snedeker v. Warring, 12 N. T. 
 170,174 (1854). See Bishop v. Bishop, 
 11 N. T. 123, 126 (1854) ; s. c. 62 
 Am Dec. 68; Bank of Utica v. 
 Finch, 3 Barb. Ch. (N. Y.) 293. 299 
 (1848) ; Robinson v. Preswick, 3 
 Edw. Ch. (N. T.) 246 (1838) ; Main 
 V. Schwarzwaelder, 4 E. D. Smith, 
 (N. Y.) 273 (1855) ; Winslow v. 
 Merchants' Ins. Co., 45 Mass. (4 
 Mete.) 306 (1842) ; B. c. 38 Am. Dec. 
 368 ; Union Bank v. Emerson, 15 
 Mass. 159 (1818) : LongstafE v. Mea- 
 goe, 2 Ad. & E. 167 (1834). See 
 ante §§ 426, 427, 428. 
 
 » Miller v. Plumb, 6 Cow. (N. Y.) 
 665 (1827) ; s. c. 16 Am. Dec. 456 ; 
 Robinson v. Preswick, 3 Edw. Ch. 
 (N. Y.) 246 (1838) ; Union Bank v. 
 Emerson, 15 Mass. 159 (1818). 
 
 * Voorhees v. McGinnis, 48 N. Y. 
 278 (1872) ; Snedeker v. Warring, 
 12 N. Y. 170 (1854) ; Bishop v. 
 Bishop, 11 N. Y. 123 (1854) ; s. c. 
 62 Am. Dec. 68 ; Rice v. Dewey, 54 
 Barb. (N. Y.) 455 (1862) ; Gardner 
 V. Finley, 19 Barb. (N. Y.) 317 
 (1855) ; Miller v. Plumb, 6 Cow. (N. 
 Y.) 665 (1827) ; s. c. 16 Am. Dec. 
 456 ; Robinson v. Preswick, 3 Edw. 
 Ch. (N. Y.) 246 (1838) ; Babcock v. 
 Utter, 32 How. (N. Y.) Pr. 439 
 (1864); 8. c. 1 Abb. App. Dec. 
 (N.Y.)27 ; Sullivan v. Toole, 26 Hxin 
 (N. Y.) 203 (1882); Main v. Schwarz- 
 waelder, 4 E. D. Smith (N. Y.) 273 
 (1855) ; Sands v. PfeifEer, 10 Cal. 
 258 (1858); Clore v. Lambert, 78 
 Ky. 224 (1879) ; Wight v. Gray, 73 
 Me. 297 (1882); Union Bank v. 
 Emerson, 15 Mass. 159 (1818) ; 
 Lackas v. Bahl, 43 Wis. 53 (1877). 
 
 For a full collection of the author- 
 ities as to what are, and what are 
 not, fixtures, see ante §| 426, 437,
 
 704 FIXTURES PASS UNDER REFEREe's DEED. [§585, 
 
 Thus, the owner of real estate, with a flouring mill thereon, 
 which was subject to a mortgage, procured new machinery 
 for such mill on credit, upon an agreement that the title to 
 the machinery should not pass to the purchaser until it was 
 fully paid for. The machinery was attached to the realty 
 as was intended. The purchaser upon the foreclosure of 
 such mortgage was held to take title to the machinery as 
 against the vendor of it, notwithstanding the contract and 
 the vendee's failure to pay therefor.* 
 
 In determining whether chattels affixed to land will pass 
 under a mortgage of the realty, it is immaterial whether 
 such chattels were attached before or after the execution of 
 the mortgage, because, as a general rule, they become bound 
 by the mortgage whenever they become a part of the realty.' 
 
 § 585. Exceptions to above rule. — To this general rule, 
 however, there are some exceptions, as where chattels are 
 attached to real estate with the intention that they shall 
 not thereby become a part of the freehold ; such intention 
 will control, as a general rule, and a mortgage of the real 
 estate will not bind such chattels.* And it has been held 
 
 428. See Walker v. Sherman, 20 ' Bass Foundry, &c.. Works v. 
 
 Wend. (N. Y. ) 636 (1889); also Gallentine, 99 Ind. 525 (1884). 
 
 Potter V. Cromwell, 40 N. Y. 287 » Snedeker v. Warring, 12 N. Y. 
 
 (1869) ; Butler v. Page, 48 Mass. (7 170 (1854) ; Rice v. Dewty, 54 Barb. 
 
 Mete.) 40 (1843) ; s. c. 39 Am. Dec. (N. Y.) 455 (18G9) ; Gardner v. Fiu- 
 
 757; Winslow 'v. Merchants' Ins. ley, 19 Barb. (N. Y.) 817 (1855); 
 
 Co., 45 Mass. (4 Mete.) 306 (1842); s. Sullivan v. Toole, 26 Hun (K Y.) 
 
 C. 38 Am. Dec. 368 ; Noble v. Bos- 203 (1882) ; Phinney v. Day, 70 Me. 
 
 worth, 36 Mass. (19 Pick.) 314 (1837); 83(1884); Corliss v. McLagin, 29 
 
 Crane v. Brigham, 11 N. J. Eq. (3 Me. 115 (1848) ; Butler v Page, 48 
 
 Stockt.) 29 (1855) ; Teafl v. Hewitt, Mass. (7 Mctc.) 40 (1843) ; s. c. 39 
 
 1 Ohio St. 511. 529, 530(1853); 8. c. Am. Dec. 757; Winslow v. Mer- 
 
 59 Am. Dec. 734; Christian v. chants' Ins. Co., 45 Mass. (4 Mete.) 
 
 Dripps, 28 Pa. St. 271 (1857) ; Hill 306 (1842) ; s. c. 38 Am. Dec. 368 ; 
 
 V. Wyntworth, 28 Vt. 428 (1856); Peirce v. Goddard, 39 Mass. (22 
 
 Walmsley v. Milne, 7 C. B. N. S. Pick.) 559 (1839) ; Curry v. Schmidt, 
 
 115 (1859) ; 8. c. 29 L. J. C. P. 97 ; 54 Mo. 515 (1S74) ; Powers v. Denni- 
 
 6 Jur. N. S. 125 ; 97 Eng. C. L. 114; son, 30 Vt 752 (1858) ; Preston v. 
 
 Lancaster v. Eve, 5 C. B. N. S. 717 Briggs, 16 Vt. 124 (1844), 
 
 '(1859) ; 8. c. 28 L. J. C. P. 235 ; « See Slieldon v. Edwards, 35 N. 
 
 5 Jur, K S. 683 ; 94 Eng. C. L. 717. Y. 279 (1866) ; Ford v. Cobb, 20 N. 
 
 As to removed fixtures, see ante % 257. Y. 344 (1859).
 
 § 586.] EVIPEOVEMENTS PASS UNDER DEED. ^05 
 
 that a mortgage will not bind personal property which has 
 been attached to the freehold subsequently to the execution 
 of the mortgage, where equities in favor of third persons 
 require that it should continue to be considered as personal 
 property.' It is well settled that where, by the express 
 agreement of the owner of the equity of redemption and 
 the owner of chattels affixed to the land, such chattels 
 are to remain personal property, they will not become a 
 part of the realty, but will be subject to removal by the 
 owner at any time.* 
 
 § 586. All permanent improvements pass under 
 referee's deed.— All additions of a permanent character 
 by way of improvement made on mortgaged premises by 
 the mortgagor or the owner of the equity of redemption, 
 are regarded as part of the mortgaged estate and will inure 
 to the benefit of the holder of the mortgage, and will pass to 
 the purchaser on a foreclosure sale.' Thus, where a mort- 
 gagor, while the owner of the equity of redemption, erected 
 a house upon the mortgaged premises, without any agree- 
 ment with the mortgagee, it was held that it became a part 
 of the realty and passed with it to the purchaser at the sale 
 on the foreclosure of the mortgage ;* and the same rule has 
 been held to apply to a building erected upon mortgaged 
 premises by the husband of the mortgagor.* 
 
 Where a mortgagor erected a frame building by the side 
 of his mill, to be used as an office in connection with the 
 mill, the building was held to be a fixture, although it was 
 erected after the mortgage was given and was intended to 
 be only temporary, and was neither attached to the mill nor 
 secured to the ground, but rested upon wooden blocks 
 
 > See Tiflt v. Horton, 53 N. T. 527 (1848) ; Smith v. Benson, 1 Hill 
 
 877 (1873) ; s. c. 13 Am. Rep. 537 ; (N. Y.) 176 (1841). 
 
 Voorhees v. McGinnis, 48 jST. Y. 278 * Baird v. Jackson, 98 Bl. 78 
 
 (1872). (1881); Wood v. Whelen, 93 111. 
 
 « Tifft V. Horton, 53 N. Y. 377 153 (1879). 
 
 (1873) ; s. C. 13 Am. Rep. 537 ; Ford * Matzon v. Griffin, 78 Bl. 477 
 
 V. Cobb, 20 K Y. 344 (1859) ; Molt (1875) ; Dooley v. Crist, 25 111. 551 
 
 V. Palmer, 1 N. Y. 564 (1848) ; Far- (1861). 
 
 rar v. Chauffetete, 5 Den. (K Y.) » Wight v. Gray, 73 Me. 297 (1882). 
 
 (45)
 
 T06 EMBLEIEENTS PASS UNDEE EEFEREE's DEED. [§587. 
 
 Standing upon the surface of the earth.' Where the owner 
 of the equity of redemption makes improvements upon land 
 that is mortgaged, he will not be entitled to an allowance 
 for them as against the mortgagor, but in some cases he may- 
 be allowed for such improvements out of the surplus 
 moneys.* 
 
 § 587. All emblements pass under referee's deed.— 
 
 The crops growing on the land, as well as the land, are held 
 as a security for the mortgage debt,' and on the foreclosure of 
 the mortgage, whatever crops are then growing upon the 
 mortgaged premises, if planted subsequently to the making 
 of the mortgage, will pass to the purchaser at the sale, 
 whether they were planted by the mortgagor or his tenant, 
 free from all claim upon them by such mortgagor or tenant ;* 
 
 ' State Savings Bank v. Kerche- 
 val, 65 Mo. 682 (1877) ; s. c. 27 Am. 
 Rep. 310 (1877). See also Butler v. 
 Page, 48 Mass. (7 Mete.) 40 (1843); 
 B. c. 39 Am. Dec. 757. 
 
 As to what improvements are fix- 
 tures see Stockwell v. Campbell, 39 
 Conn. 362 (1872) ; s. c. 12 Am. Rep. 
 393 ; Arnold v. Crowder, 81 111. 56 
 (1876); s. c. 25 Am. Rep. 260; 
 Ottumwa Woolen Mill Co. v. Haw- 
 ley, 44 Iowa, 57 (1876); s. c. 24 Am. 
 Rep. 719 ; McConnell v. Blood, 123 
 Mass. 47 (1877) ; s. c. 25 Am.' Rep. 
 12 ; Richardson v. Borden, 42 Miss. 
 71 (1868) ; s. c. 2 Am. Rep. 595 ; 
 Jarechi v. Philharmonic Society, 79 
 Pa. St. 403 ; s. C. 21 Am. Rep. 78 ; 
 Meigs' Appeal, 62 Pa. St. 28 (1869) ; 
 8. c. 1 Am. Rep. 372; Hutchins v. 
 Masterson, 46 Tex. 551 (1877) ; s. c. 
 26 Am. Rep. 286. 
 
 « Wharton v. Moore, 84 N. C. 479 
 (1881) ; 8. c. 37 Am. Rep. 627. See 
 Rice V. Dewey, 54 Barb. (N. Y.) 455 
 (1863); Union Water Co. v. Mur- 
 phy, 22 Cal. 621 (1863) ; Baird v. 
 Jackson, 98 111. 78 (1881); Martin 
 V. Beatty, 54 111. 100 ( 1870) ; 
 
 McCumber v. Oilman, 15 El. 881 
 (1854); Childs v. Dolan, 87 Mass. 
 (5 Allen), 319 (1862). 
 
 » See Gillett v. Balcom, 6 Barb. 
 (N. Y.) 370 (1849); Shepard v. 
 Philbrick, 2 Den. (N. Y.) 174 (1846); 
 Lane v. King, 8 Wend. (N. Y.) 584 
 ( 1833 ) ; 8. c. 24 Am. Dec. 105 ; 
 Toby v. Reed, 9 Conn. 216 (1832) ; 
 Jones V. Thomas, 8 Blackf. (Ind.) 
 428 (1847); Hughes v. Graves, 
 1 Litt. (Ky.) 317 (1822) ; Winslow 
 V. Merchants' Insurance Co., 45 
 Mass. (4 Mete.) 310 (1842) ; 8. c. 38 
 Am. Dec. 368 ; Cassilly v. Rhodes, 
 12 Ohio, 88 (1843) ; Crews v. Pendle- 
 ton, 1 Leigh (Va.) 297, 305 (1829) ; 
 8. c. 19 Am. Dec. 750. 
 
 * Gillett V. Balcom, 6 Barb. (N. 
 Y.) 370 (1849). See Shepard v. Phil- 
 brick, 2 Den. (N. Y.) 174 (1846) ; 
 Lane v. King, 8 Wend. (N. Y.) 584 
 (1832); 8 c. 24 Am. Dec. 105; 
 Jones V. Thomas, 8 Blackf. (Ind.) 
 428 (1847) ; Ledyard v. Phillips, 47 
 Mich. 305 (1882) ; Ruggles v. First 
 Nat. Bank of Centreville, 43 Mich. 
 192 (1880) ; Howell v. Schenck, 24 
 N. J. L. (4 Zab.) 89 (1853) ; Crews
 
 § 587.] EMBLEMENTS PASS UNDEK EEFEREe's DEED. 707 
 
 and on a proper application, under some circumstances, the 
 court will provide for their preservation until possession is 
 given to the purchaser.' But the purchaser at a foreclosure 
 sale can not, before the sale is confirmed and before he has 
 acquired possession of the land, maintain an action in 
 replevin for crops growing thereon at the time of the sale 
 but afterwards severed from the premises by the person in 
 possession.' 
 
 Where, however, the foreclosure is instituted and a sale is 
 ordered after the severance of the crops, the title thereto 
 will not pass, under such proceedings, to the mortgagee or 
 the purchaser.* The purchaser at a mortgage foreclosure 
 sale will be entitled to the crops growing at the time of 
 the sale, in preference to a person claiming under the 
 mortgagor whose claim originated subsequently to the execu- 
 tion of the mortgage.* And it has been held that a person 
 purchasing the premises upon the foreclosure of a mortgage 
 is entitled to the growing crops in preference to a person 
 purchasing the same premises at a sale subsequently made 
 under a decree in bankruptcy.* 
 
 But when the crops are. reserved at a sale by special 
 announcement, duly authorized, they will not pass to the 
 purchaser." This rule is placed upon the grounds, that while 
 the mortgagee is not bound to sell in parcels, unless the 
 mortgaged premises are described in parcels,' yet that he 
 
 V. Pendleton. 1 Leigh (Ya.) 297 Strauss, 98 111. 485 (1881) ; Jones v. 
 
 (1829) ; 8. c. 19 Am. Dec. 750. Thomas, 8 Blackf. (Ind.) 428 (1847); 
 
 ' Ruggles V. First Nat. Bank of Howell v. Schenck, 24 N. J. L. (4 
 
 Centreville, 43 Mich. 192 (1880). Zab.) 89 (1853) ; Parker v. Storts, 15 
 
 « Woehler V. Endter, 46 Wis. 301 Ohio St. 351 (1864); Crews v. 
 
 (1879). Pendleton, 1 Leigh (Va.) 297 (1829) ; 
 
 » Buckout V. Swift. 27 Cal. 438 s. c. 19 Am. Dec. 750. 
 
 (1865) ; Codrington v. Johnstone, 1 * Gillett v. Balcom, 6 Barb. (N. 
 
 Beav. 520 (1838). Y.) 370 (1849). 
 
 * Shepard v. Philbrick, 2 Den. (N. " Sherman v. Willett, 42 N. Y. 
 
 T.) 174 (1846) ; Stewart v. Doughty, 146 (1870). 
 
 9Johns.(N.Y.) 112 (1812); Whipple 'See Griswold v. Fowler, 24 
 
 V. Foot, 2 Johns. (N. Y.) 418 (1807); Barb. (N. Y.) 135 (1857) ; s. c. 4 
 
 B. c. 3 Am. Dec. 442; Lane v. Abb. (N. Y.) Pr. 238; Lamerson v. 
 
 King, 8 Wend. (N. Y.) 584 (1832); Marvin, 8 Barb. (N. Y.) 9 (1850). 
 8. 0. 24 Am. Dec. 105 ; Anderson v.
 
 708 KIGHT OF PURCHASER TO RENTS. [§ 588. 
 
 may do so where the premises are so situated that he -"^'i 
 sell in parcels ; that he may, if he chooses, even release a 
 portion of the premises and sell the balance; that there 
 is no reason why he may not sell the same portion before 
 releasing any; and that in such case the mortgage is a lien 
 upon the whole premises, including the growing crops, 
 and at the time of the sale the mortgagee may announce 
 that he will not sell the growing crops, but will sell the 
 balance.* 
 
 But the sherif?', or other ofificer making the sale, has no 
 authority to reserve the growing crops, and where he makes 
 such a reservation, without authority contained in the 
 mortgage or in the decree of sale, the reservation will be 
 without effect and the sale will pass both the land and the 
 growing crops to the purchaser; and in those ca^^es where 
 he has authority, such reservation will probably be of no 
 avail unless it is expressed in his deed.' 
 
 § 588. Right of purchaser to rents. — The mortgagor 
 will be entitled to the possession of the land and to the 
 rents and profits thereof, until the mortgagee takes posses- 
 sion or institutes proceedings to subject the rents and 
 profits to his claim.' Upon a mortgage foreclosure sale the 
 purchaser does not acquire the title to the premises nor a 
 right to the possession thereof, until the delivery of the deed 
 by the ofificer making the sale ; until that time the owner of 
 the equity of redemption will be entitled to the possession 
 of the land and to its rents and profits.* 
 
 > Sherman v. Willett, 42 N. Y. ■• Mitchell v. Bartlett. 51 N. Y. 
 
 146(1870). 447 (1873), aff'g 52 Barb. (N. 
 
 5 Howell V. Schenck, 24 N. J. L. Y.)319. See also Mutual Life Ins. Co. 
 
 (4 Zab.) 89 (1853). v. Balch, 4 Abb. (N. Y.) N. C. 200 
 
 »Butler V. Page,48Mass. (7Metc.) (1877); Astor v. Turner, 11 Paige 
 
 40, 42 (1843) ; s. c. 39 Am. Dec. 757. Ch. (N. Y.) 436 (1845) ; s. c. 43 Am. 
 
 See Hele v. Bexley, 20 Beav. 127 Dec. 766 ; Clason v. Corley, 5 Sandf. 
 
 (1854) ; Higgins v. York Buildings (N. Y.) 447 (1852) ; Nichols v. Fos- 
 
 Co., 2 Atk. 107 (1740) ; Drum- ter, 9 N. Y. Week. Dig. 468 (1880) ; 
 
 mond V. Duke of St. Albans, 5 Ves. Taliaferro v. Gay, 78 Ky. 4U6 
 
 438 (1800) ; Colman v. Duke of St. (1879). 
 Albans, 3 Ves. 25 (1796). See ante 
 §575.
 
 I 589.] EEVERSAIi ON APPEAL EFFECT. 709 
 
 The purchaser is generally not entitled to possession, nor 
 to the rents and profits, until he has demanded such posses- 
 sion under his deed.' Where a person is in possession under 
 a purchase at a former foreclosure sale which was not 
 confirmed, he will be entitled to the rents only from the 
 date of the confirmation of the report of the last sale.* 
 
 Where the rent becomes due and payable between the 
 day of sale and the time when the purchaser becomes 
 entitled to the possession, it belongs to the owner of the equity 
 of redemption, and not to the purchaser at the sale.* But 
 it may be provided by statute, that where a judgment 
 debtor fails to redeem, he shall be liable to the purchaser 
 for the rent of the premises, or for the use and occupation 
 thereof, from the date of the sale.* 
 
 § 589. Appeal and reversal — Effect on purchaser's 
 title. — If the court had jurisdiction of the parties and of the 
 subject matter of the action and power to render a judg- 
 ment, it will not be a valid objection to the title by the 
 purchaser at the sale made under a decree of foreclosure, 
 that such judgment was erroneous ;' his title will not be 
 affected by any defects in the proceedings which render the 
 judgment irregular, and in consequence of which, it may be 
 set aside or reversed.* But where a sale is made under a 
 
 ' Mitchell V. Bartlett, 51 N. Y. Clasoa v. Corley, 5 Sandf. (N. Y.) 
 
 447 (1873), aff'g 52 Barb (N. Y.) 447 (1852). See ante § 575. 
 
 819 ; Astor V. Turner, 11 Paige Ch. « Gale v. Parks, 58 Ind. 117 (1877). 
 
 (N. Y.) 436 (1845) ; s. c. 43 Am. See Clements v. Kobinson, 54 Ind. 
 
 Dec. 766 ; Clason v. Corley, 5 Sandf. 599 (1876). 
 
 (N. Y.) 447 (1852). * DeForest v. Farley, 62 N. Y. 
 
 'Taliaferro v. Gay, 78 Ky. 496 628 (1875); Storm v. Smith, 48 
 
 (1879). See Mitchell v. Bartlett, 51 Miss. 497 (1871) ; Armstrong v. 
 
 N. Y. 447 (1873), afE'g 52 Barb. Humphreys, 5 S. C. 128(1873). 
 
 (N. Y.) 319. See ante § 575. ' Brevoort v. Brevoort, 70 N. Y. 
 
 » Astor V. Turner, 11 Paige Ch. (N. 136, 140 (1877) ; DeForest v. Farley, 
 
 Y.) 436 (1845); s. c. 43 Am. Dec. 766. 62 N. Y. 628 (1875). See Clemens v. 
 
 See Whalin v. White, 25 N. Y. 462 Clemens, 37 N. Y. 59, 72 (1867) ; 
 
 (1862) ; Miner v. Beekman, 11 Abb. Packer v. Rochester & S. R. R. Co., 
 
 (N. Y.) Pr. N. S. 147 (1871) ; s. c. 17 N. Y. 288 (1858) ; Blakeley v. 
 
 42 How. (N. Y.) Pr. 33 ; s. c. 33 N. Calder, 15 N.Y. 617(1857); Brainard 
 
 Y. Supr. Ct. (1 J. & S.) 67; v. Cooper, 10 N. Y. 359 (1851);
 
 710 EEVERSAL ON APPEAL — EFFECT ON TITLE. [§ 589. 
 
 void decree, the purchaser will obtain no title.' The rule that 
 a purchaser acquires a valid title, although the decree may 
 be reversed on appeal, does not apply to an interlocutory 
 decree nor to a conditional order, even if the conditions have 
 not been fulfilled.' 
 
 The rule that a bona fide purchaser at a foreclosure sale 
 will receive a good title, although the proceedings were 
 erroneous or irregular, holds good where the purchaser was 
 a party to the suit,' even though such purchaser had notice 
 at the time of the sale, that an effort would be made to reverse 
 the decree,* and though an appeal had been taken from the 
 judgment at the time of the sale, on which the judgment 
 was subsequently reversed, a stay of proceedings not having 
 been obtained pending such appeal.* 
 
 It has been held that where a person, not a party to the 
 suit, is a purchaser at a foreclosure sale, the law does not 
 require him to inspect the record and to see that it is free 
 
 Holden v. Sackett, 12 Abb. (N. Y.) 
 Pr. 473 (1861) ; McMurray v. ]\Ic- 
 Murray, 60 Barb. (N. Y.) 117, 127 
 (1870); Gaskiu v. Anderson, 55 
 Barb. (N. Y.) 259, 263 (1809) ; s. c. 
 7 Abb. (N. Y.) Pr. K S. 1, 7; 
 Breese v. Bange, 2 E. D. Smith (N. 
 Y.) 474 (1854) ; Wood v. Jackson, 8 
 Wend. (N. Y.) 9 (1831); s. c. 22 
 Am. Dec. 603 ; Estate of Fenn, 8 
 N. Y. Civ. Proc. Rep. 206, 211 (1885); 
 s. c. suh nom. Price v. Fenn, 3 Dem. 
 (N. Y.) 341. See also Alvord v. 
 Beach, 5 Abb. (N.Y.) Pr. 451 (1857) ; 
 Silleck V. Heydrick, 2 Abb. (N. Y.) 
 Pr. N. S. 57 (1866); Hening v. 
 Punnett, 4 Daly (N. Y.) 543 (1873) ; 
 Graham v. Bleakie, 2 Daly (N. Y.) 
 55 (1866); Jordan v. VanEpps, 19 
 Hun (N. Y.) 533 (1880) ; Herbert v. 
 Smith, 6 Lans. (JST. Y.) 493 (1872) ; 
 Minor v. Betts, 7 Paige Cb. (N. Y.) 
 597 (1839) ; Coit v. McReyuolds, 3 
 Robt. (N. Y.) 655 (1864) ; Darvln v. 
 Hatfield, 4 Sandf. (N. Y.) 468 (1851); 
 In re Luce, 17 N. Y. Week. Dig 35 
 
 (1883) ; Buckmaster v. Carlin, 4 111. 
 (3 Scam.) 104 (1841); Bustard v. 
 Gates, 4 Dana (Ky.) 429 (1836); 
 Gossom V. Donaldson, 18 B. Mon. 
 (Ky.) 230 (1857); Benningfield v. 
 Reed, 8 B. Mon. (Ky.) 105 (1848) ; 
 Lampton v. Usher's Heirs, 7 B. Mon. 
 (Ky.) 57 (1846) ; Gray v. Brignar- 
 dello, 68 U. S. (1 Wall.) 627 (1863) ; 
 bk. 17 L. ed. 693 ; Bank of U. S. v. 
 Voorhees, 1 McL. C. C. 221 (1834). 
 
 ' Gossom V. Donaldson, 18 B. 
 Mon. (Ky.) 230 (1857); Storm v. 
 Smith, 43 Miss. 497 (1871). 
 
 * Gray v. Brignardello, 68 U. S. 
 (1 Wall.) 627 (1863) ; bk. 17 L. ed. 
 693. 
 
 ^ Hening v. Punnett, 4 Daly (N. 
 Y.) 543 (1873) ; Splahn v. Gillespie, 
 48 Ind. 397 (1874); Gossom v. 
 Donaldson, 18 B. Mon. (Ky.) 230 
 (1857) ; s. c. 54 Am. Dec. 547. 
 
 < Irwm V. Jeffers, 3 Ohio St. 389 
 (1854). 
 
 ' Hening v. Punnett, 4 Daly (N. 
 Y.) 543 (1873).
 
 § 590.] DEHV£ELN"G POSSESSION TO PUECHASER. , 711 
 
 from errors ; he is only required to ascertain that the court 
 had jurisdiction, and that there is such a judgment or decree 
 unreversed as would authorize the sale. The supreme 
 court of Illinois said in the case of Fergus v. Woodworth,' 
 that *• if such were not the rule, no one would become a 
 purchaser at a judicial sale, and all competition would cease, 
 and the plaintiffs would become the purchasers at their own 
 price. Stability and confidence must be given to judicial 
 sales to the fullest extent compatible with the interests of 
 the parties, as well the purchaser as the defendant." 
 
 § 590. Delivering possession of premises to purchaser. 
 
 — A court of equity has authority to decree the possession 
 of land, where a controversy regarding the title thereto has 
 been properly brought within its jurisdiction;' and the law 
 will enforce its decree by its officers for the delivery of 
 actual possession, whenever in pursuance of the decree such 
 possession ought to be delivered." The power of a court 
 to give possession to the purchaser at a foreclosure sale 
 was at one time doubted, but it was finally exercised by the 
 court of chancery.* 
 
 The New York court of appeals held, in the case of 
 Bolles V. Duff,* that by statute the court was given power 
 over the whole subject, though the act was in a good 
 degree declaratory. It has been said that a court of equity 
 would fall short of doing complete justice, unless it placed 
 the purchaser at a mortgage foreclosure sale in possession, 
 as well as gave him a deed of the premises. Where the 
 person ejected from the possession of' the premises was a 
 party to the suit, or came into possession under a party to 
 the suit pendente lite, he can make no objection to such an 
 order.* 
 
 > 44 111. 374. 384 (1867). * See Bolles v. Duff, 43 N. Y. 469, 
 
 ' Kershaw v. Thompson, 4 Johns. 473 (1871) ; s. c. 41 How. (N. Y.) 
 
 Ch. (N. Y.) 609 (1820); Irvine v. Pr. 358; Kershaw v. Thompson, 
 
 McRee, 5 Humph. (Tenn.) 556 4 Johns. Ch. (K Y.) 609 (1820) ; 
 
 (1845) ; 8. 0. 49 Am. Dec. 468 ; 4 Thompson v. Campbell, 57 Ala. 188 
 
 Kent Com. 184. (1876). 
 
 » Valentine v. Teller, Hopk. Ch. » 43 N. Y. 469, 473 (1871). 
 
 ^. Y.) 422 (1825). • See Kershaw v. Thompson, 4
 
 712 DELXVERmQ POSSESSION" TO PURCHASER. [§591. 
 
 It may now be regarded as well settled that courts of 
 equity, in the exercise of their ordinary and general chancery 
 jurisdiction, where the possession of real property is involved, 
 may, upon the consummation of a suit to enforce a lien 
 thereon, do complete justice by putting a successful com- 
 plainant into possession, if all the persons in interest were 
 made parties to the suit ; and that, on a sale in proceedings 
 to foreclose a mortgage, or to enforce a lien, the court may 
 extend the same relief to a purchaser under the decree of 
 sale.' But there are exceptions to this general rule. 
 
 Thus, if a person, pending the suit, enters into possession 
 under one who did not derive his title to the premises from a 
 party to the action, he can not be turned out of possession 
 under the decree. So in the case of a foreclosure sale, if a 
 person in possession shows a prima facie right thereto 
 paramount to the mortgage, the court will not attempt 
 to decide questions affecting his legal title, and the posses- 
 sion must then be sought by proceedings at law.* It has 
 been held in Wisconsin,* that the statutory provision requir- 
 ing that the purchaser at a foreclosure sale be let into 
 possession on production of the sheriff's deed, must be 
 construed as defining the rights of such purchaser after 
 the confirmation of the sale.* It seems that in some states 
 a purchaser at a foreclosure can not demand possession until 
 the report of the officer making the sale has been confirmed 
 by the court.' The rule is different, however, in New York. 
 
 § 591. Possession obtained by summary process.— It 
 
 is usually provided in every judgment of foreclosure and 
 sale, that the purchaser be let into possession on production 
 of the deed of the officer making the sale ; whether this 
 provision is inserted in the judgment or not, the purchaser 
 
 Johns. Ch. (N. Y.) 609 (1820) ; Jones « Wis. Rev. Stat. 3169. 
 
 V. Hooper, 50 Miss. 514 (1874). See < Welp v. Gunther, 48 Wis. 543 
 
 Creighton v. Paine, 2 Ala. 159 (1879) ; Woehler v. Endter, 46 Wis. 
 
 (1841). 301 (1879). 
 
 ' Harding v. LeMoyne, 114 111. » Howard v. Bond, 43 ilich. 131 
 
 65 (1885). (1879). 
 
 * Harding v. LeMoyne, 114 HI. 
 65 (1885).
 
 §591.] POSSESSION BY SUMMARY PEOCESS. 713 
 
 will be entitled to possession on compliance with the terms 
 of the sale, and the court will have power to put him in such 
 possession.' The purchaser will not be driven to an action 
 at law to obtain possession.* The authority of the court to 
 issue a process and to place the purchaser in possession, is 
 placed upon the ground that it has power to enforce its own 
 decrees and thus to avoid the circuity of vexatious litigation.* 
 
 But where a party in possession was not a party to the 
 foreclosure, and did not acquire his possession from a person 
 who was bound by the decree, but who is a mere stranger 
 and who entered into possession before the suit was begun, 
 the court will have no power either under the statute or 
 independently of it to deprive him of possession by enforc- 
 ing the decree.* A person obtaining possession by a 
 legal proceeding under a claim of right, will not be sum- 
 marily dispossessed by an enforcement of the decree of 
 foreclosure adverse to a party to the suit, the proceedings 
 having been commenced prior to the filing of the bill of 
 foreclosure, and he not being a party to the foreclosure.* 
 
 And a tenant in possession, who became such after 
 the commencement of the suit, where he holds under 
 a person not a party to the suit, who was lawfully in 
 
 ' Ludlow V. Lansing, Hopk. Ch. Skinner v. Beatty, 16 Cal. 156 (1860); 
 
 (N. Y.) 231 (1824) ; Dyer v. Kopper, Trabue v. Ingles, 6 B. Hon. (Ky.) 82 
 
 59 Vt. 477 (1887) ; 6. C. 4 N. Eng. (1845) ; Schenck v, Conover, 13 N. 
 
 Rep. 368, 371. See Valentine v. J. Eq. (2 Beas.) 220 (1860). 
 
 Teller, Hopk. Ch. (N. Y.) 422 (1825); » Ludlow v. Lansing, Hopk. Ch. 
 
 Yates V. Hambly, 2 Atk. 360 (1742). 231 (1824) ; Jones v. Hooper, 50 
 
 » Ludlow V. Lansing, Hopk. Ch. Miss. 514 (1874). 
 (N. Y.) 231 (1824) : Kershaw v. * Meiggs v. Willis, 8 N. Y. Civ. 
 Thompson, 4 Johns. Ch. (N. Y.) 609 Proc. Rep. 125 (1885) ; Boynton v. 
 (1820). See YanHook v. Throck- Jackway, 10 Paige Ch. (N. Y.) 307 
 morton, 8 Paige Ch. (N. Y.) 33 (1843) ; VanHook v. Throckmorton, 
 (1839) ; Frelinghuysen v. Colden, 8 Paige Ch. (N. Y.) 33 (1839) ; Fre- 
 4 Paige Ch. (N. Y.) 204 (1833) ; Suf- linghuysen v. Colden, 4 Paige Ch. 
 fern v. Johnson, 1 Paige Ch. (N. Y.) (N. Y.) 204 (1833) ; Kessinger v. 
 450(1829);s. C. 19Am.Dec.440;Mc- Whlttaker, 82 HI. 22 (1876); Ben- 
 Gown V. Wilkins, 1 Paige Ch. (N. Y.) hard v. Darrow, Walk. Ch. (Mich.) 
 120 (1828); Creighton v. Paine, 2 Ala: 519 (1844). 
 
 158 (1841); Bright v. Pennywhit, 21 ' Frelinghuysen v. Colden, 4 Paige 
 
 Ark. 130 (1860) ; Horn v. Volcano Ch. (N. Y.) 204 (1833). 
 "Water Works, 18 Cal. 141 (1861) ;
 
 Tl4 OBTAINING POSSESSION. [§§ 592 -OOo. 
 
 possession under a claim hostile to that derived under the 
 mortgage, will not be dispossessed, although made a party 
 to the suit for the purpose of barring an interest held 
 by his wife in other premises covered by the mortgage, 
 of which he was in possession and which he had delivered 
 up in pursuance of the decree.' But where a person comes 
 into possession pendente lite through a party to the suit, he 
 will be bound by the decree in the same manner as the party 
 whom he succeeds.* 
 
 § 592. Provisions of Code for obtaining possession. — 
 
 It is provided by the New York Code of Civil Procedure,' 
 that where a judgment in an action relating to real property, 
 allots to any person a distinct parcel of land, or contains a 
 direction for the sale of real property, or confirms such an 
 allotment or sale, it may also, except in a case where it is 
 expressly prescribed that the judgment may be enforced by 
 execution, direct the delivery of the possession of the prop- 
 erty to the person entitled thereto. If a party or his 
 representative, who is bound by the judgment, withholds 
 possession from a person thus declared to be entitled 
 thereto, the court, besides punishing the disobedience as a 
 contempt, may, in its discretion, by order, require the sheriff 
 to put that person into possession. Such an order must be 
 executed, as if it were an execution for the delivery of the 
 possession of the property. 
 
 § 593- Writ of assistance — When granted. — It was 
 
 held in the recent case of Dyer v. Kopper,* that the execu- 
 tion of a decree of foreclosure giving possession, can be made 
 by a summary process. A writ of assistance is an appropriate 
 process to issue from a court of equity, to place a purchaser 
 of mortgaged premises in possession under its decree of 
 sale, after he has received the deed of the officer making 
 the sale, as against parties who are bound by the decree, 
 
 « New York Life Ins. & Trust Co. » § 1675. 
 
 V. Cutler, 9 How. (N. Y.) Pr. 407 ♦ 59 Vt. 477, 489 (1887) ; B. c. 4 N. 
 
 (1853). Eng. Rep. 471. See Ludlow v. Lans- 
 
 * Kessinger v. Whittaker, 83 III. ing, Hopk. Ch. (N. Y.) 231 (1824). 
 22 (1876).
 
 §594.] WRIT OF ASSISTANCE WHEN GKAinED. 715 
 
 and who refuse to surrender possession pursuant to the 
 directions of the court.* 
 
 After a purchaser has complied with the terms of the sale,' 
 and has obtained his deed from the officer making the 
 sale,* if the possession is wrongfully withheld from him in 
 disobedience of the decree of the court, he will be entitled 
 to a writ of assistance, on proof that he has exhibited his 
 deed to the person in possession and demanded the posses- 
 sion of the premises.* Some of the cases hold that a notice 
 of the application for a writ of assistance should first be given 
 to the defendant and also to the tenant of the premises, if 
 there is one.* But it would seem, according to the current 
 of authorities, that a notice of the application is unnecessary.* 
 
 § 594. Writ of assistance — How obtained. — Where the 
 original decree of foreclosure does not contain an order for 
 the surrender of the premises to the purchaser, a writ of 
 assistance can not be granted until such an order for the 
 possession of the premises has been obtained upon notice 
 to the party occupying the property after a demand for the 
 possession/ A proceeding by a purchaser at a foreclosure 
 sale to obtain a writ of assistance by motion, is not the 
 
 > Kershaw v. Thompson, 4 Johns. 4 111. (3 Scam.) 261 (1841) ; Watkina 
 
 Ch. (N. Y.) 609 (1820) ; Terrell v. v. Jerman, 36 Kan. 464 (1887) ; 
 
 Allison, 88 U. S. (21 Wall.) 291 Woehler v. Endter, 46 Wis. 301 
 
 (1874) ; bk. 22 L. ed. 635. (1879). 
 
 ' Battershall v. Davis, 23 How. ' Devaucene v. Devaucene, 1 Edw. 
 
 (N. Y.) Pr. 383 (1861) ; Armstrong Ch. (N. Y.) 272 (1832). 
 V. Humphries, 5 S. C. 128 (1873). • Valentine v. Teller, Hopk Ch, 
 
 •Bennett v. Matson. 41 111. 332 (N. Y.) 422 (1825) ; Lyndev. O'Don 
 
 (1866). See Howard v. Bond, 42 nell, 21 How. (N. Y.) Pr. 39 (1861) 
 
 Mich. 131 (1879). 8. c. 12 Abb. (N. Y.) Pr. 291 
 
 * Kershaw v. Thompson, 4 Johns. New York Life Ins. «& Trust Co. v 
 
 Ch. (N. Y.) 609 (1830) ; VanHookv. Rand, 8 How. (N. Y.) Pr. 35, 352 
 
 Throckmorton, 8 Paige Ch. (N. Y.) (1853); Kershaw v. Thompson, 4 
 
 33 (1839) : Frelinghuysen v. Colden, Johns. Ch. (N. Y.) 609 (1820) ; Dove 
 
 4 Paige Ch. (N. Y.) 204 (1833) ; v. Dove, 1 Bro. Ch. 376 (1784) ; s. c. 
 
 Montgomery v. Tutt, 11 Cal. 190 2 Dick. 617 ; Huguenin v. Baseley, 
 
 (1858) ; O'Brian v. Fry, 82 111. 87 15 Ves. 180 (1808). 
 (1876) ; Kessinger v. Whittaker, 82 ' Lynde v. O'Donnell, 12 Abb. 
 
 HI. 22 (1876); Oglesby v. Pearce, (N. Y.) Pr. 286 (1861); s. c. 21 
 
 68 ni. 220 (1873) ; Aldrich v. Sharp, How. (N. Y.) Pr. 84 ; N. Y. Lif«
 
 716 WRIT OF ASSISTANCE. [§ 594. 
 
 institution of a new suit, but is only a supplementary step in 
 the action for foreclosure.' Recourse to an action at law to 
 obtain possession will not, however, be precluded thereby : 
 both remedies may be pursued at the same time without 
 mutual interference, until possession is obtained." 
 
 A purchaser under a decree of foreclosure will not be 
 entitled to a writ of assistance to turn the occupant of the 
 premises out of possession, even though such person went 
 into possession pendente lite, unless he did so under and by 
 permission of some party to the action,* for a writ of assis- 
 tance will be proper only where a party who is bound by 
 the decree of foreclosure, refuses to give up possession on 
 request ; and it should not be granted without proper proof 
 of such refusal, after the right of possession has been estab- 
 lished.* 
 
 Where a tenant is in possession, the deed executed by 
 the officer making the sale should be exhibited to him 
 by the purchaser, when he makes a demand for possession, 
 and in case of his refusal to give possession, no notice of the 
 application to the court for a writ of assistance need be 
 given.* If a person in possession is not a party to the suit, 
 but has come into possession of the mortgaged premises 
 since the action was commenced, a writ of assistance will 
 not be granted on refusal to deliver possession to the 
 purchaser on production of the referee's deed, unless notice 
 of the application for such writ has been served upon him.* 
 But as against a person who was a party to the suit, a writ 
 
 Ins. «& Trust Co. v. Rand. 8 How. 33 (1839). See Ludlow v. Lansing, 
 
 (N. Y.) Pr. 35, 352 (1853). See Kes- Hopk. Ch. (N. Y.) 231 (1824); 
 
 singer v. Whittaker, 83 111. 22(1876); Thompson v. Campbell, 57 Ala. 189 
 
 Ballingerv. Waller, 9 B. Mon. (Ky.) (1876) ; McChord v. McClintock, 5 
 
 67 (1848); Benhard v. Darrow, Litt. (Ky.) 304 (1324). 
 
 Walk. Ch. (Mich.) 519 (1844). "Howard v. Bond, 42 Mich. 131 
 
 'Kessinger v. W^hittaker, 82 HI. (1879). 
 
 «2 (1876). 6 N. Y. Life Ins. & Tf.st Co. v. 
 
 » Kessinger v. Whittaker, 82 111. Rand, 8 How. (N. Y.) Pr. 35, 352 
 
 «2 (1876) ; Haynes v. Meek, 14 (1853). But see Fackler v. Worth, 
 
 Iowa, 320 (1862). 13 N. J. Eq. (2 Beas.) 395 (1861). 
 
 * Boynton v. Jackway, 10 Paige * Benhard v. Darrow, Walk. Ch. 
 
 Ch. (N. Y.) 307 (1843) ; VanHook v. (Mich.) 519 (1844). 
 Throckmorton, 8 Paige Ch. (N. Y.)
 
 §595.] AGAINST WHOM POSSESSION DELIVERED. 717 
 
 of assistance may issue ex parte,^ It seems, however, that 
 one who has come into possession pendente lite will be 
 entitled to a notice of the motion.* 
 
 In all cases of resistance by the occupants, the proper 
 method of putting the purchaser into possession is by means 
 of a writ of assistance ; it may be issued upon proof of the 
 service of the order to deliver possession and of a refusal to 
 comply with such order.* 
 
 § 595* Against whom possession delivered. — Under a 
 decree of foreclosure of mortgaged premises the court will 
 award a writ of assistance and give possession to the 
 purchaser, as against all persons who were parties to the suit 
 or who came into possession under any of them while the 
 suit was pending.* But the court will not undertake to 
 remove persons who went into possession after the pur- 
 chaser had received his deed and conveyed the premises to 
 another.* A person who enters into possession fifteen 
 months after the sale ran not be regarded as having entered 
 pending the suit.* 
 
 Possession may be given to a purchaser as against a 
 person who was not a party to the suit, if he took possession 
 after the commencement of the action in collusion with the 
 mortgagor, though under a claim of tax title ;^ but the court 
 wiU not grant a writ of assistance as against a person who 
 
 » N. Y. Life Ins. & Trust Co. v. •• Bell v. Birdsall, 19 How. (N. 
 
 Cutler, 9 How. (N. T.) Pr. 407 T.) Pr. 491 (1860); s. c. mh nom. 
 
 (1853); N. Y. Life Ins. & Trust Betts v. Birdsall, 11 Abb. (N. Y.) 
 
 Co. V. Rand, 8 How. (N. Y.) Pr. Pr. 222 ; Kessinger v. WWttaker, 
 
 85, 352 (1853). 82 111. 22 (1876). 
 
 • Benhard v. Darrow, Walk. Ch. * Bell v. Birdsall, 19 How. (N. 
 
 (Mich.) 519(1844); Commonwealth Y.) Pr. 491 (1860); 8. c. sub nom. 
 
 V. Ragsdale, 2 Hen. & Mun. (Va.) 8 Betts v. Birdsall, 11 Abb. (N. Y.) 
 
 (1807). But see Lynde v. O'Donnell, Pr. 222. 
 
 12 Abb. (N. Y.) Pr. 286 (1861); s. a * BeU v. Birdsall, 19 How. (N. 
 
 21 How. (N. Y.) Pr. 34. Y.) Pr. 491 (1860) ; 8. c. sub nom. 
 
 » Valentine v. Teller, Hopk. Ch. Betts v. Birdsall, 11 Abb. (N. Y.) 
 
 422 (1825); Ballinger v. Waller, 9 Pr. 222. 
 
 B. Mon. (Ky.) 67 (1848) ; Hart v, • Brown v. Marzyck, 19 Fla. 840 
 
 Lindsay, Walk. Ch. (Mich.) 144 (1883). 
 (1843); Schenck v. Conover, 18 .N. 
 J. Eq. (2 Beas.) 220 (I860).
 
 718 T7KIT OF ASSISTANCE TO WHO^I. [§§ 596-507. 
 
 entered pending the suit under an adverse claim of title and 
 without the consent or collusion of the mortgagor.' And 
 a party who enters pending the suit will not be turned out 
 of possession under the decree of foreclosure, if he did not 
 enter under a party to the suit or under some one who 
 derived title to the premises from, or had gone into posses- 
 sion with the permission of, a party to the action.* 
 
 The ordinary rule in regard to the execution of a writ of 
 assistance for possession is, that the purchaser must be put 
 in full and complete possession ; that the possession to be 
 given by a sheriff is a full and actual possession ; and that 
 where the purchaser is put into possession under circumstances 
 plainly indicating that such possession will be but momen- 
 tary, and he is accordingly ousted the same day, such 
 execution of the writ will be insufficient ; the writ of posses- 
 sion will not be regarded as properly executed until the 
 sheriff and his officers have gone and the purchaser is left 
 in quiet and settled possession.* 
 
 § 596. Who entitled to writ of assistance.— The pur- 
 chaser at a sale made under a mortgage foreclosure is, 
 of course, entitled to a writ of assistance ; and it has 
 been held that the assignee or grantee of the purchaser is 
 entitled to the same remedy, on the further proof that tlie 
 deed from the purchaser to him has also been exhibited to 
 the party in possession.* 
 
 § 597. Writ of assistance improperly granted. — Where 
 a writ of assistance which was improperly granted, has been 
 executed, or having been properly granted, persons not 
 properly within the meaning of its terms, have been 
 aggrieved by having it executed against them, the court, 
 upon motion, will be bound to correct the wrong ; and the 
 
 1 VanHook v. Throckmorton, 8 20 (1886) ; 8. c. 1 N. Y. St. Rep. 
 Paige Ch. (N. Y.) 33 (1839). 666, reversing 29 Hun (N. Y.) 204. 
 
 2 VanHook v. Throckmorton, 8 * N. Y. Life Ins. & Trust Co. v. 
 Paige Ch. (N. Y.) 33 (1839); Freling- Rand, 8 How. (N. Y.) Pr. 35 
 huysen v. Golden, 4 Paige Ch. (N. (1853). 
 
 Y.) 204 (1833). 
 » Newell V. Whigham, 103 N. Y.
 
 §§ 598-599.] WRIT OF assistance. 719 
 
 persons dispossessed under such writ are entitled to have 
 the possession restored to them.* 
 
 Where a writ of assistance in favor of a purchaser at a 
 mortgage foreclosure sale is issued upon notice against 
 a tenant in possession of the mortgaged premises, and is 
 executed by placing the purchaser in possession thereof, 
 it will be conclusive upon the tenant and the purchaser as 
 to the right of possession. If the tenant had any defence 
 against the writ, such defence should have been presented 
 upon the hearing of the motion for the writ ; the question 
 whether the writ was properly awarded can not be reviewed 
 in another action in another court.* 
 
 § 598. Writ against tenants in possession. — It has 
 been said that the foreclosure of a mortgage and a sale 
 thereunder of the demised premises pursuant to a decree, 
 extinguishes the title of the mortgagor and also the rights of 
 his lessee.* But where tenants in possession of the mort- 
 gaged premises have not been made parties to the suit, the 
 purchaser will not be entitled to possession as against them ; 
 but if they are made parties, they will be bound to attorn to 
 the purchaser or be removed by a writ of assistance, notwith- 
 standing the fact that they claim under an unexpired lease 
 executed by the mortgagor for a term of years prior to the 
 date of the mortgage foreclosed.* 
 
 § 599- Writ of assistance not granted against holder 
 of paramount title. — Where, on application for a writ of 
 assistance by a purchaser at a sale under a decree of fore- 
 closure, the party in possession claims to hold the premises 
 under a lease executed before the execution of the mortgage 
 under which the sale is made, the court will not grant a writ 
 of assistance at the instance of such purchaser.* In all cases 
 
 > Meiggs V. Willis, 8 N. T. Civ. Thompson, 4 Johns. Ch. (N. T.)609 
 
 Proc. Rep. 125 (1885) ; Chamberlain (1820). 
 
 V. Chloes, 35 N. Y. 477 (1866). * Lovett v. Gterman Reform 
 
 » Rawiszer v. Hamilton, 51 How. Church, 9 How. (N. T.) Pr. 220 
 
 (N. T.) Pr. 297 (1875). (1853). 
 
 « Smith V. Cooley, 5 Daly (N. T.) * Thomas v. DeBaum, 14 N. J. 
 
 401, 409 (1874) ; Simers v. Saltus, 3 Eq. (1 McCart.) 37 (1861). 
 Den. (N. T.) 216 (1846); Kershaw v.
 
 720 posbJ^ysio:^ AUAi.NST pahajiount titlk [§ GOO. 
 
 where the person in possession shows a right paramount to 
 the mortgage, the court will not attempt to decide any ques- 
 tions of legal title, and the purchaser will be obliged to seek 
 possession by proceedings at law.' 
 
 Where a purchaser enters into an arrangement with the 
 mortgagor subsequently to the sale, whereby the mortgagor 
 remains in possession, he will be deemed in possession under 
 such contract, and not as a defendant to the foreclosure 
 suit, and the purchaser will not be entitled to a writ of 
 assistance to put himself in possession of the premises ; he 
 will then be left to his remedy by an action at law for eject- 
 ment or otherwise.' It is held that the granting of a writ of 
 assistance to put a purchaser into possession of the premises 
 rests in every case in the sound discretion of the court ; and 
 that in all cases of doubtful right, the possession will be 
 left to legal adjudication.* 
 
 § 600. Summary proceedings under New York Code. 
 
 — By a provision of the New York Code of Civil Procedure,* 
 the remedy by summary proceedings to obtain possession of 
 premises in mortgage foreclosures, is restricted to those cases 
 where the foreclosure is conducted by advertisement and 
 not by an equitable action 
 
 * Schenck v. Conover, 13 N. J. • McKomb v. Kankey, 1 Bland. 
 
 Eq. (2 Beas.) 220 (1860). See Mc- Ch. (Md.) 363 (1807), note C. See 
 
 Kombv. Kankey, 1 Bland. Ch. (Md.) Thomas v. DeBaum, 14 N. J. Eq. 
 
 363 (1807), note C. (1 McCart.) 37 (1861). 
 
 « Toll V. Hiller. 11 Paige Ch. (N. * § 2233. 
 Y.) 228 (1844).
 
 CHAPTER XXIX. i 
 
 JUDGMENT FOR DEFICIENCY. 
 
 REPORTING DEFICIENCY— WHO LIABLE FOR— LIABILITY ON BOND- 
 GUARANTY AND ASSUMPTION — INTENTION OF PARTIES 
 GOVERNS— HOW AMOUNT OF DETERMINED— EXECU- 
 TION FOR— JSnSCELLANEOUS MATTERS. 
 
 601. Generally. 
 
 602. Referee conducting sale re- 
 
 porting deficiency. 
 
 603. Contingent decree for defi- 
 
 ciency. 
 
 604. Power of court of chancery 
 
 to decree judgment for 
 deficiency. 
 
 605. Judgment for deficiency 
 
 against mortgagor. 
 
 606. Judgment for deficiency 
 
 against third persons. 
 
 607. Deficiency against assignor 
 
 guaranteeing payment. 
 
 608. Deficiency against party as- 
 
 suming mortgage. 
 
 609. Mortgaged premises primary 
 
 fund — Subsequent liability. 
 
 610. Assumption of mortgage — 
 
 Defence by grantee. 
 
 611. Assumption of mortgage — 
 
 When grantee not liable 
 for deficiency. 
 
 § 612. Release from liability on 
 assumption. 
 
 613. No liability where deed sub- 
 
 ject to mortgage. 
 
 614. Oral contract of assumptioa 
 
 may be enforced. 
 
 615. Intention of parties deter- 
 
 mines question of assump- 
 tion. 
 
 616. No judgment for deficiency 
 
 against non-resident. 
 
 617. No judgment for deficiency 
 
 for in^itallments not yel 
 due. 
 
 618. Deficiency— How determined. 
 
 619. When judgment for defi- 
 
 ciency may be docketed. 
 
 620. When judgment for defi- 
 
 ciency becomes a lien. 
 
 621. Execution for deficiency. 
 
 622. Miscellaneous matters con- 
 
 nected with judgments for 
 deficiency. 
 
 § 6oi. Generally. — All proceedings to collect any defi- 
 ciency arising on the sale of mortgaged premises under a 
 foreclosure are purely statutory.' The statute, authorizing 
 a judgment of deficiency in an action for foreclosure in New 
 York, was enacted to avoid the necessity of a separate action 
 at law, and to enable one court to dispose of the whole case.* 
 
 ' McCrickett v. Wilson, 50 Mich. missible without filing a bill of 
 513 (1883). In this case it was held review. 
 
 that a petition to set such proceed- * Scofield v. Doscher, 72 N. Y. 
 
 ings aside for want of notice was per- 491(1878); Equitable Life Ins. Co. 
 
 721 (46)
 
 722 JUDGMENT OF DEFICIENCY. [§ 602. 
 
 lu most of the states, statutes have been enacted for the 
 regulation of mortgage foreclosures, giving power to the court, 
 not only to direct the sale of the mortgaged premises and to 
 compel the delivery of the possession thereof to the pur- 
 chaser, but also to adjudge payment by the mortgagor or 
 by any other person liable for the debt of any deficiency that 
 might remain unsatisfied after the sale of the mortgaged 
 premises, and, as in other actions, to issue the necessary 
 execution upon such judgment of deficiency.' 
 
 Without statutory authority such an execution could not 
 be issued in a foreclosure against the property of the mort- 
 gagor or other person liable for the deficiency remaining 
 unsatisfied after the application of the proceeds of the sale 
 to the payment of the mortgage debt.' An action at law was 
 formerly the only remedy for the recovery of such deficiency. 
 
 § 602. Referee conducting sale reporting deficiency. — 
 
 The referee conducting the sale in a mortgage foreclosure, is 
 usually required to report any deficiency remaining unpaid 
 after the sale of the property and the application of the 
 proceeds thereof to the payment of the debt. The referee 
 should ascertain the amount of the deficiency, and also the 
 names of the parties who are liable for its payment, and 
 state these facts in his report to the court ; a direction to 
 the referee to report such facts should be included in the 
 decree of sale.* 
 
 A referee's report of sale, which shows that the appar- 
 ent deficiency is produced entirely by the unauthorized 
 
 V. Stevens, 63 N. T. 341 (1875); « Stark v. Mercer, 4 Miss. (3 How.) 
 
 Thorne v. Newby, 59 How. (N. Y.) 377 (1839) ; FlemiBg v. Sitton, 1 
 
 Pr. 120 (1880). Dev. & B. (N. C.) Eq. 621 (1837) ; 
 
 > N. Y. Code Civ. Proc. § 1627 ; Waddell v. Hewitt, 2 Ired. (N. C.) 
 
 Florida Code (Busli's Dig.) 849 Eq. 253 (1843) ; Orcliard v. Hughes, 
 
 (1872) ; North Carolina Code, § 190 ; 68 U. S. (1 Wall.) 73 (1863) ; bk. 17 
 
 Wisconsin Rev. Stat., §3156. See L. ed. 560. But see Wightman v. 
 
 Equitable Life Ins. Co. v. Stevens, Gray, 10 Rich. (S. C.) Eq. 518 
 
 63 N. Y. 341 (1875) ; Thorne v. New- (1859). See ante §§ 195-199. 
 
 by, 59 How. (N. Y.) Pr. 120 (1880); » McCarthy v. Graham, 8 Paige 
 
 Jarman v. Wiswall, 24 N. J. Eq. (9 Ch. (N. Y.) 480 (1840). 
 C. E. Gr.) 267 (1873). See ante 
 § 195 ei scq.
 
 § 603.] C0NTINGE2TT DECEEE FOR DEFICIENCY. 723 
 
 allowance of a claim to the purchaser, is to be treated as not 
 reporting any deficiency.' 
 
 § 603. Contingent decree for deficiency. — The plaintiff 
 in an action to foreclose a mortgage can not have a personal 
 judgment against any of the defendants prior to the final 
 decree of foreclosure and sale.' The correct practice is, to 
 make a contingent judgment in the decree of foreclosure and 
 sale for the payment of any deficiency which may appear 
 upon the coming in and the confirmation of the report of sale, 
 and that the plaintiff have execution therefor.* An execu- 
 tion can not be issued until the deficiency has been ascer- 
 tained from the report of sale.* Where the person adjudged 
 in the decree to be liable for the deficiency, has not 
 appeared in the case, it is the practice in New Jersey, after 
 ascertaining the amount of such deficiency, to award execu- 
 tion therefor ex parte!" 
 
 The deficiency for which a mortgagor is liable, is ascer- 
 tained by deducting the proceeds of the sale from the 
 amount due on the mortgage for principal and interest,, 
 together with the costs and all taxes and assessments.* In 
 a case where the decree of sale directed that the mortgagor,, 
 or other party personally liable for the debt, should pay any' 
 deficiency arising on the sale, the property was struck off for 
 enough to satisfy the mortgage, but the purchaser refused 
 to complete the sale ; an order requiring him to do so 
 was obtained, but was not enforced ; the plaintiff, with- 
 out proceeding against him for contempt, procured an 
 order for a resale, and upon the second sale there was a 
 deficiency ; it was held that the mortgagor, or other party 
 
 ' Bache v. Doscher, 67 K Y. 429 10 Paige Ch. (N. Y.) 115 (1843) ; 
 
 (1876), aff'g 41 N. Y. Supr. Ct. (9 J. Howe v. Lemon, 37 Mich. 164 
 
 & S.) 150. See ante § 204. (1877). 
 
 2 Cobb V. Thornton, 8 How. (N. * White v. Zust, 28 N. J. Eq. 
 
 Y.) Pr. 66 (1852). (1 Stew.) 107 (1877). 
 
 8 Cobb V. Thornton, 8 How. (N. « Marshall v. Davies, 78 N. Y. 414 
 
 Y.) Pr. 66 (lb52) ; McCarthy v. (1879), reversing 16 Hun (N. Y.) 606. 
 
 Graham. 8 Paige Ch. (N. Y.) 480 See also Mitchell v. Bowue, 63 How. 
 
 (1840). See ante §§ 202-204. (N. Y.) Pr. 1 (1881) ; s. c. 14 N. Y. 
 
 * Bank of Rochester v. Emerson, Wk. Dig. 234. See ante S 204.
 
 724 JUDGMENT FOR DEFICIENCY. [§§ 604-605. 
 
 liable for the debt, was personally liable for the deficiency 
 arising on the resale.' 
 
 The deficiency contemplated by the Code' has been held 
 to be only the deficiency arising upon an actual sale under a 
 foreclosure of the mortgage, and not the deficiency caused to 
 a second mortgagee by a sale under a prior mortgage ; in the 
 latter case the remedy would be by an action on the bond.' 
 
 § 604. Power of court of chancery to decree judgment 
 for deficiency. — In the absence of statutory provisions 
 giving it authority, a court of equity possesses no power to 
 give a lien upon or to sequestrate any other property of the 
 mortgagor as an additional security, until the property 
 described in the mortgage has been exhausted ;* for that 
 reason, it can not decree the payment of any deficiency 
 remaining after the application of the proceeds of the sale of 
 the mortgaged premises to the payment of the debt,unless the 
 court of chancery would have had jurisdiction to enforce the 
 debt without the mortgage.* 
 
 Thus, where no note, bond, mortgage or other legal obli- 
 gation, was given to secure the payment of the debt, or, if 
 given, had been lost, a court of equity could, in some states, 
 enforce its payment as an equitable claim against the mort- 
 gagor, by a personal judgment for the balance remaining 
 unsaLisfie'^ after the sale of the premises.' 
 
 § 605. Judgment for deficiency against mortgagor.— 
 
 On the foreclosure of a mortgage by the mortgagee, the 
 
 > Goodwin v. Simonson, 74 N. Y. Davie, 4 J. J. Marsh. (Ky.) 70(1830); 
 
 133(1878). Downing v. Palmateer, 1 T. B. 
 
 2 N. Y. Code Civ. Proc. § 1627. Mon. (Ky.) 64 (1824) ; Stark v. 
 
 3 Loeb V. Willis, 22 Hun (N. Y.) Mercer, 4 Miss. (3 How.) 377 (1839) ; 
 508 (1880). See Siewert v. Harael, Fleming v. Sitton, 1 Dev. & B. (N. 
 33 Hun (N. Y.) 44 (1884), and note C.) Eq. 621 (1837) ; Orchard v, 
 to I 605 post. Hughes, 68 U. S. (1 Wall.) 73 (1863); 
 
 * Clapp V. Maxwell, 13 Neb. 542 bk. 17 L. ed. 560 ; Noonan v. Lee, 
 (1882). 67 U. S. (2 Black), 499 (1862); bk. 11 
 
 * See Dunkley v. VanBuren, 3 L. ed. 278. See ante §g 195-199. 
 Johns. Ch. (N. Y.) 330 (1818) ; Hunt « Crutchfield v. Coke, 6 J. J. 
 V. Lewin, 4 Stew. & Port. (Ala.) 138 Marsh. (Ky.) 89 (1831) ; Waddell v. 
 (1833); Morgan v. Wilkins. 6 J. J. Hewitt, 2 Ired. (N. C.) Eq. 252 
 Marsh. (Ky.) 28 (1831); McGee v. (1842).
 
 § 606.] JUDGMENT AGAINST IMORTGAGOR. 725 
 
 debtor is entitled to credit only for the net proceeds realized 
 from the sale, after deducting the costs and expenses of 
 the sale and all liens for taxes.' No proceedings can be had 
 upon a judgment or decree to compel the payment of the 
 deficiency until the report of the referee or other officer 
 conducting the sale has been filed and duly confirmed, and 
 the exact amount of such deficiency has been ascertained.* 
 It seems that where the judgment in an action for foreclosure 
 provides, "that if the proceeds of the sale be insufficient to pay 
 the amount so reported to be due to the plaintiff, the said 
 referee specify the amount of such deficiency in his report 
 of sale, and that the defendant pay the same to the plain- 
 tiff," it is not necessary to apply to the court for an order 
 confirming the report of the referee before issuing execution 
 against the defendant for the amount of the deficiency, nor 
 to enter any further judgment upon the filing of the said 
 report.' 
 
 § 606. Judgment for deficiency against third persons. 
 
 — In the absence of a statutory provision giving the court 
 authority therefor, a judgment for the deficiency arising 
 after the application of the proceeds of the sale of the mort- 
 gaged premises to the payment of the debt secured, can not 
 
 ' Marshall v. Davies, 78 N. Y. 414 after the said sale under the prior 
 
 (1879). mortgage, directing the referee to 
 
 2 Bache v. Doscher. 41 N. Y. specify the amount of the deficiency 
 Supr. Ct. (9 J. & S.) 150 (1876); in his report of the sale, and adjudg- 
 Bank of Rochester v. Emerson, 10 ing the defendant to pay the same 
 Paige Ch. (N. Y.) 359 (1843); Tor- to the plaintiff. Thereafter the 
 mey v. Gerhart, 41 Wis. 54 (1876) ; plaintiff, without having the prem- 
 Baird v. McConkey, 20 Wis. 297 ises sold under his judgment, ap- 
 (1866). In Siewert v. Hamel, 33 pliedfor leave to enter a judgment of 
 Hun (N. Y.) 44 (1884), during the deficiency for the amount remaining 
 pendency of an action brought to due upon his judgment after apply- 
 foreclose a mortgage, a prior mort- ing thereon the amount of surplus 
 gage upon the same premises was money received under the fore- 
 foreclosed, and the premises were closure of the prior mortgage. The 
 sold and purchased by the plaintiff. application was held to have been 
 The surplus arising from such sale properly made and granted. See 
 was applied by the plaintiff in reduc- ante g^ 203, 204, 206, 603. 
 tion of the amount due upon his s Moore v. Shaw, 15 Hun (N. Y.) 
 second mortgage. The usual judg- 428 (1878). 
 ment of foreclosure was then entered.
 
 726 JUDGMENT AGAINST THIRD PERSONS. [§ 60G. 
 
 be taken against any person liable for the debt, other than 
 the mortgagor himself.* And it has been held to be erro- 
 neous to render a judgment against a person, who guaranteed 
 the collection of a note secured by a mortgage, for any defi- 
 ciency which might be found due after the sale of the mort- 
 gaged premises ; the holder of the note and mortgage must 
 exhaust his remedies against the mortgagor and the mort- 
 gaged property before he can proceed against the guarantor.' 
 
 In some states the only remedy against a third person 
 liable for a mortgage debt or for the deficiency arising upon 
 the sale of the mortgaged property, is by a separate action 
 at law after the deficiency has been ascertained. But where 
 a complaint improperly joins these different causes of action, 
 objection thereto must be taken by answer or demurrer or 
 it will be deemed to have been waived ;* if no objection 
 is taken, a decree for the deficiency may be entered, although 
 not expressly authorized by statute.* The statutory juris- 
 diction for enforcing the collateral obhgations of third 
 persons upon a mortgage foreclosure is permissive and not 
 obligatory, and will not be exercised to their prejudice, unless 
 they have made it necessary by their agreements.* 
 
 It has been held, that mere delay in foreclosing a mort- 
 gage, on which the interest has been regularly paid, if there 
 has been no request or notice to foreclose, will not charge 
 upon the mortgagee the consequences of a depreciation in 
 the value of the property, and will not relieve persons liable 
 for the payment of the mortgage debt as sureties from the 
 effects of a judgment of deficiency.* 
 
 ' See Doan v. Holly, 25 Mo. 357 * McCarthy v. Gerraghty, 10 Ohio 
 
 (1857) ; s. c. 26 Mo. 186 ; Faesi v. St. 438 (1859) ; Gary v. Wheeler, 14 
 
 Goetz, 15 Wis. 231 (1862). Wis. 281 (1861). 
 
 « Borden v. Gilbert, 13 Wis. 670 « Gage v. Jenkinson, 58 Mich. 169 
 
 (1861). See ante § 233. (1885). 
 
 3 McCarthy v. Gerraghty, 10 Ohio « Merchants' Ins. Co. of the City 
 
 St. 438 (1859) ; Baird v. McConkey, of New York v. Hinman, 34 Barb. 
 
 20 Wis. 297 (1866); Cary v. Wheeler, (N. Y.) 410 (1861) ; s. c. 13 Abb. (N. 
 
 14 Wis. 281 (1861); Jessop v. City Y.) Pr. 110. See Newcomb v. Hale, 
 
 Bank of Racine. 14 Wis. 331 (1861) ; 90 N. Y. 326 (1882). 
 Stillwell V. Kellogg, 14 Wis. 461 
 (1861).
 
 § 607.] DEFIOffiNOY— ASSISNOE GUAEAHTKEINO. T27 
 
 S 607, Deficiency against assignor guaranteeing pay- 
 ment -The assignor of abond and mortgage.wlio guarantees 
 Teir payment.wiU be liable on sucl> guaranty for any deficiency 
 thai may aris^ upon a foreclosure and sale." Wh.le a person 
 who has guaranteed the collection of a mortgage .s a proper 
 defendant to a foreclosure, yet the decree of sale m such a 
 case should provide that no execution shall issue agam t h.m 
 until an execution against the parties primarily I'^ble has 
 been returned unsatisfied;' such a guaranty is merely a con- 
 ditional undertaking to pay any deficiency that may ar, e 
 on foreclosure, and not an absolute guaranty to pay the debt. 
 Where a guarantor dies pending an action to foreclose 
 a mortgage, the court will have no power to order a judg- 
 ment for deficiency against him nunc pro tunc, for the mort- 
 gage debt; it will be necessary to revive the action against 
 his personal representatives.' 
 
 Under the Wisconsin statute,' where a jomt and several 
 guaranty is secured by the mortgage of only one of the 
 Guarantors, all of them may be made defendants to an 
 action for the foreclosure of the mortgage, and a personal 
 judgment may be obtained against them for any deficiency. 
 Where, upon the sale of a bond and mortgage the assignor 
 guarantees their payment, he will not necessarily be released 
 from his liability on such guaranty by the failure of the 
 
 ■ ,r ;i Ma, V "irhrevcr 91 N. granted. Vanderbilt v. Scireyer, 
 T Bl'ait S«0fflt7v Burc,.n. ft N. Y. 892 (1883,. See «.<, 
 
 r^rTrs^'V^trBntr;. ^.^^% how. .^ T., Pr^lO* 
 
 ^ o\?T nh VW Y ^ 143 (1878); Leonard v. Morns, 9 Paige 
 
 Sr'ja^an' will, i N CU. [k Y.) 90 (1841, ; Curli. . 
 
 J Eq' (dTe Gr., 207 (1878,. Tyler, 9 Paige Ch. (N. Y.) 483 
 
 ^:IT^'r^^Z 3n.e^. . Se^eyer, 91 K. 
 adoplioa o, Uie Coaeof CM. Pro^ Y.^8^. (_1888,. ^^^^^_^^ ^^ ^ ^ 
 
 TaTl-tSerr ;.^-^~-'- - 
 ga^e. and judgment therein against kins, 51 Wis. 13o (1881). 
 him for a deficiency was properly
 
 728 DEFICIENCY ASSIGNOR GUARANTEEING, [§ G08. 
 
 assignee to comply with a notice requiring him to collect 
 the indebtedness by legal proceedings, although the property 
 may have depreciated in value and the obligor become 
 insolvent after the service of the notice.' 
 
 Where a person assigns a bond and mortgage, guarantee- 
 ing their collection, and thereby places himself in the 
 position of a surety for the payment of the debt, and 
 subsequently, for his indemnity, takes the bond of a third 
 person as collateral security for such payment, the principal 
 creditor will, in equity, be entitled to the benefit of such 
 collateral security; and this is true, though he may not 
 originally have relied upon the credit of such collateral 
 security, nor known of its existence. In an action to foreclose 
 the mortgage, the obligor on such collateral bond may 
 properly be made a defendant, to enable the plaintiff to 
 obtain a decree against him for the payment of any defi- 
 ciency which may remain after he has exhausted his remedy 
 against the mortgagor." 
 
 Where a mortgagee, upon assigning his bond and mortgage, 
 guarantees their payment, the extent of his liability in case 
 of a deficiency, if he received less than the face of the mort- 
 gage, will be limited to the actual amount paid for the bond 
 and mortgage by the purchaser, with interest, although a 
 larger consideration may be expressed in the assignment.* 
 
 § 608. Deficiency against party assuming mortgage. 
 — Most of the states have enacted statutes, giving to 
 their courts authority to render personal judgments in 
 mortgage foreclosures for any deficiency arising after the 
 application of the proceeds of the sale of the property to 
 the payment of the mortgage debt ; under such statutes a 
 judgment for deficiency may be rendered against the 
 mortgagor, or against a party who has assumed the payment 
 of the mortgage debt,* or against any one who has be:ome 
 
 ' Newcomb v. Hale, 90 K Y. 326 Brown, 35 Barb. ( K T. ) 484 
 
 (1882). See ante §§ 233-236. (1861). 
 
 * Curtis V. Tyler, 9 Paige Ch. (N. * See JIarshall v. Davies, 78 N. Y. 
 
 Y.) 432 (1842). 414 (1879); Gifford v. McCloskey, 33 
 
 3 Rapelye v. Anderson, 4 Hill (N. Hun (N. Y.) 350 (1885); Douglass 
 
 Y.) 472 (1842). See Goldsmith v. v. Wells, 18 Hun (N. Y.) 88 (1879) ;
 
 § 608.] DEFICIENCY AGAINST GRANTEE ASSU3IING. 729 
 
 a guarantor or surety of it,* or who has given a collateral 
 undertaking for its payment.' The mortgagee may also 
 maintain an action at law against any such party whenever 
 the attending circumstances justify the conclusion that the 
 promise was made for his benefit.* 
 
 But a mortgagee's right to proceed in equity against one 
 who has assumed to pay his mortgage, does not extend to a 
 claim for the purchase money on a sale of the mortgaged 
 premises, nor to the vendor's lien to secure it.* Where a 
 person purchases mortgaged premises, assuming and agree- 
 ing to pay the mortgage debt as a part of the consideration 
 
 Tuttle V. Armstead, 53 Conn. 175 
 (1885) : Bassett v. Bradley, 48 Conn. 
 224 (1880); Bay v. Williams, 112 
 Dl. 91 (1884); a c. 54 Am. Rep. 
 209 ; Birke v. Abbott, 103 Ind. 1 
 (1885) ; Wright v. Briggs, 99 Ind. 
 663 (1884) ; Ellis v. Johnson, 96 Ind. 
 877 (1883) ; Logan v. Smith, 70 Ind. 
 597 (1880); Gage v. Jenkinson, 58 
 Mich. 169 (1885) ; linger v. Smith, 
 44 Mich. 22 (1880) ; Fitzgerald v. 
 Barker, 70 Mo. 685 (1879) ; Heim v. 
 Vogel, 69 Mo. 529 (1879) ; Bond v. 
 Dolby, 17 Neb. 491 (1885); Cubberly 
 v. Yager, 42 N. J. Eq. (15 Stew.) 
 289(1886); Vreeland v. VanBlarcom, 
 85 N, J. Eq. (8 Stew.) 530 (1882) ; 
 Allen V. Allen, 34 N. J. Eq. (7 
 Stew.) 493 (1881) ; Trustees for sup- 
 port of Public Schools v. Anderson, 
 30 N. J. Eq. (3 Stew.) 366 (1879) ; 
 Brewer v. Maurer, 38 Ohio St. 543 
 (1883); 8. C. 43 Am. Rep. 436; 
 Davis V. Hulett, 58 Vt. 90 (1886) ; 
 Palmeter v. Carey, 63 Wis. 426 
 (1885). See ante %%218-2S2. Where 
 a party purchases real estate and 
 assumes to pay one-half of certain 
 mortgages thereon, he is a proper 
 party to a foreclosure of one of the 
 mortgage . but he is liable to a 
 personal judgment for only one-half 
 of the mortgage debt. Logan v. 
 Smith, 70 Ind. 597 (1880). 
 
 The cases on this point, however, 
 are not in harmony. Some of the 
 courts hold that no action lies by 
 the mortgagee, on a promise made 
 to the vendee by the purchaser of an 
 equity of redemption to assume and 
 pay the mortgage on the land, as 
 part of the consideration named in 
 the deed, because it is a promise to 
 a third person. Meech v. Ensign, 
 49 Conn. 191 (1881); s. c. 44 
 Am. Rep. 225 ; Wallace v. Furber, 
 62 Ind. 103 (1878); Prentice v. Brim- 
 hall, 123 Mass. 291 (1877) ; Booth v. 
 Conn. Mut. Life Ins. Co., 43 Mich. 
 299 (1880); Stuart v. Worden, 43 
 Mich. 154 (1879). But see Bassett 
 v. Bradley, 48 Conn. 224 (1880). 
 
 ' Jones V. Steinbergh, 1 Barb. 
 Ch. (N. Y.) 250 (1845); Bristol v. 
 Morgan, 3 Edw. Ch. (N. Y.) 143 
 (1837) ; Jarman v. Wiswall, 24 N. 
 J. Eq. (9 C. E. Gr.) 267 (1873). 
 See also Sauer v. Steinbauer, 14 Wis. 
 70 (1861). 
 
 2 Halsey v. Reed, 9 Paige Ch. (N. 
 Y.) 446 (1842). 
 
 3 Bassett v. Bradley, 48 Conn. 224 
 (1880). 
 
 * Emley v. Mount, 32 N. J. Eq. 
 (5 Stew.) 470 (1880).
 
 730 deficie:?^ct against grantee assujiino. [§ 608. 
 
 of the conveyance, he thereby merely agrees to pay his own 
 debt to a third person, who, by an equitable subrogation, 
 stands in the place of the promisee vendor.' In those cases 
 where the mortgagor sells the equity of redemption subject 
 to the mortgage, and the purchaser assumes and agrees to 
 pay the mortgage debt as a portion of the purchase money, 
 the grantee becomes personally liable for the payment of the 
 debt in the first instance ; if the mortgagor is subse- 
 quently compelled to pay such debt, he may recover it from 
 his grantee in an action in equity or at law.* 
 
 While one who takes a deed of mortgaged land will be 
 personally liable on the foreclosure of the mortgage, if his 
 deed expressly binds him'to pay the debt,* yet a covenant to 
 pay can not be implied from either the deed or the mort- 
 gage.* Where a purchaser accepts and holds under a deed 
 containing a clause reciting that he assumes and agrees to pay 
 a note secured by an existing mortgage on the land, he 
 thereby subjects himself to a liability for a personal judg- 
 ment for any deficiency that may exist after the sale of the 
 premises under a decree of foreclosure ; and such liability 
 may be enforced on the foreclosure.* 
 
 * Bassett v. Bradley, 48 Conn. 324 * Equitable Life Ins. Co. v. Bost- 
 (1880). See ante %% 218-233. wick, 100 N. Y. 638 (1885) ; Gage v. 
 
 * Comstock V. Drohan, 71 N. Y. Jenkinson, 58 :Mich. 169 (1885). 
 
 9 (1877) ; Hartley v. Harrison, 24 ' Gifford v. McCloskey, 38 Iliin 
 N. Y. 170 (1861) ; Russell v. Pistor, (N. Y.) 350 (1885) ; Bay v. Williams. 
 7 N. Y. 171 (1852); s. c. 57 Am. 112 111. 91 (1884); s. c. 54 Am. Rep. 
 Dec. 509 ; Cornell v. Prescott, 3 309 ; Scarry v. Eldriilge, 63 Ind. 44 
 Barb. (K Y.) 16 (1847) ; Ferris v. (1878) ; Unger v. Smith, 44 Mich. 22 
 Crawford, 3 Den. (N. Y. ) 595 (1880) ; Wiuans v. Wilkie, 41 Mich. 
 (1845) ; Thayer v. Marsh, 11 Hun 365 (1879) ; Carley v. Fox, 38 Midi. 
 (N. Y.) 501 (1877); Marsh v. Pike, 387 (1878) ; Miller v. Thompson, 34 
 
 10 Paige Ch. (N. Y.) 595 (1844); Mich. 10 (1876); Crawford v. 
 Halsey v. Reed, 9 Paige Ch. (N. Y.) Edwards, 33 Mich. 360 (1876) ; Fitz- 
 447 (1843) ; Blyer v. Mouholland, 3 gerald v. Barker, 70 Mo. 685 (1879); 
 Saudf. Ch. (N. Y.) 478 (1845). As Heim v. Vogel, 69 Uo. 529 (1879) ; 
 to the liability of the grantee of a Davis v. Hulett, 58 Vt. 90 (1886). 
 grantee, see Marsh v. Pike, 10 In Lea v. Fabbri, 45 N. Y. Supr. 
 Paige Ch. (N. Y.) 595 (1844). Ct. (13 J. & S.) 361 (1879), it wa3 
 
 2 Ranney v. McMullen, 5 Abb. (N. held that where premises were con- 
 
 Y.) N. C. 346(1878) ; Wales v. Sher- veyed, "subject to a certain mort- 
 
 wood, 53 How. (N. Y ) Pr. 413 (1876). gage on the southerly portion of the
 
 § 609.] 
 
 JUDGMENT OF DEFICIENCY. 
 
 iol 
 
 § 609. Mortgaged premises primary fund — Subsequent 
 liability. — Where mortgaged premises are sold to a person 
 who takes them subject to a mortgage and assumes and 
 agrees to pay the mortgage debt as a part of the consideration 
 for the conveyance, the mortgaged premises are the primary 
 fund for the payment of the mortgage debt,* and thereafter, 
 the party purchasing will be liable,* and his grantor, the 
 original mortgagor, will stand in the position of a surety to 
 such defendant.* The obligation of the purchaser inures in 
 equity to the benefit of the holder of the mortgage, who, 
 upon foreclosure, is entitled to a judgment against such 
 purchaser for any deficiency which may exist after the appli- 
 cation of the proceeds of the sale to the mortgage debt.* 
 
 But where a mortgagor sells the mortgaged premises, receiv- 
 ing the full consideration therefor, and his conveyance is 
 not made subject to the payment of the mortgage, he 
 will remain the principal debtor, and the land simply security 
 for the debt, although the deed may contain no covenant 
 
 same" made by the vendor, which 
 mortgage the vendee assumed and 
 agreed to pay, by a clause in the 
 conveyance, which stated that the 
 amount of the debt has " been 
 deducted from the consideration 
 hereinbefore expressed," there is no 
 equitable lien upon the mortgaged 
 premises in favor of the vendor ; 
 this, though the vendee, after pay- 
 ing interest for a certain time, makes 
 default, and allows the mortgage to 
 be foreclosed and the vendor to be 
 thereby charged with a judgment 
 for deficiency. The assumption of 
 the mortgage is pro tanto the con- 
 sideration. A fortiori, there is no 
 equitable lien upon that portion of 
 the premises not covered by the 
 mortgage. See ante §§ 218-232. 
 
 »Birke v. AbboU, 103 Ind. 1 
 (1885). And this is true, although the 
 deed may contain a covenant on the 
 part of the grantee to pay the mort- 
 gage debt, such covenant being 
 
 intended to indemnify the grantor 
 against the contingency that the land 
 may not bring enough to pay such 
 debt. Wilbur v. Warren, 104 N. Y. 
 192 (1887). 
 
 * Ellis V. Johnson, 96 Ind. 377 
 (1884). 
 
 » Drury v. Clark, 16 How. (N. Y.) 
 Pr. 424 (1857). See ante § 202 and 
 chap. xi. 
 
 * See Ricard v. Sanderson, 41 N. Y. 
 179 (1869) ; Ranney v. McMullen, 
 5 Abb. (N. Y.) N. C. 246 (1878) ; 
 Thayer v. Marsh, 11 Hun (N. Y.) 
 501 (1877); aff'd 75 N. Y. 340; 
 Comstock V. Drohan, 8 Hun (N. Y.) 
 373 (1876) ; aff'd 71 N. Y. 9 ; Halsey 
 V. Reed, 9 Paige Ch. (N. Y.) 446 
 (1842) ; Stiger v. Mahooe, 24 N. J. 
 Eq. (9 C. E. Gr.) 426 (1874) ; Hoy 
 V. Bramball, 19 N. J. Eq. (4 C. E. 
 Gr.)^563 (1868); Klapworth v. 
 Dressier, 13 N. J. Eq. (2 Beas.) 63 
 (1860) ; s. c. 78 Am. Dec. 69.
 
 732 LIABILITY ON ASSUMPTION. [§ 610. 
 
 of title on the part of the grantor.' In an action to fore- 
 close a mortgage, where more than one party is personally 
 liable for the payment of the mortgage debt, the judg- 
 ment should provide for issuing an execution for the defi- 
 ciency against the several defendants in the order in which 
 they are liable as principal or surety.* 
 
 § 6io. Assumption of mortgage— Defence by grantee. 
 — The purchaser of mortgaged premises, who assumes the 
 payment of the mortgage as a part of the consideration of 
 the conveyance, is liable to the mortgagee and is a proper 
 party to a foreclosure under the Code ;' he is estopped from 
 contesting the validity of the mortgage, and will be liable 
 to his grantor if the latter is compelled to pay any part of 
 the mortgage debt.* Proof of the recorded deed containing 
 such covenants raises the presumption that the title is vested 
 in the grantee and that he is liable.* 
 
 The grantor can not, by any act or agreement of his own, 
 release or affect his grantee's liability to the , mortgagee, 
 except where an oral agreement is made contemporaneously 
 with the conveyance in which the grantee assumed the 
 mortgage, to the effect that the grantor will, at any 
 time, accept a reconveyance and release the grantee from 
 his covenant ; and where such a verbal agreement has been 
 carried out, the liability of the grantee on the mortgage will 
 be extinguished.* A grantee who assumes the payment of 
 a mortgage will be deemed to have entered into an express 
 undertaking to pay the debt, although he may not sign but 
 merely accept the deed by which the conveyance is made.* 
 
 » Wadsworth v. Lyon, 93 N. Y. N. Y. 9 (1877) ; Fairchild v. Lynch, 
 
 201 (1883) ; 8. c. 45 Am. Rep. 190. 46 N. Y. Supr. Ct. (14 J. &'s.) 1 
 
 ^ Luce V. Hinds, Clarke Ch. (N. (1880) ; Tliayer v. Marsh, 11 Hun 
 
 Y.) 453 (1841) ; Weed v. Calkins, (N. Y.) 501 (1877). See ante %% 218- 
 
 24 Hun (N. Y.) 582 (1881) ; Curtis 232. 
 
 V. Tyler, 9 Paige Ch. (N. Y.) 432, ^ Lawrence v. Farley, 24 Hun (N. 
 
 435 (1842). See a7ite § 202 and chap. Y.) 293 (1881). 
 
 xi. 8 Devlin v. Murphy, 5 Abb. (N. 
 
 3 N. Y. Code Civ. Proc. § 1627 ; Y.) N C. 242 (1878) ; 8. c. 56 How. 
 
 Ayers v. Dixson, 78 N. Y. 318 (1879). (N. Y.) Pr. 3-^6. 
 
 * Parkinson v. Sherman, 74 N. Y. ' Smith v. Truslow, 84 N. Y. 6C0 
 
 88 (1878) ; Comstock v. Drohan, 71 (1881); Atlantic Dock Co. v. Leavitt,
 
 §011.] GKA2fTEE NOT LIABLE FOE DEFICIENCY. i 3S 
 
 § 6il. Assumption of mortgage-When grantee not 
 liable for deficiency— Where a grantee has assumed the 
 payment of a mortgage, he will not be liable for a judgment 
 of deficiency unless his grantor was liable.' Where a 
 deed contains a covenant that the grantee shall pay the mort- 
 gage on the property, an extension of the time of payment by 
 the holder of the mortgage will discharge the grantor ;" and 
 when the mortgagee releases the grantee, he will thereby 
 discharge the mortgagor also from liability." 
 
 It has been held, however, that one liable for the defi- 
 ciency will not be released because the time for completing 
 the sale was extended and a resale subsequently ordered, 
 without proceeding against the original purchaser to compel 
 him to complete his purchase, if it does not appear that 
 the purchaser was personally responsible and that his bid 
 could have been enforced. Neither will he be released where 
 it does not appear that, if the resale had been ordered 
 immediately, the mortgaged premises would have brought 
 more; particularly is this true where no fraud was practiced 
 and no request was made that the purchaser should be pro- 
 ceeded against,— for the plaintiff in a foreclosure may elect 
 to apply for a resale or to compel the purchaser to complete 
 his purchase.* 
 
 54 N Y. 35 (1873) ; s. c. 13 Am. > Spencer v. Spencer, 95 N. Y. 353 
 
 Rep 556 ; Ricard v. Sanderson, 41 (1884) ; Marshall v. Davies, IH N. Y. 
 
 NY 179 ( 1869 ) ; Belmont v. 414 ( 1879 ). reversing 16 Hun ( N. 
 
 Coman 22 N. Y. 438 (1860) ; Col- Y.) 606 ; Calvo v. Davies, 73 N. Y. 
 
 lins V Rowe, 1 Abb. (N. Y.) N. C. 211 (1878). affg 8 Hun (N. Y.) 322 ; 
 
 97 (1876) ; Marsh v. Pike, 10 Paige s. c. 29 Am. Rep. 130. See Knob- 
 
 Ch (N Y ) 595 (1844) ; Furnas v. lock v. Zschwetzke. 53 N. Y. Supr. 
 
 Durgin, 119 Mass. 500 (1876) ; s. c. Ct. (21 J. & S.) 391 (1886) ; 8. c. 1 
 
 20 Am Rep. 341 ; Miller v. Thomp- N. Y. State Rep. 238. 
 
 son. 34 Mich. 10 (1876) ; Taylor v. ' Paine v. Jones. 76 N- Y. 274 
 
 Preston. 79 Pa. St. 436 (1875). See (1879), affg 14 Hun (N. Y.) 577; 
 
 ante ^■'^ 230-''31 Riggs ^- Boucicault, 33 Hun (N. Y.) 
 
 • Cashmanv. Henry. 75 N. Y. 103 667 (1884) ; s. c. 20 N. Y. Wk. Dig. 
 
 (1878) ; Vrooraan v. Turner. 69 N. 184. See ante %% 218-233. 
 
 Y. 280 (1877) ; Smith v. Cross. 16 * Goodwin v. Simouson. 74 N. Y. 
 
 Hun (N. Y.) 487 (1879); Norwood 133(1878). 
 V. DeHart, 30 N. J. Eq. (3 Stew.) 
 412 (1879).
 
 734 GEANTEE NOT LIABLE FOR DEFICLENCY. [§G12. 
 
 It has been held, where a grantee takes a conveyance by a 
 warranty deed containing a covenant to pay the mortgage, 
 and he is subsequently evicted by a paramount title, that he, 
 will not be liable on a judgment for deficiency, because the 
 consideration for the covenant has wholly failed.' And in 
 an action to foreclose a mortgage, parol evidence is admis- 
 sible to show that the clause in'U deed, whereby the grantee 
 assumes the mortgage, was inserted by mistake and with- 
 out the knowledge of such grantee.' And where the 
 grantee in a conveyance containing such a clause, was 
 unable to produce the evidence that the clause was inserted 
 by mistake and allowed judgment to be taken against him by 
 default, but two years later found the evidence, the judg- 
 ment was opened on motion and he was allowed to come in 
 and defend.* 
 
 § 6i2. Release from liability on assumption. — Whether 
 the personal liability incurred by a grantee to the holder 
 of a mortgage, by assuming its payment, can be released 
 by a subsequent agreement between such grantee and his 
 grantor, is an unsettled question.* Thus, it is held in New 
 Jersey, that the covenant by a grantee to pay the mort- 
 gage debt is a contract only for the indemnity of the 
 grantor, and may be released or discharged by him ;* but 
 that a release given without consideration by an insolvent 
 grantor, after notice of foreclosure, and for the sole and 
 
 > Dunning V. Leavitt, 85 N. Y. 30 v. Casbacker, 8 Hun (N. Y.) 116 
 
 (1881); s. c. 39 Am. Rep. 617, revers- (1876); Bay v. Williams, 112 III. 
 
 ing 20 Hun (N. Y.) 178. 91 (1884) ; s. c. 54 Am. Rep. 209 ; 
 
 "^ DeyErmand v. Chamberlain, 88 Berksliire Life Ins. Co. v. Hutcli- 
 
 N. Y. 658 (1882). Bee anU §§ 218- ings, 100 Ind. 496 (1884) ; Young v. 
 
 232. Trustees for the support of Public 
 
 3 Trustees, «&c., v. Merriam, 59 Schools, 31 N. J. Eq. (4 Stew.) 290 
 
 How. (N. Y.) Pr. 226 (1880). See (1879) ; Trustees for the support of 
 
 also Union Dime Saving Institution Public Schools v. Anderson, 80 N. 
 
 V. Clark, 59 How. (N. Y.) Pr. 342 J. Eq. (3 Stew.) 366 (1879) ; Brewer 
 
 (1880). V. Maurer, 38 Ohio St. 543 (1882) ; 
 
 * See Judson v. Dada, 79 K Y. s. c. 43 Am. Rep. 436. 
 373 (1880) ; Hartley v. Harrison, 24 » Young v. Trustees for the sup- 
 
 N. Y. 170 (1861); Douglass v. Wells, port of Public Schools, 31 N. J. Eq. 
 
 18 Hun (N. Y.) 88 (1879) ; Stephens (4 Stew.) 290 (1879). See ante § 231.
 
 §613.] EELEASE FROM LIABILITY. ^35 
 
 admitted purpose of defeating the mortgagee's claim for 
 a judgment of deficiency, is void in equity.' 
 
 On the other hand, it has been held in Illinois' and m 
 New York,' that such an agreement to pay the mortgage 
 debt, creates an absolute and irrevocable obligation in favor 
 of the mortgagee, which can not be released or affected by 
 any act or agreement of the mortgagor or the grantee to 
 which the mortgagee does not assent ; in other cases, it is 
 held that such an agreement becomes irrevocable only after 
 it has been accepted and acted upon by the mortgagee.* 
 
 Where a grantee, who has assumed the payment of a mort- 
 gage, subsequently reconveys the land in good faith to his 
 grantor, who in turn assumes the payment of such debt, the 
 liability of the first grantee to the holder of the mortgage 
 will be thereby terminated.* 
 
 § 613. No liability where deed subject to mortgage.— 
 It is well settled that the acceptance of a conveyance con- 
 taining words importing that the grantee will pay the 
 mortgage, which is a lien upon the premises purchased, 
 binds him to discharge such incumbrance as effectually as 
 though he had signed the deed. No express or formal 
 words are necessary to create this obligation, as the liability 
 depends entirely upon the agreement of the parties ;* yet 
 the mere fact that the grantee purchased subject to the mort- 
 gage, and that a clause to that effect was inserted in the 
 deed', will not alone render the grantee personally liable for 
 the mortgage debt nor create such liability ; the words used 
 must clearly show that such obligation was intended by the 
 one party and knowingly assumed by the other.' 
 
 1 Trustees for the support of Pub- » Laing v. Bryne, 34 N. J. Eq. (7 
 
 lie Schools V. Anderson, 30 N. J. Stew.) 52 (1881). But see an«e § 232. 
 
 Eq. (3 Stew.) 366 (1879). * Belmont v. Coman, 22 N. Y. 
 
 'Bay V Williams. 112 lU. 91 438 (1861); s. c. 78 Am. Dec. 213. 
 
 a884^ • 8 c 54 Am. Rep. 209. "' Equitable Life Assurance Soc. v. 
 
 ' Douglass V. Wells, 18 Hun (N. Bostwick. 100 N. Y. 628 (1885); 
 
 Y ^ 88 (1879). See ante g§ 230, 231. Smith v. Truslow, 84 N. Y. 660 
 
 4 See Berkshire Life Ins. Co. v. (1881) ; Collins v. Rowe, 1 Abb. (N. 
 
 Hutchings. 100 Ind. 496 (1884) ; Y.) K C. 97 (1876) ; Johnson v. 
 
 Brewer v Maurer. 38 Ohio St. 543 Monell, 13 Iowa, 300 (1862) ; Fiske 
 
 (1882) ; 8. c. 43 Am. Rep. 436. t. Tolman, 124 Mass. 254 (1878) ; B.
 
 736 DEED SUBJECT TO MOltTGAGE NOT LIABLE. [§ 614. 
 
 As between the mortgagor and his grantee, the latter is 
 secondarily liable for the whole mortgage debt, the land 
 conveyed being primarily liable.' A grantee purchasing 
 mortgaged premises subject to the incumbrance, not being 
 personally liable for the debt, will simply lose the premises 
 in case of foreclosure,' because in such case the land is the 
 primary fund for the payment of the debt, and must be so 
 applied.* 
 
 The most that can be claimed for the words " under and 
 subject to" in a conveyance of land, is that as between the 
 parties, they create a covenant of indemnity to the grantor on 
 the part of the grantee.* Yet it is said that where a pur- 
 chaser buys mortgaged premises from the mortgagor subject 
 to the mortgage debt, though the deed may not in terms 
 hind him to pay such debt, he is to be treated, as between 
 himself and the mortgagor, as having assumed the mortgage, 
 and is personally liable for whatever deficiency may remain 
 after the foreclosure sale.* 
 
 § 614. Oral contract of assumption may be enforced. — 
 
 Where, at the time of conveying land, it is orally agreed 
 that the grantee shall assume and pay a mortgage, for the 
 payment of which the grantor is liable, the latter may, if 
 subsequently compelled to pay it, recover the amount so 
 paid from the grantee, though the conveyance contains no 
 
 c. 26 Am. Rep. 659 ; Strong v. * Taylor v. Mayer, 93 Pa. St. 43 
 
 Converse, 90 Mass. (8 Allen), 557 (1880). See Samuel v. Peyton, 88 
 
 (1864); s. c. 85 Am. Dec. 733 ; Hall Pa. St. 465 (1878) ; also ante % 224 
 
 V. Morgan, 79 Mo. 47 (1883) ; Law- and post % 615. 
 
 rence v. Towle, 59 N. H. 28 (1879); » Canfield v. Shear, 49 Mich. 313 
 
 Woodbury v. Swan, 58 N. H. 380 (1882). It was held by the supreme 
 
 ( 1883 ) ; Walker v. Goldsmith, 7 court of Michigan in Sheldon v. 
 
 Oreg. 161 (1879). See an<« g§ 218-232. Holmes, 58 Mich. 138 (1885), that 
 
 ' Moore v. Clark, 40 N. J. Eq. (13 on the dismissal of a bill of fore- 
 Stew.) 152 (1885). closure against a subsequent bona 
 
 ' Winans v. Wilkie, 41 Mich. 264 fide purchaser who has not made 
 
 (1879). full payment, he may be held for 
 
 ^ Johnson v. Corbett, 11 Paige Ch. such sums as remain due after he 
 
 (N. Y ) 265 (1844) ; Halsey v. Reed, has been notified of the complain- 
 
 9 Paige Ch. (N. Y.) 446 (1842) ; ant's equities. 
 Forgy V. Mcrryman, 14 Neb. 516 
 (1883).
 
 § 615.] OEAL ASSUMPTION ^LIABILITY. 737 
 
 agreement on the part of the grantee to assume the mort. 
 gage, but is only made subject to it.' The grantee, however, 
 may so contract with his grantor as to make himself person- 
 ally liable to the mortgagee. Thus, where the amount of 
 the mortgage debt forms a part of the consideration of the 
 purchase, and by the contract is to be paid by the pur- 
 chaser, he will be personally liable where he has retained 
 that amount out of the purchase money.* 
 
 But the deduction of the amount of the mortgage debt 
 from the purchase price on a sale of the land, in the absence 
 of an express agreement to pay, does not impose upon the 
 grantee the absolute duty of paying the mortgage debt. 
 While such deduction may be evidence of the grantor's inten- 
 tion to subject the land to such payment, it is not controlling 
 nor conclusive, and it may be inferred that the deduction 
 was made to protect the grantee against an actionable 
 incumbrance.* 
 
 § 615. Intention of parties determines question of 
 assumption. — Whether a personal liability is assumed in 
 any case is always dependent on the intention of the 
 parties ; unless the parties have declared this intention in 
 express words no liability will be incurred. If the deed 
 merely recites that the land is taken subject to a certain 
 mortgage, there will be no personal liability ;* neither will 
 the words " under and subject " to a mortgage which is 
 specified, import a promise to pay, nor create a personal 
 liability.* 
 
 In those cases where there are words in the deed import- 
 ing that the grantee is to pay the mortgage, subject to 
 which he takes the land, he will be deemed to have entered 
 into an express undertaking to do so by the mere acceptance 
 
 > Taintor v. Hemmingway, 18 438 (1860) ; s. c. 78 Am. Dec. 213 ; 
 
 Hun (N. Y.) 458 (1879). Hull v. Alexander, 26 Iowa, 569 
 
 * Smith V. Truslow, 84 N. Y. 660 (1869). 
 
 (1881) ; Winans v. Wilkie, 41 Mich. * See Girard Life Ins. & Trust 
 
 264 (1879). See ante § 224. Co. v. Stewart, 86 Pa. St. 89 (1878) ; 
 
 » Bennett v. Bates, 94 N. Y. 354 Lennig's Estate, 52 Pa. St. 135 
 
 (1884). (1866). See ante § 613. 
 
 * Belmont v. Coman, 22 K Y. 
 
 m
 
 738 DEFICLENOT AGATNST NON-KESIDENT. [§616. 
 
 of the deed, and by taking possession of the property 
 under it.* 
 
 The grantee of mortgaged premises will be liable for the 
 payment of the mortgage debt only where such liability was 
 a part of the bargain for the sale and conveyance of such 
 premises.' Therefore, where a clause is inserted in the deed 
 of conveyance without the knowledge of the grantee, by 
 which he is made to assume and agree to pay the mortgage, 
 and he has no knowledge or notice of the insertion of such 
 clause until after the commencement of foreclosure proceed- 
 ings, he may set up in his answer that the insertion of such 
 clause was a fraud and without his knowledge, and he may 
 have the deed reformed by striking out such clause.' 
 
 § 6i6. No judgment of deficiency against non-resident. 
 — A personal judgment for deficiency can not be rendered 
 against a non-resident who has not appeared in the action, 
 or who has not been personally served with the summons 
 within the state.* Where the statute provides for service 
 by publication, a judgment obtained against a non-resident 
 upon such service can be enforced against the mortgaged 
 property only ; such a judgment does not impose a personal 
 liabihty upon him.' 
 
 But it has been said that due process of law, without 
 which one can not be bound by a judicial decree nor 
 deprived of his property, does not necessarily require the 
 personal service of a notice of the proceedings ;* and that 
 
 ' Ricard v. Sanderson, 41 N. Y. » Parker v. Jenks, 36 N. J. Eq. 
 
 179 (1869); Belmont v. Coman, 22 (9 Stew.) 398 (1883). See Dey- 
 
 N. Y. 438 (1860) ; s. c. 78 Am. Dec. Ermand v. Chamberlain, 22 Hun 
 
 213 ; Lawrence v. Fox, 20 N. Y. 268 (N. Y.) 110 (1880); aff 'd 88 N. Y. 658. 
 
 (1859) ; Trotter v. Hughes, 12 N. » See Dey Ermand v. Chamberlain, 
 
 T. 74 (1854) ; s. c. 62 Am. Dec. 137 ; 88 N. Y. 658 (1882) ; Albany City 
 
 Vail V. Foster, 4 N. Y. 312 (1850) ; Sav. Inst. v. Burdick, 87 N. Y. 40 
 
 Marsh v. Pike, 10 Paige Ch. (N. Y.) (1882). See ante § 610. 
 
 695 (1844) ; Halsey v. Reed, 9 Paige * Schwinger v. Hickok, 53 N. Y. 
 
 Ch. (N. Y.) 446 (1842) ; Curtis v. 280 (1873) ; Lawrence v. Fellows, 
 
 Tyler, 9 Paige Ch. (N. Y.) 433 Walk. Ch. (Mich.) 468 (1844). See 
 
 (1842) ; Blyer v. Monholland, 3 ante § 203. 
 
 Sandf. Ch. (N. Y.) 478 (1845); » Schwinger v. Hickok, 53 N. Y. 
 
 MiUer v. Thompson, 34 Mich. 10 280(1873). 
 
 (1876). ^ Inre Empire State Bank, 18 N.
 
 §§ 617-618.] NO JUDGMENT DEBT NOT DUE. 739 
 
 the legislature may declare that judgments obtained against q 
 non-resident, upon service by publication, may be enforced 
 against all property of such defendant found within the st?te 
 where the judgment is rendered.* 
 
 § 617. No judgment of deficiency for installments not 
 yet due. — On a mortgage foreclosure, a personal judgment 
 can not be rendered against the mortgagor, or other person 
 liable for the payment of the debt, for any deficiency before 
 such debt becomes due according to the contract." It seems 
 that a judgment of foreclosure for the whole amount due and 
 to become due on several notes, secured by a mortgage 
 or otherwise, is not erroneous, if rendered in conformity 
 to law.' But it has been said that where a mortgage 
 securing a debt payable in installments, some of which are 
 due and others yet to become due, is foreclosed, the court 
 can only direct, as to the installments not due, at what time 
 and upon what default subsequent executions shall issue 
 to collect the amounts of such installments.* 
 
 Where a mortgage provides that, upon default in the pay- 
 ment of an installment of the debt, or in the payment of the 
 interest, the whole debt shall immediately become due and 
 payable, a personal judgment may be entered for the whole 
 amount upon the first default in the payment of the princi- 
 pal or interest.* 
 
 § 618. Deficiency— How determined. — In a mortgage 
 foreclosure the mortgagor is entitled to be credited on the 
 mortgage debt only with the net proceeds realized from 
 
 ¥.199 215(1858). See Sch winger v. < Skelton v. Ward, 51 Ind. 46 
 
 V. Hickok, 53 N. Y. 284 (1873). (1875). See anU § 204. 
 
 > See Bissell v. Briggs, 9 Mass. ^ Hatcher v. Chancey, 71 Ga. 689 
 
 463 (1813) ; 8. c. 6 Am. Dec. 88 ; (1883) ; Miller v. Remley, 35 Ind. 
 
 Boswell V. Otis, 50 U. S. (9 How.) 539 (1871); Hunt v. Harding, 11 Ind. 
 
 336 (1850); bk. 13 L. ed. 164; Thomp- 245 (1858); Lacoss f. Keegan, 2 Ind. 
 
 son V. Emmert, 4 McL. C. C. 96 406 (1850) ; Cecil v. Dynes, 2 Ind. 
 
 (1846). 266 (1850) ; Greenman v. Pattisou, 8 
 
 « Danforth v. Coleman, 23 Wis. Blackf. (Ind.) 465 (1847) ; Darrow 
 
 528(1868). See Skelton V. Ward, v. Scullin, 19 Kan. 57 (1877); 
 
 61 Ind. 46 (1875) ; also anis § 204. Adams v. Essex, 1 Bibb (Ky.) 149 
 
 •AUen V. Parker, 11 Ind. 504 (1808); s. c. 4 Am. Dec. 623; 
 
 (1858). Eeddick v. Gressman, 49 Mo. 389
 
 740 
 
 DEFICIENCY HOW aSCEKT A I NED. 
 
 [§618. 
 
 the sale of the premises, and will continue liable for all 
 deficiency remaining unpaid. The amount of the deficiency 
 is to be ascertained by deducting from the proceeds of the 
 sale all taxes and other liens, together with the expenses of 
 the sale, and by treating the balance as net proceeds, which 
 must be credited upon the amount due on the bond and 
 mortgage for principal and interest ; the balance then remain- 
 ing unpaid will be the deficiency.' A purchase by the plain- 
 tiff will not vary the rule.* 
 
 It has been held that a defendant in an action in another 
 state to recover the balance of the mortgage debt, after a 
 foreclosure and sale of the mortgaged property in New 
 York, can not show that the real value of the property was 
 
 (1872) ; Bank v. Chester, 11 Pa. St. 
 282, 290 (1849); Scheibev. Keunedy, 
 64 Wis. 564, 567 (1875) ; ]Maniiing v. 
 McClurg, 14 Wis. 350 (1861). See 
 ante g 204. 
 
 ' See Sidenberg v. ^y, 90 N. Y. 
 257, 262-263 (1882); s. c. 43 Am. Rep. 
 163 ; Marshall v. Davics, 78 N. Y. 
 414 (1879) ; s. c. 58 How. (N. Y.) 
 Pr. 231, reversing 16 Hun (N. Y.) 
 606 ; Cornell v. Woodrulf, 77 N. Y. 
 203(1879); Williams v. Townsend, 
 31 N.Y. 411, 414(1865); Robinson v. 
 Ryan, 25 N. Y. 320 (1862) ; Eagle 
 Fire Ins. Co. v. Pell, 2 Edw. Ch. 
 (N. Y.) 631 (1836) ; Faure v. Wi- 
 nans, Hopk. Cli. ( N. Y. ) 283 
 (1824) ; s. c. 14 Am. Dec. 545 ; Bre- 
 voort V. Randolph, 7 How. (N. Y.) 
 Pr. 398 (1853) ; Weed v. Hornby, 35 
 Hun (N. Y.) 580, 582 (1885) ; Burr 
 V. Veeder, 3 Wend. (N. Y.) 412 
 (1829). See ante § 204. 
 
 * In the case of Cornell v. Wood- 
 ruff, 77 N.Y. 203(1879), by the judg- 
 ment in a foreclosure suit and by 
 the terms of sale, all liens upon the 
 premises for taxes and assessments 
 were to be deducted from the pro- 
 ceeds of the sale. The plaintiff be- 
 came the purchaser. The premises 
 
 were situated in the city of Brooklyn, 
 and at the time of the sale several 
 years' municipal taxes were in 
 arrears, for which the mortgaged 
 premises had been sold. Cerliticates 
 of sale had been issued, which were 
 held by the plaintiff. No lease had 
 been executed. After the foreclosure 
 sale, the plaintiff caused the amount 
 necessary to redeem the premises 
 from the tax sales to be deposited in 
 the proper otHce, and furnished to 
 the sheriff the certificate of deposit 
 and redemption, the amount of 
 which he deducted from the pur- 
 chase money as liens for taxes, and 
 reported a deficiency against the 
 mortgagor. Held no error ; that 
 the certificates of sale were liens 
 to the amount necessary to redeem, 
 i. e., the amount of taxes, expenses 
 of sale and interest at the rate 
 allowed by law upon such sales ; 
 and that the right to allow and 
 deduct from the proceeds of sale 
 the amount so necessary to redeem 
 was not affected by the fact that 
 the plaintiff himself held the cerliti- 
 cates.
 
 § 619.] WHEN DEFICIENCY DOCKETED. ^41 
 
 greater than the amount for which it was sold.' The judg- 
 ment in a foreclosure fixes the amount due on the obligation 
 and security, and is a final adjudication on that point ; and 
 no objections can be made to the issuing of an execution 
 for the deficiency, unless they arose after the confirmation 
 of the foreclosure sale and, recognizing the decree, tend to 
 the satisfaction of the judgment.' 
 
 Under the existing statutes of Wisconsin, a personal 
 judgment against the mortgagor for the whole amount of 
 the mortgage debt, or even for the deficiency after a sale 
 of the mortgaged property, can not be entered with the 
 decree of foreclosure, though such decree may include a 
 direction for a subsequent judgment of deficiency, if 
 demanded in the complaint. A judgment for deficiency can 
 be entered only after such deficiency has been duly ascer- 
 tained, and it can be ascertained only after the sale has been 
 made and confirmed. A judgment in violation of this rule 
 will be reversed.* 
 
 § 619. When judgment for deficiency may be docketed. 
 — In a mortgage foreclosure, a personal judgment can not 
 be rendered for the payment of any deficiency until the 
 amount of such deficiency has been ascertained by the officer 
 conducting the sale, and his report thereof has been con- 
 firmed by the court.* Whatever may be the form of the 
 debt, an absolute personal judgment for any deficiency can 
 not be rendered on foreclosure, but only a contingent judg- 
 ment against the defendants to the extent of any deficiency 
 which may remain after the sale of the mortgaged premises.* 
 
 It has been held that the court may make a contin- 
 gent decree for the payment of any deficiency against the 
 
 » Belmont v. Cornen, 48 Conn. How. (N. Y.) Pr. 66 (1852) ; Cor- 
 
 838 (1880). 
 
 merais v. Genella, 22 Cal. 116 
 
 « Haldane v. Sweet, 58 Mich. 429 (1863); Mickle v. Maxfield, 42 Mich. 
 
 (1885). 304 (1879); Howe v. Lemon, 37 
 
 « Welp V. Gunther, 48 Wis. 543 Mich. 164 (1877) ; Clapp v. Max- 
 
 (1879). well, 13 Neb. 542, 547 (1882). 
 
 * See Bache v. Doscher, 41 N. Y. ' Brown v. Willis, 67 Cal. 235 
 
 6upr. Ct. (9 J. & S.) 150 (1876); (1885). See Siewert v. Hamel, 33 
 
 DeAgreda v. Mantel, 1 Abb. (N. Y.) Hun (N. Y.) 44 (1884) ; Loeb v. 
 
 Pr. 130 (1854) ; Cobb v. Thornton, 8 Willis, 22 Hun (N. Y.) 508 (1880).
 
 742 DEFICIENCY JUDGMENT A LIEN. [§§ 620-621. 
 
 mortgagor, or other party personally liable for the mortgage 
 debt, previous to the sale or after it, without waiting for the 
 confirmation of the report of sale.' 
 
 § 620. When judgment for deficiency becomes a lien. 
 — A personal decree for the deficiency, after the application of 
 the proceeds of the sale to pay the mortgage debt, does not 
 have the force and effect of a judgment at law and become 
 a lien upon the real property of the person against whom it 
 is taken, until the excess of the mortgage debt over the pro- 
 ceeds of the sale has been ascertained and a subsequent 
 judgment at law has been docketed.* But it has been held 
 in Indiana, that whenever in a proceeding to foreclose a 
 mortgage, the plaintiff is entitled to a personal judgment, 
 and an order made under the statute, that after the sale of 
 the mortgaged premises, the residue of the judgment 
 remaining unpaid, shall be levied on other property of the 
 mortgagor, the judgment is from the date of its rendition 
 a lien on all the lands of the mortgagor in the county.* In 
 California, such a judgment becomes a lien upon the property 
 of the debtor only from the time it is docketed.* 
 
 § 621. Execution for deficiency. — Upon the usual decree 
 for the amount of the deficiency against the mortgagor or 
 other defendant personally liable for the mortgage debt, an 
 execution can not regularly issue prior to the filing and con- 
 firmation of the report of the officer making the sale.* Upon 
 the coming in of the report of the referee, from which the 
 
 ' McCarthy v. Graham, 8 Paige « Fletcher v. Holmes, 25 Ind. 458 
 
 Ch. (N. Y.) 480 (1840). But see (1865). 
 
 Cobb V. Thornton, 8 How. (N. Y.) * Cormerais v. Genella, 22 Cal. 
 
 Pr. 66 (1853). 116 (1863). See Rowe v. Table 
 
 'Mutual Life Ins. Co. v. South- Mountain Water Co., 10 Cal 441 
 
 ard, 25 N. J. Eq. (10 C. E. Gr.) 337 (1858) ; Rollins v. Forbes, 10 CaL 
 
 (1874) ; Bell v. Gilmore, 25 N. J. Eq. 299 (1858). 
 
 (10 C. E. Gr.) 104 (1874). See also ^ Bank of Rochester v. Emerron. 
 
 DeAgreda v. Mantel, 1 Abb. (N. Y.) 10 Paige Ch. (N. Y.) 115 (1843) ; 8. 
 
 Pr. 130 (1854) ; Cobb v. Thornton, 8 c. 10 Paige Ch. (N. Y.) 359. Se« 
 
 How. (]SI.Y.)Pr. 66(1852); Englund Bache v. Doscher, 41 K Y. Supr. 
 
 V.Lewis, 25 Cal. 337(1864); Chapin Ct. (9 J. & S. ) 150 (1876), 
 
 V. Broder, 16 Cal. 403 (1860) ; N. Y. Cobb v. Thornton, 8 How. (N. Y.) 
 
 Code Civ. Proc. §§ 1246, 1250. Pr. 66 (1852) ; Hanover Fire Ins.
 
 § 622.] EXECUTION FOE DEFICIENCY. 743 
 
 amount of the deficiency is ascertained, it is not necessary 
 to apply to the court for judgment against the mortgagor 
 for such deficiency. The execution may be issued directly 
 on the judgment of foreclosure.* 
 
 An execution for the deficiency on a foreclosure should not, 
 as a rule, be issued without special application to the court 
 upon notice to the defendant.' The decree in foreclosure 
 making a defendant personally liable for any deficiency, taken 
 together with the referee's report of the amount of such 
 deficiency, furnishes a prima facie case against such de- 
 fendant ;* but a defendant may resist an execution against 
 him by showing objections which are not contradictory to 
 the decree and which would operate to effect its satisfaction.* 
 
 § 622. Miscellaneous matters connected with judg- 
 ments for deficiency. — Many matters intimately associated 
 with judgments for deficiency, which would seem to belong 
 to this chapter, have already been fully considered in an 
 earlier part of the work on parties defendant personally 
 liable for the mortgage debt.* They are for that reason 
 omitted here. Among such matters may be mentioned the 
 remedies for collecting a deficiency against the estate of a 
 decedent who was personally liable for the payment thereof ;' 
 the remedies against the heirs and devisees of such a dece- 
 dent ;* the liability of the estates of married women for the 
 payment of deficiencies arising on their personal obligations 
 for the payment of mortgage debts ;* the history of the 
 procedure for enforcing the collection of deficiencies ;* and 
 technical points connected with the complaint and the 
 decree of sale." 
 
 Co. V. Tomlinson, 3 Hun (N. Y.) ' Ransom v. Sutherland, 46 Mich. 
 
 630 (1875) ; Tormey v. Gerhart, 41 489 (1881). 
 
 Wis. 54 (1876) ; Baird v. McConkey, * Ransom v. Sutherland, 46 Mich. 
 
 20 Wis. 297 (1866). 489 (1881). 
 
 • Bicknell v. Byrnes 23 How. (N. * See ante chap. xxi. 
 
 Y.) Pr. 486, 490 (1862) ; Moore v. » See ante §§ 213-216, 238. 
 
 Shaw, 15 Hun (N. Y.) 428 (1878). ' See anU §§ 215, 216. 
 
 « McCrickett v. Wilson, 50 Mich. « See ante §§ 209-212, 237. 
 
 513 (1883) ; Gies v. Green, 42 Mich. » See ante §§ 194-199. 
 
 107 (1879) ; Clapp v. Maxwell, 13 •<> See ante %% 200-204. 
 
 Neb. 542 (1882).
 
 CHAPTER XXX. 
 
 RECEIVER— PRACTICE ON APPOINTMENT. 
 
 NATURE AND OBJECT OF OFFICK-MODES OF APPOINTMENT- APPLI- 
 CATION FOR - WHAT MUST BE SHOWN - APPOINTMENT BY 
 REFEREE-ORDER APPOINTING— RIGHTS, POWERS, DUTIES. 
 
 § 633. Introfluctory-Right of mort- 
 gagor to rents and prolJts. 
 
 624. Nature of office of receiver. 
 
 625. Object of office of receiver. 
 
 626. Appointment of receiver. 
 
 627. When receiver will be ap- 
 
 pointed — Prima facie case. 
 
 628. Rules for the appointment of 
 
 a receiver. 
 
 629. Modes of appointment. 
 
 G30. Jurisdiction of the court to 
 appoint a receiyer. 
 
 631. Doctrine in various states. 
 
 632. Appointment of receiver by 
 
 federa,! courts. 
 
 633. Manner of appointing receiver 
 
 — Motion or petition. 
 
 634. Appointment of receiver by 
 
 the court. 
 
 635. On what papers application 
 
 for receiver made. 
 
 636. Notice of application for 
 
 receiver. 
 
 637. Appointment of receiver on 
 
 ex parte application. 
 
 638. What the application must 
 
 show. 
 
 639. Objections to appointment of 
 
 receiver. 
 
 640. Appointment of receiver by 
 
 referee or master. 
 
 § 641. Report of referee or master. 
 
 642. Order of appointment on re- 
 
 port of referee recommend- 
 ing proper person. 
 
 643. Order of appointment by 
 
 referee. 
 
 641. Order of appointment by 
 court — Appeals. 
 
 615. Contents of order appointing 
 
 receiver — Powers defined — 
 Property described. 
 
 616. Proposal of names for re- 
 
 ceiver. 
 
 647. Ineligibility to be appointed 
 
 a receiver. 
 
 648. From wliat time a receiver 
 
 considered as appointed. 
 
 619. Bond of receiver. 
 
 650. Effect of appointment of 
 
 receiver. 
 
 651 . JuHsdiction of recelTer. 
 
 653. Nature of receiver's posses- 
 sion. 
 
 653. Rights and powers of re- 
 
 ceivers. 
 
 654. Rights and duties of receiTers. 
 
 655. Rents bound from date of 
 
 appointment of receiver. 
 
 656. Personal liability of receivers. 
 
 § 623. Introductory — Right of morlgagor to rents and 
 profits. — In those states where the right of entry by the 
 mortgagee has been abolished by statute, the mortgagor is 
 entitled, both in law and in equity, to the complete enjoy- 
 ment of the mortgaged premises, and of the rents and 
 profits thereof, unless such rents and profits have been 
 
 7-W
 
 § 624.] INTEODirCTORT. 
 
 T45 
 
 pledged, by an express stipulation in the mortgage, for the 
 payment of the debt/ And where no proceedings are 
 instituted for the appointment of a receiver to take charge of 
 the rents and profits, the right of the mortgagor to receive 
 them will continue until it is divested by a foreclosure and 
 sale, and even after a sale, until the purchaser becomes 
 entitled to the possession of the premises under the referee's 
 deed ;' such right will be terminated only upon producing to 
 the occupant of the premises the deed of the referee or other 
 officer conducting the sale.* 
 
 But, in all cases where the security is insufficient, and the 
 mortgagor, or other party who is personally liable for 
 the payment of the debt, is insolvent, the mortgagee may 
 have a receiver appointed to take charge of the mortgaged 
 premises and of such of the rents and profits as have not 
 yet been collected, unless the mortgagor or other person 
 entitled to the possession gives security to account for the 
 rents and profits, in case there is a deficiency.* 
 
 § 624. Nature of office of receiver.— A receiver is a 
 disinterested person, as between the parties to a foreclosure, 
 appointed to collect the rents, issues and profits of the 
 
 > Syracuse City Bank v. Tallman, Hun (N. T.) 183, 186 (1879) ; Astor 
 
 81 Barb. (N. Y.) 201, 208 (1857); v. Turner, 11 Paige Ch. (N. Y.) 436 
 
 Zeiter v. Bowman, 6 Barb. (N. Y.) (1845); s. c. 43 Am. Dec. 766 ; Howell 
 
 133, 139 (1849) ; Ensign v. Colburn, v. Ripley, 10 Paige Ch. (N. Y.) 43 
 
 • 11 Paige Ch. (N. Y.) 503 (1845) ; (1843) ; Clason v. Corley, 5 Sandf . 
 
 Howell V. Ripley, 10 Paige Ch. (N. (N. Y.) 447 (1852); Lofsky v. :Maujer, 
 
 T.) 43 (1843) ; Bank of Ogdensburg 3 Sandf. Ch. (N. Y.) 69 (1845). 
 
 V. Arnold, 5 Paige Ch. (N. Y.) 38, » N. Y. Supreme Court Rule 61. 
 
 41 (1835). See ante % 588. See Clason v. Corley, 5 Sandf. (N. 
 
 8 See Argall v. Pitts, 78 N. Y. 239 Y.) 447 (1852). 
 
 (1879) ; iMitchell v. Bartlett, 51 N. ■• Syracuse City Bank v. Tallman, 
 
 Y. 447 (1873) ; Cheney v. Woodruff, 31 Barb. (N. Y.) 201 (1857) ; Shot- 
 
 45 N. Y. 98, 101 (1871) ; Whalin v. well v. Smith, 3 Edw. Ch. (N. Y.) 
 
 White, 25 N. Y. 462, 465 (1862); 588(1842); Smith v. Tiffany, 13 Hun 
 
 GUes 'v. Comstock, 4 N. Y. 270, (N. Y.) 671 (1878) ; Astor v. Turner, 
 
 275 (1850) ; B. c. 53 Am. Dec. 347 ; 11 Paige Ch. (N. Y.)436 (1845) ; s. c. 
 
 >Iiuer V. Beekman, 11 Abb. (N. Y.) 43 Am. Dec. 766 ; Howell v. Ripley, 
 
 Pr. "N. S. 147, 152 (1870) ; 8. c. 42 10 Paige Ch. (N. Y.) 43 (1843) ; Sea 
 
 How (N. Y.) Pr. 33, 37 ; 33 N. Y. Ins. Co. v. Stebbins, 8 Paige Ch. 
 
 Supr. Ct. Rep. (1 J. & S.) 67, 77; (N. Y.) 565(1841); Main v. Ginthert, 
 
 Peck V. Knickerbocker Ice Co., 18 92 Ind. 180 (1883); Connelly v.
 
 746 
 
 NATUPvE OF OFFICE OF KECEIVER. 
 
 [§ 624. 
 
 mortgaged premises pending the suit,' where it does not 
 seem just and prudent to the court that any of the parties 
 to the action should be permitted to collect them.' 
 
 It is the duty of a receiver to take charge of the prop- 
 erty pending the litigation ; to preserve it from waste or 
 destruction ; to receive the rents and profits, and to dispose 
 of them under the direction of the court.' Pie is simply to 
 protect and care for the property or the fund entrusted to 
 him,* and to make no disposition of it until directed by the 
 court, from which alone he derives his authority,* 
 
 He is a ministerial officer of the court,' and his term of office 
 continues only during the pendency of the suit, unless it is 
 otherwise directed by the order appointing him.' He is the 
 mere hand of the court in the management of the property 
 or the fund.' His appointment is on behalf of all the parties 
 to the action,' and not of the plaintiff or the defendant only ;'" 
 
 Dickson, 76 Ind. 440 (1881) ; Myers 
 V. Estell, 48 Miss. 373 (1873). 
 
 ' Wliere a court ordered money 
 raised by attachment to be deposited 
 with a designated banker, upon con- 
 dition that he pay seven per centum 
 interest thereon while in his hands, 
 it was held that such banker was 
 not a receiver. Coleman v. Salis- 
 bury, 52 Ga. 470 (1874). 
 
 * Chautauqua County Bank v. 
 White, 6 Barb. (N. Y.) 589, 597 
 (1849) ; Booth v. Clark, 58 U. S. (17 
 How.) 323, 331 (1854); bk. 15 L. 
 ed. 164 ; Edw. on Rec. 2 ; Wyatfs 
 Practice Reg. 355; Dan. Ch. Pr. 
 1552; 2 Barb. Ch. Pr. (2d ed.) 658. 
 
 ^ Green v. Bostwick, 1 Sandf. Ch. 
 (N. Y. ) 185 ( 1843 ) ; Beverley v. 
 Brooke, 4 Gratt. (Va.) 187 (1847); 
 Booth V. Clark, 58 U. S. (17 How.) 
 323, 331 (1854) ; bk. 15 L. ed. 164. 
 
 * A receiver is not a trustee of an 
 express trust. Fichtenkamm v. 
 Games, 68 Mo. 289 (1878). 
 
 * Lottimer v. Lord, 4 E. D. 
 Smith (N. Y.) 183 (1855). 
 
 « Field V. Jones, 11 Ga. 418 (1852); 
 Maguire v. Allen, 1 Ball & B. 75 
 (1809); Bryan v. Cormick, 1 Cox 
 Ch. 422, 423 (1788) ; Angel v. Smith. 
 
 9 Ves. 335 (1804). 
 
 ' Weems v. Lathrop, 43 Tex. 207 
 (1875) ; j\Ieier v. Kansas Pac. Ry. 
 Co., 5 Dill. C. C. 476 (1878) ; 8. c. 6 
 Rep. 642. 
 
 * Richards v. Chesapeake & O. R. 
 R. Co.. 1 Hughes C. C. 28 (1877); 
 VanRensselaer v. Emery, 9 How. (N. 
 Y.) Pr. 135 (1854). 
 
 ' But he represents no interest of 
 a stranger to the suit in which he 
 was appointed. Howell v. Ripley, 
 
 10 Paige Ch. (N. Y.) 43 (1843). 
 
 '" See Davis v. Marlborough, 2 
 Swans. 113, 125 (1818) ; Hutchinson 
 v. Massareene, 2Ball & B. 55 (1811). 
 Junior mortgagees may, however, 
 by superior diligence in having a 
 receiver appointed, acquire a senior 
 right to the rents and profits col- 
 lected. See Post V. Dorr, 4 Edw. 
 Ch. (N. Y.) 412 (1844); Howell 
 V. Ripley, 10 Paige Ch. ( N.
 
 § 625.] 
 
 OBJECT OP OFFICE OF EEOEIVEB, 
 
 74:7 
 
 and for the benefit of all who may establish an interest in 
 the property.* 
 
 § 625. Object of office of receiver. — The object of 
 obtaining the appointment of a receiver is generally to gain 
 a priority of lien on the rents and profits of the premises, so 
 that the court will have the power of directing their appli- 
 cation to the payment of the plaintiff's claim ;' a receiver 
 can not properly be appointed where the court does not 
 have such power.* The immediate and actual cause for the 
 appointment of a receiver in a foreclosure, is to secure 
 the rents and profits of the mortgaged premises in advance 
 of the final judgment, in order that they may be applied 
 towards any deficiency that may exist between the amount 
 of the incumbrances and the amount for which the property 
 may sell under the foreclosure. Courts have no authority 
 to interfere with the mortgagor's right to receive the rents 
 and profits of the mortgaged property, unless such rents and 
 profits, as well as the property, have been pledged as security 
 for the debt,* or unless the security is clearly insufficient.* 
 
 Y.) 43 (1843); Miltenberger v. 
 Logansport R. R. Co., 106 U. 8. 
 (16 Otto), 286 (1882) ; bk. 37 L. ed. 
 117; s. c. 1 Sup. Ct. Rep. 140; 
 Thomas v. Brigstocke, 4 Russ. Ch. 
 64 (1827). 
 
 > Porter v. Wimams, 9 N. Y. 142 
 (1853) ; s. c. 59 Am. Dec. 519. See 
 Curtis V. Leavitt, 15 N. Y. 9 (1857) ; 
 GUlet V. Moody, 3 N. Y. 479 (1857); 
 Booth V. Clark, 58 U. S. (17 How.) 
 823, 331 (1854) ; bk. 15 L. ed. 164 ; 
 Davis V. Marlborough, 2 Swans. 
 113, 125 (1818). 
 
 * Evans v. Coventry, 3 Drew. 80 
 (1854); Tullett v. Armstrong, 1 
 Keen, 428 (1836) ; Owen v. Homan, 
 4 H. L. 1032 (1858). 
 
 » Howell V. Ripley, 10 Paige Ch. 
 (N. Y.) 43 (1843); Evans v. Coventry, 
 8 Drew. 80 (1854); Wright v. Vernon, 
 8 Drew. 121 (1855). Yet a receiver is 
 sometimes appointed to take charge 
 
 of property in which a stranger has an 
 interest. Vincent v. Parker, 7 Paige 
 Ch. (N. Y.) 65 (1838). In such a 
 case the court will, from time to 
 time, make such orders as will pro- 
 tect the rights of the third party. 
 Vincent v. Parker, 7 Paige Ch. (N. 
 Y.) 65 (1838). 
 
 * See Syracuse City Bank v. Tall- 
 man, 31 Barb. (K Y. ) 201, 208 
 (1857) ; Zeiter v. Bowman, 6 Barb. 
 (K Y.) 133. 139 (1849) ; Ensign v. 
 Colbum, 11 Paige Ch. (N. Y.) 503 
 (1845) ; Howell v. Ripley, 10 Paige 
 Ch. (N. Y.) 43 (1843) ; Bank of 
 Ogdensburg v. Arnold, 5 Paige Ch. 
 (N. Y.) 38, 41 (1835). 
 
 * Shotwell V. Smith, 3 Edw. Ch. 
 (N. Y.) 588 (1842) ; Bank of Ogdens- 
 burg V. Arnold, 5 Paige Ch. (N. Y.) 
 38 (1835) ; Quincy v. Cheeseman, 4 
 Sandf. Ch. (N. Y.) 405 (1846).
 
 748 APPOLNTMENT OF RECEIVER. [§§ 626-627. 
 
 A receiver stands indifferent between the parties.' and is 
 in no sense accountable or subject to the control of any 
 party to the suit ;' he is to be guided only by the order 
 appointing him, and by the rules and practice of the court.* 
 As he represents all the parties, it is his duty to act in all 
 things with a view to the equitable rights of all parties inter- 
 ested, and to protect the property and funds in his hands to 
 the best of his ability.* 
 
 §626. Appointment of receiver. — The plaintiff in a 
 foreclosure is entitled to the appointment of a receiver of 
 the rents and profits of the mortgaged premises pending the 
 suit,* where it is highly probable that the premises will not, 
 upon a sale thereof under a decree of foreclosure, bring a 
 sufficient sum to pay the debt and the costs of the suit, and 
 the mortgagor, or other party who is personally liable for the 
 debt, is insolvent.* 
 
 A receiver will be appointed only on the application of a 
 person who has an acknowledged interest in the suit ;' 
 his appointment will continue during the pendency of the 
 suit, unless his term of ofifice is limited by the order appoint- 
 ing him.* 
 
 § 627. When receiver will be appointed — Prima facie 
 case. — To entitle a mortgagee to the appointment of a 
 receiver, it must appear that the mortgaged premises are an 
 
 > Vermont & C. R. R. Co. v. Ver- * Iddings v. Bruen, 4 Sandf. Ch. 
 
 mont Cent. R. R. Co. 34 Vt. 1 (N. Y.) 417 (1846) ; Lottimer v. 
 
 (1861). Lord, 4 E. D. Smith (N. Y.) 183 
 
 "Libby v. Rosekrans, 55 Barb. (1855). 
 
 (N. Y.) 203 (1869); Musgrove v. ^ In California the plaintiff for- 
 
 Nash, 3 Edw. Ch. (N. Y.) 172 (1837); merly had no right to have a receiver 
 
 Lottimer v. Lord, 4 E. D. Smith of the rents and profits of the land 
 
 (N. Y.) 183 (1855); Baker V. Backus, appointed pending a foreclosure. 
 
 32 111. 79 (1863) ; Booth v. Clark, 58 Guy v. Ide, 6 Cal. 79 (1856) ; 8. c. 65 
 
 TJ. S. (17 How.) 323, 331 (1854) ; bk. Am. Dec. 490. 
 
 15 L. ed. 164. e j^^^^y y Turner, 2 Barb. (N. Y.) 
 
 « Musgrove v. Nash, 3 Edw. Ch. 444 (1848) ; s. c. 3 How. (N. Y.) Pr. 
 
 (N. Y.) 172 (1837). See Broad v. 225 ; Sea Ins.Co.v. Stebbins, 8 Paige 
 
 Wickham, M. S. S. Case, (1831), Ch. (N. Y.) 585 (1841) ; 3 Barb. Ch. 
 
 cited in 1 Smith's Ch. Pr. 500; 1 Pr. (2d ed.) 293. See ante % 623. 
 
 VanSant Eq. Pr. 375. ' Chases Case, 1 Bland. Ch. (Md.)
 
 § 627.] 
 
 WHEN EECEIVEB APPOINTED. 
 
 749 
 
 insufficient security for the debt, and that the mortgagor, or 
 other party personally liable for the debt, is insolvent.* A 
 receiver should be appointed only where there is a real 
 necessity for it.' In an action by a mortgagor to redeem, a 
 receiver will not be appointed as against the mortgagee in 
 possession, as long as there is a balance due him on the 
 mortgage debt, unless he is mismanaging the property.* 
 
 Receivers in mortgage foreclosures are appointed with 
 great caution,* and it is only in clear cases that they will be 
 appointed at all,* as where the rights of a suitor are appar- 
 ently well established and can be preserved, pending the 
 suit, only by a receiver.* 
 
 The right to the relief does not grow out of the legal 
 relations of the parties, nor out of the stipulations in the 
 mortgage, but out of equitable considerations alone. The 
 appointment of a receiver in a mortgage foreclosure is not a 
 
 213(1826); s. C. 17 Am. Dec. 277; 
 Williams v. Wilson, 1 Bland. Ch. 
 (Md.) 421 (1826). 
 
 • Weemes v. Lathrop, 42 Tex, 207 
 (1875). See ante % 624. 
 
 ' Burlingame v. Parce, 12 Hun 
 (N. Y.) 148 (1877) ; Frelinghuysen 
 V. Golden, 4 Paige Ch. (N. Y.) 204 
 (1833). Under the Michigan statute, 
 Comp. L. §§ 62, 63, a mortgagee is 
 excluded from possession until he 
 acquires an absolute title. Whether 
 or not a clause in the mortgage, giv- 
 ing him possession in case of default, 
 can be carried into effect in view of 
 this provision, by appointing a re- 
 ceiver on foreclosure, it certainly 
 can not be done until after default, 
 and it would even then be a matter of 
 discretion. Beecher v. Marq. & Pac. 
 Rolling Mill Co., 40 Mich. 307 
 (1879). 
 
 * Quincy v. Cheeseman, 4 Sandf. 
 Ch. (N. Y.) 405 (1846) ; McLean v. 
 Presley, 56 Ala. 211 (1876) ; First 
 Nat. Bank v. Gage, 79 111. 207 
 (1875) ; Callahan v. Shaw, 19 Iowa. 
 
 188 (1865); Oldham v. First Nat. 
 Bank, 84 N. C. 304 (1881) ; Mor- 
 rison V. Buckner, Hempst. C. C. 
 442 (1843). 
 
 * Patten v. Accessory Transit Co., 
 4 Abb. (N. Y.) Pr. 237 (1857) ; Bol- 
 les V. Dufi, 35 How. (N. Y.) Pr. 481 
 (1867); Boston, &c., R. R. Co. v. 
 New York, «&c., R. R. Co., 12 R. I. 
 220 (1878) ; Rowe v. Wood, 2 Jac. 
 & W. 553 (1822) ; Berney v. Sewell, 
 1 Jac. & W. 647 (1820) ; QuarreU v. 
 Beckford, 13 Ves. 377 (1807). 
 
 * Warner v. Gouverneur, 1 Barb. 
 (N. Y.) 36 (1847); Shotwell v. Smith, 
 3 Edw. Ch. (N. Y.) 588 (1842) ; Sea 
 Ins. Co. V. Stebbins, 8 Paige Ch. 
 (N. Y.) 565 (1841) ; Jenkins v. Hln- 
 man, 5 Paige Ch. (N. Y.) 309 (1835); 
 Frelinghuyssn v. Golden, 4 Paige 
 Ch. (N. Y.) 204 (1833). 
 
 *Hand v. Dexter, 41 Ga. 454 
 (1871). See Sales v. Lusk, 60 Wis. 
 490 (1«84). 
 
 ^ Overton v. Memphis & L. R. R. 
 Co.. 3 McCr. C. C. 436 (1882) ; 8. c. 
 10 Fed. Rep. 866.
 
 750 
 
 "WHEN KECEIVER ArrOINTED. 
 
 [§ r,28. 
 
 matter of strict or absolute right, but is purely an equitable 
 one, and is always addressed to the sound discretion of the 
 court,' to be governed by all the circumstances of the 
 case.* The plaintiff must always set forth a prima /arte 
 case,* and a probable right to the property which is the 
 subject matter of the litigation or foreclosure.* 
 
 § 628. Rules for the appointment of a receiver. — No 
 positive and unvarying rule can be laid down as to when a 
 court will or will not interfere by this kind of interim pro- 
 tection of the property.* Where the evidence on which the 
 court is to act, is very clearly in favor of the plaintiff, there 
 should be no hesitancy about interfering ; but where the 
 evidence is weak there will, of course, be more difficulty. 
 The question is one of degree, and it is, therefore, impossible 
 to state any precise and unvarying rules.' 
 
 A receiver should not be appointed in any instance unless 
 the plaintiff makes out 2i prima facie case, and unless it also 
 appears that the property is in danger of being lost or 
 materially injured before the final judgment is entered in the 
 action.' In some cases, the propriety of appointing a 
 
 ' See Rider v. Bagley, 84 N. Y. 461 
 (1881) ; Syracuse Bank v. Tallman, 
 31 Barb. (N. Y.) 201 (1857) ; The 
 Orphan Asylum v. McCartce, 
 Hopk. Ch. (]S.'Y. ) 429 (182.5); 
 "Verplank v. Caines, 1 Johns. Ch. 
 (N. Y.) 57 (1814) ; Pullau v. Cincin- 
 nati & C. A. L. R. R. Co., 4 Biss. 
 C. C. 35 (1865) : Crane v. McCoy, 1 
 Bond C. C. 422 (1860); Vose v. 
 Reed, 1 'Wood C. C. 647 (1871). See 
 Copper Hill Mining Co. v. Spencer, 
 25 Cal. 11, 13 (1864) ; West v. Chas- 
 ten. 12 Fhi. 315, 332 (186S) ; Ben- 
 neson v. Bill, 62 Til. 408(1872); Con- 
 nelly V. Dickson, 76 Ind. 440 (1881); 
 Jacobs V. Gibson, 9 Neb. 380(1879); 
 Oakley v. Patterson Bank, 2 N. J. 
 Eq. (1 H. W. Green), 181 (1839); Sloan 
 V. Moore, 37 Pa. St. 217 (1860); Cone 
 V. Paute, 12 Heisk. ( Tenn. ) 506 
 (1873) ; Sales v. Lusk, 60 Wis. 490 
 
 (1884) ; ilihvavikee & M. R. R. Co. 
 V. Soulter. 69 U. S. (2 AVall.) 510 
 (1864) ; bk. 17 L. ed. 900 ; Owen v. 
 Ilonian, 3 Mac. & G. 378 (1851) ; 
 Skip V. liar wood, 3 Atk. 564 (1747). 
 
 * Proof of the in^^olvency of the 
 party personally liable for the pa^'- 
 nient of the mortgage debt is not 
 always required. Ponder v. Tate, 
 96 Ind. 330 (1884). 
 
 * Copper Ilill Alining Co. v. Spen- 
 cer, 25 Cal. 16 (18G4); Owen v. 
 Hnman, 3 Mac. & G. 378 (1851). 
 
 ■» Saylor v. Mockbie, 9 Iowa, 209 
 (1859).' 
 
 * Kerr on Rec. 4. 
 
 * Owen V. Homan, 4 II. L. 1033 
 (1853); Gray v. Chaplin, 2 Russ. 
 145 (1826). 
 
 ' Hamilton v. The Accessory Tran- 
 sit Co., 3 Abb. (N. Y.) Pr. 255 
 (1856) ; 8. c. 13 How. (N. Y.) Pr. 108.
 
 § 628.] EULES FOR APPODHTN'G EECEIYEE. Tol 
 
 receiver can not be determined until the trial.' As a general 
 rule, a receiver will be appointed in every case where the 
 interests of the parties seem to require it." 
 
 In no case of a mortgage foreclosure should a receiver be 
 appointed, if it is clear that on a forced sale of the mort- 
 gaged property, it will bring an amount sufficient to pay the 
 debt, costs and expenses of the suit ;' nor in general, if 
 the mortgagor, or other party personally liable for the 
 payment of the debt, is solvent/ But an application should 
 be denied on the merits only, and not on merely technical 
 grounds.* 
 
 The appointment of a receiver must in all cases be dis- 
 pensed with, if the defendant, who is in possession of the 
 premises, gives security to account for the rents and profits, 
 in case there is a deficiency upon the sale under the decree 
 of foreclosure.* 
 
 In determining whether a receiver of the rents and profits 
 of mortgaged premises shall be appointed, the court must 
 deal with the cause as it appears from the pleadings and 
 evidence and stands upon the record.^ If the court is satisfied 
 from the evidence before it, that it is necessary or expedient 
 to preserve the property and to accumulate the rents, issues 
 and profits thereof until the trial, a case will be made out for 
 the appointment of a receiver.* 
 
 > Verplank v. Caines, 1 Johns. Ch. * Sea Ins. Co. v. Stebbins, 8 Paige 
 
 (N. Y.) 57 (1814). Ch. (N. Y. ) 565 ( 1841 ) ; Bank of 
 
 * Crane v. McCoy, 1 Bond C. C. Ogdensburg v. Arnold, 5 Paige 
 422(1860). Ch. (N. Y.) 38 (1835) ; Frelinghuy- 
 
 » Shotwell V. Smith, 8 Edw. Ch. sen v. Colden, 4 Paige Ch. (N. Y.) 
 
 (N. Y.) 588 (1842) ; Burlingame v. 204 (1833). 
 
 Parce, 12 Hun (N. Y.) 144 (1877) ; ' Silver v. Nonvich, 3 Swans. 112 
 
 Pullan V. Cincinnati & C. A. L. R. n (1816) ; Skinner's Society v. Irish 
 
 R. Co., 4 Biss. C. C. 35 (1865). Society, 1 M. & C. 164(1836); Evans 
 
 * Syracuse City Bank y. Tallman, v. Coventry, 5 DeG. M. & G. 911, 
 31 Barb. (N. Y.) 201 (1857) ; Jen- 918 (1854) ; 8. c. 31 Eng. L. & Eq. 
 kins v. ffinman, 5 Paige Ch. (N. Y.) 436. 
 
 809 (1835). * Hugonin v. Basely, 13 Ves. 107 
 
 * Patten v. Accessory Transit Co., (1806) ; Davis v. JIarlborough, 3 
 4 Abb. (N. Y.) Pr. 235 (1857) ; Svrans. 138 (1819); Owen v. Homan, 
 Evans v. Coventry, 5 DeG. M. & G. 3 Mac. «& G. 412 (1851) ; s. c. 4 H. 
 911 (1854); 8. c. 31 Eng. L. &Eq. 436. L. 1033; Whitworth v. "Whyddon, 3
 
 752 APPOINTTNG EECEIVEr.. [§§ 629-630. 
 
 § 629. Modes of appointment. — The appointment of a 
 receiver may be made in either of three ways: (i) He 
 may be appointed by an order made directly by the court 
 on a motion for a receiver, by naming the person to be 
 receiver, prescribing the amount of his bond and the number 
 of his sureties, and stating his duties in general terms ; or, 
 if the decision of the court is reserved on the argument of 
 the motion, and is filed subsequently, then, by giving a brief 
 general direction in the decision as to the form of the order, 
 naming the receiver in blank, to be filled in by the judge 
 himself, if the parties do not agree upon a receiver on notice 
 of settlement ;' (2) the appointment of a receiver may also 
 be made on the confirmation of the report of a referee* 
 appointed by the court to hear the application and to report 
 a proper person ;' (3) it may be made by a referee authorized 
 by the court to appoint a receiver.* The latter was formerly 
 the more usual course and practice.* 
 
 § 630. Jurisdiction of the court to appoint a receiver. 
 — A court has no jurisdiction to appoint a receiver except 
 in an action which is pending,' unless, perhaps, in a case 
 where the defendant designedly avoids service of the pro- 
 cess.'' A judge has no power in vacation to appoint a 
 receiver ;* neither has a clerk of the court power to approve 
 
 Mac. & G. 55 (1850) ; Clegg v. Fish- « 3 Wait Pr. 230. 
 
 wick, 1 Mac. & G. 299 (1849). « Hardy v. McClellan, 53 Miss. 
 
 > 1 VanSant. Eq. Pr. 405. 507(1876); Anon., 1 Atk. 489(1738); 
 
 ' The referee is a substitute in Wyatt's Prac. Reg. 356. 
 
 New York for the former master in ' Sandford v. Sinclair, 3 Edw. Ch. 
 
 chancery. Wetter v. Schlieper, 7 (N. Y.) 393 (1840) ; Quinn v. Gunn, 
 
 Abb. (N. Y.) Pr. 92 (1854). 1 Hogan. 75 (1817). 
 
 » Attorney - General v. Bank of * Newman v. Hammond, 46 Ind. 
 
 Columbia, 1 Paige Ch. (N. Y.) 511 119 (1874). It was said by the 
 
 (1829) ; 2 Barb. Ch. Pr. (2d ed.) 311, supreme court of the United States 
 
 812. in the case of Hammock v. Loan & 
 
 * The selection and appointment of Trust Co., 105 U. S. (15 Otto), 77 
 
 a receiver, and the taking of security (1881); bk. 26 L. ed. 1111, that a 
 
 from him, are proper matters of refer- judge of a circuit court of Blinoia 
 
 ence under the Code, as they were can not appomt a receiver in vaca- 
 
 under the former practice in chan- tion. 
 eery. Wetter v. Schlieper, 7 Abb. 
 (N. Y.) Pr. 92 (1854).
 
 § 630.] JURISDICTION^ OF COUKT TO APPOINT. 753 
 
 a receiver's bond in vacation.* A court commissioner has no 
 jurisdiction to appoint a receiver." Neither should a receiver 
 be appointed by a judge in chambers. The appointment 
 must, in all cases, be made by the court.* 
 
 Where property has been lawfully placed under the cus- 
 tody and control of a receiver by a court having authority 
 to appoint him, no other court will have any right to inter- 
 fere with such receiver, unless it is some court which has a 
 direct supervisory control over the court under whose pro- 
 cess the receiver first took possession, or which has a 
 superior jurisdiction in the premises.* Where a state 
 court, with full jurisdiction, has properly appointed a 
 receiver and he is in possession of the property, a federal 
 court will have no such superior jurisdiction or supervisory 
 power as to warrant its interference with such receiver's 
 custody and control of the property;' and, consequently, 
 a United $tates court will not appoint a receiver to take 
 possession of property already ordered to be delivered to a 
 receiver appointed by a state court.' 
 
 A receiver appointed by a state court over mortgaged 
 premises in an action for foreclosure, can not be dispossessed 
 or interfered with by an assignee in bankruptcy, subsequently 
 appointed in a federal court over the mortgagor's estate/ 
 
 ' Newman v. Hammond, 46 Ind. U. S. (8 How.) 107, 112 (1850); bk. 
 
 (1874). 12 L. ed. 1007 ; Peck v. Jenness, 48 
 
 * Quiggle V. Trumbo, 56 Cal. 626 U. S. (7 How.) 612, 625 (1849) ; bk. 
 (1880). 12 L. ed. 841 ; In re Clark, 4 Ben. 
 
 » Ireland v. Nichols, 7 Robt. (N. D. C. 88, 97-98 (1870). 
 
 Y.)476 (1868) ; s. c. 37 How. (N. Y.) » Davis v. Alabama & F. R. R. 
 
 Pr. 22. Co., 1 Woods C. C. 661 (1873) ; In 
 
 * Buck V. Colbath, 70 U. S. (3 re Clark, 4 Ben. D. C. 88 (1870) ; 
 Wall.) 334 (1865); bk. 18 L. ed. 257. Alden v. Boston H. & E. R. R. Co., 
 See Freeman v. Howe, 65 U. S. (24 5 Bankr. Reg. 230 (1871). But see 
 How.) 450 (1860) ; bk 16 L, ed. 749 ; contra, In re Merchants' Ins. Co., 3 
 Taylor v. Carryl, 61 U. S. (20 How.) Biss. C. C. 162 (1870). 
 
 583, 594-597 (1857) ; bk. 15 L. ed. « Blake v. Alabama & C. R. R. 
 
 1028 : Peale v. Phipps, 55 U. S. (14 Co., 6 Bankr. Reg. 331 (1872). 
 
 How.) 368, 374 (1852) ; bk. 14 L. ed. ' Davis v. Alabama & F. R. R. 
 
 459 ; Wiswall v. Sampson, 55 U. S. Co., 1 Woods C. C. 661 (1873). 
 (14 How.) 52, 66 (1852) ; bk. 14 L. 
 «d, 322; Williams v. Benedict, 43 
 
 m
 
 754 JURISDICTION YAFJOUS STATES. [§§631-632. 
 
 without first liquidating the debt, the possession of the 
 receiver being regarded as the possession of the mortgagee.' 
 
 § 631. Doctrine in various states. — In California, a 
 receiver may be appointed by the court in which the action 
 is pending, or by a judge thereof ;" but a county judge can 
 not appoint a receiver in a case pending in a district court.* 
 It is said that under the Connecticut Act of 1867, the judge 
 should first make an express finding, that it is just and 
 reasonable that a receiver should be appointed.* Under the 
 constitution and laws of Florida, a receiver can not be 
 appointed by the judge of one circuit to take possession of 
 property in another circuit.* The powers of the courts 
 of Indiana in appointing receivers, are the same under the 
 Code as under the general rules of equity, and the power will 
 be exercised for the same purposes and in the same emer- 
 gencies.' 
 
 In Kentucky, in cases specified in the Code of Practice, a 
 receiver may be appointed by the court. ^ In Michigan, 
 a court of equity can not appoint a receiver except in cases 
 where such appointment is allowed by the compiled laws of 
 the state ;* there is no statute authorizing such a court to 
 make an ex parte order appointing a receiver to take posses- 
 sion of real estate under a foreclosure, even though the parties 
 themselves agree upon a receiver under the terms of the 
 mortgage.* Under the Mississippi Code of 1880, a circuit 
 judge has no power to appoint a receiver in a case pending 
 in the chancery court, either in vacation or during a term.'* 
 
 § 632. Appointment of receiver by federal court. — A 
 state court has no jurisdiction to appoint a receiver in an ac- 
 tion to foreclose a mortgage, where the premises were, at the 
 
 ' Marshall v. Knox, 83 U. S. (16 • Bitting v. TenEyck, 85 Ind. 357 
 
 WaU.) 551 (1872) ; bk 21 L. ed. 481. (1882). 
 
 » Cal. Prac. Act, § 651. ' Kentucky Civil Code, § 328. 
 
 » RuthraufE v. Kresz, 13 Cal. 639 • Mich. Comp. L. § 5070. 
 
 (1859). » Hazeltine v. Granger, 44 Mich. 
 
 * Bostwick V. Isbell, 41 Conn. 805 503 (1880). 
 
 (1874). JO Alexander v. Manning, 58 Miss. 
 
 » State V. Jacksonville, P. & M. 684 (1881). 
 R. R. Co., 15 Fla. 201 (1875).
 
 §633.] EECEIYER U^s^DEE, FEDERAL COURT. 755 
 
 time of the commencement of the action, in the hands of a 
 receiver appointed by a federal court having jurisdiction to 
 make such appointment ; and the fact that the lien which the 
 receiver was appointed to enforce, is prior or subsequent to 
 the one sought to be enforced in the state court, will not in 
 any way affect the rule.' 
 
 A court of chancery should not appoint a receiver pend- 
 ing a demurrer to its jurisdiction ;' nor if the foreclosure 
 is being defended on probable grounds.' But in order to guard 
 against the abuse of dilatory pleas, or any irreparable mis- 
 chief, the court may order an immediate trial of the action.* 
 
 § 633. Manner of appointing: receiver — Motion or 
 petition. — In an action to foreclose a mortgage a receiver may 
 be appointed on either a motion or a petition, The appli- 
 cation may be heard on affidavits or on oral testimony, and 
 the appointment will be very much in the discretion of the 
 court.' The court may also appoint a receiver upon its own 
 motion in a case requiring it.* 
 
 The motion for the appointment of a receiver may be 
 made on petition, if there should be occasion for such 
 appointment before the complaint is actually served ;' 
 the hearing on such petition may be held in chambers.* 
 Under the New York practice, the motion for a receiver 
 must be made at a special term of the court," and by a plain- 
 tiff in the action, a motion by a defendant being irregular," 
 except, perhaps, where a cross-complaint is filed and made 
 the basis of the motion." 
 
 The duty of the court upon a motion for a receiver in a 
 mortgage foreclosure, is merely to protect the property and 
 
 > Milwaukee & St. P. E. R. Co. v. « O'Mahoney v. Belmont, 62 N. Y. 
 
 Milwaukee «& M. R. R. Co., 20 Wis. 133 (1875). 
 
 165 (1865). ■• VanSant. Eq. Pr. 403. 
 
 » Ewing V. Blight, 3 WalL Jr. 0. • Kilgore v. Hair, 19 S. C. 486 
 
 C. 139 (1855). (1883). 
 
 8 Shepherd v. Murdock, 2 Molloy, » 2 Barb. Oh. Pr. (2d ed.) 309, n 15. 
 
 531 (1830) ; Darcy v. Blake, 1 Mol- » Robinson v. Hadley, 11 Beav. 
 
 Icy, 247 (1829). 614 (1849). 
 
 * Ewing V. Blight. 8 WalL Jr. C. " Waters v. Taylor, 15 Ves. 10 
 C. 139 (1855). (1807) ; 1 VanSant. Eq. Pr. 402. 
 
 • Hursh V. Hur8h,99Ind. 500(1884).
 
 750 RECEIVER APPOINTED BY COURT. [§ 0o4, 
 
 to accumulate the rents, issues and profits until the deter- 
 mination of the suit.' It has long been the practice on 
 amotion for a receiver in such cases not tolook at junior mort- 
 gagees farther than to see that their rights are protected.' The 
 court will not, on such a motion, encourage any attempt to 
 obtain an intimation of its decision on questions involved in 
 the merits of the action.* The court is bound to express an 
 opinion only so far as may be necessary to show the grounds 
 on which the motion for a receiver is decided ;* it is the 
 duty of the court to confine itself strictly to the appoint- 
 ment of a receiver, and not to go into the merits of the case.* 
 
 § 634. Appointment of receiver by the court. — The 
 
 power to appoint a receiver of the rents and profits of mort- 
 gaged premises accruing pending a fioreclosure, was inherent 
 in the court of chancery before the adoption of the New 
 York Code of Procedure. It was continued by that Code,' 
 and has been re-enacted by the provisions of the Code of 
 Civil Procedure,^ defining cases in which receivers may be 
 appointed.* 
 
 Courts of equity have power to appoint receivers in mort- 
 gage foreclosures and to authorize them to take possession 
 of the mortgaged property,' whether it is in the personal 
 possession of the defendant or of his agents or tenants.'* 
 The appointment of a receiver is an ordinary exercise of 
 appropriate chancery powers ;" and there are very few cases 
 
 ' Blakeney v. Dufaur, 15 Beav. * See Hollenbeck v. Donnell, 94 
 
 42 (1851). N. Y. 342 (1884) ; Latimer v. Moore, 
 
 2 Norway v. Rowe. 19 Ves. 153 4 McL. C. C. 110 (1846). 
 
 (1813); Price V. Williams, Coop. Ch, » A court may appoint a receiver 
 
 31 (1806); Brooks v. Greathed, 1 Jac. on its own motion in cases requiring 
 
 & W. 176 (1820). it. O'Mahoney v. Belmont, 62 N. 
 
 3 Bates V. Brothers, 2 Sm. & G. T. 133 (1875). 
 
 509 (1853). " Where the property is in the 
 
 * Kerr on Rec. 6, 7. possession of a tenant under a lease, 
 ' Skinner's Company v. Irish So- such tenant must be made a party to 
 
 ciety, 1 Myl. & Cr. 164 (1835); the action, or he will not be affected 
 
 Evans v. Coventry, 5 D. M. & G. by nor be subject to the order appoint- 
 
 918 (1854) ; Blakeney v. Dufaur, 15 ing the receiver. See ante § 157. 
 
 Beav. 42 (1852). i' Courts of equity have power to 
 
 * § 244. appoint receivers for the purpose of 
 ' § 713 protecting and securing the property
 
 §§ 635-636.] APPLICATION PAPERS. 757 
 
 in which a court of equity will not have power to interfere 
 by appointing a receiver.* 
 
 This jurisdiction has been assumed by the court of 
 chancery for the advancement of justice, and is founded on 
 the inadequacy of the remedies afforded by courts of ordinary 
 jurisdiction ;* and on the showing of a proper case the court 
 will ex debit justitice appoint a receiver.* 
 
 § 635. On what papers application for receiver made. 
 — A motion for the appointment of a receiver is generally 
 made on the complaint of the plaintiff ; but it may be made 
 on affidavits before the complaint is served, when the plain- 
 tiff can clearly satisfy the court that he has an equitable 
 claim to the property, and that a receiver is necessary to 
 preserve it from loss.* When affidavits are used, they 
 should show such facts and circumstances as may be neces- 
 sary to sustain the appointment ; copies of such affidavits 
 should be served with the notice of motion.* If the plaintiff 
 uses affidavits, the defendant may read counter depositions.* 
 
 § 636. Notice of application for receiver. — As a rule, a 
 court of equity will have no jurisdiction of a motion for the 
 appointment of a receiver in a mortgage foreclosure, unless 
 notice of such motion has been served upon all the parties 
 adversely interested.'' Instead of a notice of motion, an 
 
 which is the subject of litigation. <2Barb. Ch. Pr. (2d ed.) 309-310 ; 
 
 Battle V. Davis, 66 N. C. 252 (1874). Metcalfe v. Pulvertoft, 1 Ves. «fe B. 
 
 See Bank of Mississippi v. Duncan, 182 (1812) ; Duckworth v. Trafford, 
 
 52 Miss. 740 (1876) ; The Wharf 18 Ves. 283 (1810). 
 
 Case, 3 Bland Ch. (Md.) 361 (1841); « Goodyear v. Betts, 7 How. (N. 
 
 Williamson v. Wilson, 1 Bland Ch. Y.) Pr. 187 (1852) ; Austin v. Chap- 
 
 (Md.) 418, 421 (1826). man, 11 N. Y. Leg. Obs. 103 (1853); 
 
 ' See Bainbrigge v. Baddeley, 3 Edw. on Rec. 77 ; 1 VanSant. Eq. 
 
 Mac. & G. 419 (1853). Pr. 402. 
 
 » Skip V. Harwood, 3 Atk, 564 * Edw, on Rec. 66 ; 2 Barb. Ch. 
 
 (1747); Stitwell V. Williams. 6 Madd. Pr. (2d ed.) 310. 
 
 49 ( 1821 ) ; Davis v. Marlborough, ' Whitehead v. Wooten, 43 Miss. 
 
 2 Swanst. 165 (1819) ; Mitf. PI. 145. 523 (1870) ; Vause v. Wood, 46 Miss. 
 
 * Hopkins v. Canal Proprietors, 120 (1871). Compare Hardy v. Mc- 
 
 L. R. 6 Eq. 447 (1867). See William- Clellan, 53 Miss. 507 (1876). See 
 
 eon V. Wilson, 1 Bland Ch.(Md.) 420 Bostwick v. Isbell, 41 Conn. 305 
 
 (1826); Cupit v. Jackson, 13 Price (1874). It is said in Bostwick v. Isbell, 
 
 721, 734 (1824). that the powers given to a receiver
 
 758 NOTICE OF APPLICATION^ FOR KECEIVEK. [§ 037. 
 
 ex parte order to show cause may be obtained ; copies of the 
 papers intended to be used on the motion and of the order 
 to show cause, should then be served on each of the defen- 
 dants.' Where the complaint has not been served, and it 
 is intended to base the motion on that also, a copy thereof 
 should be served with the notice of motion.* 
 
 The notice of motion for the appointment of a receiver 
 must be served like any other notice of motion,' by deliver- 
 \\'\<y copies thereof to all the necessary and interested 
 parties/ The notice must express concisely, but clearly, the 
 object of the application, for, as a general rule, the court will 
 not extend the order beyond the scope of the notice,* 
 
 When no serious injury can result to the property involved 
 in the controversy from the delay, notice of motion should 
 always be given to adverse parties before a receiver is 
 appointed ;" yet a receiver may be appointed without notice 
 where the exigencies of the case require it/ But a case of 
 great urgency must be shown to justify an appointment 
 made without notice.* 
 
 § 637. Appointment of receiver on ex parte application. 
 — It is the settled practice of the supreme court of New 
 York, as it was of the late court of chancery, not to allow 
 the appointment of a receiver ex parte, except in those cases 
 where the defendant is without the jurisdiction of the 
 court or can not be found, having fraudulently hidden him- 
 self for the purpose of avoiding a personal service of the 
 summons,' or where, for some reason, it becomes absolutely 
 
 by the Connecticut Act of 1867, are ' Edw. on Rec. 77. 
 
 so great that, if the act is to be con- * State v. Jacksonville, P. & M. 
 
 strued as intending to authorize the R. R. Co., 15 Fla. 201 (1875). 
 
 appointment without notice, it should ' Hardy v. McClellan, 53 Miss. 507 
 
 be held to be void and contrary to (1876). 
 
 the principles of natural justice, * State v. Jacksonville, P. & M. R. 
 
 ' 1 YauSant. Eq. Pr. 403. R. Co., 15 Fla. 201 (1875). 
 
 '^ 1 YanSant. Eq. Pr. 403. » Sandford v. Sinclair, 8 Paige Ch. 
 
 * 2 Barb. Ch. Pr. (2d ed.) 310. (N. Y.) 373 (1840), affg 3 Edw. Ch. 
 
 * See Baring v. Moore, 5 Paige (N. Y.) 393 ; Gibson v. Martin, 8 
 Ch. (N. Y.) 48, 521 (1835) ; Buxton Paige Ch. (N. Y.) 481 (1840) ; Ver- 
 V. Monkliouse, Coop. Ch. 41 (1810); plank v. Mercantile Ins. Co., 2 Paige 
 2 Bavb. Ch. Pr. (2ded.) 310. Ch. (N. Y.) 438 (1831); People v.
 
 § 638.] EX PARTE APPLICATION FOE RECEIVER. 759 
 
 necessary for the court to interfere before there is time to 
 give notice to the adverse party, in order to prevent the 
 destruction of, or a serious injury to the property,* in which 
 cases a receiver may be appointed ex parted Where it is 
 proper to appoint a receiver ex parte, the particular circum- 
 stances which render such a summary proceeding necessary, 
 should be distinctly stated in the affidavits or in the petition 
 on which the application is made.* 
 
 § 638. What the application must show.— To authorize 
 the appointment of a receiver, the complaint or affidavits 
 must show a cause for it by stating the facts which make 
 such appointment necessary.* In the complaint, or in the 
 petition for the appointment of a receiver in a mortgage 
 foreclosure, the plaintiff must show that the premises are not 
 of sufficient value to satisfy his debt and the costs of the 
 suit, and that the mortgagor, or other party who is person- 
 ally liable for the payment of the mortgage debt, is irrespon- 
 sible and unable to pay an expected deficiency."* If danger to 
 the property is not alleged in the complaint, and no facts 
 appear in the affidavits, showing the necessity or expediency 
 of appointing a receiver, the application will be denied.* 
 The facts essential to the appointment of a receiver need not 
 be pleaded in the complaint, but may be shown by affidavits.' 
 
 Norton 1 Paige Ch. (K Y. ) 17 Albany & S. R. R. Co., 38 Ho^. (N. 
 
 Q829) ' Y.) Pr. 228 (1869) ; s. c. 57 Barb. 
 
 'People V. Albany «& S. R. R. Co., (N. Y.) 204 ; 1 Lans. (N. Y.) 308 ; 7 
 
 38 How. (N. Y.) Pr. 228 (1869); B. C. Abb. (N. Y.) Pr. N. S. 265. 
 
 57Barb. (N.Y.) 204; 1 Lans. (KY.) * Tomlinson v. Ward, 2 Conn. 
 
 308 ; 7 Abb. (N. Y.) Pr. N. S. 265. 896 (1818). 
 
 » Gibson v. Martin, 8 Paige Cb. » Sea Ins. Co. v. Stebbins, 8 Paige 
 
 CN. Y.) 481 (1840); Sandford v. Cli. (N. Y.) 565 (1841). 
 
 Sinclair, 8 Paige Ch. (N, Y.) 873 • Baker v. Backus, 32 HI. 79, 95 
 
 (1840) ; 2 Barb. Cb. Pr. (2ded.)311. (1863) ; Whitworth v. Wbyddon, 2 
 
 Some courts hold that a judge in Mac. & G. 55 (1850) ; Wright v. 
 
 chambers, upon an ex parte appli- Vernon, 3 Drew 121 (1855); Mickle- 
 
 cation, may appoint a receiver. See thwait v. ]Micklethwait, 1 D. & J. 
 
 Real Estate Associates v. San Fran- 630 (1875) ; Bowker v. Henry, 6 L. 
 
 Cisco Superior Court, 60 Cal. 223 T. N. S. 43 (1862). 
 
 (1382). ' Commercial Sav. Bank v. Cor^ 
 
 » Verplank v. Mercantile Ins. Co., belt, 5 ISawy. C. C. 172 (18T8). 
 2 Paige Ch. 438 (1831); People v.
 
 760 WHAT APrLICATlUN .ML ST SHOW. [§ 038. 
 
 A receiver will not be appointed on a mere allegation that 
 the mortgaged premises are not sufficient security for all 
 "just incumbrances thereon." ' Neither will one be appointed 
 on a general allegation that loss will ensue if a receiver is 
 not appointed, unless a full statement of the facts is made' 
 A mere allegation of danger to the property will not of 
 itself be sufficient, if the court is satisfied that a loss is not 
 probable.* 
 
 An application for a receiver pending an action for fore- 
 closure, must show an actual interest in the property and 
 that such interest is in danger of being lost, or other facts 
 which would warrant the interference of the court.* An 
 order appointing a receiver will not be granted where the 
 party applying for it does not establish an apparent right 
 to the property in litigation, and where it is neither alleged 
 nor shown by the evidence that there is danger of waste or 
 injury to the property, or loss of the rents and profits by 
 reason of theMnsolvency of the adverse party in possession.* 
 The application must also show who is in possession, as a 
 receiver can not be appointed unless the person in posses- 
 sion of the mortgaged premises is a party to the suit.* A 
 demand in the complaint for the appointment of a receiver 
 is not necessary.^ 
 
 The proceedings should be in such a state as to enable 
 the judge to determine who is to receive the fund which the 
 receiver may bring into court." But if the court sees that 
 there is z. prima facie case upon the record for the appoint- 
 ment of a receiver, the fact that the record is not perfect in 
 
 » Warner v. Gouverneur's Ex'rs, 4 Abb. (N. Y.) Pr. 235 (1857) ; s. c. 
 
 1 Barb. (N. Y.) 36 (1847). See Shot- 13 ilow. (N. Y.) Pr. 502 ; Hamilton 
 
 well V. Smith, 3 Edw.Ch.(N.Y.) 588 v. Access. Trans. Co., 3 Abb. (N. 
 
 (1842). Y.) Pr. 255 (1856) ; s. c. 13 How. 
 
 » Hanna v. Hanna, 89 N. C. 68 (N. Y.) Pr. 108. 
 
 ^^^)- »Twitty V. Logan, 80 N. G. C9 
 
 » Whitworth v. Whyddon, 2 M. «fc (1879). 
 
 G. 55 (1850). 6 gea lag Co. v. Stebblns, 8 Paige 
 
 " Goodyear v. Betts, 7 How. (N. Ch. (N. Y.) 565 (1841). 
 
 Y.) Pr. 187 (1852). See McCarthy 7 Commercial Sav. Bank v. Cor- 
 
 V. Peiike, 9 Abb. (N. Y.) Pr. 164 bett, 5 Sawy. C. C. 172 (1878) 
 
 (1859) ; 8. c. 18 How. (N. Y.) Pr. « Gray v. Chaplin. 2 Russ. 147 
 
 138; Patten v. Access. Trans. Co., (1826).
 
 §§ 639-640.] OBJECTIONS to eeceivee. 761 
 
 detail, and is not in the shape it should be, to enable the 
 court to administer complete justice, will not of itself defeat 
 the appointment, especially if the objection is merely a formal 
 one that may be remedied by amendment.' Where the 
 mortgage, by its terms, pledges the income, rents and profits 
 of the mortgaged premises to the payment of the debt, the 
 mortgagee need not conclusively establish a right to recover 
 before he is entitled to ask for the appointment of a receiver. 
 If he shows a probable right to recover, and that the debtor 
 is insolvent, the appointment of a receiver will follow as a 
 matter of course.' 
 
 § 639. Objections to appointment of receiver. — The 
 objection that other persons are necessary parties to the 
 suit is no bar to the appointment of a receiver. If such parties 
 are necessary, they can be brought in afterwards.* Objec- 
 tions because of the misjoinder of parties or of the multi- 
 fariousness of causes of action, are no answer to an appli- 
 cation for a receiver, if sufficient grounds for the appointment 
 of one are shown.* 
 
 A mortgagor who has sold and conveyed the mortgaged 
 premises subject to his mortgage, is not in a position to 
 oppose the appointment of a receiver.* Where the parties 
 stipulate in a mortgage that a receiver may be appointed, 
 an answer not positively sworn to will not constitute a suffi- 
 cient objection to an appointment.' It was held in Thomp- 
 son V. Selby,' that where the original bill had been answered, 
 the pendency of a plea to the amended bill was not a bar to 
 a motion for the appointment of a receiver. 
 
 § 640. Appointment of receiver by referee or master. 
 
 — The selection and appointment, or proposal for appoint- 
 ment, of a receiver and the taking of security from him, are 
 
 > Kerr on Rec. 11. R. 1 Ch. App. 325 (1866) ; Major v. 
 
 • DesMoines Gas Co. v. West, 44 Major, 8 Jur. 797 (1844). 
 
 Iowa, 23 (1876). * The Wall Street Fire Ins. Co. v. 
 
 » Barclay V. Quicksilver Mining Loud, 20 How. (N.Y.) Pr. 95(1860). 
 
 Co., 9 Abb. (N. Y.) Pr. N. S. 283 « Knickerbocker Life Ins. Co. v. 
 
 (1870). HUl, 2 Hun (N. Y.) 680 (1874). 
 
 * Evans v. Coventry, 5 D. M. & ' 12 Sim. 100 (1841). 
 G. 918 (1854); Steele v. Cobhain, L.
 
 7o2 APPOINTMENT OF RECEIVER BY REFEREE. [§ G41. 
 
 proper matters for a reference under the New York Code of 
 Civil Procedure, as they were under the fornner practice in 
 chancery.' In general practice the reference is usually made 
 to a person residing in the same county as the defendant, 
 in order to relieve him of unnecessary expenses in travelin?^ ;' 
 but in mortgage foreclosures, the referee should reside in the 
 county where the land, or a portion of it, is situated, and 
 where the action is pending. 
 
 Whether the receiver is appointed directly by the court, 
 or through the medium of a referee, it is the duty of the 
 court to follow the rules and practice of the court of chan- 
 cery in like cases, so far as they are consistent with the 
 present course of procedure ;* an appointment by a referee 
 under the old practice will be valid.* The order of reference 
 should require the usual notice of hearing to be given to 
 the adverse parties. If no notice is given, and the opposing 
 parties voluntarily appear before the referee, such appearance 
 will be a waiver of all irregularities, and no objection can be 
 taken to the proceedings.' 
 
 § 641. Report of referee or master. — The referee or 
 master having made the appointment, or selected a proper 
 person to be recommended to the court for appointment as 
 receiver, according to the terms of the order of reference, 
 should report the facts to the court.' The report of the 
 referee or master on the appointment of a receiver can not 
 be excepted to and need not be confirmed.^ The appoint- 
 ment of a receiver, being within the discretion of the referee 
 or master,' to support an objection thereto and to induce the 
 court to interfere with his appointment, substantial reasons 
 
 > Wetter v. Schlieper, 7 Abb. (N. • 2 Barb. Ch. Pr. (2d ed.) 317. 
 
 Y.) Pr. 92 (1854). ' In re Eagle Iron "Works, 8 Paige 
 
 2 Bank of Monroe v. Keeler, 9 Ch. (N. T.) 385 (1840) ; Thomas v. 
 
 Paige Ch. (N. Y.) 249 (1841). Dawkin, 1 Ves. Jr. 453 (1798) ; s. c. 
 
 8 2 Barb. Ch. Pr. (2d ed.) 311, n 3 Bro. C. C. 507 ; Wilkina v. Wil- 
 
 19. liams, 3 Ves. 588 (1798). 
 
 * "Wetter v. Schlieper, 7 Abb. (N. * Thomas v. Dawkin, 1 Ves. Jr. 
 
 Y.) Pr. 92 (1854). 452 (1792) ; s. c. 3 Bro. C. C. 507. 
 
 ' "Wetter v. Schlieper, 7 Abb. (N. See Benneson v. Bill, 62 111. 403 
 
 Y.) Pr. 92 (1854). (1867).
 
 § 642.] eeferee's eepoet ois" receiver. 703 
 
 for such objection must be presented,* for the court will not 
 order the referee to review his decision except on special 
 grounds.* 
 
 It is a well settled rule in New York, that a court will not 
 disturb or set aside the appointment of a receiver by a 
 referee, unless the person selected is legally disqualified, or 
 his situation is such as to induce the court to believe that he 
 will not properly attend to the interests of the parties.* The 
 court will not disturb the referee's or master's decision merely 
 because an interested party may think that a better selection 
 could have been made from the several persons proposed.* 
 If, however, the court should order the referee or master to 
 review his decision, the parties may proceed de novo by pro- 
 posing other persons for the receivership.' 
 
 § 642. Order of appointment on report of referee 
 recommending proper person. — Where, upon an application 
 to the court for the appointment of a receiver, a referee or 
 master is ordered to report a suitable person to be appointed 
 and to approve of the sureties to be offered by him, the 
 appointment will not be complete until it is confirmed by a 
 special order of the court.* The party procuring such an 
 order of reference should give the adverse parties the usual 
 notice to attend before the referee.^ A voluntary appear- 
 ance before the referee will, however, waive all irregularities 
 in the notice.* 
 
 • Thomas v. Dawkin, 1 Ves. Jr. parties to the action is not of itself a 
 452 (1793) ; s. c. 3 Bro. C. C. 507 ; sufficient ground for the removal of 
 Tharpe v. Tharpe, 12 Yea. 317 a receiver ; at most, it is but a cir- 
 (1806). cumstance to be taken into consider- 
 
 • In re Eagle Iron Works, 8 Paige ation at the time of making the 
 Ch. (N. Y.) 385 (1840) ; Wetter v. appointment. Wetter v. Schlieper, 
 Schlieper, 7 Abb. (N. Y.) Pr. 92 7 Abb. (N. Y.) Pr. 93, 93 (1854). 
 (1854) ; Wynne v. Newborough, 15 * In re Eagle Iron Works, 8 Paige 
 Ves. 283 ( 1808 ) ; Bowersbank v. Ch. (N. Y.) 385 (1840). 
 CoUasseau, 3 Ves. 164 (1796); » Smith on Rec. 11; 2 Barb. Ch. 
 Thomas v. Dawkin, 1 Ves. Jr. 452 Pr. (2d ed.) 318. 
 
 (1790) ; 8. c. 3 Bro. C. C. 507 ; *Inre Eagle Iron Works, 8 Paige 
 
 Tharpe v. Tharpe, 12 Ves. 317 (1806). Ch. (N. Y.) 385 (1840). 
 
 » In re Eagle Iron Works, 8 Paige ' Wetter v. Schlieper, 7 Abb. (N. 
 
 Ch. (K Y.) 385 (1840). Y.) Pr. 92 (1854). 
 
 Mere relationship to one of the * Welter v. Schlieper, 7 Abb. (N.
 
 764 OEDER OF REFEREE APPOINTING RECEIVER. [§ G4o. 
 
 If the party summoned fails to appear, the referee may 
 proceed ex parte, and the proceedings will not be open to 
 review, unless proper cause is shown and the costs of the 
 proceedings are paid.' 
 
 § 643. Order of appointment by referee.— Where the 
 order appointing a referee empowers him to appoint a 
 receiver and to approve the requisite bond for him, tiic 
 amount of which he has authority to fix, an order for the cf)n- 
 firmation of the report will not be necessary.* In such cases 
 the referee, after appointing the receiver and approving the 
 sureties to be given by him, should file the required bonil,* 
 together with his report of the appointment, with the clerk 
 of the court, stating in his report that he has approved and 
 filed such bond." Upon the filing of such report, the 
 appointment of the receiver will be complete, and he may 
 immediately enter upon his duties.* 
 
 A receiver takes title to the property from the time of his 
 appointment.* As between the parties to the suit, he is to 
 be considered appointed from the date of the order of refer- 
 ence.^ Either party may have the appointment of a receiver 
 by a referee reviewed on presenting a petition to the court, 
 on notice to all the parties interested,' setting forth the 
 
 Y.) Pr. 92 (1854). See Brasher v. Van 
 Courtlandt, 2 Johns. Ch. (N.Y.) 242 
 (1816); Nichols v. Nichols, 10 Wend. 
 500(1833); Parker v. Williams, 4 
 Paige Ch. (N. Y.) 439 (1834) ; Hart 
 V. Small. 4 Paige Ch. (N. Y.) 288 
 (1834) ; Robinson v. Nash, 1 Anst. 
 76 (1792). 
 
 ' Edw. on Rec. 70 ; 1 VanSant. 
 Eq. Pr. 408. 
 
 ^ In re Eagle Iron Works, 8 Paige 
 Ch. (N. Y.) 385 (1840) ; Bowersbank 
 V. Collasseau, 3 Ves. 164 (1796) ; 1 
 VanSant. Eq. Pr. 407 ; 2 Wait. Pr. 
 235. 
 
 3 1 VanSant. Eq. Pr. 407. 
 
 « 2 Wait. Pr. 235. 
 
 * In re Eagle Iron Works, 8 Paige 
 Ch. (N. Y.) 385 (1840^ ; Wetter v. 
 
 Schlieper, 7 Abb. (N. Y.) Pr. 93 
 (1854) ; Lottimer v. Lord, 4 E. D. 
 Smith (N. Y.) 183, 191 (1855); 2 
 Wait. Pr. 235. 
 
 « Wilson V. Allen, 6 Barb. (N. Y.) 
 543 (1849) ; Lottimer v. Lord, 4 E. 
 D. Smith (N. Y.) 183. 191 (1855); 
 Rutter V. Tallis, 5 Sandf. (N. Y.) 
 610 (1852). 
 
 ^ Fairfield v. Weaton, 2 Sim. & S. 
 98 (1824). 
 
 * Objection to the referee's or 
 master's report can not be made by 
 exceptions. Tyler v. Simmons, 6 
 Paige Ch. (N.Y.) 127(1836); Thomas 
 V. Dawkin, 1 Ves. Jr. 452 (1792); s. c. 
 3 Bro. C. C. 507 ; Wilking v. Wil- 
 liams, 3 Ves. 588 (1798>
 
 § G44.] APrOINT.MENT BY COUET APPEALS. 765 
 
 grounds of objection and praying that the referee be directed 
 to review his report.' The appHcation to review the appoint- 
 ment of a referee may also be made by motion supported by 
 affidavits. 
 
 The appointment of a receiver being within the discretion 
 of the referee or master,' there must be a well-founded 
 objection to support an exception thereto,' for the court will 
 not order the referee to review his decision except for special 
 reasons,* and the court will not interfere with the appoint- 
 ment of a receiver by a referee unless a case is presented 
 showing that the person appointed is disqualified,' or that 
 his position is such as to induce a belief that he will not 
 properly attend to the interests of the parties.' 
 
 § 644. Order of appointment by court — Appeals. — 
 When the appointment of a receiver is made by the court, 
 the penalty of the bond should be fixed and the general terms 
 of the order prescribed at the time it is granted.^ The form 
 and contents of the order appointing a receiver must be deter- 
 mined by the court.' The judge may himself draw the order, 
 prescribing all of its details, or he may allow the form of order 
 submitted by the moving party.* When the order contains 
 special provisions, it is customary for the attorney of the 
 
 > Jti r« Eagle Iron Works, 8 Paige Works, 8 Paige Ch. (N. Y.) 385 
 
 Ch. (N. Y.) 385 (1840). (1840) ; Wynne v. Newborough, 15 
 
 » Thomas v, Dawkin, 1 Ves. Jr. Ves. 283, (1808). 
 
 452 (1792) ; s. c. 3 Bro. C. C. 507. * Wetter v. Schlieper, 7 Abb. (N. 
 
 See Benneson v. Bill, 62 111. 408 Y.) Pr. 92 (1854) ; In re Eagle Iron 
 
 (1872). Works, 8 Paige Ch. (N. Y.) 385 
 
 » Thomas v. Dawkin, 1 Ves. Jr. (1840) ; Wynne v. Newborough, 15 
 
 452 (1792) ; s. c. 3 Bro. C. C. 507 ; Ves. 283 (1808) ; 1 Barb. Ch. Pr. 
 
 Tharpe v. Tharpe, 12 Ves. 317 674. 
 
 (1806). ' 2 Wait. Pr. 230. 
 
 * Wetter v. Schlieper, 7 Abb. (N. » It is said to be the duty of the 
 
 Y.) Pr. 92 (1854) ; In re Eagle Iron attorney, and not of the judge, to 
 
 Works, 8 Paige Ch. (N. Y.) 385 see that the order is proper. LaFarge 
 
 (1840) ; Wynne v. Newborough, 15 v. VanWagenen, 14 How. (N. Y.) 
 
 Ves. 283 (1808) ; Tharpe v. Tharpe, Pr. 54, 57 (1857). An order deny- 
 
 12 Ves. 317 (1806) ; Bowersbank v. ing the appointment of a receiver in a 
 
 Colasseau, 3 Ves. 164 (1796); Thomas foreclosure is not final. Beecher v. 
 
 V. Dawkin, 1 Ves. Jr. 452 (1792). Marquette &Pac. Rolling Mill Co.,40 
 
 6 Wetter v. Schlieper, 7 Abb. (N. Mich. 307 (1879). 
 
 Y.) Pr, 92 (1854) ; In re Eagle Iron ' 1 VanSant. Eq. Pr. 406
 
 766 
 
 APPOINTMENT BY COURT APPEALS. 
 
 [§ 644. 
 
 moving party to submit a copy of the proposed order to 
 the attorney for the adverse party, and if any of its pro- 
 visions are objectionable, to make an application to the 
 judge in court or at chambers for a settlement of the terms 
 of the order.' The attorney opposing the order may propose 
 amendments to be submitted to the judge with the original 
 form for settlement,' when the parties can not otherwise 
 agree.' 
 
 The order,* as settled, should then be entered by the 
 moving party,* who is entitled to file it with the clerk 
 of the court ;* copies of the order should then be served 
 on all the parties interested,^ because such parties may have 
 a right to appeal, and the duration of such right will be limited 
 only from the time of the service of a copy of the order with 
 a notice of the entry thereof.' If the defendant has appeared, 
 the service should be made upon him personally, unless 
 his appearance was by an attorney, when the service may be 
 made upon such attorney.* It was held in Farley v. 
 
 > If the terms of the order are 
 settled out of court, and the order is 
 allowed by the judge's indorsing his 
 allocatur upon it, it must then be 
 filed and entered. 1 VanSant. Eq. 
 Pr. 406. 
 
 * Not to the clerk as formerly. 
 Whitney v. Belden, 4 Paige Ch. (N. 
 Y.) 140 (1833) ; 1 VanSant. Eq. Pr. 
 406. 
 
 3 1 VanSant. Eq. Pr. 406 ; 2 Wait. 
 Pr. 280, § 5. 
 
 * Orders granted by a justice ex 
 parte in chambers, imder the New 
 York Code, need not be entered with 
 the clerk. Savage v. Relyea, 3 How. 
 (N. Y.) Pr. 276 (1848) ; s. c. 1 Code 
 (N. Y.) Rep. 42. 
 
 * The order must be entered by the 
 prevailing party with the clerk of 
 the court where the papers are filed. 
 Savage v. Relyea, 3 How. (N. Y.) Pr. 
 276(1848); b. c. 1 N.Y. Code Rep. 43. 
 Should the successful party fail to 
 enter the order within twenty-four 
 
 hours after it is granted, the 
 unsuccessful party may enter it ; 
 or any party affected by such order, 
 is entitled to do so under the New 
 York Code. Neither party can have 
 any benefit from a decision of the 
 court, until the order on such deci siou 
 is drawn and entered. Whitney v. 
 Belden, 4 Paige Ch. (N. Y.) 140 
 (1833); Peet v. Cowenhoven, 14 Abb. 
 (N. Y.) Pr. 56 (1861). 
 
 « Edw. on Rec. 66. 
 
 ' Whitney v. Belden, 4 Paige Ch. 
 (N. Y.) 140 (1833). 
 
 « Rankin v. Pine, 4 Abb. (N. Y.) 
 Pr. 309 (1857) ; People ex rel. Backus 
 V. Spalding, 9 Paige Ch. 607 (1842) ; 
 Farley v. Farley, 7 Paige (;h. (N. 
 Y.) 40 (1837) ; Tyler v. Simmons, 6 
 Paige Ch. (N. Y.) 127 (1836) ; Jen- 
 kins v. Wilde, 14 Wend. (N. Y.) 539 
 (1835). 
 
 • N. Y. Code Civ. Proc. § 717.
 
 § 645.] CONTENTS OF ORDER APPOINTING. 767 
 
 Farley,* that the moving party is not entitled to notice from 
 the adverse party of the entering of such order, in order to 
 limit his right of appeal therefrom ; but it was decided in the 
 more recent case of Rankin v. Pine,' that the service of a 
 written notice is necessary, even when the appeal is taken 
 from a judgment entered by the appellant himself. 
 
 An appeal must be taken within thirty days after the 
 written notice of the entry of the order has been given to 
 the party appealing.* The order will be considered as 
 entered from the time of its delivery to the clerk for that 
 purpose.* A notice of the entry of the order will not avail to 
 limit the time of appeal, unless it is in writing,* and is such 
 as to apprise the adverse party fully of the whole substance, 
 if not of the very details of the order.* 
 
 § 645. Contents of order appointing receiver— Powers 
 defined — Property described. — Where the application for 
 a receiver has been made and allowed, care should be taken 
 in drawing the order for his appointment that it fully 
 defines his powers.* It should state distinctly on the 
 face of it, over what property he is appointed,* or refer to 
 the pleadings or some paper in the proceedings which 
 describes the property, so that a party may know what the 
 officer of the court is in possession of ;* otherwise, he can 
 not hold possession of the property." 
 
 It sometimes happens that the court, although of the 
 opinion that the moving party is entitled to a receiver, will 
 
 > 7 Paige Ch. (N. T.) 40 (1837). gregational Church, 42 Barb. (N.T.) 
 
 « 4 Abb. (N. Y.) Pr. 309 (1857). 441 (1864). 
 
 » N. Y. Code Civ. Proc, § 1351. ' Edw. on Rec. 66. 
 
 ♦Farley v. Farley, 7 Paige Ch. » Crow v. Wood, 13 Beav. 271 
 
 (N. Y.) 40, 42 (1837). (1850) ; High on Rec. (2d ed.) 76, 
 
 * People ex rd. Backus v. Spalding, § 87. 
 
 9 Paige Ch. (N. Y.) 607 (1842) ; Fry » O'Mahoney v. Belmont, 62 N.' 
 
 V. Bennett, 7 Abb. (N. Y.) Pr. 352 Y. 133 (1875) ; Crow v. Wood, 13 
 
 (1858) ; s. 0. 16 How. (N. Y.) Pr. Beav. 271 (1850); 2 Barb. Ch. Pr. (N. 
 
 402, 406 ; 2 Bosw. (N. Y.) 684. Y.) 312 ; 1 VanSant. Eq. Pr. 405 : 
 
 • Fry V. Bennett, 7 Abb. (N. Y.) High on Rec. (2d ed.) 76, § 87. 
 
 Pr. 352 (1858) ; s. c. 16 How. (N. " O'Mahoney .v. Belmont, 62 N. 
 
 Y.) Pr. 402, 406 ; 2 Bosw. (N. Y.) Y. 133 (1875). 
 684 ; Champion v. Plymouth Con-
 
 768 CONTENTS OF ORDER APPOINTING. [§646. 
 
 not make such an appointment directly, but in the alternative, 
 requiring that the demand of the moving party be satisfied, 
 or that a receiver be appointed.* The order for a receiver 
 usually directs him to state his accounts from time to time, 
 and to pay the balance found due from him into court to 
 the credit of the action, to be there invested and accumu- 
 lated, or otherwise disposed of, as the court may think 
 proper.' 
 
 If a receiver is appointed on behalf of several incum- 
 brancers, the order generally contains a recital that the 
 appointment is to be without prejudice to the rights of 
 the prior incumbrancers of the estate, who may think proper 
 to take possession of the premises by virtue of their respec- 
 tive claims. The order usually directs that the receiver, 
 out of the rents and profits to be collected by him, shall keep 
 down the interest on such incumbrances, according to their 
 priorities, and be allowed the same in passing his accounts.' 
 If the mortgagor is in possession of the premises, the order 
 should direct him to deliver the possession thereof to the 
 receiver.* 
 
 § 646. Proposal of names for receiver. — The referee 
 or master upon a reference to appoint a receiver should 
 designate that person whom he deems, all things considered, 
 best qualified for the ofifice, without regard to the fact that 
 he was proposed by one or the other of the parties;* under 
 equal circumstances, the party obtaining the order for a 
 receiver has, prima facte, a right to nominate the receiver.* 
 
 • Curling v. Townsend, 19 Ves. * Lespinasse v. Bell, 2 Jac. & W. 
 628 (1816) ; High on Rec. (2d ed.) 436 (1821). The appointment of a 
 82, § 102. receiver is usually a matter of dis- 
 
 ' 2 Dan. Ch. Pr. 1573. cretion, but tliere are persons who 
 
 » Smith V. Effingham, 2 Beav. 232 are not competent to act owing to 
 
 (1839) ; Lewis v. Zouche, 2 Sim. 388 their peculiar relation to the parties 
 
 (182^)- Benneson v. Bill, 62 111. 408 (1872). 
 
 * Griffith V. Thapwel, 2 Ves. Sr. See Thomas v. Dawkin, 1 Ves. Jr. 
 401 (1751) ; Everett v. Belding, 22 452 (1702) ; s. c. 3 Bro. C. C. 508. 
 L. J. Ch. 75 (1852) As to the form e q^^q, q^ Rec. 8; 2Barh. Ch. Pr. 
 of the order, see Davis v. Duke of (od ed.) 316 ; 1 VanSant. Eq. Pr. 
 Marlborough, 2 Swans. 113, 116 4Q7 
 
 (1818) ; Baylies v. Baylies, 1 Coll. 
 548 (1844).
 
 § 647.] PiiOPOSLNG NAJVIES FOE RECEIVER. 769 
 
 In proceedings upon a reference for the appointment of a 
 receiver, the party who has obtained the order should pre- 
 sent to the referee a written proposal containing the names 
 of the desired receiver and his sureties. If the person thus 
 nominated is objectionable, however, another person may 
 be nominated by any interested party by a counter-proposal.' 
 
 § 647. Ineligibility to be appointed a receiver. — 
 
 Although as a general rule the court will appoint as receiver 
 a disinterested person and not a party to the foreclosure, 
 yet a party to the action is not absolutely disqualified from 
 acting as receiver. Indeed, there are cases in which a party 
 to the suit, if otherwise unobjectionable, should be appointed 
 in preference to any one else,* A non-resident should not 
 be appointed a receiver.* A master in chancery, whose duty 
 it is to pass upon the accounts and to control the conduct 
 of a receiver, is also disqualified from acting.* 
 
 The New York Code of Civil Procedure' prohibits the 
 appointment in New York and Kings counties of any person 
 who holds the office of clerk, deputy clerk, special deputy 
 clerk or assistant in the clerk's office, of a court of record or 
 of the surrogate's court. And it has been held that usually 
 a party to the suit is not competent to act as receiver, unless 
 by the consent of all parties.' In Kansas' and Ohio' no 
 
 ■ A person not having an interest ^ Hubbard v. Guild, 1 Duer. (N. 
 
 in the action can not propose a re- Y.) 682 (1853) ; 1 VanSaut. Eq. Pr. 
 
 ceiver, and it is contrary to the order- 400. But see Benneson v. Bill, 62 
 
 ]y proceedings of a court of justice to 111. 408 (1872). 
 
 allow a stranger to participate in ^ See Meier v. Kansas Pac. Ry. 
 
 the nominations for such an appoint- Co., 5 Dill. C. C. 476 (iSlS); s. c. G 
 
 nient. O'Mahoney v. Belmont, 62 Rep. 642. 
 
 N.Y. 133(1875); Attorney-General V. "Benneson v. Bill, 62 111. 408 
 
 Day, 2 Madd. 246 (1817) ; Edw. on (1872) ; Kilgore v. Hair, 19 S. C. (N. 
 
 Rec. 22; 2 Barb. Ch. Pr. (2d ed.) S.) 486 (1883) ; Ex parte Fletcher, 6 
 
 316. Where the matter is referred Ves. 427 (1801). 
 
 to a referee with power to appoint * N. Y. Code Civ. Proc. g 90. 
 
 a receiver, the appointment will be ® Benneson v. Bill, 62 111. 408 
 
 entirely within his discretion, and he (1872). But see Hubbard v. Guild, 
 
 need not give any reasons for his 1 Duer (N. Y.) 663 (1853). 
 
 selection. Benneson v. Bill, 62 111. ' Kansas Code, ^ 263. 
 
 408 (1872); Thomas v. Dawkiu, 1 Ves. « 2 Ohio Rev. Stat., § 5588. 
 Jr. 452 (1792) ; s. c. 3 Bro. C. C. 508. 
 
 (49)
 
 770 rNELIGIBILITY FOR KECEIVEE. [§ 648. 
 
 party, or attorney, or person interested in an action can be 
 appointed a receiver therein ; and in Kentucky' there is the 
 same prohibition with an exception in favor of executors, 
 administrators, curators, guardians and committees of per- 
 sons of unsound mind. Generally, a trustee to let and 
 manage an estate should not be appointed a receiver of the 
 same, whether he is sole trustee or acts jointly with others ;* 
 he should be appointed only when he will act without com- 
 pensation. Neither is the next of kin of an infant complain- 
 ant a proper party to be appointed a receiver ;* nor one who 
 is a stranger to the court, if objected to by either party ;* 
 nor any person who, by his own act or position, stands in an 
 interested relation to the cause. The law partner of the 
 solicitor for the plaintiff in a foreclosure, can not, even by 
 consent, be appointed receiver.* 
 
 § 648. From what time a receiver considered as 
 appointed. — An order for a receiver vests the possession in 
 him from the date of his appointment,* without reference to 
 the time of his giving bonds.'^ And upon the appointment 
 of a receiver, the title to the property, of which he is 
 made receiver, vests in him in trust, though further 
 proceedings may be necessary to acquire the actual 
 possession of it.* But a court can not take property 
 out of the hands of a creditor until his claim is satisfied.* 
 
 » Ky. Civil Code, § 330. Ch. (N. Y.) 592 (1846). See Por- 
 
 « Sutton V. Jones, 15 Ves. 584 ter v. Williams, 9 N. Y. 142 (1853) ; 
 
 (1809) ; Sykes v, Hastings, 11 Ves. B. c. 59 Am. Dec. 519 ; sub nam. 
 
 363 (1805) ; 3 Barb. Ch. (N. Y.) Pr. Porter v. Clark, 12 How. (N. Y.) Pr. 
 
 (2d. ed.) 305. 107; West v. Eraser, 5 Sandf. 
 
 « Stone V. Wishart, 2 Madd. 64 (N. Y.) 653 (1852) ; Albany City 
 
 (1817). Bank v. Schermerhorn, Clarke Ch. 
 
 * Smith V. New York Consolidated (N. Y.) 297, 300 (1840); VanWyek v. 
 Stage Co., 28 How. (N. Y.) Pr. 208 Bradley, 3 N. Y. Code Rep. 157 
 (1865); 8. c. 18 Abb. (N. Y.) Pr. (1851). 
 
 419. 1 Maynard v. Bond, 67 Mo. 315 
 
 "Merchants' and Manufacturers' (1878). 
 
 Bank v. Kent, Circuit Judge, 43 » Olney v. Tanner, 19 Bankr. Reg. 
 
 Mich. 292 (1880). 178 (1880). 
 
 • Wilson V. Allen, 6 Barb. (N. Y.) • Benedict v. Maynard, 5 McL. C. 
 542 (1849); Wilson v. Wilson, 1 Barb. C. 262 (1851).
 
 § 649.] 
 
 BOND OF RECEIVER. 
 
 When an order of reference is made for the appointment 
 of a receiver, his title vests in and attaches to the property 
 by relation, from the date of the order of reference, with the 
 same effect as if the order had named the receiver.' Such 
 an order is per se a sequestration of the property and gives 
 all the necessary means for enforcing the receiver's rights.* 
 
 Where the court directs a reference to select a proper 
 person to be appointed receiver, the appointment will not 
 be complete until it is confirmed by a special order of the 
 court ;' but where the referee or master is directed to appoint 
 a receiver and to take the requisite security from him, an 
 order confirming the appointment will not be necessary.* 
 
 §649. Bond of receiver. — Except in those cases where 
 the sheriff of the county is appointed to act as receiver in 
 a mortgage foreclosure, the receiver should be required to 
 give proper bonds for the faithful performance of his duties.* 
 The bond must be properly executed, approved" and filed 
 
 1 Rutter V. Tallis, 5 Sandf. (N. T.) 
 610 (1852). See Deming v. New York 
 Marble Co., 12 Abb. (N. Y.) Pr. 66 
 (1860) ; In re North American Gutta 
 Percha Co., 17 How. (N. Y.)Pr. 549 
 (1859) ; s. c. 9 Abb. (N. Y.) Pr. 79 ; 
 Lottimer v. Lord, 4 E. D. Smith 
 (N. Y.) 183 (1855). 
 
 « See Porter v. Williams, 9 N. Y. 
 142 (1853). 
 
 * In re Eagle Iron Works, 8 Paige 
 Ch. (N. Y.) 385 (1840). 
 
 * 2 Barb. Ch. Pr. (3d ed.) 317. 
 
 * Grantham v. Lucas, 15 W. Va. 425, 
 432 (1879). See Willis v. Corlies, 2 
 Edw.Ch.(N.Y.)281 (1834); Verplank 
 V. Caines, 1 Johns. Ch. (N. Y.) 57 
 (1814) ; Sea Ins. Co. v. Stebbins, 8 
 Paige Ch. (N.Y.) 565 (1841); Quincy 
 V. Cheeseman, 4 Sandf. Ch. (N. Y.) 
 405 (1846); Smith v. Butcher, 28 
 Gratt. (Va.) 144 (1875). By the pro- 
 visions of the Kentucky Civil Code, 
 § 331, and the Ohio Rev. St. g 5589, 
 u receiver, before entering upon tho 
 
 discliarge of his duties, must be 
 sworn to perform them faithfully, 
 and, with one or more sureties to be 
 approved by the court, execute a 
 bond to sucli person, and in such 
 sum as the court shall direct, condi- 
 tioned that he will faithfully dis- 
 charge the duties of receiver in the 
 action and obey the orders of the 
 court therein. 
 
 «The Maryland Statute, 2 Md. 
 Code Pub. L. 28, 29, requiring the 
 bond of a receiver to be approved by 
 the court, but not making such ap- 
 proval a condition precedent, is di- 
 rectory only ; an approval nunc pro 
 tunc will be valid. Gephart v. Star- 
 rett, 47 Md. 396 (1877). A court com- 
 missioner has no jurisdiction to ap- 
 point a receiver, and a bond given 
 by a receiver so appointed and ap- 
 proved by such commissioner, is 
 void. Quiggle v. Trumbo, 56 Cal. 
 626 (1880)."
 
 772 EFFECT OF APPOINTING RECEIVER. [§ 650. 
 
 with the clerk of the court which appointed the receiver.' 
 After executing and filing his bond he may immediately 
 enter upon the discharge of his duties.' 
 
 The sureties of the receiver must reside within the juris- 
 diction of the court,' and be real and substantial persons 
 capable of contracting.* If the sureties proposed are not 
 satisfactory to the court, the receiver can present the names 
 of other sureties in an amended proposal, stating them to be 
 in place of those formerly proposed.* Should the court at 
 any time regard the sureties of a receiver as insufficient, it 
 may require him to show cause why he should not give 
 additional sureties upon his bond ; upon his failure to show 
 cause, he may be removed. And it must plainly appear 
 that the court erred in so removing a receiver before an 
 appellate court will reverse its action.* 
 
 § 650. Effect of appointment of receiver. — The appoint- 
 ment of a receiver determines no rights.* A court will 
 not, on a motion to appoint a receiver, prejudge the case,* 
 or give any intimation what its decision will be at the 
 trial.' While the appointment of a receiver operates, to 
 a certain extent, as an injunction," yet the effect of the 
 appointment of a receiver is very different from that of 
 granting an injunction." 
 
 The effect of the appointment of a receiver is to remove 
 the property from the possession of the person occupying or 
 holding it." Where a receiver has been appointed and an 
 
 ' Where a bond given by a receiver » 2 Barb. Ch. Pr. (2d ed.) 316 ; 
 
 upon his appointment is not filed Edw. on Rec. 74. 
 
 •with the proper oflScer, the court • Shackelford v. Shackelford, 32 
 
 may direct it to be filed nunc pro Gratt. (Va.) 481 (1879). 
 
 tunc. Whiteside v. Prendergast, 2 "^ In re Colvin, 3 Md. Ch. Dec. 
 
 Barb. Ch. (N.Y.) 471 (1847); Carper 278,302(1851): Chase's Case, 1 
 
 V. Hawkins, 8 W. Va. 29 (1875). Bland Ch. (Md.) 206, 213 (1826) ; 
 
 * See In re Eagle Iron Works, 8 Beverley v. Brooke, 4 Qratt. (Va.) 
 Paige Ch. (N. Y.) 885 (1840). 187, 208 (1847). 
 
 = Cockburn v. Raphall, 2 Sim. & » Hugonin v. Basley, 13 Ves. 107 
 
 S. 453 (1825). (1806). 
 
 * Smith V. Scandrett, 1 W. Bl. 444 » Tripp v. Chard Ry. Co., 11 Hare, 
 (1778) ; Breadmore v. Phillips, 4 264 (1853). 
 
 Waule. & Sel. 173 (1815). '" Evans v. Coventry, 3 Drew. 83
 
 § 651.] JURISDICTION OF EECEIVER. 773 
 
 order is made for the delivery of the property to him, a 
 demand therefor must be made by the receiver personally, 
 for the party in possession is not bound to deliver the prop- 
 erty to any one except the receiver. The plaintiff's attorney 
 can not act, in this respect, for the receiver or as his 
 attorney.' 
 
 The appointment of a receiver has no retroactive effect to 
 divest the accrued rights of third persons.' The rights of 
 a receiver extend only to the possession of the land, to col- 
 lecting the rents and profits, to making leases and to exer- 
 cising other acts of control over the property, the legal title 
 remaining in every respect as it was prior to the appointment 
 of such receiver.* A receiver can not be placed in possession 
 of demised premises on the application of a party who not 
 only is not entitled to the possession thereof, but who has no 
 interest whatever in the property in question.* 
 
 § 651. Jurisdiction of receiver. — A receiver has no rights 
 or powers except such as are conferred upon him by the 
 order appointing him and by the practice of the courts ;* 
 and he can not act in his official capacity beyond the juris- 
 diction of the court by which he was appointed.* 
 
 (1854). An injunction is embodied * Chatauqua County Bank v.White^ 
 
 more or less in every order ap- 6Barb. (N.Y.) 589 (1849). See Booth 
 
 pointing a receiver. v. Clark, 58 U. S. (17 How.) 322, 
 
 " See Boyd v. Murray, 3 Johns. 331 (1854) ; bk. 15 L. ed. 164 ; In ra 
 
 Ch. (N. Y.) 48 (1817). Eagle Iron Works. 8 Paige Ch. (N. 
 
 " Payne v. Baxter, 2 Tenn. Ch. Y.) 385 (1840) ; Verplank v. The 
 
 517 (1876). Mercantile Ins. Co., 2 Paige Ch. (N. 
 
 > Panton v. Zebley, 19 How. (N. Y.) 438, 452 (1831) ; Lottimer v. 
 
 Y ) Pr. 394 (1860). Lord, 4 E. D. Smith (K Y.) 183 
 
 « Favorite v. Deardorff, 84 Ind. (1855) ; Bowersbank v. Colasseau, 3 
 
 655 (1882). Ves. 164 (1796) ; 1 Barb. Ch. Pr. (2d 
 
 » Foster v. Townshend, 2 Abb. ed.) 669 ; 2 Id. 522. 
 
 (N. Y. ) N. C. 29, 34 (1877); • Moseby v. Burrow, 52 Tex. 396 
 
 Attorney-General v. Coventry, 1 P. (1880). But it has been held, that 
 
 Wm. 307 (1716) ; Hyde v. Greenhill, where a mortgage of property 
 
 1 Dick. 106 (1745) ; Sutton v. Stone, situated in one state is executed to a 
 
 1 Dick. 107 (1745). See Neale v. receiver appointed in another state, 
 
 Bealing, 3 Swan. 304 n. c. (1744) ; such receiver, or his successor in 
 
 Jeremy Eq. Jurisd. 252, 253. office, may maintain an action in his 
 
 * Huerstel v. Lorillard, 6 Robt. own name to foreclose the mortgage 
 
 (N. Y.) 260 (1867). in the state where the premises ara
 
 774 NATUKE OF EECEIVER's POSSESSION. [§ 652 
 
 An order appointing a receiver is per se a sequestration 
 of the property, and gives all the necessary means of enforcing 
 the receiver's rights ;' but if the person appointed receiver 
 fails to qualify under the order, he will acquire no interest 
 in or right to the property.' 
 
 § 652. Nature of receiver's possession.— It has been 
 said, where a receiver is appointed on the application of the 
 mortgagee in a mortgage foreclosure, to take charge of 
 the property and to collect the rents and profits, that such 
 receiver is in law an agent of the mortgagor, the owner of 
 the legal estate ;* but the better doctrine seems to be that 
 he is an officer of the court, appointed on behalf of all who 
 may establish an interest in the property,* and not, in any 
 sense, a representative of the party securing his appoint- 
 ment." The property in his hands is in custodia legis ;' 
 his possession is the possession of the court and is entitled 
 to its protection.' The possession of a receiver is valid aa 
 against attaching creditors, even when the property is 
 situated in another state.' 
 
 Where a court, having jurisdiction of the case, has appointed 
 a receiver for the property which is the subject of the 
 suit, and the receiver is in possession, no other court of 
 
 situated. Iglehart v. Bierce. 36 III. 58 U. S. (17 How.) 322 (1854) ; bk. 
 
 133 (1864). See Dixon v. Buell. 15 L. ed. 164 ; Angel v. Smith. 9 
 
 Adm'r, 21 111. 203(1859); Townsend Ves. 336 (1804); Jeremy Eq. Jur. 
 
 V. Carpenter, 11 Ohio, 21 (1841). 248, 249 ; 2 Dan. Ch. Pr. 1406. 
 
 > Porter v. Williams, 9 N. Y. 142 « Ross v. Williams, 11 Heisk. 
 
 (1853) ; 8. c. 59 Am. Dec. 519. (Tenn.) 410 (1872). 
 
 2 Cook V. Citizens' Bank, 73 Ind. •" King v. Ohio & M. R'y Co.. 7 
 
 256 (1881). Biss. C. C. 529 (1877) ; Field v. 
 
 » See Chinuery v. Evans, 11 H. L. Jones, 11 Ga. 413 (1852) ; Hutchin- 
 
 Cas. 134 (1864). son v. Hampton, 1 Mon. T. 39 
 
 * Iddings V. Bruen, 4 Sandf. Ch. (1868) ; People v. Brooks, 40 Mich. 
 
 (N. Y.) 417 (1846) ; Booth v. Clark, 333 (1879) ; 8. c. 29 Am. Rep. 534 ; 
 
 58 U. S. (17 How.) 322, 331 (1854j ; Battle v. Davis, 66 N. C. 252 
 
 bk. 15 L. ed. 164 ; Skip v. Harwood, (1872). 
 
 3 Atk. 564 (1747). » Chicago, M. & St. P. R. Co. v. 
 
 '" Lottimer v. Lord, 4 E. D. Smith Keokuk Northern Line Packet Co., 
 
 (N. Y) 183 (1855); Tillinghast v. 108111.317(1884); s. C, 48 Am. Rep. 
 
 Champlin, 4 R. L 173 (1856) ; s. c. 557. 
 67 Am. Dec. 510 ; Booth v. Clark,
 
 § 658.] EIGHTS AND POWERS OF RECEIVERS. 775 
 
 co-ordinate jurisdiction can interfere with the property, or 
 entertain complaints against the receiver, or remove him,* 
 or in any way interfere with his possession, without leave of 
 the court which made the appointment.* 
 
 § 653. Rights and powers of receivers. — Until his 
 appointment is complete, a receiver has no right to the rents 
 and profits of the mortgaged premises, and then only to 
 such as remain unpaid ; because it is only by virtue of the 
 receiver's appointment that the mortgagee acquires an 
 equitable lien on the unpaid rents.* A receiver appointed 
 in a mortgage foreclosure has no powers except those con- 
 ferred upon him by the order appointing him and by the 
 practice of the court.* And the powers thus conferred, do 
 not extend beyond the jurisdiction of the court making 
 the appointment.' Such a receiver has no authority, without 
 an order of the court, to disburse money to any person,' or 
 in any manner to lessen the funds in his hands, as by 
 expenditures for repairs.' 
 
 Where, pending the foreclosure of a mortgage on a farm, 
 a receiver is appointed on the written assent of all the solici- 
 tors of all the parties in interest, with power to let the 
 
 ' Bruce v. Manchester & K. R. R. * Verplank v. Mercantile Ins. 
 
 Co.. 19 Fed. Rep. 342(1884); Young Co., 2 Paige Ch. (N. Y.) 438, 452 
 
 V. Montgomery & E. R. R. Co., 2 (1831); Booth v. Clark, 58 U. S. 
 
 Woods C. C. 606 (1875) ; Kennedy (17 How.) 323, 331 (1854) ; bk. 15 L. 
 
 V. Indianapolis, C. & L. R. Co., 2 ed. 164. See Lottimer v. Lord, 4 
 
 Flipp. C. C. 704 (1880) ; s. c. 3 Fed. E. D. Smith (N. Y.) 188 (1855) ; In 
 
 Rep. 97 ; 11 Cent. L. J. 89 ; 26 Int. re Eagle Iron Works. 8 Paige Ch. 
 
 Rev. Rec. 390 ; 10 Rep. 359. (N. Y.) 385 (1840) ; Bowersbank v. 
 
 » See Foster v. Townshend, 2 Colasseau, 3 Ves. 164 (1796). 
 
 Abb. (N.Y.)N.C. 29,36(1877); Sea » Booth v. Clark. 58 U. S. (17 
 
 Ins. Co. V. Stebbius, 8 Paige Ch. How.) 322, 331 (1854) ; bk. 15 L. ed. 
 
 (N. Y.) 565 (1841) ; Angel v. Smith, 164. 
 
 9 Ves. 336. 338 (1804) ; Pelham v. « Duffy v. Casey, 7 Robt. (N. Y.) 
 
 Duchess of New Castle, 3 Swan. 79 (1868). Counsel in a case can 
 
 289, 293 n. (1819) ; 1 Story Eq. Jur. not compel a receiver to pay them 
 
 (11th ed.) 833a. moneys to which they think them- 
 
 ' Rider v. Vrooman, 12 Hun (N. selves entitled, under penalty of 
 
 Y.) 299 (1877). See Bank of Ogdens- removal. See Hospes v. Almstedt, 
 
 burg V. Arnold, 5 Paige Ch. (N. 13 Mo. App. 270 (1885). 
 
 Y.) 38 ( 1835 ) ; Favorite v. Dear- ' Wyckoff v. Scofield, 103 N. Y. 
 
 dorff, 84 Ind. 555 (1882). 630 (1886). It seems that the court
 
 7V6 DUTIES OF KECETSTEB. [§ 654. 
 
 premises, he may let the farm for a year without a special 
 order of the court, that being the usual term for such a lease ; 
 and such a lease will neither be limited nor terminated by the 
 duration of the suit. If the mortgagee is appointed receiver, 
 he must obtain as large a rent as possible, although it may 
 exceed the amount due on his mortgage.' 
 
 A receiver authorized as such to execute formal satis- 
 factions and discharges of mortgages in his hands upon 
 payment, has also authority to receive payment of the 
 amounts secured by such mortgages, although the same may 
 not be due at the time.' A receiver appointed in a mortgage 
 foreclosure has the same powers and is governed by the 
 same rules in respect to the bringing and the defending of 
 suits as receivers in other actions.* 
 
 § 654. Rights and duties of receivers. — A receiver in a 
 mortgage foreclosure, being an officer of the court, is 
 entitled to receive the guidance and protection of such 
 court,* and to be instructed as to his duties,* the same as 
 receivers in other cases. In cases of doubt, and particularly 
 
 may direct such expenditures, if * See Phelps v. Cole, 3 N. Y. Code 
 
 they are necessary for the preserva- Rep. 157 (1850); Smith v. Woodruff, 
 
 tion of the property. Wyckoff v. 6 Abb. (N. Y.) Pr. 65 (1858) ; Mer- 
 
 Scofield, 103 N. Y. 630 (1886). ritt v. Lyon, 16 Wend. (N. Y.) 410 
 
 1 BollesT. Duff, 37 How. (N. Y.) (1836) ; Field v. Jones, 11 Ga. 413, 
 
 Pr. 162(1869). The receiver can not 417 (1852); Gadsden v. Whaley, 14 
 
 become his own tenant, unless by S. C. 210 (1880); Booth v. Clark, 58 
 
 consent of the parties. Alven v. U. S. (17 How.) 322, 331 (1854) ; bk. 
 
 Bond, 3 Irish Eq. 372 (1841) ; Stan- 15 L. ed. 164. 
 
 nusv. French, 13 Irish Eq. 161(1840). ■• Cammack v. Johnson, 2 N. J. 
 
 Under the English rule, the practice Eq. (1 H. W. Green) 163 (1839). See 
 
 required the receiver to obtain an in r« Receivers of Globe Ins. Co.. 6 
 
 order of the court before letting the Paige Ch. (N. Y.) 102 (1836); Hooper 
 
 lands. Nealev.Bealing, 3Swanst.304 v. Winston, 24 111. 353 (1860). 
 
 (1744) ; Morris v. Elme, 1 Ves. Jr. » See Smith v. New York Cent. 
 
 139 (1790); Swaby v. Dickon, 5 Stage Co., 18 Abb. (N. Y.) Pr. 419 
 
 Sim. 631 (1833) ; Robertson v. Arm- (1865); s. c. 28 How. (N.Y.) Pr. 208 ; 
 
 Btrong, 2 MoUoy, 352 (1824), or its Jure VanAllen, 37 Barb. (N. Y.)225 
 
 approbation of the matter; Duffieldv. (1861); Curtis v. Leavitt, 10 How, 
 
 Elwes, 11 Beav. 590 (1849); Wynne v. (N. Y.) Pr, 481 (1855) ; 8. C. 1 Abb. 
 
 ISTewborough, 1 Ves. Jr. 164 (1790), (N, Y.) Pr. 274. 
 
 • Heermans v. Clarkson, 64 N. Y. 
 171 (1876).
 
 § 655.] DUTIES OF RECEIVEES. TT7 
 
 in cases where there are conflicting interests or claims, the 
 receiver should apply to the court for instruction.' 
 
 It is the duty of a receiver to obey the orders of the court 
 which appointed him,' and to act in all things with a view 
 to the equitable rights of the parties in interest.' Where 
 a mortgagee in possession is appointed receiver of the prop- 
 erty, his individual interests must not be permitted to inter- 
 fere with his duties as receiver.* A receiver must pay into 
 court all the rents collected by him prior to the conveyance 
 of the mortgaged premises pursuant to the terms of the 
 judgment of foreclosure and sale,' 
 
 § 655. Rents bound from date of appointment of 
 receiver. — A mortgagee has no claim, as mortgagee, to the 
 rents and profits of the mortgaged premises, and can become 
 entitled to receive them only by commencing proceedings for 
 the foreclosure of his mortgage and procuring the appoint- 
 ment of a receiver;' and even then he will be confined to 
 the rents and profits accruing during the pendency of the 
 suit/ He will also have authority to collect such rents and 
 
 ' Lottimer v. Lord, 4 E. D. Smith his appointment or that of his legal 
 
 (N. Y.) 183 (1855). It is said, how- advisers. Lottimer v. Lord, 4 E. D. 
 
 ever, that a receiver should not, of Smith (N. Y.) 183 (1855). 
 
 his own motion, make an application * Bolles v. Duff, 54 Barb. (X. Y.) 
 
 to the court ; but that, if he finds 215 (1869) ; s. c. 37 How. (N. Y.) 
 
 himself in circumstances of difficulty, Pr. 162. 
 
 he should request the plaintiff to ' Nichols v. Foster, 9 IST. Y. Wk. 
 
 make the necessary application, and Dig. 468 (1880). 
 
 that on his default, the receiver may ^ Wyckoff v. Scofield, 98 N. Y. 
 
 properly apply. Edw. on Rec. 158 ; 475 (1885). See Rider v. Bagley, 84 
 
 2 Barb. Ch. Pr. (2d ed.) 287. N. Y. 461 (1881) ; Argall v. Pitts, 78 
 
 » Corey v. Long, 12 Abb. (N. Y.) N. Y. 239 (1879). It was held ia 
 Pr. X. S. 427 (1872) ; s. c. 43 How. the case of Rider v. Bagley, supra, 
 (N. Y.) Pr. 492. In case of the thatby the appointment of a receiver 
 refusal of a receiver to obey the in- in a foreclosure suit, the plaintiff ob- 
 structions of the court, the court can tains an equitable lien only upon the 
 and ought to remove him. Guar- unpaid rents, and that until such 
 dians' Savings Institution v. Bowl- appointment, the owner of the equity 
 ing Green Savings Bank, 65 Barb. of redemption has a right to receive 
 (N. Y.) 275 (1873). the rents and can not be compelled 
 
 * It has been said that the receiver to account for them, 
 
 should follow the directions of the ' Argall v. Pitts, 78 N. Y. 239 
 
 particular plaintiff who procured (1881) ; Nealis v. Bussing, 9 Daly
 
 778 WHEN RENTS BOimi>. [§655. 
 
 profits as have theretofore accrued, but have not yet come 
 into the hands of the owner of the equity of redemption, 
 and apply them to the payment of the mortgage debt :' but 
 the court has no power to order rents which have already 
 been collected and are in the possession of the owner, to be 
 paid over to the receiver.' Neither will a receiver be entitled 
 to rents and profits collected during the pendency of the 
 motion for his appointment.' 
 
 A mortgagee has no right, as mortgagee, to the rents of 
 the mortgaged premises which have been paid into court by 
 a receiver appointed in a suit by legatees for the adminis- 
 tration of the estate of the mortgagor, although the mort- 
 gagee may have obtained a decree for the foreclosure of his 
 mortgage in the same court and may have sold the mortgaged 
 premises, and part of the debt remains unsatisfied. He 
 should have applied to the court to discharge the receiver 
 in the suit for administration, and either entered into 
 possession himself or applied for a receiver in his action for 
 foreclosure.* The receiver should compel tenants not 
 
 (N. T.) 305 (1880); Leeds v. Gifford, for rent subsequently accruing and 
 
 41 N. J. Eq. (14 Stew.) 464 (1886) ; remaining unpaid. 
 
 Conover v. Grover, 31 N. J. Eq. (4 » Wyckoff v. Scofleld, 98 N. Y. 
 
 Stew.) 539 (1879). See Stillman v. 475 (1885); Codrington v. Johnston, 
 
 VanBeuren, 100 N. Y. 439 (1885). 1 Beav. 524 (1838). 
 
 In Nealis v. Bussing, supra, it was * Wyckoff v. Scofield, 98 N. Y. 
 
 held, where a receiver of the rents, 475 (1885). 
 
 issues and profits of mortgaged * Rider v. Bagley, 84 N. Y. 46 
 premises had been appointed in an (1881). Where another party than 
 actionfor the foreclosure of the mort- the mortgagee has acquired a legal 
 gage, and notice of his appoint- or equitable interest in, or title to, 
 ment had been given to a lessee of the rents or profits, prior to the 
 the premises under a lease from appointment of a receiver as provi- 
 the mortgagor, and the lessee had ded in section 299 of the Civil Code, 
 paid rent falling due to the receiver, the mortgagee's claim to such rents 
 that the mortgagor had no authority or profits wUl be postponed to that 
 to accept a surrender from the les- of the intervening claim. Wool- 
 see, or to execute a new lease of ti- ley v. Holt, 14 Bush (Ky .) 788 
 premises during the continuance oi (1879). 
 
 the receivership, and that such sur- * Coddington v. Bispham, 36 N. 
 
 render and acceptance and new lease J. Eq. (9 Stew.) 574 (1883). 
 constituted no defence to an action 
 by the receiver against the lessee
 
 § 656.] LIABILITT OF EECEIVERS. 779 
 
 parties, to attorn to him, or he will not be permitted to 
 proceed against them by summary proceedings.' 
 
 § 656. Personal liability of receivers. — The Hability of 
 a receiver under a mortgage foreclosure is the same as that 
 of a receiver appointed in any other case. Thus, a receiver 
 will be personally liable for loss through neglect or a breach 
 of duty,' or if he exceeds his authority.' If a receiver 
 departs from the line of his duty, as marked out by the 
 decree, and a loss ensues, he will be obliged to bear it, 
 although he may have acted under the advice of counsel. 
 But property lost while in the hands of a receiver, being in 
 custodia legis, can not be considered as lost by conversion, so 
 as to render the obligors on a bond for its return, liable 
 therefor.* 
 
 Where a receiver, appointed upon the application of 
 the mortgagee, embezzles or otherwise wastes the rents 
 and profits, the loss will fall on the mortgagor, or on his 
 estate.* Yet it is said that a person, at whose instance a 
 receiver is appointed, should see that he performs his duties, 
 and that any loss which he might have prevented by proper 
 diligence, must, as between him and the other litigants, be 
 borne by him.* 
 
 ' Bowery Savings Bank v. Stanton v. Alabama R. Co., 2 
 
 Richards, 3 Hun (K Y.) 366 (1875). Woods C. C. 506 (1875). 
 
 ' As where loss is sustained by a * Wall v. Pulliam, SHeisk. (Tenn.) 
 
 tenant quitting possession and the 365 (1871). 
 
 receiver neglects to apply promptly * Rigge v. Bowater, 3 Bro. Ch. 
 
 to the court for authority to re-let. 365 (1791) ; Hutchinson v. Lord 
 
 Wilkins v. Lynch, 2 Molloy, 499 Massareene, 2 Ball & B. (Ir. Ch.) 55 
 
 (1823) ; Edw. on Rec. 573. (1811). 
 
 « Hills V. Parker, 111 Mass. 508 « Downs v. Allen, 10 Lea (Tenn.) 
 
 (1873); 8. c. 15 Am. Rep. 63; 652(1882),
 
 CHAPTER XXXI. 
 
 RECEIVER— WHEN WILL BE APPOINTED. 
 
 CAUSES FOK APPOINTMENT-INADEQUACY OF SECURITY-INSOLVENCY 
 
 OF MORTGAGOR— PART ONLY OF DEBT DUE— WHEN RECEIVER 
 
 DENIED— MORTGAGEE IN POSSESSION - ACCOUNTING BY 
 
 RECEIVER-DISCHARGE. 
 
 g 657. Causes for appomting a re- 
 ceiver — Generally. 
 
 658. Inadequacy of security and 
 
 insolvency of mortgagor. 
 
 659. Receivership in Nevp Jersey. 
 
 660. Lien of mortgagee on rents 
 
 and profits. 
 
 661. Receiver of deceased mort- 
 
 gagor's estate. 
 
 662. Imminent danger of loss or 
 
 injury. 
 
 663. Accumulation of taxes and 
 
 interest, ground for appoint- 
 ing a receiver. 
 
 664. Waste and fraud, causes for 
 
 appointing a receiver. 
 
 665. Injunction restraining sale, 
 
 cause for appointing a re- 
 ceiver. 
 
 666. When a receiver will not be 
 
 appointed — Mortgagor giv- 
 ing security. 
 
 667. Where part only of debt due, 
 
 or premises can be sold in 
 parcels. 
 
 668. Where mortgagee guilty of 
 
 laches — Validity of mort- 
 gage denied. 
 
 669. Where property in possession 
 
 of stranger to the fore- 
 closure. 
 
 670. Where a bill is filed to redeem. 
 
 671. When rents can not be appiied 
 
 under a receiver. 
 
 672. When receiver applied for by 
 
 defendant. 
 
 673. Receiver not appointed dur- 
 
 ing the time allowed for 
 redemption. 
 
 674. Receivers as between differ- 
 
 ent mortgagees. 
 
 § 675. Appointment of second re- 
 ceiver. 
 
 676. No receiver where mortgagee 
 
 holds legal title. 
 
 677. No receiver where mortgagee 
 
 in possession. 
 
 678. Subsequent mortgagee re- 
 
 deeming from prior mort- 
 gagee in possession. 
 
 679. Other causes for receiver 
 
 where mortgagee in posses- 
 sion. 
 
 680. When a receiver will be 
 
 appointed against a mort- 
 gagee in possession. 
 
 681. Receiver where first mort- 
 
 gagee out of possession. 
 
 682. Receiver appointed upon the 
 
 application of junior mort- 
 gagee. 
 688. Receiver when junior mort- 
 gagee in possession. 
 
 684. General practice in appoint- 
 
 ing receiver. 
 
 685. Time of appointing receiver. 
 
 686. Appointment of receiver be- 
 
 fore answer. 
 
 687. Appointment of receiver after 
 
 granting decree. 
 
 688. Appointment of receiver after 
 
 sale. 
 
 689. Interference with receiver's 
 
 possession. 
 
 690. Remedy of parties claiming 
 
 title paramount to receiver. 
 
 691. Appeal — Continuance of re- 
 
 ceivership. 
 
 692. Accounting of receivers. 
 
 693. Compensation of receivers. 
 
 694. Removal of receivers. 
 6'95. Discharge of receivers. 
 
 :90
 
 § 657.] CAUSES FOE APPOINTrN-G EECEIVER. 781 
 
 § 657. Causes for appointing a receiver— Generally. — 
 In an action for the foreclosure of a mortgage, the plaintiff 
 is entitled to the appointment of a receiver to take charge 
 of the property and to collect the rents and profits thereof, 
 when it is made to appear, that the premises will probably 
 be insufficient to pay the mortgage debt,' that the party 
 who is liable for any deficiency in the security is insolvent," 
 and that the plaintiff has prima facie an equitable right to 
 the property in controversy. A receiver will also be 
 appointed if circumstances of fraud or bad faith on the part 
 of the mortgagor are shown,* or if there are other facts 
 involved in the case which would render the denial of a 
 receiver inequitable or unjust.* A receiver will always be 
 appointed when it is shown that the rents and profits have 
 been expressly pledged by the terms of the mortgage for 
 the payment of the debt.* 
 
 The appointment of a receiver is always a matter resting 
 in the sound discretion of the court ; and unless it is made 
 clearly to appear that such discretionary power has been 
 
 > MacKellar v. Rogers, 52 N. T. (1876); Kerchner v. Fairley, 80 N. 
 
 8upr. Ct. (20 J. & S.) 360 (1885) ; C. 24 (1879) ; Henshaw v. Wells, 9 
 
 HoUenbeck v. Donell, 94 N. Y. Humph. (Tenn.) 568 (1848) ; Schrie- 
 
 842(1883); Main v. Ginthert, 93 ber v. Carey, 48 Wis. 208 (1879). 
 
 Ind. 180 (1883) ; Jacobs v. Gibson, ' Haas v. Chicago Building So- 
 
 9 Neb. 380 (1879). See Barnett v. ciety, 89 Dl. 498 (1878). 
 
 Nelson, 54 Iowa, 41 (1880) ; Myton < Haas v. Chicago Building So- 
 
 ▼. Davenport, 51 Iowa, 583 (1879). ciety, 89 111. 498 (1878). See Blood- 
 
 « See Mitchell v. Bartlett, 51 N. Y. good v. Clark, 4 Paige Ch. (N. Y.) 
 
 447 (1873) ; Astor v. Turner, 2 Barb. 577 (1834). These facts may be 
 
 (N. Y.) 444 (1848) ; HoUenbeck v. made to appear by affidavits. See 
 
 Donell, 29 Hun (N. Y.) 94 (1883) ; Vann v. Barnet, 2 Bro. Ch. 157 
 
 reversed in 94 N. Y. 342 ; Sea (1788) ; Metcalfe v. Pulvertoft, 1 
 
 Ins. Co. V. Stebbins, 8 Paige Ch. Ves. & B. 180 (1813). 
 
 (N. Y.) 565, 568 (1841) ; Price v. » Shotwell v. Smith, 3 Edw. Ch. 
 
 Dowdy, 34 Ark. 285 (1879); Main v. (N. Y.) 588 (1842) ; Verplank v. 
 
 Ginthert,92Ind. 180(1883); White V. Caines, 1 Johns. Ch. (N. Y.) 57 
 
 Griggs, 54 Iowa, 650 (1880) ; Myton (1814) ; Tysen v. Wabash R. Co., 8 
 
 V. Davenport, 51 Iowa, 583 (1879) ; Biss. C.C. 247(1878). See Morrison v. 
 
 Douglass V. Cline, 12 Bush. (Ky.) Buckner, Hempst. C. C. 442 (1843) ; 
 
 608 (1876) ; Chase's Case, 1 Bland Lloyd v. Passingham, 16 Ves. 59 
 
 Ch. (Md.) 206 (1826) ; Brown v. (1809). See Warner v. Gouverneur's 
 
 Chase, Walk. Ch. (Mich.) 43 (1842) ; Ex., 1 Barb. (N.Y.) 36 (1847); Edw. 
 
 Phillips V. Eiland, 52 Miss. 721 on Rec. 356 ei seq.
 
 782 CAUSES FOR APPOENTING RECEIVER. [§658. 
 
 abused to the injury of the party complairring, it will not be 
 interfered with.* Where the rents and profits are not 
 pledged by the terms of the mortgage, the court must be 
 satisfied that the premises are insufficient to pay the debt 
 and that there are other circumstances which justify the 
 appointment ;' but where the rents and profits are expressly 
 pledged for the payment of the debt, the mortgagee 
 or his assignee need not conclusively establish a right 
 to recover on the mortgage. If, in such a case, he makes 
 out a probable right to recover and shows the insolvency of 
 the debtor, he will be entitled to the appointment of a 
 receiver.* 
 
 In Indiana,* the appointment of a receiver in a suit to 
 foreclose a mortgage may be made without reference to the 
 solvency of the mortgagor, when it appears that the mort- 
 gaged property is not sufficient to satisfy the debt ; and the 
 mortgagee is authorized to take possession of the land and 
 the crops growing thereon, although the mortgagor may 
 be in possession at the time.* 
 
 § 658. Inadequacy of security and insolvency of mort- 
 gagor. — In an action for the foreclosure of a mortgage the 
 court has power to appoint a receiver of the rents and 
 profits of the mortgaged premises, where the whole amount 
 of the mortgage is due," and it is made to appear, that the 
 proceeds of the sale will probably be insufficient to satisfy 
 the debt secured,* that the property is rapidly depreciating 
 in value,* and that the mortgagor, or other party personally 
 liable for the mortgage debt, is insolvent.* 
 
 'Jacobs V. Gibson, 9 Neb. 380 » Hursh v. Hursh, 99 Ind. 500 
 
 (1879). (1884). 
 
 * Shotwell V. Smith, 3 Edw. Ch. • Bank of Ogdensburg v. Arnold, 
 (N. Y.) 588 (1843) ; Whitehead v. 5 Paige Ch. (N. Y.) 88 (1835). 
 Wooten, 43 Miss. 533 ( 1870 ) ; 1 Jacobs v. Gibson, 9 Neb. 380 
 Frisbie v. Bateman, 24 N. J. Eq. (1879). See Haas v. Chicago Build- 
 (9 C. E. Gr.) 28 (1873) ; Cortleyeu ing Society, 89 111. 498 (1878) ; New- 
 V. Hathaway, 11 N. J. Eq. (3 Stockt.) port& Cinn. Bridge Co. v. Douglass, 
 89 (1855) ; s. c. 64 Am. Dec. 478. 12 Bush (Ky.) 673 (1877). 
 
 » DesMoines Gas Co. v. West, 44 « Smith v. Kelley, 31 Hun (N. T.) 
 
 Iowa, 23 (1876). 387(1884). 
 
 * Ind. Rev. Stat. (1881), § 1222. » Hollenbeck v. Donnell, 94 N. Y,
 
 § 658.] INADEQUACY OF SECURITT. 7S3 
 
 Where a corporation is the defendant owner in a mortgage 
 foreclosure, a receiver will be appointed only when the 
 mortgage debt, or the interest thereon, has remained unpaid 
 for at least thirty days after it became due, and has been 
 demanded of the proper ofificer of such corporation ; and 
 he will be appointed then, only when the rents of such prop- 
 erty have been specifically pledged in» the mortgage, or the 
 property itself will probably be insufficient to pay the amount 
 of the mortgage debt.' 
 
 To entitle a mortgagee to a receiver he must show clearly 
 that the mortgaged premises are an inadequate security for 
 the debt and that the mortgagor, or other party personally 
 liable for the debt, is insolvent.* Some of the cases hold that 
 the mortgagor must be shown to be hopelessly insolvent f 
 others, however, hold that in order to justify the appoint- 
 ment of a receiver in a foreclosure, it need not appear that 
 the mortgagor is insolvent, if it is shown that the mortgaged 
 property is of insufficient value to pay the debt.* 
 
 In no case will a receiver be appointed, if it is clear that 
 on a sale under the decree of foreclosure, the mortgaged 
 
 342 (1884), reversing 29 Hun (N. 442 (1843); Lloyd v. Passingham, 
 
 Y.) 94; Warner v, Gouverneur's 16 Ves. 59 (1809). 
 
 Ex., 1 Barb. (N. Y.) 36 (1847); 'Laws of New York for 1870, 
 
 Shotwell V. Smith, 8 Edw. Ch. (N. chap. 151, §3. 
 
 Y.) 588 (1842) ; Verplank v. Caines, * Syracuse Bank v. Tallman, 31 
 
 1 Johns. Ch. (N. Y.) 58 (1814) ; Barb. (N. Y.) 201 (1857) ; Tyler v. 
 
 Astor V. Turner, 11 Paige Ch. (N. Poppe,4Edw. Ch. (N.Y.)430(1844); 
 
 Y.) 436 (1845) ; s. c. 43 Am. Dec. Shotwell v. Smith, 3 Edw. Ch. (N. 
 
 766; Howell v. Ripley, 10 Paige Y.) 588 (1842); Willis v. Corliss, 
 
 Ch. (N. Y.) 45 (1843) ; Sea Insurance 2 Edw. Ch. (N. Y.) 281, 287 (1834) ; 
 
 Co. V. Stebbins, 8 Paige Ch. (N. Y.) Haggarty v. Pittman, 1 Paige Ch. 
 
 565 (1841) ; Bank of Ogdensburg v. (N. Y.) 298 (1828) ; s. c. 19 Am. 
 
 Arnold, 5 Paige Ch. (N. Y.) 88 Dec. 434 ; Wooding v. Maloue, 30 
 
 (1835) ; Quincy v. Cheeseman, 4 Ga. 979 (1860) ; Edie v. Applegate, 
 
 Sandf. Ch. (N. Y.) 405 (1846); 14 Iowa, 273 (1862); Cofer v. 
 
 Hughes V. Hatchett, 55 Ala. 631 Echerson, 6 Iowa, 502 (1858); 
 
 (1876); Price v. Dowdy, 34 Ark. 285 Blondheim v. Moore, 11 Md. 365, 
 
 (1879) ; Jacobs v. Gibson, 9 Neb. 374 (1857) ; Clark v. Ridgely, 1 Md. 
 
 380 (1879) ; Tysen v. Wabash R. Ch. Dec. 70 (1847). 
 
 Co., 8 Biss. C. C. 247 (1878); Hunter » Cone v. Coombs, 5 MoCr. C. C. 
 
 V. Hays, 7 Biss. C. C. 362 (1877) ; 651 (1884) ; s. c. 18 Fed. Rep. 576. 
 
 3Iorrison v. Buckner, Hempst. C. C. * Hursh v. IIursh,99 Ind. 500 (1884^
 
 784 KECEivER IN NEW j:ersey. [§§ 659-660. 
 
 property will sell for enough to pay the debt, interest and 
 costs.' It is said to be erroneous to appoint a receiver 
 in a foreclosure, where neither waste, nor failure to pay 
 taxes, nor diminution of the value of the security, nor 
 increase of the mortgage debt is shown, and where it does 
 not appear that the party personally liable for the debt 
 Is not responsible for any probable deficiency.* 
 
 § 659. Receivership in New Jersey. — It seems that the 
 rule in New York and in other states, allowing a receiver 
 where the premises are an inadequate security for the debt, 
 and the mortgagor, or other party personally liable therefor, 
 is insolvent, has never been adopted in New Jersey, where a 
 distinction is made between a first and a subsequent mort- 
 gagee, their rights being essentially different in that state. 
 
 The first mortgagee has a legal right to the rents and 
 profits, and has his remedy at law by ejectment. A subse- 
 quent mortgagee is better entitled to the remedy of a 
 receiver, because he has no right at law to the possession 
 of the premises as against a prior mortgagee.* But where 
 it appears that the mortgagor is insolvent and has removed 
 from the premises and given the possession thereof to a 
 party who occupies them for his own use without paying 
 rent, and it also appears that the mortgagor is committing 
 waste and that the premises are an insufificient security for 
 the debt, a court of equity will appoint a receiver to take 
 charge of the property while the prior mortgagee is prose- 
 cuting his ejectment at law to obtain possession of the mort- 
 gaged premises.* 
 
 §660. Lien of mortgagee on rents and profits.— On 
 
 a condition broken, by which a mortgagee is authorized to 
 commence a foreclosure, he will have an equitable lien upon 
 the rents and profits of the mortgaged property, if it is an 
 inadequate security for the debt, which lien may be enforced 
 
 ' Shotwell V. Smith, 3 Edw. Ch. » Cortleyeu v. Hathaway, 11 N. J. 
 
 (N. Y.) 588 (1842) ; PuUan v. Cin- Eq. (3 Stockt.) 40, 42 (1855). 
 
 cinnati & C. R. R. Co., 4 Biss. C. C. * Brasted v. Sutton, 30 K J. Eq. 
 
 35 (1865). (3 Stew.) 462 (1879). 
 
 - Morris v. Branchaud, 52 Wis. 
 187 (1881).
 
 § 661.] LIEN OF MORTGAGEE ON RENTS. 785 
 
 by proper proceedings ;' but if he makes no demand for the 
 rents, and takes no steps to have them appHed to his debt, 
 the mortgagor can continue to collect them," because until the 
 mortgagee takes possession of the premises or files a bill 
 for foreclosure and procures the appointment of a receiver, 
 the mortgagor is "owner to all the world," and is entitled to 
 all the profits made.* 
 
 Where an assignee in bankruptcy is collecting the rents 
 and profits, if the mortgagee desires them to be applied 
 specifically to his lien, he must not only show the insuffi- 
 ciency of the security, without the pernancy of the rents 
 and profits, but he must also intercept them before they 
 reach the assignee.* Where, however, only one-sixth of the 
 mortgage debt is due, and the premises are so divided that a 
 part can be sold, a receiver should not be appointed for the 
 whole of the mortgaged premises, but only for a proportionate 
 part thereof, sufficient protection being afforded thereby.* 
 
 Notwithstanding the changes in the practice of foreclosing 
 mortgages, the remedy by a receiver remains the same under 
 the New York Code of Civil Procedure as under the old 
 chancery practice,' and the mortgagee may obtain a specific 
 lien upon the rents and profits of the premises, though not 
 pledged in the mortgage for the payment of the debt, by 
 diligently obtaining the appointment of a receiver; a subse- 
 quent mortgagee may thus gain an advantage over a prior 
 mortgagee as to the rents and profits.^ 
 
 § 66i. Receiver of deceased mortgagor's estate. — In 
 the appointment of receivers in mortgage foreclosures, no 
 exception is made in favor of the executors or administrators 
 
 > Jacobs V. Gibson, 9 Neb. 380 « Hollenbeck v. Donnell, 94 N. Y. 
 
 (1879) ; Hunter v. Hays, 7 Biss. C. 342 (1884), reversing 29 Hun (N. 
 
 C. 362 (1877). Y.) 94. 
 
 2 Hunter v. Hays, 7 Biss. C. C. * Hollenbeck v. Donnell, 94 N. Y. 
 
 362 (1877). 342, 345 (1884). See Post v. Dorr, 4 
 
 8 American Bridge Co. v. Heidel- Edw. Ch. (N. Y.) 412 (1844). 
 
 bach, 94 U. S. (4 Otlo), 798, 800 ' Post v. Dorr, 4 Edw. Ch. (N. 
 
 (1876) ; 8. c. bk. 24 L. ed. 322 ; 15 Y.) 412 (1844) ; Howell v. Ripley, 10 
 
 Alb. L. J., 294. Paige Ch. (N. Y. ) 43 (1843); 
 
 * Foster v. Rhodes, 10 Bankr. Thomas v. Brigstooke, 4 Russ. Gi 
 
 Keg. 523 (1874). (1827). 
 
 (50)
 
 786 EECEIVEE AGAINST DECEASED MORTGAGOR. [§ 661. 
 
 of deceased mortgagors.* No matter who the defendants 
 may be, if the mortgaged property will probably be insuffi- 
 cient to discharge the mortgage debt, the plaintiff is in 
 a position to demand that his security be augmented by 
 enough of the rents and profits to make it good. There is 
 no good reason for making an exception in favor of the repre- 
 sentative of a deceased mortgagor ; nor can a court, in justice 
 to the mortgagee, do so, for it is very clear that rents col- 
 lected by the administrator or executor would not be subject 
 to the lien of the mortgage, but would belong to the general 
 assets of the estate and be distributed accordingly among 
 all its creditors.' 
 
 When a receiver is sought against an executor, adminis- 
 trator or other trustee, to collect rents and to manage the 
 estate, it must be established by suitable proof that there 
 has been some positive loss, or that there is danger of loss 
 of the funds, as by waste, or misapplication, or apprehended 
 insolvency,* or personal fraud,* or misconduct, or negligence 
 on the part of such trustee. The mere poverty of the trustee 
 is not a sufficient cause ;* unfitness,* or an abuse of the trust, 
 or danger of insolvency, or some other sufficient cause, must 
 be shown.* 
 
 » Jacobs V. Gibson, 9 Neb 380 § 266, 2d subd. provides that, " in 
 
 (1879). In Kerchner v. Fairley, 80 an action for the foreclosure of a 
 
 N. C. 24 (1879), the plaintiff mort- mortgage, when the mortgaged 
 
 gagee was administrator of one of property is in danger of being lost, 
 
 two mortgagors, whose heirs and the removed or materially injured, or is 
 
 other mortgagor were defendants in probably insufficient to discharge 
 
 an action to foreclose the mortgage ; the mortgage debt," a receiver may 
 
 the property mortgaged was inade- be appointed. 
 
 quate to pay the debt, and the mort- ' Middletown v. Dodswell, 13 Ves. 
 
 gagor in possession was insolvent ; 266 (1806). 
 
 the plaintiff denied an alleged pay- * See Chautauqua County Bank v. 
 
 ment of the debt and the existence White, 6 N. Y, 236 ( 1832) ; Mc- 
 
 of assets in his hands applicable Elwain v. Willis, 9 Wend. (N. T.) 
 
 thereto ; the court held that, in such 548, 561 (1832) ; Stileman v. Ash- 
 
 acase, it was not error, on application down, 2 Atk. 477 (1742) ; Edgell v. 
 
 of the plaintiff, to appoint a receiver Haywood, 3 Atk, 357 (1746). 
 
 to secure the rents and profits pend- » 2 Story Eq. Jur. (11th ed.) § 386. 
 
 ing the litigation. • Anon., 12 Ves. 4 (1806). 
 
 « Jacobs V. Gibson, 9 Neb. 380, ' Middleton v. Dodswell, 18 Ves. 
 
 883 (1879). The Nebraska Code of 266 (1806). 
 Civil Procedure, Gen. Stat. 568,
 
 § 662.] DANGER OF LOSS OE INJURY. 787 
 
 § 662. Imminent danger of loss or injury.— After an 
 action for foreclosure has been commenced and it is made to 
 appear that the property in litigation, or the rents and 
 profits thereof, are in danger of loss or injury, a receiver may 
 be appointed to take charge of such rents and profits in the 
 interest of the litigants;' but the rents and profits of 
 the mortgagee's security must be in actual danger to warrant 
 such an appointment.* Thus, if the mortgagor of an estate, 
 which is subject to a rent charge, refuses to pay the rent, a 
 receiver may be appointed.* And a mortgagee of a leasehold, 
 who has made advances to prevent eviction for non-payment 
 of rent by the mortgagor, may have a receiver appointed, 
 notwithstanding the fact that the interest on the mortgage 
 may have been regularly and promptly paid.* 
 
 If it appears to the court that the property is in danger 
 of being lost' or materially injured,* or if there is reason to 
 apprehend that the mortgagee will be in a worse situation 
 if the appointment is delayed,' the appointment of a receiver 
 will be granted almost as a matter of course.' Thus, it is 
 thought that the court may, in its discretion, appoint a 
 receiver of the rents and profits during the pendency of a 
 foreclosure, where it appears that the premises are chiefly 
 valuable for use during the continuance of an oil business,, 
 
 ' Newport & Cin. Bridge Co. v. * Kelly v. Stanton, 1 Hog. 395 
 
 Douglass, 12 Bush (Ky.) 673 (1876). (1820). 
 
 See Shotwell v. Smith, 3 Echv. Ch. * Bloodgood v. Clark, 4 Paige Ch. 
 
 (N.Y.)588(1842); Verplankv.Caines, (N. Y.) 577 (1834); Evans v. Coven- 
 
 1 Johns. Ch. (jSr. Y.) 57 (1814); try, 5 DeG., M. & G. 811, 918 (1854); 
 
 Morrison v. Buckner, Hempst. C. C. Metcalfe v. Pulvertoft, 1 Ves. «& B. 
 
 442 (1843); Tysen v. Wabash R. 180(1813). 
 
 Co., 8 Biss. C. C. 247 (1878) ; Park- « Williamson v. Wilson, 1 Bland 
 
 hurst V. Kinsman, 2 Blatchf. C. C. Ch. (Md.) 421 (1826) ; Chase's Case, 
 
 78 (1848) ; Lloyd v. Passiiigham, 16 1 Bland Ch. (Md.) 213 (1826); Leven- 
 
 Ves. 59 (1809) ; N. Y. Code Civ. son v. Elson, 88 N. C. 182 (18S3). 
 
 Proc. § 713. ■" Thom-HS v. Davies, 11 Bcav. 29 
 
 » Chase's Case, 1 Bland Ch. (Md.) (1847) ; Metcalfe v. Pulvertoft, 1 
 
 266 (1826) ; s. c. 17 Am. Dec. 277. Ves. & B. 180 (1818) ; Aberdeen v. 
 
 « Pritchard v. Fleetwood, 1 Meriv. Chitty, 3 Y. & C. 870, 382 (1838). 
 
 54 (1815) ; Harris v. Shee, 1 J. & « Oldfield v. Cobbett, 4 L. J. Ch. 
 
 LaT. 92 (1846); 8. c. 6 Ir. Eq. (N. S.) 272 (1835); Middleton v. 
 
 543. Dodswell, 13 Ves. 266 (1806).
 
 788 ACCUMULATION OF TAXES. [§§ 663-664. 
 
 and that they are rapidly depreciating in value by reason of 
 the fact that the oil business is rapidly decreasing at that 
 point.' Reason for apprehending that the rents and profits 
 will be lost and the security thereby impaired, is the primary 
 ground for appointing a receiver." 
 
 § 663. Accumulation of taxes and interest, ground for 
 appointing a receiver. — In proceedings to foreclose a mort- 
 gage, a receiver should be appointed on the application of 
 the plaintiff in a case where the mortgaged premises are an 
 inadequate security for the debt, or where he has no per- 
 sonal security and the mortgagor has not paid the interest 
 or the taxes on the premises,' even though the unpaid taxes 
 may be a lien subsequent to the mortgage.* Where it is 
 shown that the mortgaged premises are about to be sold for 
 taxes, a receiver will be immediately appointed.* 
 
 § 664. Waste and fraud, causes for appointing a 
 receiver. — Where waste has been committed by a person in 
 possession of the property, or it has depreciated in value 
 through the fault and negligence of the mortgagor in posses- 
 sion, or where he is misapplying the rents and profits, the 
 
 » Smith V. Kelley, 31 Hun (N. Y.) 66 Cal. 606 ( 1885 ) ; Buchanan 
 
 387(1884). V. Berkshire L. Ins. Co., 96 Ind. 
 
 2 Rollins V. Henry, 77 N. C. 467 510 (1884) ; Callanan v. Shaw, 19 
 
 (1877). Where the defendant in an Iowa, 183 (1865); Clagett v. Salmon, 
 
 action to foreclose a trust deed on a S Gill & J. (Md.) 314 (1833) ; Brown 
 
 mill property suffered it to be idle, v. Chase, Walk, Ch. (Mich.) 43 
 
 and the plaintiffs took possession of (1843) ; Stockman v. Wallis, 30 N. 
 
 and managed it, the court held that J. Eq. (3 Stew.) 449 (1879); Johnson 
 
 neither the mill nor the rents were v. Tucker, 2 Tenn. Ch. 398 (1875). 
 
 in such "danger of being lost or See also Haas v. Chicago Building 
 
 materially injured " as entitled the Society, 89 111. 498 (1878) ; Brasted 
 
 plaintiffs to the appointment of a v. Sutton, 30 N. J. Eq. (3 Stew.) 462 
 
 receiver. Sleeper v. Iselin, 59 Iowa, (1879); Chetwood v. Coffin, 30 N. J. 
 
 379 (1882). Eq. (3 Stew.) 450 (1879) ; Oliver v. 
 
 » Mahon v. Crothers, 28 N. J. Eq. Decatur, 4 Cr. C. C. 458 (1834). 
 
 (1 Stew.) 567 (1877); Finch v. " chetwood v. Coffin, 30 N. J. 
 
 Houghton, 19 Wis. 149 (1865). See Eq. (3 Stew.) 450 (1879). 
 
 Sidenberg v. Ely, 90 N. Y. 257 * Darusmont v. Patton, 4 Lea 
 
 (1882); Wall Street Ins. Co. V. Loud, (Tenn.) 597(1880). See Haas v. 
 
 20 How. (N. Y.) Pr. 95 (1860) ; Mc- Chicago Building Society, 89 111. 
 
 Lane v. Placerville & S. V. R. Co., 498 (1878).
 
 § 664.] 
 
 WASTE AND FRAUD CAUSES. 
 
 789 
 
 mortgagee will be entitled to the appointment of a receiver.' 
 Thus, although a mortgagor has a right to cut timber, yet 
 where he has become insolvent and exercises this right in 
 bad faith, a receiver will be appointed to take charge of the 
 premises.' 
 
 Pending an appeal in a mortgage foreclosure, a receiver 
 may be appointed to preserve the rents and profits, where 
 such rents and profits are being wasted by an heir in posses- 
 sion.* In case there is fraudulent conduct on the part of the 
 
 > "Wall St. Fire Ins. Co. v. Loud, 
 20 How. (N. 7.) Pr. 95 (1860); 
 "Worrill v. Coker, 56 Ga. 666 (1876); 
 Haas V. Chicago Building Soc, 89 
 111. 498 (1878) ; Brasted v. Sutton, 30 
 N. J. Eq. (3 Stew.) 463 (1879); 
 Chetwood v. Coffin, 30 N. J. Eq. (3 
 Stew.) 450 (1879); Stockman v. 
 Wallis, 30 N. J. Eq. (3 Stew.) 450 
 (1879); Mahon v. Crothers, 28 N. 
 J. Eq. (1 Stew.) 567 (1877) ; John- 
 son V. Tucker, 2 Tenn. Ch. 398 
 (1875) ; Finch v. Houghton, 19 Wis. 
 149 (1865) ; Oliver v. Decatur, 4 Cr. 
 C. C. 458 (1834). See Chappell v. 
 Boyd, 56 Ga. 578 (1876) ; Tufts v. 
 Little, 56 Ga. 189 (1876). 
 
 • Or he may be restrained by an in- 
 junction. Ensign v.Colburn, 11 Paige 
 Ch. (N. Y.) 503 (1844). It has been 
 said that the mortgage covers the 
 timber standing on the premises, and 
 that when it is severed from the free- 
 hold without the con.sent of the mort- 
 gagee, he has a right to hold it as a 
 part of his security. Ilutchins v. 
 King, 66 U. S. (1 Wall.) 53 (1863) ; 
 bk. 17 L. ed. 693. But the general 
 doctrine seems to be that the mort- 
 gagee can not maintain trover for 
 trees cut by the mortgagor. John- 
 son V. White, 11 Barb. (N. Y.) 194 
 (1851) ; VanWyck v. Alliger, 6 Barb. 
 (N. Y.) 507 (1849); Watson v. 
 Hunter, 5 Johns. Ch. (N. Y.) 169 
 (1821); Winship v. Pitts, 3 Paige 
 
 Ch. (N. Y.) 259 (1832) ; People v. 
 Alberty, 11 Wend. (K Y.) 160 
 (1834). Yet it is held that where the 
 mortgagor is insolvent, the mort- 
 gagee may maintain an action for an 
 unauthorized injury to the mortgage 
 security. JMorgan v. Gilbert, 2 
 Flip. C. C. 615 (1880) ; s. c. 2 Fed. 
 Rep. 835 ; Willard's Eq. Jur. 371. 
 379. After the timber upon the 
 mortgaged premises has been severed 
 from the freehold, a court of equity 
 can not restrain its removal ; John- 
 son V. White, 11 Barb. (N. Y.) 194 
 (1851) ; VanWyck v. Alliger, 6 Barb. 
 (N. Y.) 507 (1849); Watson v. 
 MeClay, 5 Johns. Ch. (N. Y.) 169 
 (18:21) ; Hawley v. Clowes, 2 Johns. 
 Ch. (N. Y.) 122 (1816) ; Ensign v. 
 Colburn, 11 Paige Ch. (N. Y.) 503 
 (1845) ; Winship v. Pitts, 3 Paige 
 Ch. (N. Y.) 259 (1832) ; People v. 
 Alberty, 11 Wend. (K Y.) 160 
 (1834); 2 Story Eq. Jur. (11th ed.) 
 giJlOie, 1017; Willard's Eq. Jur. 
 371, 379 ; but will restrain further 
 waste, W^eatherby v. Wood, 29 How. 
 (N. Y.) Pr. 404 (1865), and decree an 
 accounting for the timber cut, 
 Johnson v. White, 11 Barb. (N. Y.) 
 197 (1851) ; Spear v. Cutter, 5 Barb. 
 (N.Y.) 486 (1849) ; s. c. 2 N. Y. Code 
 Rep. 100; 2 Story Eq. Jur. (llih ed.) 
 §§ 957, 1016, 1017. 
 
 ^ Brinkman v. Ritzingcr, 82 Ind. 
 358 (1882).
 
 790 INJUNCTION AGAINST SALE. [§665. 
 
 mortgagor, combined with danger of injury to the mortgaged 
 premises, a receiver will be appointed to take charge of the 
 rents and profits and to preserve the mortgaged property;* 
 but in such a case, the pleadings should contain allegations 
 of specific charges of fraud or of imminent danger of injury 
 to the property." 
 
 § 665. Injunction restraining sale, cause for appointing 
 a receiver. — In a case where the mortgagor has obtained 
 an injunction restraining the sale of the mortgaged premises, 
 until certain counter-claims can be passed upon and the sum 
 really due on the mortgage is ascertained, the mortgagee 
 will be entitled to have a receiver appointed to take charge 
 of the property and to secure the rents and profits thereof, 
 where they are in danger of being lost.* 
 
 In Warwick v. Hammell,* a second mortgagee had obtained 
 an order of sale in a foreclosure, and a stay was procured by a 
 third person,who attacked the plaintiff's title to the mortgage 
 in a court of equity. The mortgagor in possession of the 
 premises was insolvent, and neither the taxes nor the interest 
 on any of the incumbrances having been paid for three 
 years, the second mortgagee was held to be entitled to a 
 receiver of the rents and profits of the mortgaged premises, 
 pending the litigation with the person attacking his title to 
 the mortgage. 
 
 ' See Orphan Asylum v. McCar- 313 (1866) ; Ladd v. Harvey, 21 N. 
 
 tee, Hopk. Cli. (N. Y.) 429 (1825); H. (1 Fost.) 514 (1850); Mordaunt 
 
 Tomlinson v. Ward, 2 Conn. 396 v. Hooper, 1 Amb. 311 (1756); 
 
 (1818) ; Powell v. Quiun, 49 Ga. 523 Lloyd v. Passingham, 16 Ves. 59 
 
 (1873; ; Crawford v. Ross, 39 Ga. 44 (1809) ; Middleton v. Dodswell, 13 
 
 (1869) ; Jones v. Dougherty, 10 Ga. Ves. 266(1806) ; Hugonin v. Basley, 
 
 273 (1851); Voshell v. Hynson, 26 13 Ves. 105(1806); Anon. , 12 Ves. 4 
 
 Md. 83 (1866) ; Haight v.' Burr. 19 (1806). 
 
 Md. 134 (1862) ; State v. Northern '^ Powell v. Quinn, 49 Ga. 523 
 
 Cent. R. R. Co., 18 Md. 193 (1861) ; (1873). 
 
 Blondlieim v. Moore, 11 Md. 365 ^ Oldham v. Wilmington Bank, 
 
 (1857) ; Furlong v. Edwards, 3 Md. 84 K C. 304 (1881). 
 
 9y(18.>2): Thompson v.Diflfenderfer, * 32 N. J. Eq. (5 Stew.) 427 
 
 1 Md. Cb. Dec. 489 (1S49); Mays (1880). 
 V. Rose. 1 Freem. Ch. (Miss.) 703 
 ()S43) ; Maynard v. Railey, 2 Nev.
 
 § iS^6.^ MOETGAGOK GIVING ADDITIONAL SECUEITY. 791 
 
 § 666. When a receiver will not be appointed — Mort- 
 gagor giving security. — Where the mortgaged property is 
 of such value, that the debt can be paid from the proceeds of 
 a sale of the premises under foreclosure, a receiver will not 
 be appointed ;* and if the party in possession of the prem- 
 ises, as owner of the equity of redemption, is solvent, there 
 is no such reasonable cause for a receiver as will warrant an 
 appointment, although the mortgagor himself may be insol- 
 vent.* 
 
 A court has no authority to interfere with a mortgagor's 
 right to collect the rents and profits of the mortgaged 
 premises, unless such rents and profits, as well as the prop- 
 erty, have been pledged as security for the payment of the 
 debt, or unless a clear want of sufficient security, or waste, 
 or failure to pay taxes, or diminution of the value of the 
 security, or mismanagement of the property, or an increase 
 of the mortgage debt is shown.' A receiver will not be 
 appointed, in the absence of any of the causes above set 
 forth, merely because the mortgagee wishes to turn the rents 
 and profits to his own use, when such appointment will be 
 to the injury of a prior mortgagee ;* nor will a receiver 
 be appointed on the application of one defendant as against 
 another.* 
 
 Even if there are reasonable grounds for believing that 
 the mortgage security is inadequate to satisfy the debt, a 
 receiver will not be allowed on the application of the plain- 
 tiff, if the person in possession of the mortgaged premises, 
 or the party liable for the deficiency, gives security to account 
 for the rents and profits as the court shall direct, in case 
 
 ,1 Williams v.Noland. 2 Tenn.Ch. man, 4 Sandf. Ch. (N. Y.) 405 
 
 151(1874). See Worrill V. Coker, 56 (1846); Eslava v. Crampton, 61 
 
 Ga. 666 (1876); Pullan v. Cincinnati Ala. 507 (1878) ; Sales v. Lusk, 60 
 
 & C. O. R. Co., 4 Biss. C. C. 35 Wis. 490 (1884) ; s. o. 18 Rep. 382 ; 
 
 (1865). Morris v. Branchaud, 52 Wis. 187 
 
 ' Silverman V. North-western Mut. (1881); Pullan v. Cincinnati, &c., 
 
 L. Ins. Co., 5 111. App. 124 (1880). R. Co., 4 Biss. C. C. 35 (18G5). 
 
 » Shotwell V. Smith, 3 Edw. Ch. ■* Sales v. Lusk, 60 Wis. 490 (1884>; 
 
 <N. Y.) 588 (1843); Bank of Ogdens- B. c. 18 Rep. 382. 
 
 burg V. Arnold, 5 Paige Ch. (N. ' Robinson v. Hadley, 11 Beav. 
 
 Y.) 38 (1835) ; Qnincy v. Cheese- 614 (1849).
 
 792 PART ONLY OF DEBT DUE. [§ 667. 
 
 there is a deficiency upon the sale of the premises under a 
 decree of foreclosure.' Where the rents and profits of the 
 mortgaged premises have been already applied to the pay- 
 ment of the mortgage debt, and of the necessary expenses 
 incurred in the management and care of the property, an 
 appHcation for the appointment of a receiver will be denied.'' 
 
 § 667. Where part only of debt due, or premises can be 
 sold in parcels. — In those cases where the whole debt is not 
 due, if the mortgagee has neglected to take a specific pledge 
 of the rents and profits of the mortgaged premises as security 
 for his debt before it becomes due, he will have no equitable 
 right to the rents and profits in the meantime,' and a receiver 
 will not be appointed on his application, except possibly in 
 case of the death of the mortgagor.* 
 
 Where only a portion of the mortgage debt is due and no 
 waste or failure to pay taxes, or diminution of value of the 
 security, or increase of the mortgage debt is shown,' and 
 the mortgaged premises are capable of being divided 
 and sold in parcels separately without injury to the parties 
 interested, in the absence of any pledge or specific appro- 
 priation, by which accruing rents of that portion of the 
 premises not yet liable to be sold, are constituted a security 
 to the mortgagee for the portion of the mortgap^e not yet 
 due, he will not be entitled to a receivership, for the pro- 
 tection of the unmatured portion of the debt, of that 
 portion of the premises for the sale of which he has no 
 accrued right.* 
 
 ' Sea Ins. Co. V, Stebbins, 8 Paige way, 11 N. J. Eq. (3 Stockt.) 39 
 
 Ch. (N. Y.)565(1841). See Harper v. (1855) ; s. c. 64 Am. Dec. 478. 
 
 Grambling, 66 Ga. 236 (1880) ; Rich » Bank of Ogdensburg v. Arnold, 
 
 V. Colquitt, 65 Ga. 113 (1880); Grant- 5 Paige Cli. (N. Y.) 38 (1835). See 
 
 ham V. Lucas, 15 W. Va. 425 (1879) ; Astor v. Turner, 11 Paige Ch. (N. 
 
 Talbot V. Hope Scott, 4 Kay & J. Y.) 436 (1845) ; s. c. 43 Am. Dec. 
 
 141 (1858) ; Pritchard v. Fleetwood, 766 ; Howell v. Ripley, 10 Paige 
 
 1 Meriv. 54 (1815); Curling v. Town- Ch. (N. Y.) 45 (1843). 
 
 shend, 19 Ves. 633(1816). Compare * Burrowes v. Malloy, 2 Jo. & 
 
 Clark V. Johnston, 15 W. Va. 804 La T. 521. 
 
 (1879). fi Morris v. Branchaud, 52 Wis. 
 
 * Myton V. Davenport, 51 Iowa, 187 (1881). 
 
 583 (1879). See Corlleyeu v. Hatha- • HoUenback v. Barnard, 94 N. Y.
 
 §§ 668-669.] MORTGAGEE GUILTY OF LACHES. 79S 
 
 § 668. Where mortgagee guilty of laches— Validity of 
 mortgage denied. — Where, from lapse of time or other 
 circumstances, a mortgage is presumed to have been paid, a 
 receiver will not be allowed.' Thus, in a case where a mort- 
 jjagee delayed his suit for foreclosure and permitted the 
 mortgagor to use the property for several years, and after a 
 decree was rendered and a sale ordered, neglected to enforce 
 the same, a motion for the appointment of a receiver was 
 denied, the court saying: "While it is true that the mort- 
 gagee may delay his suit for foreclosure after the debt 
 is due and default of the mortgagor to pay it, yet if he 
 delays his remedy and permits the mortgagor to use the 
 property for several years, a very strong case of probable 
 injury to the rights of the mortgagee must be made out, and 
 there must be a pressing necessity for the interposition of 
 the court ; and if, as in this case, a decree has been rendered 
 and a sale ordered, and the mortgagee still neglects to have 
 it enforced, the emergency must be grave, and an imperative 
 necessity for the relief be shown to exist, before a court will 
 exercise this extraordinary jurisdiction."' 
 
 The appointment of a receiver of the rents and profits of 
 mortgaged premises being for the purpose of enforcing the 
 payment of the debt simply, a receiver should not be 
 appointed to take charge of the rents and profits in those 
 cases where the validity of the mortgage is impeached on 
 probable grounds.' 
 
 § 669. Where property in possession of stranger to 
 the foreclosure. — A court will not appoint a receiver of the 
 rents and profits of property in the possession of a stranger 
 to the suit ;* and when a tenant, who is not a party to the 
 
 342 (1884). See Wyckoff v. Sco- « Cone v. Combs, 18 Fed. Rep. 576 
 
 field, 98 N. Y. 475. 477 (1885); Bank (1883); s. c. 5 McCravy C. C. 651. 
 of Ogdensburg v. Arnold, 5 Paige ' Leahy v. Arthur, 1 Hog. 92 , 
 
 Ch. (N. T.) 38, 40 (1835) ; Quincy Shepherd v. Murdock, 2 Molloy, 
 
 V. Cheeseman. 4 Sandf. Ch. (N. Y.) 531 (1824) ; Darcy v. Blake, 1 Mol- 
 
 405 (1846) ; Morris v. Branchaud, 52 loy, 247 (1829). 
 Wis. 187 (1881). * Searles v. Jacksonville, P. & M. 
 
 » Shepherd v. Murdock, 2 Molloy, R. R. Co., 2 Woods C. C. 621 (1873). 
 
 631 (1824) ; Darcy v. Blake, 1 Mol- See Sea Ins. Co. v. Stebbins, 8 Paige 
 
 loy, 247 (1829). Ch. (N. Y.) 565" (1841). In the case
 
 794 PREMISES IN POSSESSION OF STRANGER. [§670. 
 
 action, is in possession, his possession will not be disturbed 
 by the appointment of a receiver, but he may be ordered to 
 attorn to the receiver and to pay the rent to him.' 
 
 Where a tenant goes into possession pendente lite, the 
 mortgagee will be entitled to an order requiring him to yield 
 possession of the premises or to pay the rent from that time 
 to the receiver ; but he will have no right, in any event, to 
 an order, especially as against the equitable rights of others, 
 which will, in effect, vest in him the possession nunc pro tunc, 
 as of a time prior to the application.* 
 
 § 670. Where a bill is filed to redeem. — Upon a bill to 
 redeem, where the plaintiff is in possession of the premises, 
 and they are ample security for the amount admitted by 
 him to be due, the court will not appoint a receiver of the 
 rents and profits pending the litigation, if the insolvency of 
 the plaintiff is not set up, or if it is alleged and denied.* In 
 no case can a receiver be allowed on a bill to redeem, unless 
 the person in possession is a party to the suit or a tenant 
 under a party.* 
 
 The fact that the mortgagor has a claim against the 
 mortgagee arising out of a different transaction, which claim, 
 if valid, is a set-off against the sum due upon the mortgage, 
 but which is not established or the amount thereof adjusted, 
 will not entitle the mortgagor to a receiver of the property 
 in the hands of the mortgagee.* 
 
 It is thought that the purchaser at a foreclosure sale of 
 the equity of redemption in mortgaged lands has no right, 
 upon seeking redemptig' 'yom the mortgagee, to compel the 
 application of person^ property embraced in the same 
 mortgage to the paymciit of the mortgage debt to the 
 
 of Whorton v. Webster, 56 Wis. 356 ' Zeiter v. Bowman, 6 Barb. (N.' 
 
 (1882), this question was raised, but Y.) 133 (1849). 
 
 not passed upon. ' Jenkins v. Hinman, 5 Paige Ch. 
 
 • Sea Ins. Co. v. Stebbins, 8 Paige (N. Y.) 309 (1835). 
 
 Ch. (N. Y.) 565 (1841). See Bank of * Sea Ins. Co. v. Stebbins, 8 Paiga 
 
 Ogdensburg v. Arnold, 5 Paige Ch. Ch. (N. Y.) 565 (1841). 
 
 (N. Y. ) 38 (1835). As to the doc- » Bayaud v. Fellows, 28 Barb. (N. 
 
 trine at law as regards a tenant, see Y.) 451 (1858). 
 Rogers v. Humphreys, 5 Nev. & 
 Mann.511 (1835); s.c. 4 Ad. & El. 299.
 
 § 671.] WUEN RENTS CAN NOT BE APPLIED. 795 
 
 exoneration of the land ; and the appointment of a receiver to 
 take charge of such personal property, upon a bill filed by 
 the purchaser to redeem the mortgaged lands, and an order 
 for its sale and the application of the proceeds to the pay- 
 ment of the mortgage debt, are erroneous.' 
 
 § 671. When rents can not be applied under a receiver. 
 
 — If a mortgage or deed of trust does not, in express terms, 
 create a specific lien upon the rents and profits of the mort- 
 gaged property, a receiver thereof should not be appointed 
 for the benefit of those interested in the proceeds simply 
 upon an averment in the bill that the mortgaged estate is an 
 inadequate security for the payment of the debt, and that 
 the mortgagor is insolvent ;* because, in the absence of a 
 specific clause giving such a lien,* the mortgagee is not entitled 
 to and has no lien upon the rents and profits prior to the 
 foreclosure sale,* and the mortgagor, though insolvent, may 
 collect or assign them,' until such time as the mortgagee 
 becomes authorized to proceed by an action against the 
 mortgagor to subject the property to the payment of his 
 debt." 
 
 Where a mortgagee wlio has neglected to take a specific 
 pledge of the rents and profits of the premises, obtains an 
 order requiring the tenant to attorn to a receiver appointed 
 in a foreclosure, all that he is entitled to is immediate posses- 
 sion of the premises as security for the payment of his debt.' 
 A mortgagee becomes entitled to the rents and profits only 
 
 ' Lovelace v. "Webb, 62 Ala. 271 assignee of a chattel mortgage, givea 
 
 (1878). by the tenant to the mortgagor to 
 
 »Phcetix Mut. Life Ins. Co. v. secure the payment of the rent. 
 
 Grant, 3 McAr. (D. C.) 220 (1877). Zeiter v. Bowman, 6 Barb. (N. Y.) 
 
 « Zeiter v. Bowman, 6 Barb. (N. 133 (1849). 
 
 Y.) 133 (1849); Bank of Ogdensburg s See Syracuse Bank v. Tallman, 31 
 
 V. Arnold, 5 Paige Ch. (N. Y.) 38 Barb. (N. Y.) 201 (1857) ; Shotwell 
 
 (1835). See Wyckoflf v. Scofield, v. Smith, 3 Edw. Ch. (N. Y.) 588 
 
 98 N. Y. 475 (1885) ; Argall v. Pitts, (1842) ; Hughes v. liatchett, 55 Ala. 
 
 78 N. Y. 239 (1879). 631 (1876). 
 
 * Where a mortgagee has neglected « gee Jacobs v. Gibson. 9 Neb. 380 
 
 to take a specific pledge of the rents (1879). 
 
 aud profits of the premises for the ■> Zeiter v. Bowman, 6 'Barb. (N. 
 
 security of his debt, he has no equit- Y.) 133 i^lSiO). 
 able right to them as against the
 
 796 WHEN MORTGAGOR MAY HOLD RENTS. [§ 672. 
 
 by commencing a suit to foreclose and by procuring the 
 appointment of a receiver, and he will then be confined to 
 the rents and profits accruing during the pendency of the suit.* 
 He does not thereby acquire a lien upon rents which have 
 already accrued, but which have not yet come into the hands 
 of the owner of the equity of redemption;' nor can the c6urt 
 order rents already collected and in the possession of the 
 owner to be paid over to the receiver and applied upon 
 the mortgage debt,' because the equitable lien obtained by 
 his appointment extends only to the unpaid rents.* 
 
 Where a mortgagee allows the mortgagor to remain in 
 possession of the property after default, the mortgagor may 
 hold the rents and profits to his own use, and the mort- 
 gagee can not compel him to account for them,* though 
 the mortgaged property may have become an insufficient 
 security. 
 
 § 672. When receiver applied for by defendant. — A 
 defendant is not entitled, as a matter of right, to the 
 appointment of a receiver, even where the plaintiff, in his 
 complaint, has asked for a receiver; and a court will not 
 appoint a receiver on a defendant's application, if it is 
 opposed by the plaintiff ;° neither will a receiver be appointed 
 on the application of one defendant as against another.^ 
 
 > Argall V. Pitts, 78 N. T. 239 "> Dow v. Memphis & L. R. R. R. 
 
 (1879). Co., 20 Fed. Rep. 768 (1884). 
 
 2 Wyckoff V. Scofield, 98 N. Y. « Robinson v. Hadley, 11 Beav. 
 
 475 (1885) ; Hollenbeck v. Donnell, C14 (1849). No costs will be given 
 
 94 N. Y. 343 (1884). to the plaintiff under such circum- 
 
 2 Wyckoff V. Scofield, 98 N. Y. stances. 
 
 475 (1885) ; Rider v. Bagley. 84 N. •» Robinson v. Hadley, 11 Beav. 
 
 Y. 461 (1881) ; Howell v. Ripley, 10 614 (1849). In this case the court 
 
 Paige Ch. (N. Y.) 43 (1843). refused to appoint a receiver for the 
 
 * Wyckoff V. Scofield, 98 IS". Y. property in the hands of one defen- 
 
 475 (1885) ; Rider v. Bagley, 84 K dant on the application of another 
 
 Y. 461 (1881) ; Argall v. Pitts, 78 defendant, and gave as a reason for 
 
 K. Y. 239 (1879) ; Mitchell v. Bart- such refusal, that it knew no in- 
 
 lett, 51 N. Y. 447 (1873) ; Astor v. stance of a receiver having been 
 
 Turner, 11 Paige Ch. (N. Y.) 436 appointed upon the application of 
 
 (1845) ; 43 Am. Dec. 766 ; Howell oue defendant as against another 
 
 V. Ripley, 10 Paige Ch. (N. Y.) 43 dcfeuduut, prior to a hearing. 
 (1843) ; Lofsky v. Maujcr, 3 Saudf. 
 Ch. (N. Y.) 69 (1845).
 
 § 673.] NO RECEIVER — ^TIME FOR REDEMPTION. 797" 
 
 It is thought, where a receiver is denied to a defendant 
 on his application therefor, that he can obtain the desired 
 relief by filing a cross-complaint against his co-defendants 
 and the plaintiff, asking for the appointment of a receiver and 
 moving his appointment in such cross-suit.' 
 
 § 673. Receiver not appointed during the time allowed 
 for redemption. — In those states where it is provided by- 
 statute that a mortgagor shall have a specified time in which 
 to redeem the mortgaged premises from a sale made under 
 a foreclosure, the mortgagee is not entitled to have a 
 receiver appointed to take charge of the crops, rents and 
 profits of the mortgaged premises during such period allowed 
 for redemption, the mortgagor having a right to the posses- 
 sion of the property during that period, and the mortgagee 
 having no interest whatever in such crops, rents and profits.* 
 
 It has been held that the Indiana statute,* providing for 
 the appointment of a receiver "in actions for the foreclosure 
 and sale of property, where it is in danger of being lost, 
 removed or injured, or is not sufficient to discharge the 
 debt," applies only to the time before the sale, and that 
 while the mortgagor remains in possession of the premises 
 during the year of redemption after the sale, a receiver should 
 not be appointed.* 
 
 A statutory provision that the mortgaged premises may 
 be used by a mortgagor during the period allowed for 
 redemption in the same manner in which they were previ- 
 ously used, may be waived by express contract.* It has 
 been held that, under the Michigan statute,* a clause in the 
 mortgage giving the mortgagee possession in case of default, 
 can not be carried into effect by appointing a receiver in a 
 
 * McCracken v. Ware, 3 Sandf. » Edwards t. Woodbury, 1 McCr. 
 (N. Y.) 688 (1850). C. C. 429 (1880) ; s. c. 3 Fed. Rep. 
 
 * White V. Griggs, 54 Iowa, 650 14. 
 
 (1880) ; Lapham v. Ives, 8 Rep, 6 « Comp. L. § 6263. This statute 
 
 (1879) ; 8. c. 13 West. Jur. 357 ; 25 excludes the mortgagee from posses- 
 
 Int. Rev. Rec. 186. sion until he acquires an absolute 
 
 » Acts 1879, p. 169. tiUe. 
 
 *Sheek v. Klotz, 84 Ind. .471 
 (1882).
 
 '^dS EECEIVEE FOE DIFFEEENT MOETGAGEES. [§674. 
 
 foreclosure until after default; and that, even then, it will 
 be a matter of discretion.' 
 
 Under the Oregon statute, which provides that " a mort- 
 gage of real property shall not be deemed a conveyance so 
 as to enable the owner of the mortgage to recover possession 
 of the real property without a foreclosure and sale according 
 to law," a mortgagee is not entitled to the rents and profits 
 before foreclosure.* Where a married woman mortgaged 
 her separate property under this statute to secure the debt 
 of her husband, and the mortgagee, before the sale of the 
 same, to satisfy the debt, entered and took the rents with- 
 out the consent of the wife, the court held that he was not 
 entitled to credit the same on the husband's debt, but was 
 liable to the wife as for the use and occupation of the 
 premises.* 
 
 § 674. Receivers as between different mortgagees. — 
 Subsequent mortgagees are entitled to the appointment of 
 a receiver of the rents and profits of the mortgaged premises 
 on a petition showing that the mortgaged property is of less 
 value than the amount of the incumbrances.* Where an 
 action is brought to foreclose a mortgage and all the lien- 
 holders are made parties, and a receiver is appointed upon 
 the application of one of the mortgagees, but such appoint- 
 ment is not limited to any party or lien, and it afterwards 
 appears that the appointment was, in fact, necessary for all 
 the lienholders, the fund collected by the receiver should be 
 treated as a part of the general security of the mortgagees, 
 and be controlled and distributed according to their priorities.' 
 But if the receiver is appointed on the motion and for the 
 benefit of a particular henholder, such appointment will be 
 for his benefit only;* but the receivership may be subse- 
 quently extended to one or more of the other liens.* 
 
 ' Beecher v. Marquette «& P. R » Williamson v. Gerlach, 41 Ohio 
 
 Mill Co., 40 Mich. 307 (1879). St. 682 (1885). 
 
 * Teal V. Walker, 111 U. S. 242 « Ranney v. Peyser, 83 N. Y. 1 
 (1884) ; bk. 28 L. ed. 415. (1880). 
 
 « Sample v. Bank of British Co- » Williamson v. Gerlach, 41 Ohio 
 
 lumbia, 5 Sawy. C. C. 394 (1879). St 682 (1885). 
 
 * Buchanan v. Berkshire Life Ins. 
 Co., 96 Ind. 510 (1884).
 
 §675.] APPOmTmG SECOND RECEIVER. ^^^ 
 
 Where the appointment is not limited to any party or 
 lien, it is of no consequence upon whose application the 
 appointment was made, for the fund collected by the receiver 
 under such an. appointment will not be appropriated to any 
 particular claim. Thus, in a case where a junior mortgagee 
 had the rents of the property applied to his mortgage to 
 the exclusion of prior mortgagees, it was held that the 
 appointment of a receiver was made for the benefit of this 
 lienholder only, and where no other lienholder asked to have 
 the receivership extended to his lien, that the rents and 
 profits should be applied to the discharge of his debt only. 
 § 675. Appointment of second receiver.-One appoint- 
 ment of a receiver does not exhaust the power of the court 
 under the New York practice.' An additional receiver will 
 not be appointed, however, unless it appears to be necessary 
 for the protection of the interests of those desiring it. The 
 fact that a receiver has already been appointed in a previous 
 action will not necessarily interfere with the appointment 
 of another receiver in a subsequent suit. But where a 
 second receiver is appointed in a subsequent suit, the duties 
 of such second receiver will be subordinate to those of 
 the first one. When the first receiver becomes fufu/?is 
 officio the second will take the funds, or any remaining por- 
 tion thereof/ which may be undisposed of by the court in 
 
 the litigation.* 
 
 Where the appointment of a receiver has been completed, 
 whether in the suit first commenced or in a subsequent one, 
 instead of appointing another receiver for the same property, 
 the court will usually extend the receivership of the one 
 action over the other.* 
 
 • Washington Ins. Co. v. Flei- v. Central Trust Co., 22 Fed. Re>. 
 
 Bchauer. 10 Hun (N. Y.) 117 (1877) ; 513 (1885). , .. Abb m 
 
 Post V Dorr 4 Edw. Ch. (N. Y.) ' Bailey v. Belmont, 10 Abb. (N. 
 
 ^"(mS Howell V. Ripley. 10 Y.) Pr. N. S. 270. 273 (1871). 
 
 Paifie Ch. (N. Y.) 43 (1843); Wil- ' O'Mahoney v. Belmont. 62 N 
 
 Son V. Gerlach. 41 Ohio St. 682 Y. 133 149 (1875) ; Ba.ley v^Bel- 
 
 .^gg-. mont, 10 Abb. (N. Y.) Pr. JN. o. 
 
 « See People v. Security Life Ins. 270, 273 (1871). 
 
 Co 79 N Y 267(1879). * Osborn v. Heyer. 2 Paige Ch. 
 
 3 Vaba^h. St. L. & W. R. R. Co. (N. Y.) 342 (1831) ; LotUmer v.
 
 800 NO EEOEIVER IF MORTGAGEE HOLDS TITLE. [§676. 
 
 The appointment of a receiver is an interlocutory pro- 
 ceeding from which no appeal lies,* and the consent of the 
 parties to an appeal, can not confer jurisdiction on the 
 appellate court.' Where the complaint asks for the appoint- 
 ment of a receiver, and the court finds that a receiver should 
 be appointed but fails to appoint one, such failure can not be 
 assigned as error on an appeal by the party opposed to the 
 appointment, but only by the party asking for such receiver.' 
 
 § 676. No receiver where mortgagee holds legal title. 
 — Where the legal title to the mortgaged premises is in the 
 mortgagee, he will not be entitled to the appointment of a 
 receiver,* because he may recover possession of the estate by 
 an action for ejectment,* without the aid of a court of 
 chancery;* but if he has only a mortgage of the equity 
 of redemption and the prior mortgagee is not in possession, 
 the subsequent mortgagee may have a receiver appointed 
 without prejudice to the right of the first mortgagee to take 
 possession.^ If, however, there is a subsisting equity, 
 which, if set up at law, would lead to the trial of questions 
 which might be tried more satisfactorily in equity, the mort- 
 gagee, having the legal estate, will be entitled to a receiver.* 
 
 In White v. Bishop of Peterborough,* a third incumbrancer 
 was in possession. The first incumbrance was a devise for 
 
 Lord, 4 E. D. Smith (N. Y.) 183, Sturch v. Young. 5 Beav. 557 
 
 191 (1855). (1842) ; Berney v. Sewell, 1 Jac. & 
 
 ' Wilson V. Davis, 1 Mon. T. 98 w. 647 (1820). But see Ackland v. 
 
 0^68). Gravener, 31 Beav. 482 (1862). 
 
 2 Wilson V. Davis, 1 Mont. T. 98 * The action of ejectment against 
 
 (1868). When the order appointing ^ mortgagor has been abolished in 
 
 a receiver is in excess of the juris- j^g^ York • 5 Wait Pr. 190 • N. Y. 
 
 diction of the court, it is subject to Code Civ Proc S 1498 
 
 review under the California Code. e Ackland v. Gravener, 31 Beav. 
 
 § 1068. See LaSociete Prancaise v. 434 (i862). See Sturch v. Young, 5 
 
 District Court, 53 Cal. 495 (1879). ggav. 557 (1842) ; Berney v. Sewell. 
 
 (1872)™°''''^ ^' ^^^^^''' ^^ ^''^' ^"^^ ^ '^^''- * ^- ^^^ ^^^^^^ ' ^'^^^' ""• 
 
 ^ ^^^ ,. „ ,, ^ _ Bishop of Norwich, 3 Swanst, 113 n. 
 
 * Williams v. Robinson, 16 Conn. (I8I6) 
 
 524 (1844) ; Mahon v. Crothers, 28 n 2 Spence Eq. Jur. 689. 
 
 N. J. Eq. (1 Stew.) 567 (1877) ; 8 Ackland v. Gravener, 31 Beav 
 
 Beverley v. Brooke, 4 Gratt.fVa.) 209 432 (1862). 
 
 (1847) ; Williamson v. New Albany » 3 Swanst. 100 (1816). 
 
 R. Co., 1 Biss. C. C, 201 (1857);
 
 § 677.J NO EECEIVEK IF MORTGAGEE IN POSSESSION. 801 
 
 years, to secure an annuity, and the second incumbrance 
 was also an annuity secured for a term. On a bill filed by 
 the second incumbrancer, Lord Eldon held that he was 
 entitled to a receiver, inasmuch as he could not succeed in 
 ejectment on account of a prior legal estate which might 
 have been set up against him. And it has been held that 
 the grantee of an annuity is entitled to a receiver as against 
 judgment creditors, who have obtained possession under 
 writs of elegit or sequestration, if there is a legal estate 
 prior to the term securing his annuity, which bars him from 
 proceeding at law by ejectment.* 
 
 § 677. No receiver where mortgagee in possession. — 
 It is a general rule that, as against a prior mortgagee in 
 possession of the property, a receiver will not be allowed 
 in favor of a subsequent mortgagee, as long as any part of 
 the debt remains unpaid to the prior mortgagee,' because the 
 prior mortgagee is entitled to retain possession until his 
 claim is fully paid,' except where he refuses to accept the 
 unpaid balance, or admits that he has probably received 
 the full amount of his claim.* In the early case of Berney 
 V. Sewell,* the rule was stated thus: "If a man has a legal 
 mortgage he can not have a receiver appointed; he has 
 nothing to do but to take possession. But if he has only an 
 equitable mortgage, that is if the prior mortgagee is not in 
 the possession, the other is entitled to a receiver without 
 prejudice to his taking possession ; but if he is in possession, 
 the subsequent mortgagee can not have a receiver; he must 
 redeem from the prior mortgagee."* 
 
 • Silver v. Bishop of Norwich, 3 Gr.) 210 (1835) ; Rowe v. Wood, 3 
 
 Swanst. 113 n. (1816). Jac. & W. 553 (1821). 
 
 « Patten v. The Accessory Transit » Callanan v. Shaw, 19 Iowa, 183 
 
 Co.,4Abb.(N.Y.)Pr. 235(1857); 8. C. (1865). 
 
 13 How. (N. Y.) Pr. 502 ; Quinn v. * Berney v. Sewell, 1 Jac. & W. 
 
 Brittain, 3 Edw. Ch. (N. Y.) 314 649 (1820) ; Hiles v. Moore, 15 Beav. 
 
 (1839) ; BoUes v. DufE. 35 How. (N. 180 (1852). 
 
 Y.) Pr. 481 (1867) ; Rapier v. Gulf » 1 Jac. «& W. 648 (1820). 
 
 City Paper Co., 64 Ala. 330 (1879) ; • See Mahon v. Crothers, 28 N. J. 
 
 Callanan v. Shaw, 19 Iowa, 183 Eq. (1 Stew.) 567 (1877) ; Cortleyeu 
 
 (1865) ; Treuton Banking Co. v. v. Hathaway, 11 N. J. Eq. (3 
 
 Woodruff, 3 N. J. Eq. (2 H. W. Slockt.) 39 (1855) ; B. C. 64 Am. 
 
 (51)
 
 802 JUNIOR MORTGAGEE REDEEMING. [§678. 
 
 The rule that a receiver will not be appointed against a 
 prior mortgagee in possession as long as anything remains 
 unpaid on his mortgage, applies equally whether the priority 
 is original or has been acquired subsequently to the execu- 
 tion of the mortgage by assignment ;' but it applies only so 
 long as some part of the debt remains unpaid to the mort- 
 gagee who has a right to retain the possession.' 
 
 This rule, that a receiver will not be appointed against a 
 prior legal mortgagee in possession, has been said to apply 
 in favor of persons in possession, entitled to a mortgage and 
 to prior charges on the estate, though they may have 
 applied part of the rents in payment of the interest on those 
 charges, instead of discharging the principal of the mort- 
 gage, it being the proper course, as between a tenant for 
 life and the owners of the inheritance, to keep down such 
 interest out of the rents, and not to treat the surplus rents, 
 after the payment of interest on the unpaid part of the princi- 
 pal, as applicable to the reduction of such principal.* 
 
 § 678. Subsequent mortgagee redeeming from prior 
 mortgagee in possession. — Where a prior mortgagee is 
 in possession, a subsequent mortgagee, to gain control of the 
 rents, must redeem from the first mortgagee ; and, in taking 
 the account, the first mortgagee will not be allowed any 
 sums which he may have paid to the mortgagor after notice 
 of subsequent incumbrances.* If the mortgagee in posses- 
 sion claims that anything is due him, the court v/ill not take 
 the possession away from him ; and so long as anything 
 remains unpaid, the court can not substitute another security 
 for that for which the mortgagee contracted.* The only 
 
 Dec. 478 ; Trenton Banking Co. v. * Codrington v. Parker, 16 Ves. 
 
 Woodruff, 3 N. J. Eq. (2 H. W. 469 (1809). 
 
 Gr.) 210 (1835) ; Schreiber v, Carey, » Faulkner v. Daniel, 3 Hare, 204 n 
 
 48 Wis. 218 (1879) ; Hiles v. Moore, (1843) ; 8. c. 10 L. J. Ch. N. S. 33. 
 
 15 Beav. 175 (1852) ; Rowe v. Wood, * 2 Spence Eq. Jur. 689. 
 
 2 Jac. & W. 553 (1821). » Quinn v. Brittain, 3 Edw. Ch. 
 
 1 Berney v. Sewell, 1 Jac. & W. (N. Y.) 314 (1839); Berney v. Sewell, 
 
 648 (1820); Hiles v. Moore, 15 IJac. «& W. 648, 649(1820); Dalmer 
 
 Beav. 181 (1852) ; Bates v. Brothers, v. Dashwood, 2 Cox Ch. 382, 383 
 
 17 Jur. 1174 (1853) ; s. c. 2 Sm. & (1793) ; Bryan v. Cormick, 1 Cox 
 
 G. 509. Ch. 422 (1788) ; Phipps v. Bishop of
 
 § 678.] JUNIOE MORTGAGEE REDEEMnSTG. 803 
 
 course is to pay him off according to his own statement of 
 the debt,* particularly where it appears that the mort- 
 gaged premises are an inadequate security for the balance 
 due.' 
 
 It is not necessary that the mortgagee in possession be 
 able to state the exact amount due on his mortgage ; it 
 will be sufficient if he can show that anything at all is due.' 
 The incomplete state of his accounts will furnish no valid 
 excuse on the part of the mortgagee in possession for not 
 making a definite statement regarding the amount due him ; 
 ^f he keeps his accounts in such shape that he can not tell, 
 and that no one else can ascertain the amount due, the court 
 will assume that nothing is due and will appoint a receiver.* 
 Time may be allowed the mortgagee in possession, however, 
 in which to prepare a statement.* 
 
 If the mortgagee in possession alleges in his answer that 
 some part of the debt is due him, the court may determine 
 the truth of the statement upon affidavits against the 
 answer.' The statement must be a positive and distinct 
 one ; a vague assertion or a general declaration by the mort- 
 gagee that he believes that when the accounts are stated, 
 some particular sums and parts of other sums will be found 
 due, will not be sufficient, unless it is supported by a state- 
 ment of accounts which will serve to test the truth of such 
 assertion or declaration.* If the mortgagee can not state 
 that some definite amount is due him, the court will appoint 
 a receiver.' 
 
 Bath and Wells, 2 Dick. 608 (1783) ; 469 (1809); Hiles v. Moore, 15 Beav. 
 
 Chambers v. Goldwin, cited 13 Ves. 180 (1852). 
 
 878 (1807) ; Quarrell v. Beckford, 13 » Codrington v. Parker, 16 Ves. 
 
 Ves. 378 (1807). 469 (1809). 
 
 » Bayard v. Fellows, 28 Barb. (N. « Rowe v. Wood, 2 Jac. & W. 558 
 
 Y.) 451 (1858) ; Berney v. Sewell, 1 (1821). 
 
 Jac. & W. 648 (1820) ; Rowe v. ' Hiles v. Moore, 15 Beav. 181 
 
 Wood, 2 Jac. & W. 557 (1821). (1852). 
 
 ' Bayard v. Fellows, 28 Barb. (N. ' Chambers v. Goldwin, cited in 
 
 Y.) 451 (1858). 13 Ves. 378 (1807); Quarrell v. Beck- 
 
 « Chambers v. Goldwin. cited in ford, 13 Ves. 378 (1807) : Rowe v. 
 
 13 Ves. 378 (1807); Quarrell v. Beck- Wood, 2 Jac. & W. 558 (1821). 
 ford, 13 Ves. 378 (1807). 
 
 * Codrington v. Parker, 16 Ves.
 
 801 RECEIVER MORTGAGEE IN POSSESSION. [§ G79. 
 
 In Rowe v. Wood/ a motion for a receiver against a mort- 
 gagee of mines, who had become a partner by purchasing 
 shares in such mines, made upon the ground of mismanage- 
 ment, was denied, it not being shown, and the mortgagee 
 not admitting, that the mortgage was paid. It was also 
 held in that case, that the rights and duties of a person in 
 such a situation were not to be governed solely by principles 
 applicable to a party who stands in the position of a mort- 
 gagee or partner ; and that if a mortgagee can in any case 
 be deprived of his possession on the ground of mismanage- 
 ment, it must be mismanagement of a clear and specific 
 nature. 
 
 § 679. Other cases for receiver where mortgagee in 
 possession, — A mortgagee who has been placed in posses- 
 sion by the mortgagor, by virtue either of a clause in the 
 mortgage or of a subsequent agreement or consent, which 
 may be by parol, is entitled to retain possession and to col- 
 lect the rents and profits as against a purchaser at a sale 
 under an execution issued on a judgment, the lien of which 
 did not attach until after the mortgagee's possession had 
 commenced.' 
 
 But possession of the premises obtained by a mortgagee, 
 through arrangements with a tenant of the mortgagor, 
 whose lease has expired, without the consent of such mort- 
 gagor, is not a lawful possession and will not be a bar to the 
 appointment of a receiver.* And the rule that a receiver 
 will not be appointed against a mortgagee holding the legal 
 title, who is in the actual possession of the mortgaged 
 property, does not apply where the party in possession holds 
 the property under an execution issued upon a judgment.* 
 
 In order to deprive an equitable mortgagee of the right 
 to a receiver, the possession of the party holding the property 
 must be such as invests him with a right to receive the rents 
 and profits. A mere possession as a tenant is not suffi- 
 cient, and an incumbrancer who is in possession, not as an 
 
 • 2 .Jac. & W. 5.53 (1821). « Russell v. Ely, 67 U. S. (3 Black), 
 
 " Edwards v. Wray. 11 Biss. C.C 575 (1862) ; bk. 17 L. ed. 258. 
 251 (1882) ; s. c. 12 Fed. Rep. 42. * Kerr on Rec. 118.
 
 § 680J EECEIVER MORTGAGEE IN POSSESSION. 805 
 
 incumbrancer, but as a tenant, can not set up his possession 
 as such tenant against the appointment of a receiver.' 
 
 In a case where a second mortgagee, who had sold a part 
 of his mortgage to a tenant in possession of the premises, 
 applied for a receiver, and the tenant in possession objected, 
 on the ground that the rent which he was to pay was just 
 equal to the interest he was entitled to receive on his share 
 of the money due on the mortgage, and that it would, 
 therefore, merely increase his expenses by paying into court 
 as rent what he must receive back as interest, the court held 
 that the defendant could not unite his two characters of 
 mortgagee and tenant, and that his possession as tenant 
 could not be set up against the other mortgagee.* 
 
 § 680. When a receiver will be appointed against a 
 mortgagee in possession. — As has been seen, a receiver 
 will not be appointed as a rule against a mortgagee in pos- 
 session so long as anything remains due to him ; yet, where 
 it appears that he is irresponsible, or that the rents and 
 profits will be lost, or are in danger of being lost, or that he 
 is committing waste upon or a material injury to the prem- 
 ises, an exception will be made and a receiver will be 
 appointed.* A receiver will also be appointed in all instances 
 where 2l prima facie case of fraud is shown to the satisfaction 
 of the court,* or where gross mismanagement of the estate is 
 made to appear ; but to warrant such an interference, the 
 mismanagement must be of a clear and specific nature.* 
 
 Where liens upon a bankrupt's estate are before a court 
 for adjustment, a receiver will be appointed on the appli- 
 cation of his assignee, although the bankrupt may have 
 relinquished possession to some of the prior incumbrancers.* 
 
 > Kerr on Rec. 44. 69 (1809) ; Hugonin v. Basely, 13 
 
 » Archdeacon v. Bowes, 3 Anst. Ves. 105 (1806). 
 
 752(1794). « Corcoran v. Doll, 35 Cal. 476 
 
 » BoUes V, Duff, 35 How. (N. T.) (1868) ; Kipp v. Hanna, 2 Bland 
 
 Pr. 481 (1867) ; Williams v. Robin- Ch. (Md.) 26 (1820) ; Hugonin v. 
 
 son, 16 Conn. 517 (1844) ; Beverley Basely, 13 Ves. 105 (1806) ; Lloyd 
 
 V. Brooke, 4 Gratt. (Va.) 209 (1847) ; v. Passingham, 16 Ves. 59 (1809). 
 
 Meaden v. Sealey, 6 Hare, 620 ; » Rowe v. Wood, 2 Jac. & W. 553 
 
 Codrington v. Park, 16 Ves. 409 (1821). 
 
 (1809); Lloyd V. Passingham, 16 Ves. * McLean v. Lafayette Bank, 8
 
 806 
 
 EECEIVER — MORTGAGEE OUT OF POSSESSION. [§681. 
 
 § 68i. Receiver where first mortgagee out of posses- 
 sion.— If it appears from the bill that there is a prior 
 morto-agee who is not in possession of the premises, it has 
 been held that the court may, at the instance of subse- 
 quent incumbrancers, appoint a receiver in the absence of 
 the prior mortgagee, even where the mortgagor is out 
 of the jurisdiction of the court; but such an appoint- 
 ment will, of course, be made without prejudice to the 
 right of the first mortgagee to take possession of the premises 
 at any time he may desire.' 
 
 If there are prior outstanding mortgages, but the mort- 
 gagees are not in possession, or refuse to take possession, the 
 court may appoint a receiver of the mortgaged premises at 
 the instance of subsequent mortgagees or judgment creditors, 
 without prejudice to the right of the prior mortgagees to 
 
 McL. C. C. 503 (1844) ; s. c. 2 West. 
 L. J. 441. 
 
 ' Dalmer v. Dashwood, 2 Cox Ch. 
 378-383 (1793); Bryan v. Cormick, 
 1 Cox Ch. 423 (1788) ; Phipps v. 
 Bishop of Bath, 2 Dick. 608 (1783) ; 
 Berney v. Sewell, 1 Jac. & W. 
 647-649 (1820); Tanfield v. Irvine, 2 
 Russ. 151 (1826). But see Holmes v. 
 Bell, 2 Beav. 298 (1840) ; Browne v. 
 Blounte, 2 Russ. & M. 83 (1830) ; 
 Anderson v. Stather, 2 Coll. 209 
 (1845) ; Rhodes v. ]|Hostyu, 17 .Jur. 
 1007 (1853) ; Coope v. Creswell, 12 
 W. R.299 (1864). 
 
 In Phipps V. Bishop of Bath and 
 Wells, 2 Dick. 608 (1783), Lord 
 Thurlow refused to appoint a 
 receiver at the instance of a second 
 mortgagee, the first one not being in 
 possession ; hut in Bryan v. Cor- 
 mick, 1 Cox Ch. 422 (1788), he 
 came to the conclusion that a subse- 
 quent mortgagee is entitled to have 
 a receiver when the first mortgagee 
 is not in possession. A similar 
 order was made in Dalmer v. Dash- 
 wood, 2 Cox Ch. 378 (1793). In 
 
 Langton v. Langton, 7 DeG. M. & G. 
 30 (1855), a receiver was appointed 
 at the suit of a junior incumbrancer, 
 the first legal incumbrancer not be- 
 ing entitled to take possession, 
 because he was, by the terms of his 
 security, obliged before doing so, 
 to give three months' notice after 
 default made in the payment of the 
 mortgage money. In the early case 
 of Phipps v. Bishop of Bath and 
 AVells, 2 Dick. 608 (1783), where 
 the first mortgagee was not in 
 possession, a receiver was refused. 
 Lord Thurlow, saying: "A second 
 mortgagee, the mortgagor living, 
 can not have a receiver without the 
 consent of the first mortgagee, be- 
 cause the court can not prevent the 
 first mortgagee from bringing an 
 ejectment against the receiver as 
 soon as he is appointed." But the 
 later cases, given above, have estab- 
 lished the rule as stated in the text. 
 See also, Corielyeu v. Hathaway, 11 
 N. J. Eq. (3 Stockt.) 39, 42 (1855) ; 
 State of Maryland v. North Cent. 
 R. R. Co., 18 Md. 193(1861).
 
 § 682.J KECEIVBR ON APPLICATION OV MOETOAGEE. 807 
 
 take possession- But a court will not allow » pri-^^S^' 
 incunfbrancer to object to the appomtment of a receiver 
 except by the assertion of his legal rights and by takmg 
 possession of the premises himself.' 
 
 8 682 Receiver appointed upon the application of 
 junior mortgagee.-The appointment of a '««-" ^^ ^^ 
 made at the suit of a junior mortgagee, or other legal 
 incumbrancer, tor the purpose of keeping down the mterest 
 even though the applicant may be unable, at the t.me, to 
 enforce the usual mortgagee's remedies, as where he has cove- 
 nanted not to call in the mortgage debt durmg a certam t,me 
 And the court may, in a suit by a junior mortgagee appomt 
 a receiver, although the first mortgagee may, by h.s mort- 
 gage, hav; the power to appoint one.' But the appomtment 
 win always be without prejudice to the nghts of every pr.or 
 mortgagee, and the receiver will be directed by the order 
 appofnting him to keep down the interest upon all prior 
 
 incumbrances.* ... , 
 
 If the interest is in arrears, such arrearage w,l be 
 a sufficient cause for the appointment of a recover at the 
 suit of a junior mortgagee incumbrancer.' But where as 
 between two equitable incumbrancers, the one later m date 
 has acquired the legal possession of the premises, the court 
 will not appoint a receiver at the instance of the one who 
 
 was orior in date.'' 
 
 It is said to be a well established rule that a mortgagee 
 obtains a specific lien upon rents and profits by diligently 
 securing the appointment of a receiver, and a second or 
 other subsequent mortgagee may thus secure an advantage 
 
 . X,, -1 TVT^oMrn 17 Tiir 1007 » Cortleycu v. Hathaway, 11 N. 
 
 Ch. 422 (KS8). „ TT « • Wbite v. Bishop of Pelers- 
 
 nir^feo'aSvbk' ull W^gTsSwanst. 109 (1818); Tan- 
 
 '^4 SUV r';.*S„p of Norwich, ^^^^^■^"^"^■'^r'''TnZ- 
 h,' ' r, 12 n .1816). ^01 V. Wilson, 2 Keen, 249 1836) 
 
 3 Swanst. 112 n (1816^ Worcester and Birn.ing- 
 
 sBurjows V. Malloy. 2 Jac. <B J^^'^ca-"'^- T. R fi En. 437(1868). 
 
 ♦Boii'v. ToUemaclie, 1 N. R. 'Bat 
 
 177 a862). (^^^^^-
 
 808 EECEIVER MORTGAGEE IN POSSESSION. [§683. 
 
 over the first mortgagee as to the rents collected,* even 
 though the first mortgagee may not receive from the fore- 
 closure sale a sufificient amount to discharge his mortgage 
 debt. But this rule is said to apply only to those cases 
 where the first mortgagee is not a party to the suit.' 
 
 § 683. Receiver when junior mortgagee in possession. 
 — If a subsequent incumbrancer is in possession of the 
 property and a prior legal incumbrancer can not recover 
 possession by an ejectment, a receiver may be appointed.* 
 Where a second mortgagee forecloses and buys in the 
 premises for less than the amount of his mortgage debt, and 
 takes possession as purchaser, and the premises are doubt- 
 ful security for the first mortgage, the first mortgagee may, 
 in an action to foreclose his mortgage, have a receiver 
 appointed, who will be required to account to such purchaser 
 for any balance that may remain after satisfying the first 
 mortgage." 
 
 Where, in an action for foreclosure, a junior mortgagee 
 was appointed receiver with power to keep the buildings 
 insured and in repair and " to pay ground rent and taxes," 
 and subsequently a prior mortgagee foreclosed and bought 
 in the premises for less than his claim, the receiver, having 
 paid the ground rent to the date of sale, was held to be 
 entitled to appropriate the balance in his hands to the 
 discharge of his mortgage, and could not be required to pay 
 the taxes from the fund.* A third mortgagee, who advances 
 money to buy up a first incumbrance, can not retain the 
 property as against a second mortgagee, after the first 
 
 ' Post V. Dorr, 4 Edw. Ch. (N 
 T.) 412 (1844). See Warner v. Gouv 
 emeur, 1 Barb. (N. Y.) 36 (1847) 
 Washington Life Ins. Co. v. Flei 
 Bchauer, 10 Hun (N. Y.) 117 (1877) 
 Astor V. Turner, 11 Paige Ch. (N 
 T.) 436 (1845) ; s. c. 43 Am. Dec 
 
 Logansport R. Co., 106 U. S. (16 
 Otto), 286 (1882) ; bk. 27 L. ed. 117 ; 
 8. c. 1 Sup. Ct. Rep. 140 ; High on 
 Rec. g 688. 
 
 ' Silver v. Bishop of Norwich, 3 
 Swanst. 116, n (1816). 
 
 * New York Life Ins. Co, 
 
 766; Howell v. Ripley, 10 Paige Glass, 50 How. (N. Y.) Pr. 88 
 
 Ch. (N. Y.) 43 (1843) ; Thomas v. (1875). 
 
 Brigstocke, 4 Russ. 64 (1827). » Ranney v. Peyser, 83 N. Y. 1 
 
 » Howell V. Ripley, 10 Paige Ch. ( 1880 ), reversing 20 Hun ( N. 
 
 (N. Y.) 43 (1843); Miltenberger v. Y.) 11.
 
 §§ 684-685.] APPOINTING EECEIVER. 809 
 
 mortgage has been paid off, if he had notice of the existence 
 of such second mortgage.' 
 
 § 684. General practice in appointing receiver. — Where 
 the plaintiff avers that the security for the mortgage debt is 
 insufficient, and the mortgagor or the party personally liable 
 for the payment of the debt is insolvent, the mortgagee will 
 be entitled to apply for a receiver of the rents and profits of 
 the mortgaged premises at any time during the progress of 
 the cause,* and will, even before the hearing,* be entitled to 
 a receiver as a matter of right, unless the party in possession, 
 or the person liable for the payment of the deficiency, 
 gives a sufficient undertaking to account for the rents 
 and profits in case of a deficiency.* A receiver may be 
 appointed even after a voluntary assignment by a mort- 
 gagor for the benefit of his creditors.* 
 
 While a receiver may be appointed, either upon the appli- 
 cation of the plaintiff, or upon the motion of the court in a 
 case justifying it, yet one will not be appointed on the 
 application of a mere stranger having no connection with or 
 interest in the subject matter of the litigation.* 
 
 § 685. Time of appointing receiver. — A court of chan- 
 cery has no power to appoint a receiver prior to the filing 
 of a bill and the beginning of an action,^ nor without notice 
 to the parties interested in the property to be delivered 
 
 ' Hiles ▼. Moore, 15 Beav. 175, 181 (1847) ; Sliotwell v. Smith, 3 Edw. 
 
 (1852). Ch. (N. Y.) 588 (1843) ; Aster ▼. 
 
 » Lofsky V. Maujer, 3 Sandf. Ch. Turner, 11 Paige Ch. (N. Y.) 436 
 
 (N. Y.) 69 (1845) ; Hardy v. McClel- (1845) ; Howell v. Ripley, 10 Paige 
 
 Ian, 53 Miss. 507 (1876) ; Whitehead Ch. (K Y.) 43 (1843) ; Sea Ins. Co. 
 
 V. Wooten, 43 Miss. 533 (1870); v. Stebbins, 8 Paige Ch. (N. Y.) 565 
 
 Brown v. Chase, Walk. Ch. (Mich.) (1841); Main v. Ginthert, 93 Ind. 180 
 
 43 (1843). (1883) ; Myers v. Estell, 48 Miss. 373 
 
 8 Brinfcman v. Ritzinger, 82 Ind. (1878). 
 
 864 (1883). See Frelinghuysen v, * Upham v. Lewis, 1 Law Bull. 86 
 
 Colden, 4 Paige Ch. (N. Y.) 204 (1879). 
 
 (1833) ; Caslin v. State, 44 Lid. 151 « O'Mahoney v. Belmont, 62 N.Y. 
 
 (1873). 133(1875). See Attorney-General v. 
 
 ♦ Syracuse Bank v. Tallman, 31 Day, 3 Madd. 246 (1817). 
 
 Barb.(N. Y.) 201 (1857). See Warner ' Crowder v. Moone, 52 Ala. 220 
 
 V. Gouverneur, 1 Barb. (N. Y.) 36 (1875).
 
 810 TIME OF APPOINTING RECEIVER. [§686. 
 
 into the receiver's hands ;' an order to show cause why 
 a receiver should not be appointed, served before the action 
 is commenced, is irregular.' It has long been held that a 
 receiver should not be applied for prior to the service of 
 the summons,* unless, perhaps, where the defendant design- 
 edly keeps without the jurisdiction of the court, or is in 
 hiding, to avoid service of the process,* because a court 
 has no jurisdiction to deprive a party, who is not present to 
 defend himself, of the possession of his estate.* A receiver 
 should not be appointed before final judgment, merely 
 because of a concurrent demand by two or more parties to 
 the action.* 
 
 § 686. Appointment of receiver before answer. — The 
 general rule is, that a receiver will not be appointed before 
 the defendant answers, especially if one is not asked for in the 
 complaint, unless it clearly appears that the property is in 
 danger of loss or injury by reason of the insolvency of the 
 party having possession of it, or from other causes.* And 
 where a receiver is appointed before the answer is served, he 
 may afterwards be discharged on the defendant's motion, 
 if the complaint and answer taken together show that a 
 receiver should not have been appointed.* 
 
 It was formerly held not to be proper to move for a 
 receiver upon the pleadings and afBdavits in the action 
 before the hearing on the trial.* The present doctrine, how- 
 ever, is that after an action for foreclosure has been com- 
 menced, the plaintiff may, if the security is in jeopardy, 
 sequestrate the rents or emblements or both through the aid 
 
 Jones V. Schall, 45 Mich. 379 » Tanfield v. Irvine, 2 Russ. 151 
 
 ^881). (1826). 
 
 ♦ KattensWoth v. Astor Bank, 2 « Dusenbury v. Dusenbury, 11 
 imer (N. Y.) 632 (1853). Daly (N. Y.) 112 (1882). 
 
 ' Stratton v. Davidson, 1 Russ. & ' People v. Mayor of K Y., 8 
 
 Myl. 484 (1830). Abb. (N. Y.) Pr. 7 (1858) ; West v. 
 
 * Quinn v. Gunn, 1 Hog. 75 (1816); Swan, 3 Edw. Ch. (N. Y.) 430 (1840). 
 Malcolm V. Montgomery, 2 Molloy, » Phoenix Mut. Life Ins. Co. v. 
 600(1824) ; Maguire v. Allen, 1 Ball Grant, 3 McAr. D. C. 220 (1879). 
 
 & B. 75 (1809) ; Coward v. Chad- » Lloyd v. Passingham, 3 Meriv. 
 
 wick, 2 Russ. 150, n. (1825). See 1 697 (1811). 
 VanSant. Eq. Pr. 402.
 
 §687.] APPOINTING EECEIVEE ATTEE DECEEK Sll 
 
 of a receiver, at any time during the progress of the action ; 
 but that the receiver is not entitled to recover rents collected 
 nor the value of emblements enjoyed prior to the date of his 
 appointment.* 
 
 To authorize the appointment of a receiver before the 
 hearing, the complaint must contain a prayer for such 
 appointment.' A receiver will be appointed after a hearing 
 or after a rehearing, even though such appointment may 
 have been once refused, upon showing a new state of facts 
 such as to justify the appointment.* 
 
 § 687. Appointment of receiver after granting decree. 
 — After a decree of foreclosure has been granted, the court 
 may appoint a receiver, although not asked for in the com- 
 plaint,^ where such appointment is necessary to protect the 
 interests of the mortgagee ;* the fact that the complaint 
 does not state facts authorizing the appointment of a 
 receiver, constitutes no objection to an application well sup- 
 ported on the merits.* 
 
 If a trustee, appointed by a final decree, refuses the 
 trust, a receiver may be appointed to protect the interests 
 of all the parties interested in the estate.' And where a 
 receiver has been properly appointed if\ a suit for the fore- 
 closure of a mortgage, it will be no error to continue the 
 receivership after the final decree of sale.' 
 
 Although a mortgagor may be entitled to hold the legal 
 title to the premises until the foreclosure sale, yet in a proper 
 
 ■ Hamilton v. Austin, 36 Hun (N. legal title until the foreclosure sale, 
 
 Y.) 138 (1885). yet in a proper case, when necessary 
 
 * Cook V. Gwyn, 3 Atk. 689 (1748); to protect the mortgagee's interests, 
 Meredith v. Wyse, 1 Molloy, 2 equity will appoint a receiver ; this 
 (1826). may be done by an order in the fore- 
 
 » Attorney- General v. Mayor of closure suit after judgment ; and the 
 
 Galway, 1 Molloy, 95 (1828). fact that the complaint does not state 
 
 * Cook V. Gwyn, 3 Atk. 689(1748); facts authorizing the appointment, 
 Meredith v. Wyse, 1 Molloy, 2(1826). is no objection in such a case." 
 
 » Haas V. Chicago Building Soc, s Schreiber v. Carey, 48 Wis. 208 
 
 89111 498(1878); Schreiber v. Carey, (1880). 
 
 48 Wis. 208 (1880). In Schreiber v. "> Wilson v. Russ, 17 Fla. 691 
 
 Carey, supra, the court say : "Al- (1880). 
 
 though, by the laws of this state, * Buchanan v. Berkshire L. Ins 
 
 the mortgagor of lands holds the Co., 96 Ind. 510 (1884).
 
 812 APPomnNG receivee after 8A.le. [§688. 
 
 case, and when necessary to protect the mortgagee's interests, 
 equity will appoint a receiver ; and his appointment may 
 be made by an order in the foreclosure even after-judgment.* 
 But an order appointing a receiver of rents and profits after 
 a final decree of foreclosure and sale, should not be granted 
 without notice; yet if a party voluntarily appears and resists 
 the application for a receiver, notice thereof will be deemed 
 to have been waived.* 
 
 § 688. Appointment of receiver after sale. — Inasmuch 
 as the necessity for the appropriation of the rents and profits 
 to the payment of the mortgage debt frequently does not 
 appear until after the sale, a receiver to collect them may be 
 appointed by the court after the sale upon a proper showing 
 of the facts and circumstances,* or where it clearly appears 
 that the rights of the purchaser have been impaired or are 
 likely to be impaired by the possession of the mortgagor. 
 The reason for this would seem to be that the security is not 
 exhausted by the sale, for there is also a fund included in it 
 which is secondarily liable, — the rents and profits. The 
 power of appointing a receiver after a sale, however, should 
 be exercised only in extreme cases and to prevent gross 
 wrong and- injustice.* 
 
 It has been said that where a mortgagee completes his 
 foreclosure without sequestrating the rents and profits, he 
 can not afterwards, on finding the property insufficient 
 security, have the rents and profits applied to the payment 
 
 ' Schreiber v. Carey, 48 Wis. 208 old equity rule governing this sub- 
 
 (1880). ject was embodied in and re-enacted 
 
 •Haas V. Chicago Building Soc, by 2 Ind. Rev. Stat. (1876), 144, 
 
 89 111. 498 (1878). § 199, chap. 6. 
 
 « Smith V. Tiffany, 13 Hun (N. * Haas v. Chicago Building Soc, 
 
 T.) 671 (1878) ; Astor v. Turner. 11 89 111. 498 (1878). See Astor v. 
 
 Paige Ch. (N. Y.) 436 (1845); s. c. Turner, 11 Paige Ch. (N. Y.) 436 
 
 43 Am. Dec. 766 ; Haas v. Chicago (1845) ; s. c. 43 Am. Dec. 766 ; 
 
 Building Soc, 89 Dl. 498 (1878) ; Smith v. Tiffany, 13 Hun (N. Y.) 
 
 Connelly v. Dickson, 76 Ind. 440 671 (1878); Adair v. Wright, 16 
 
 (1881); Adair v. Wright, 16 Iowa, Iowa, 385(1864); Schreiber v. Carey, 
 
 885 (1864) ; Schreiber v. Carey, 48 48 Wis. 208 (1880) ; Thomas v. 
 
 Wis. 208 (1880) ; Thomas v. Davies, Davies, 11 Beav. 29 (1847). 
 11 Beav. 29 (1847). In Indiana the
 
 §§689-690.] mTEEFERESra WITH KECER^ER. 813 
 
 of his debt, because his right to intercept such rents and 
 profits ceases with the completion of the foreclosure ;' but 
 the better doctrine is thought to be that a receiver may be 
 appointed after the granting of a decree or even after a sale, 
 where such appointment is necessary to protect the interests 
 and to preserve the rights of the parties to the action. 
 
 § 689. Interference with receiver's possession. — The 
 
 possession of a receiver appointed in a mortgage foreclosure 
 is not to be disturbed without leave of the court making the 
 appointment,* and all claims adverse to such receiver are 
 to be determined by the court appointing him.* But, 
 although the courts will prevent any disturbance of a receiver 
 in possession under an order of sequestration, yet they 
 generally refuse to interfere as against the legal title.* 
 
 The court, when appealed to, will examine the title and 
 discharge the receiver, or leave the party claiming the posses- 
 sion under a superior legal title, to enforce his rights' by an 
 action at law.* 
 
 § 690. Remedy of parties claiming title paramount to 
 receiver. — Where a receiver has been appointed in a mort- 
 gage foreclosure and a party claims a paramount title to the 
 estate, the remedy of the receiver is to apply to the court to 
 direct the claimant to exhibit interrogatories in order that 
 he may be examined pro interesse suo,^ as to his title to the 
 estate/ 
 
 ' Foster V. Rhodes, lOBankr. Reg. Peale v. Phipps, 55 U. S. (14 How.) 
 
 623 (1871). 368, 374 (1852) ; bk. 14 L. ed. 459. 
 
 » Foster v. Townshend, 2 Abb. (N. * Foster v. Townshend, 2 Abb. (N. 
 
 Y.) N. C. 29, 36 (1877). See Sea T.)N. C. 29,37(1877). See Tyson v. 
 
 Ins. Co. V. Stebbins, 8 Paige Ch. Fairclough, 2 Sim. & S. 142 (1824) ; 
 
 (N. Y.) 565 (1841) ; Angel v. Smith, Jeremy Eq. Jur. 252. 
 
 9 Ves. 336, 338 (1804) ; Brooks v. » Foster v. Townshend, 2 Abb. (N. 
 
 Greathed. 1 Jac. & W. 176, 178 Y.)K C. 29, 37(1877). See Angel v. 
 
 (1820); Pelhamv. Dutchess of New- v. Smith, 9 Ves. 336, 338 (1804); 
 
 castle, 3 Swanst. 289, 293, n (1819); 1 Dixon v. Smith, 1 Swanst. 457 (1818); 
 
 Btory Eq. Jur. (11th ed.) §33a; Attorney-General v. Coventry, 1 P. 
 
 Daniels Ch. Pr. 1579. Wm. 306 (1715) ; Empringham v. 
 
 « O'Mahoney v. Belmont, 62 K Short, 3 Hare, 461 (1844); Gilb. For. 
 
 Y. 133, 149 (1875). See Milwaukee & Roman. 81 (1874). 
 
 Bt. P. R. R. Co. V. Milwaukee & * Though it was formerly ques- 
 
 M. R. R. Co., 20 Wis. 165 (1865) ; tioned [see Kaye v. Cunningham, 5
 
 814 EECEIVER AGAINST PARAilOUNT TITLE. [§0^1. 
 
 Any one interfering with a receiver in possession without 
 first obtaining leave of the court which appointed him, must 
 either come into court and be examined pro interesse siio^ 
 or apply to the court for leave to enforce his legal rights by 
 bringing an action in ejectment ;' in either case the appli- 
 cation may be made by motion,* or on petition ; a petition 
 is probably the most convenient practice.* 
 
 § 691. Appeal — Continuance of receivership. — In 
 
 McMahon v. Allen,' an order directing the continuance of a 
 receivership during the pendency of an appeal, which was to 
 be taken from the final decree, was held to continue the 
 receiver's authority not only during th^ appeal to the general 
 term, but also during an appeal to the court of appeals. 
 In Rider v. Bagley," it was held that where fraud or con- 
 tempt upon the supreme court is charged upon the owner, for 
 
 Madd. 406 (1820)], it now appears 
 to be settled, that the party for 
 whose benefit the receivership was 
 had, may require the party daiming 
 an adverse right or title, to come in 
 and show cause why he should not 
 be examined fro interesse suo. 
 Foster v. Townshend, 2 Abb. (N. 
 Y.) N. C. 29, 37(1877). See Johnesv. 
 Claughton, Jac. 573 (1823) ; Brooks 
 V. Grcathed, 1 Jac. & W. 573 
 (1820) ; Hamlyn v. Lee, 1 Dick. 94 
 a743). 
 
 ' Wiswall V. Sampson, 55 U. S. 
 (14 How.) 52, 65 (1852) ; bk. 14 L. 
 ed. 322 ; 3 Dan. Ch. Pr. 1984. 
 
 ' Wiswall V. Sampson, 55 U. S. 
 (14 How.) 52, 65 (1852); bk. 14 L. ed. 
 322. Regarding the practice in 
 such cases, see Hamlyn v. Lee, 1 
 Dick. 94 (1743) ; Gomme v. West, 2 
 Dick. 472 (1772) ; Hunt v. Priest, 
 2 Dick. 540 (1778); Anon., 6 Ves. 
 287 (1801). 
 
 '^ Green v. Winter, 1 Johns. Ch. 
 (N. Y.) 60 (1814) ; s. c. 7 Am. Dec. 
 475 ; Bryan v. Cormick, 1 Cox 
 Ch. 422 (1788) ; Angel v. Smith, 9 
 
 Ves. 835 (1834) ; 2 Spence Eq. Jur. 
 647. 
 
 ' Brooks V. Greathed, 1 Jac. & W. 
 179, note, (1820); Dickinson v. 
 Smith, 4 Madd. 177 (1813) ; Walker 
 V. Bell, 2 Madd. 21 (1816); Dixon v. 
 Smith, 1 Swanst. 457 (1818). 
 
 * Brooks V. Greathed, 1 Jac. & 
 W. 178 (1820) ; 2 Spence Eq. Jur. 
 699. Where it is made to appear 
 to the satisfaction of the court 
 that the claimant has a superior 
 right or title to the sequestration, 
 the receiver will be discharged as to 
 him. Foster v. Townshend, 2 Abb. 
 (N. Y.) N. C. 29, 36 (1877); Attor- 
 ney-General V. Coventry, 1 P. Wm. 
 306, 309, note, (1715) ; Wharam v. 
 Broughton, 1 Ves. Sr. 181 (1748) ; 3 
 Dan. Ch. Pr. 12G9, 1270, 1271, and 
 such orders will be made as the 
 rights of all the parties in interest 
 may require. Field v. Jones, 11 Ga. 
 413 (1852) ; Angel v. Smith, 9 Ves. 
 335, 338 (1804) ; 2 Story Eq. Jur. 
 (11th ed.) §§ 833, 891. 
 
 » 14 Abb. (N. Y.) Pr. 220 (1862). 
 
 e 84 N. Y. 461 (1881).
 
 §692.] APPEAL — AccouNTme. 815 
 
 collecting rents with a knowledge of the pendency of an 
 application for a receiver, it is for the court to deal with the 
 charge, and its action in the matter will not be subject to 
 review on appeal. Assuming that the court has power to com- 
 pel such owner to pay the rents to the receiver after his 
 appointment, it seems that the exercise of such power is in 
 the discretion of the court, and consequently not reviewable.* 
 
 §692. Accounting of receivers.— While a receiver is 
 at all times liable for an accounting, he can be called upon for 
 an accounting only by the court which appointed him ;' and 
 an order directing him to deliver the property to another 
 court will not relieve him from the control of the appointing 
 court and its power to compel him to settle.* The accounting 
 of a receiver is to be made to the court only ; he can not be 
 compelled to show his books to a party to the suit.* A 
 report upon a receiver's account can not be excepted to and 
 need not be confirmed ;* and where there is no claim of 
 fraud or bad faith with reference to the accounts of a 
 receiver, he can not be compelled to pay the costs of 
 a reference to settle the same.* 
 
 A mortgagee who has purchased the mortgaged premises 
 at a foreclosure sale, not being entitled to any of the rents 
 and profits which accrued prior to the time of his purchase, 
 can not require a receiver to account therefor until they 
 have been collected.^ If there are two or more mortgagees, 
 and a receiver is appointed for the benefit of all the parties to 
 the action, the fund collected by the receiver will be subject 
 to whatever disposition may appear to the court to be most 
 equitable under the circumstances of the case.* 
 
 But it has been held that where, in an action brought to 
 foreclose a mortgage, a subsequent incumbrancer who is made 
 
 » Rider v. Bagley, 84 N. Y. 461 * Brower v. Brower. 2 Edw. Ch. 
 
 (1881). (N. y.) 621 (1836). 
 
 • Conkling v. Butler, 4 Biss. C. C. * Radford v. Folsom, 65 Iowa, 
 23 (1865). 276 (1880). 
 
 » Mabry v. Harrison, 44 Tex. 286 ■" Pendola v. Alexanderson, 67 Cal. 
 
 (1875). 337 (1885). 
 
 * Musgroove v. Nash, 3 Edw. Ch. * Keogh v. McManus, 34 Hun (N. 
 (N. T.) 172 (1837). T.) 531 (1885). In this case an
 
 816 ACCOUNTma by eeceiver. [§ 692. 
 
 a party defendant thereto, appeals in his own behalf and 
 secures the appointment of a receiver of the rents and 
 profits of the mortgaged premises, he will be entitled to 
 retain the amount collected by the receiver as against 
 the claim of a prior mortgagee whose debt, the amount 
 realized upon the sale of the mortgaged property under the 
 judgment entered in the action, has been insufficient to 
 satisfy,' because a junior incumbrancer can not be divested 
 of his right to the rents and profits in favor of the party 
 holding the first mortgage, until such party procures the 
 appointment of a receiver to collect them for his benefit and 
 to subordinate them to his own superior rights.' 
 
 In the case of Post v. Dorr,* it was held " to be an estab- 
 lished rule, that a second or third mortgagee who succeeds in 
 getting a receiver appointed, becomes thereby entitled to the 
 rents collected during the appointment, although a prior 
 mortgagee steps in and obtains a receivership in his behalf 
 and fails to obtain enough out of the property to pay his 
 debt. This is on the principle that a mortgagee acquires a 
 specific lien upon the rents by the appointment of a receiver 
 of them ; and if he be a second or third incumbrancer, the 
 court will give him the benefit of his superior diligence over 
 his senior, in respect to the rents which accrued during the 
 time that the elder mortgagee took no measure to have 
 the receivership extended to his suit and for his benefit." 
 
 action was brought by the plaintiff to pay the sum remaining due. The 
 
 to foreclose a mortgage given by the court directed that the amoimt due 
 
 defendants McManus and his wife, should be paid to the holder of 
 
 and a receiver of the rents, issues and the second mortgage, and the bal- 
 
 profltsof the premises was appointed, ance to the mortgagor. 
 
 Upon the sale a sufficient amount ' Washington Life Ins. Co. v. 
 
 was realized to discharge the amount Fleischauer, 10 Hun (N. Y.) 117 
 
 Ctue to the plaintiff, together with (1877). 
 
 the costs, and to leave a surplus, * See Washington Life Ins. Co. v. 
 
 which was applied upon a second Fleischauer, 10 Hun (N. Y.) 117 
 
 mortgage given by the said McMan- (1877) ; Howell v. Ripley, 10 Paige 
 
 us, and which, when so applied, Ch. (N. Y.) 43 (1843). 
 
 still left an amount unpaid thereon. ' 4 Edw. Ch. (N. Y.) 413, 414 
 
 There was a balance of rents col- (1844). 
 
 lected and in the hands of the receiver 
 
 amounting to more than enough
 
 §693.] COMPENSATION OF EECEIVER. 817 
 
 § 693. Compensation of receivers. — The compensation 
 of a receiver should be such as would be reasonable for the 
 services rendered by a person competent to perform the duties 
 of the office, rather than any fixed commission.' What is a 
 reasonable and proper compensation for a receiver is to be 
 determined by proof of the facts, and not by the opinions of 
 witnesses. Five per centum on the amount received and 
 disbursed seems to be the customary allowance.* In New 
 York a receiver is entitled to receive commissions at the rate 
 prescribed by statute' for receiving and paying out moneys, 
 viz., one-half of the specified rate for receiving and one-half 
 for disbursing.* 
 
 But where a court appoints a receiver in an action 
 pending therein, it may determine the rate of his compen- 
 sation independent of the statute and with reference to the 
 peculiar circumstances of the case.' A receiver is entitled 
 to be paid his commissions out of funds in his hands,' or to 
 have them taxed as costs,' without regard to the result of 
 the litigation.* 
 
 The expenses reasonably incurred by a receiver in the dis- 
 charge of his trust are a lien upon the trust property prior to 
 that of the bond holders or mortgagees.' Among the 
 expenses which should be allowed to a receiver are reason- 
 able fees for counsel employed by him in the proper 
 discharge of his trust," the costs of litigation and the expenses 
 
 ' See Jones v. Keen, 115 Mass. 170 ' Hutchinson v. Hampton, 1 Mon. 
 
 (1874). T. 39 (1868). 
 
 * Stretch v. Gowdey, 3 Tenn. Ch. * Hopfensack v. Hopfensack, 61 
 565 (1877). How. (N. Y.) Pr. 498 (1880). 
 
 3 N. Y. Code Civ. Proc. § 8320, » McLane v. Placerville & S. V. 
 fixes the maximum rate at five per R. Co., 66 Cal. 606 (1885). 
 centum. '" United States Trust Co. v. New 
 
 4 Howes V. Davis, 4 Abb. (N. Y.) York, W. S. & B. R. Co., 101 N. 
 Pr. 71 (1856). Y. 478 (1886) ; McLane v. Placer- 
 
 * Gardiner v. Tyler, 4 Abb. (N. ville & S. V. R. Co., 66 Cal. 606 
 Y.) Pr. N. S. 463 (1867) ; s. c. 3 (1885). As to when a receiver will 
 Keyes (N. Y.) 505 ; 3 Trans. App. not be allowed to charge against the 
 161, fund, fees paid to counsel, see Ran- 
 
 * Hopfensack v. Hopfensack, 61 ney v. Peyser, 20 Hun (N. Y.) 11 
 How. (N. Y.) Pr. 498 (1880); Radford (1880). 
 
 V. Folsom, 55 Iowa, 276 (1880).
 
 818 REMOVING RECEIVER. [§§ 694-695. 
 
 incurred in taking care of, protecting and repairing the 
 property in his charge.' In New York, the allowance of 
 commissions and expenses to such a receiver is governed by 
 the provisions of the Code of Civil Procedure.' 
 
 § 694. Removal of receivers. — A receiver appointed in 
 a mortgage foreclosure may be removed for misconduct by 
 the court appointing him on the application of any party 
 interested ;* but where such receiver has been appointed by 
 a court having jurisdiction of the case, no other court of co- 
 ordinate jurisdiction can remove him.* A receiver should 
 not be removed without notice to the plaintiff in the action, 
 or to the person at whose instance he was appointed.' 
 Nor should he be removed without notice, also, to all 
 persons who have appeared in the action.* 
 
 While under the provisions of the New York statute,' a 
 court of one judicial district has power to remove a receiver 
 appointed in an action pending in another judicial district, 
 it has no power to appoint his successor. For that purpose 
 the proceedings must be remitted to the district in which the 
 action is pending.* 
 
 § 695. Discharge of receivers. — The appointment of a 
 receiver in an action to foreclose a mortgage will continue 
 
 » McLane v. Placerville & S. V. Bank, &c., Co., 35 La. An. 196 
 
 R. Co., 66 Cal. 606 (1885). (1883). 
 
 « N. Y. Code Civ. Proc. § 3320 ; * Young v. Montgomery & E. R. 
 
 United States Trust Co. v. N. R. Co., 3 Woods C. C. 606 (1875). 
 
 Y., W. S. & B. R. Co., 101 N. See Kennedy v. Indianapolis, C. & 
 
 Y. 478 (1886). The Act of 1883, L. R. R. Co., 3 Flipp. C. C. 704 
 
 chap. 378, relates to receivers of (1880) ; s. c. 3 Fed. Rep. 97 ; 11 
 
 corporations appointed in proceed- Cent. L. J. 89 ; 26 Int. Rev. Rec. 
 
 ings in bankruptcy ; a receiver 30, 90 ; 10 Rep. 359 ; Bruce v. 
 
 appointed in an action to foreclose a Manchester & K. R. R. Co. , 19 Fed. 
 
 mortgage executed by a corporation. Rep. 342 (1884). 
 
 is not entitled to the fees specified iu * Attrill v. Rockaway Beach Imp. 
 
 said section. Co., 25 Hun (N. Y.) 376 (1881). 
 
 3 1 VanSant. Eq. Pr. 382. If the « See Attrill v. Rockaway Beach 
 
 person who is appointed receiver. Imp. Co., 25 Hun (N. Y.) 509 (1881). 
 
 absents himself and fails to file the ' Laws 1880, chap. 537. 
 
 bond ordered, the court may, in its * Attrill v. Rockaway Beach Imp. 
 
 discretion, remove him and appoint Co., 25 Hun (N. Y.) 376 (1881). 
 another. In re Louisiana Savings
 
 § 695.] DISCHARGING RECEIVEK. 819 
 
 during the pendency of the action, unless otherwise directed 
 in the order appointing him.' Where his duties have not 
 all been performed, a receiver should not be discharged 
 on his own application unless he shows good cause therefor, 
 especially if his discharge might affect other parties to the 
 action. His mere desire to be discharged, though coupled 
 with a statement of the complication of his accounts and the 
 necessity of losing much time in the business of his receiver- 
 ship, is not sufificient." And where the protection of the rights 
 of a defendant requires the continuance of a receiver, the court 
 will not grant a discharge, although the suit may be at an 
 end ; but it will require the defendant thus protected to 
 file a bill forthwith to settle his rights.* 
 
 A receiver should not be discharged without notice to all 
 interested parties, but the discharge of a receiver without 
 notice is not necessarily such an irregularity as to justify a 
 reversal of the order.* The payment of the mortgage debt 
 by the mortgagor, after the appointment of a receiver, 
 does not, ipso facto, discharge the receiver. The receiver may 
 have a claim for expenses incurred in the exercise of his 
 duties which should be paid before the property held by 
 him is taken from his possession.* 
 
 » Weems v. Lathrop, 43 Tex. 207 497 (1827) ; Largan v. Eowen, 1 
 
 (1875). Sell. & Lef. 296 (1803). 
 
 * Beers v. Chelsea Bank, 4 Edw. '' Coburn v. Ames, 57 Cal. 201 
 Ch. (N. Y.) 277 (1843). (1881) ; s. c. 28 Am. Dec. 634. 
 
 * Whiteside v. Prendergast, 2 ' Crook v. Findley, 60 How. (N. 
 Barb. Ch, (N. Y.) 471 (1847). See Y.) Pr. 375 (1880). 
 
 Murrough v. French, 2 Molloy,
 
 CHAPTER XXXII. 
 
 PROCEEDINGS ON SURPLUS MONEYS. 
 
 PAYING SURPLUS INTO COURT-CHARACTER OF SURPLUS, REALTY 
 OR PERSONALTY-ADJUSTING CLAIMS AND EQUITIES- 
 QUESTIONS OF PRIORITY-LIENS ON SURPLUS— 
 DOWER-MECHANICS' LIENS. 
 
 696. Introductory. 
 
 697. Rules of court. 
 
 698. Provisions of Code. 
 
 699. Object of the statute and 
 
 court rule. 
 
 700. Payment of surplus into 
 
 court. 
 
 701. When surplus not paid into 
 
 court. 
 703. When surplus paid into sur- 
 rogate's court. 
 
 703. Paying surplus into court on 
 
 foreclosure by advertise- 
 ment. 
 
 704. Character of surplus— Per- 
 
 sonal or real properly. 
 
 705. Surplus personalty, where 
 
 land so converted under 
 will. 
 
 706. Massachusetts doctrine. 
 
 707. Character of surplus belong- 
 
 ing to infant, 
 
 708. Who entitled to apply for 
 
 surplus. 
 
 709. Protecting claims to sur- 
 
 plus. 
 
 710. Adjusting equities. 
 
 711. Liens to be paid in order of 
 
 priority in time. 
 713. Questions of priority — How 
 determined. 
 
 713. Claims must be liens on 
 
 mortgaged premises. 
 
 714. Equitable distribution — 
 
 Claims liens on two funds. 
 
 715. Distribution of surplus — 
 
 Mortgagor deceased. 
 
 716. Interest of life-tenant in sur- 
 
 plus. 
 
 § 717. 
 718. 
 719. 
 720. 
 721. 
 723. 
 723. 
 
 724. 
 
 725. 
 
 726. 
 
 727. 
 
 728. 
 
 729. 
 
 780. 
 
 731. 
 733. 
 
 733. 
 
 734. 
 735. 
 736. 
 
 Rights of prior incumbran- 
 cers not parties. 
 
 Liens attaching pendente 
 lite. 
 
 Equitable priorities between 
 subsequent mortgagees. 
 
 Burden of proof in showing 
 priorities. 
 
 Rights of equal mortgagees 
 — Senior mortgagees. 
 
 Several mortgages security 
 for same debt. 
 
 Priority of unrecorded mort- 
 gage over subsequent judg- 
 ment. 
 
 Second mortgage and junior 
 judgments. 
 
 Preference of mortgage over 
 mechanic's lien. 
 
 Lien of judgment on sur- 
 plus. 
 
 What interests bound by lien 
 of judgment. 
 
 Satisfying judgments from 
 
 surplus. 
 Specific lien of judgment and 
 
 executory contract. 
 Judgment by confession 83 
 
 an indemnity. 
 Judgment against sheriff. 
 Judgment confessed by one 
 
 member of a firm. 
 Married woman's equitable 
 
 right to surplus. 
 Dower in surplus moneys. 
 Inchoate right of dower. 
 Investment of dower in sur- 
 plus — Payment of gross 
 
 sum. 
 
 820
 
 § 696.] 
 
 DISTRIBUTING SURPLUS MONEYS. 
 
 821 
 
 737. Homestead right in surplus. 
 
 738. Where claim of collateral 
 
 assignee less than mortgage. 
 
 739. Purchase of part of premises 
 
 by mortgagee. 
 
 740. Interest of lessee for years in 
 
 surplus. 
 
 741. Mechanic's lien. 
 
 742. Rights of cestuis que trust in 
 
 surplus. 
 
 743. Lien for attorney's fees on 
 
 surplus. 
 
 744. Disposition of surplus mon- 
 
 eys not applied for. 
 
 § 696. Introductory. — Surplus moneys in mortgage fore- 
 closures are such moneys as remain undistributed, after the 
 referee to sell has paid from the proceeds of the sale the costs 
 of the suit, the expenses of the sale, the amount due for taxes 
 and assessments, and the sum or sums found to be due on 
 the complaint, or the complaint and the cross-bills. Thus, 
 if the holder of a note secured by a mortgage or a deed of 
 trust receives more than enough to pay his debt and the 
 costs on the sale under foreclosure, the amount in excess 
 will be surplus, for which he will be legally liable as for any 
 other debt.* 
 
 The disposition of the proceeds of the sale of the mort- 
 gaged premises on foreclosure, in paying the plaintiff and 
 prior lienors or creditors, must be made as directed in the 
 judgment. The referee or other officer making the sale is 
 generally directed to retain from the proceeds of such sale a 
 sum sufficient to pay his fees and commissions," together 
 with the expenses of the sale, including the sums paid, if 
 any, for taxes, assessments and water rates, or to be paid to 
 redeem the property from a sale or sales made thereunder,' 
 and to pay to the plaintiff or his attorney the amount of his 
 debt, interest and costs ; and, if any surplus remains from 
 the proceeds of the sale after making such payments, to pay 
 it into court for the benefit of the persons entitled thereto.* 
 
 1 Laughlin v. Heer, 89 111. 119 v. Winn, 56 How. (N. Y.) Pr. 368 
 
 (1878). 
 
 « N. Y. Code Civ. Proc. §§ 3297, 
 8307. 
 
 « Cornell v. Woodruff, 77 N. Y. 
 203 (1879) ; Catlin v. Grissler, 57 N. 
 Y. 363 (1874) ; Easton v. Pickersgill, 
 65 N. Y. 310 (1873) ; Williams v. 
 Townsend, 31 N. Y. 411, 414 
 (1865) ; Poughkeepsie Savings Bank 
 
 (1878); N. Y. Code Civ. Proc. g 1676. 
 * Beekman v. Gibbs, 8 Paige Ch. 
 (N. Y.) 511 (1840). See DeForest 
 V. Farley, 62 N. Y. 628 (1875); 
 Livingston V. Mildrum, 19 N. Y. 440 
 (1859); N. Y. Code Civ. Proc. 
 § 1633 ; Clark v. Carnall, 18 Ark. 
 209 (1856).
 
 ;522 RULES AFFECTING SURPLUS, [§697. 
 
 § 697. Rules of court. — The rules of the supreme court 
 in New York provide that "all surplus moneys arising from 
 the sale of mortgaged premises, under any judgment, shall 
 be paid by the sheriff or referee making the sale, within five 
 days after the same shall be received and be ascertainable, 
 in the city of New York to the chamberlain of the said city, 
 and in other counties to the treasurer thereof, unless other- 
 wise specially directed, subject to the further order of the 
 court, and every judgment in foreclosure shall contain such 
 directions, except where other provisions are specially 
 made by the court.'" 
 
 The rules also provide that " on filing the report of 
 the sale, any party to the suit, or any other person who 
 had a lien on the mortgaged premises at the time of the 
 sale, upon filing with the clerk where the report of sale is 
 filed a notice, stating that he is entitled to such surplus 
 moneys or some part thereof, and the nature and extent of 
 his claim, may have an order of reference, to ascertain and 
 report the amount due to him, or to any other person, which 
 is a lien upon such surplus moneys, and to ascertain the prior- 
 ities of the several liens thereon ; to the end that, on the 
 coming in and confirmation of the report on such reference, 
 such further order may be made for the distribution of the 
 surplus moneys as may be just. The referee shall, in all 
 cases, be selected by the court. The owner of the equity 
 of redemption, and every party who appeared in the cause, or 
 who shall have filed such notice with the clerk, previous to 
 the entry of the order of reference, shall be entitled to ser- 
 vice of a notice of the application for the reference and to 
 attend on such reference, and to the usual notices of 
 subsequent proceedings relative to such surplus."* 
 
 " But if such claimant or such owner has not appeared, or 
 made his claim by an attorney of this court, the notice may 
 be served by putting the same into the post-ofifice, directed 
 to the claimant at his place of residence, as stated in the 
 notice of his claim, and upon the owner in such manner as 
 the court may direct. All official searches for conveyances 
 
 N. Y. Supreme Court Rule 61. « N. Y. Supreme Court Rule 64.
 
 § 698.] PROVISIONS OF CODE AFFECTING SUllPLUS. 823 
 
 or incumbrances, made in the progress of the cause, shall 
 be filed with the judgment-roll, and notice of the hearing 
 shall be given to any person having, or appearing to have, an 
 unsatisfied lien on the moneys in such manner as the court 
 shall direct ; and the party moving for the reference shall 
 show, by affidavit, what unsatisfied liens appear by such 
 official searches, and whether any, and what other unsatisfied 
 liens are known to him to exist."* 
 
 §698. Provisions of Code. — The New York Code of 
 Civil Procedure' provides that, "if there is any surplus of the 
 proceeds of the sale, after paying the expenses of the sale, 
 and satisfying the mortgage debt and the costs of the action, 
 it must be paid into court, for the use of the person or 
 persons entitled thereto. If any part of the surplus remains 
 in court for the period of three months, the court must, if 
 no application has been made therefor, and may, if an appli- 
 cation therefor is pending, direct it to be invested at interest, 
 for the benefit of the person or persons entitled thereto, 
 to be paid upon the direction of the court."* 
 
 This section of the Code is a re-enactment of the provisions 
 of the revised statutes,* which obviated the necessity that 
 prevailed before their passage of ascertaining the amounts 
 of all incumbrances and of adjudging the rights of all the 
 defendants, before making a decree for the sale of the mort- 
 gaged premises.* Under the practice as it prevailed previous 
 to the passage of the revised statutes and the adoption of 
 the supreme court rule as above stated, junior incum- 
 brancers were required to be made parties prior to the entry 
 
 « N. Y. Supreme Court Rule 64. Harper, 14 Hun (N. Y.) 280 (1878^ ; 
 
 « N. Y. Code Civ. Proc. § 1633. Savings Inst. v. Osley, 4 Hun (N. 
 
 « See Dunning v. Ocean Nat. Y.) 657 (1875) ; Atlantic Sav. Bank 
 
 Bank. 61 N. Y. 497 (1875) ; s. c. 10 v. Hiler, 3 Hun (N. Y.) 209 (1874) ; 
 
 Am. Rep. 293 ; Bergen v. Snedeker, Oppenlieimer v. Walker, 3 llun (N. 
 
 8 Abb. (N. Y.) N. C. 50 (1879) ; 8. Y.) 30 (1874). 
 
 c. 21 Alb. L. J. 54 ; Mutual Life * 2 N. Y. Rev. Stat. 192, §§ 159, 
 
 Ins. Co. V. Truchtnicht, 3 Abb. (N. 160. 
 
 Y.) N. C. 135 (1877) ; Tator v. * Wheeler v. VanKuren, 1 Barb. 
 
 Adams, 20 Hun (N. Y.) 131 (1880) ; Ch. (N. Y.) 490 (1846) ; Renwick v. 
 
 Savings Bank of Utica v. Wood, 17 Macomb, Hopk. Ch. (N. Y.) 277 
 
 Hun (N. Y.) 133 (1879) : Hurst v. (1824).
 
 824 STATUTE AND COURT IIULES. [§§ 699-700. 
 
 of the decree,' in order that they might set up their claims 
 by answer and thereby preserve their liens upon the surplus 
 moneys arising from the sale of the mortgaged premises. 
 
 § 699. Object of the statute and court rule.— Under 
 this practice it frequently happened that a mortgagee whose 
 claim was undisputed was delayed in its enforcement, until 
 the subsequent incumbrancers had litigated as between 
 themselves their respective claims to the surplus. Costs 
 being allowed to every party who appeared and answered, it 
 not unfrequently happened that the fund was greatly dimin- 
 ished, if not consumed, by the expenses of the litigation. 
 This was entirely needless where the proceeds of the property 
 were only sufficient to pay the amount of the plaintiff's 
 claim ; it was to avoid this delay and loss that the statute 
 was enacted.' 
 
 Under the statute and the rule in mortgage foreclosures, 
 subsequent incumbrancers who have no rights or interests 
 adverse to those of the mortgagee, although parties to the 
 suit, are not permitted to litigate their respective claims 
 to the surplus as between themselves, until it is ascertained 
 that there is a surplus.' If there is a surplus after the sale, 
 the defendants can then settle their claims to it by making 
 their proofs and having their respective rights equitably 
 determined before a referee.* 
 
 §700. Payment of surplus into court. — All surplus 
 arising from the proceeds of a mortgage foreclosure sale 
 
 • Renwick v. Macomb, Hopk. Ch. App. Cas. (N. Y.) 311 (1847); Drury 
 (N. Y.) 277 (1824). See Kenney v. v. Clark, 16 How. (N. Y.) Pr. 424, 430 
 Apgar, 93 N. Y. 546 (1883). (1857) ; Smart v. Bement, 3 Keyes 
 
 * Miller v. Case, Clarke Ch. (N. (N. Y.) 241 (1866); s. c. 4 Abb. App. 
 T.) 395 (1840) ; Eagle Fire Ins. Co. Dec. (N. Y.) 253 ; Farmers' Loan & 
 V. Flanagan, 1 How. App. Cas. (N. Trust Co. v. Seymour, 9 Paige Ch. 
 Y.) 311 (1847) ; Farmers' Loan & (N. Y.) 538 (1842) ; Union Ins. Co. 
 Trust Co. V. Seymour, 9 Paige Ch. v. VanRensselaer, 4 Paige Ch. (N. 
 (N. Y.) 538 (1842). Y.) 85 (1833). 
 
 » Miller v. Case, Clarke Ch. (N. * Miller v. Case, Clarke Ch. (N. 
 
 Y.) 395 (1840); Hubbell v. Schreyer, Y.) 395, 399 (1840); Union Ins. Co. v. 
 
 4 Daly (N. Y.) 365 (1873) ; s. c. 14 VanRensselaer, 4 Paige Ch. (N. Y.) 
 
 Abb. (N. Y.) Pr. N. S. 287 ; Eagle 85 (1833). 
 Fire Ins. Co. v. Flanagan, 1 How.
 
 § 700.] PAYING SURPLUS INTO COURT. 825 
 
 must be paid into court ; its subsequent distribution is 
 regulated by the rules of the supreme court.' The Code 
 requires that the surplus of the proceeds of a sale, after 
 the payment of the expenses thereof and the satisfaction of 
 the mortgage debt, shall be paid into court for the use of the 
 person or persons entitled thereto." 
 
 The supreme court rules' require " that all surplus moneys 
 arising from the sale of mortgaged premises, under any judg- 
 ment, shall be paid by the sheriff or referee making the sale, 
 within five days after the same shall be received and be ascer- 
 tainable, in the city of New York to the chamberlain of said 
 city and in other counties to the treasurer thereof, unless other- 
 wise specially directed, subject to the further order of the 
 court ; and every judgment in foreclosure shall contain such 
 directions, except where other provisions are specially made 
 by the court. No report of a sale shall be filed or con- 
 firmed, unless accompanied by a proper voucher for the 
 surplus moneys, and showing that they have been paid over, 
 deposited or disposed of in pursuance of the judgment."* 
 
 A judgment creditor has a right to demand that the 
 surplus money arising upon a foreclosure shall be brought 
 into court ;' but where he has not answered, a judgment 
 directing the payment of the surplus moneys to him will, of 
 course, be improper.' The assignee of a mortgage, where 
 the assignment was made after a lis pendens had been filed 
 for the foreclosure of a prior mortgage, is entitled to appear 
 and ask that the referee pay into court the surplus shown 
 to exist by the judgment and the report of sale, even 
 
 ' Raht V. Attrill, 106 K Y. 423 the money, even tliough the mort- 
 
 (1887), modifying 42 Hun (N. Y.) gagor fails to obtain it ; and if the 
 
 414. N. Y. Supreme Court Rules mortgagor redeems without obtain- 
 
 61-64. ing it, he will still have an unques- 
 
 '^ N. Y. Code Civ. Proc. § 1633. tionable right to have it taken into 
 
 « N. Y. Supreme Court Rule 61. account. Sinclair v. Learned, 51 
 
 * N. Y. Supreme Court Rule 61. Mich. 335 (1883). 
 
 The non-payment by the sheriff ' Denton v. Nanny, 8 Barb. (N. 
 
 to the mortgagor of the surplus Y.) 620(1850). 
 
 received on a foreclosure sale will * Rogers v. Ivers, 23 Hun (N. Y.) 
 
 not defeat the sale, for the sheriff 424 (1881). 
 must account to the mortgagor for
 
 826 PAYING SURPLUS TO SURROGATE. [§§ 701-702. 
 
 though the referee may report a deficiency.* If the report 
 of sale shows that the deficiency reported was caused by 
 the allowance of a prior mortgage which was not authorized 
 by the judgment, and that but for such allowance there 
 would be a surplus, the surplus thus ascertained will be 
 ordered to be paid into court.* 
 
 § 701. When surplus not paid into court. — Where the 
 plaintiff has purchased the claims of judgment creditors 
 and junior lienors, for whose benefit a mortgage has been 
 executed, the surplus moneys arising on the sale under a 
 prior mortgage will not be directed to be paid into court, as 
 the plaintiff is entitled thereto, and the fund would only be 
 burdened with the payment of fees and commissions by such 
 payment into court.* 
 
 § 702. When surplus paid into surrogate's court. — 
 The New York Code provides* that, " where real property, or 
 an interest in real property, is sold in an action or a special 
 proceeding to satisfy a mortgage thereon, which accrued 
 during the decedent's life-time, and letters testamentary or 
 letters of administration, upon the decedent's estate, were, 
 within four years before the sale, issued from a surrogate's 
 court of the state, having jurisdiction to grant them, the 
 surplus moneys arising from such sale of the premises must 
 be paid into the surrogate's court from which the letters 
 issued. If the sale was made pursuant to the directions 
 contained in a judgment or order, the surplus remaining 
 after the payment of all the liens upon the property, charge- 
 able upon the proceeds, which existed at the time of the 
 decedent's death, must be so paid. If the sale was made in 
 any other manner, the surplus, exceeding the lien to satisfy 
 which the property was sold, and the costs and expenses, 
 must, within thirty days after the receipt of the money 
 from which it accrues, be so paid over by the person receiv- 
 ing that money. The receipt of the surrogate, or the clerk 
 
 ' Koch V. Purcell, 45 N. Y. Supr. « Hoffman v. Sullivan. 23 N. Y. 
 
 Ct. (13 J. & S.) 162 (1879). Week. Dig. 311 (1886). 
 
 » Koch V. Purcell, 45 N. Y. Supr. * N. Y. Code Civ. Proc. § 2798. 
 Ct. (13 J. & S.) 162 (1879).
 
 §§703-704.] STATUTORY FOKECLOSL'JRE. 827 
 
 of the surrogate's court, or the county treasurer, as the case 
 may be, is a sufficient discharge to the person paying the 
 money,"' 
 
 § 703. Paying surplus into court on foreclosure by 
 advertisement. — Where a mortgage is foreclosed by adver- 
 tisement, the " attorney or other person who receives the 
 money upon the sale, must, within ten days after he receives 
 it, pay into the supreme court the surplus exceeding the 
 sum due and to become due upon the mortgage, and 
 the costs and expenses of the foreclosure, in like manner 
 and with like effect, as if the proceedings to foreclose the 
 mortgage were taken in an action brought in the supreme 
 court.'" 
 
 On the failure of the attorney, or other person receiving 
 the money on such a sale, to pay over the surplus moneys 
 received by him, an attachment may be issued against him, 
 in which case the burden of proving that he has paid such 
 surplus to the county treasurer will rest upon him.* Where, 
 on such a sale, the mortgagee receives the money and holds 
 the surplus, he is regarded as a trustee for the person or 
 persons entitled thereto, and is liable to a subsequent judg- 
 ment creditor for the balance of the surplus, after deducting 
 the amount due upon his claim, with interest from the time 
 of the demand.* 
 
 § 704. Character of surplus— Personal or real property. 
 
 — The proceeds of the sale, after satisfying the mortgage 
 debt, may be said to stand in the place of the equity of 
 redemption to those who hold the title to such equity 
 of redemption or a lien upon it.* Whether such surplus is 
 to be treated as personal property or real estate will depend 
 upon the circumstances of each case. It is thought that 
 
 • See Dunning V. Ocean Nat. Bank, * Russell v. Duflon, 4 Lans. (N. 
 
 61 N. Y. 497 (1875); StilweU v. Y.) 399 (1871). 
 
 Swarthout, 10 N. Y. Wk. Dig. 369 " Habersham v. Bond, 2 Ga. Dec. 
 
 (1880) ; White v. Poillon, 25 Hun 46 (1847). See Clarkson v. Skid- 
 
 (N. Y.) 69 (1881). more, 46 N. Y. 297 (1871) ; Snyder 
 
 « N. Y. Code Civ. Proc. §2404. v. Stafford, 11 Paige Ch. (N. Y.) 71 
 
 » See Matter of Silvernail, 45 Hun (1844). 
 (N. Y.) 575 (1887).
 
 828 
 
 SURPLUS PERSONAL OR REAL PROPERTY. [§ 704. 
 
 when such surplus is to be distributed among persons having 
 liens upon the land, it is for that purpose to be treated 
 as real estate, and to be governed by the rules relating to 
 such property.' But where the rights and claims of the 
 persons among whom the money is to be divided are fixed 
 and determined, the money in their hands is to be treated 
 as personal property ;* surplus moneys claimed by virtue 
 of a trust are not realty, but personalty.* 
 
 Where a person dies seized of real estate incumbered by 
 a mortgage which is thereafter foreclosed, the surplus arising 
 on the sale is to be regarded as realty, and passes to his heirs 
 or devisees and not to his administrator ; his administrator 
 can not maintain an action to recover the surplus, although 
 the mortgage may provide that the surplus shall be paid 
 to the mortgagor, his executors or administrators.* But 
 the rule is different where the mortgagor, or other owner 
 of the equity of redemption, dies after the sale of the 
 mortgaged premises has been made.* 
 
 ' Moses V. Murgatroyd, 1 Johns. 
 Ch. (N. Y.) 119 (1814) ; s. c. 7 Am. 
 Dec. 478. 
 
 » See Cope v. Wheeler, 41 N. Y. 
 803 (1869). 
 
 » American Life Ins. & Trust Co. 
 V. VanEps, 56 N. Y. 601 (1874), 
 reversing 14 Abb. (N. Y.) Pr. N. S. 
 253. 
 
 * Dunning v. Ocean Nat. Bank, 61 
 N. Y. 497 (1875) ; s. c. 19 Am. Rep. 
 293; American Life Ins, & Trust 
 Co. V. VanEps, 56 N. Y. 601 (1874); 
 Sweezy v. Thayer, 11 N. Y, Leg. 
 Obs. 50(1852); Graham v. Dickinson, 
 8 Barb. Ch. (N. Y.) 169, 173 (1848) ; 
 Fliess V. Buckley, 22 Hun (N. Y.) 
 551, 556 (1880); Roup v. Bradner, 
 19 Hun (N. Y.) 517 (1880) ; Cox v. 
 McBurney, 2 Sandf. (N. Y.) 561 
 (1849) ; Beard v. Smith, 71 Ala. 568 
 (1882) ; Kinner v. Walsh, 44 Mo. 69 
 (1869) ; Chaffee v. Franklin, 11 R. 
 L 579 (1877) ; Freedman's Savings 
 & Trust Co. V. Earle, 110 U. S. 
 
 718 (1883); bk. 28 L. ed. 304 
 Matson v. Swift. 8 Beav. 374 (1845) 
 Bourne v. Bourne, 2 Hare, 39 (1842) 
 Biggs V. Andrews, 5 Sim. 424 (1832) 
 Wright V. Rose, 2 Sim. & 8. 323 
 (1825) ; Van v. Bamett, 19 Ves. 102 
 (1812); Brown v. Bigg, 7 Ves. 
 279 (1802) ; Policy v. Seymour, 2 
 Younge & Coll. 708 (1837). 
 
 »Denham v. Cornell, 67 N. Y. 
 556 (1876); Horton v. McCoy, 47 
 N. Y. 21 (1871) ; Hoey v. Kinney, 
 10 Abb. (N. Y.) Pr. 400 (1860); 
 Foreman v. Foreman, 7 Barb. (N. 
 Y.) 215 (1849) ; Sweezey v. Willis, 1 
 Bradf. (N. Y.) 495 (1851) ; Sweezy 
 V. Thayer. 1 Duer (N. Y. ) 286 
 (1852) ; Bogert v. Furman, 10 Paige 
 Ch. (N. Y.) 496 (1843) ; Davison ▼. 
 DeFreest, 3 Sandf. Ch. (N. Y.) 456 
 (1846) ; Cox v. McBurney, 2 Sandf. 
 (N. Y.) 561 (1849) ; Smith v. Smith, 
 13 Mich. 258 (1865).
 
 §§ 705-706.J SURPLUS — when PERSOisrALTY. 829 
 
 § 705. Surplus personalty, where land so converted 
 under will. — Although the real estate may be charged with 
 the payment of debts by mortgage or otherwise, and is 
 regarded as thereby converted into personal property so far as 
 may be necessary to pay such debts, yet in the absence of 
 a distinct intention to convert it, the whole of the real estate 
 will not be deemed converted into personalty.' 
 
 The surplus moneys arising from the sale of such real 
 estate stand in the place of the land for the purpose of 
 distribution among the persons having vested interests 
 therein or liens thereon.' The devisees of a mortgagor 
 are therefore entitled to the whole of the surplus moneys 
 arising on a foreclosure sale, subject to the claims which 
 have become liens thereon.' The fact that the surplus 
 arising from such sale is sometimes entrusted to the surro- 
 gate for distribution, will not render it personal property.* 
 
 § 706. Massachusetts doctrine. — The doctrine estab- 
 lished in Massachusetts varies somewhat from that stated 
 above. It is said in Varnum v. Meserve,* where a mort- 
 gage contains a power of sale, providing that the surplus 
 of the proceeds after the payment of the debt and the 
 expenses shall be paid to the mortgagor, his executors or 
 administrators, that his executors may maintain an action 
 for the surplus, although the mortgagor by will devised the 
 land to others. The court recognizes the doctrine that 
 
 ' Bourne v. Bourne, 3 Hare, 35, by the sale, and the court will apply 
 
 38 (1842). the money according to the rights of 
 
 » See Clarkson v. Skidmore, 46 N. the parties as they existed before the 
 
 Y. 297 (1871); Livingston v.Mildrum, sale. Astor v. Miller, 2 Paige Ch. 
 
 19 N. Y. 440 (1865); Matthews v. (N. Y.) 68, 76 (1830). 
 
 Duryee, 45 Barb. (N. Y.) 69 (1865) ; » Delafield v. White, 43 Hun (N. 
 
 aff'd 4 Keyes (N. Y.) 525 ; Averill Y.) 641 (1887) ; s. c. 7 N. Y. St. 
 
 T. Loucks, 6 Barb. (N. Y.) 471 (1849); Rep. 301. 
 
 Blydenburgh v. Northrup, 13 How. * Dunning v. Ocean Nat. Bank, 61 
 
 (N. Y.) Pr. 289 (1856) ; Fliess v. N. Y. 497 (1874); s. c. 19 Am. Ptcp. 
 
 Buckley, 22 Hun (N. Y.) 551 (1880); 293. 
 
 aff'd90N.Y. 286(1883); Elmendorf ' 90 Mass. (8 Allen), 158, 160 
 
 V. Lockwood, 4 Lans. (N. Y.) 396 (1864). See Newhall v. Lynn Fiv< 
 
 (1871) ; Snyder v. Stafford, 11 Paige Cent Sav. Bank, 101 Mass. 428, 43? 
 
 Ch. (N. Y.) 71 (1844). The rights (1869) ; s. c. 3 Am. Rep. 387 
 of parties in the fund are not affected
 
 830 SUKPLUS BELONGmO TO INFANT. [§ 707. 
 
 the surplus under such circumstances is usually real estate, 
 but claims that the legal title to the money is vested in the 
 executor or administrator by force of the contract with 
 the mortgagee, and that when he collects it, he holds it in 
 trust for the heirs or devisees, as the case may be. 
 
 This case was criticised by the court of appeals of New 
 York in Dunning v. Ocean National Bank,' where it is said 
 to be in conflict with Wright v. Rose,' in which case the 
 contract was also made to pay the mortgagor, his " executors 
 or administrators." The court held that " the true con- 
 struction of these words undoubtedly is that the promise is 
 to pay the executors or administrators whenever it might 
 have been paid to the mortgagor, as for example when the 
 land was sold in his life-time." 
 
 § 707. Character of surplus belonging to infant. — It is 
 provided by statute in New York,* that " a sale of real 
 property, or of an interest in real property, belonging to an 
 infant or incompetent person, made as prescribed by the 
 statute, does not give to the infant or incompetent person, 
 any other or greater interest in the proceeds of the sale, 
 than he had in the property or interest sold. Those proceeds 
 are deemed property of the same nature, as the estate or 
 interest sold, until the infant arrives at full age, or the 
 incompetency is removed."* 
 
 ' 61 N. Y. 497, 505 (1875) ; s. c. (1849) ; Cutting v. Lincoln, 9 Abb. 
 
 19 Am. Rep. 293. (N. Y.) Pr. N. S. 436 (1870) ; Slium- 
 
 » 2 Sim. & S. 323 (1825). way v. Cooper, 16 Barb. (N. Y.) 556 
 
 8 N. Y. Code Civ. Proc. §2359. (1853); Denham v. Cornell, 7 Hun 
 
 This statute is said to be merely an (N. Y.) 662 (1876) ; In re Thomas, 1 
 
 enactment of the chancery rule as Hun (N. Y.) 473 (1874) ; s. c. 4 T. 
 
 applied to sales of such property ; «& C. ( N. Y. ) 410 ; Davison v. 
 
 the impress of realty which was DeFreest, 3 Sandf. Ch. (N. Y.) 456, 
 
 formerly given by the rule of the 464(1846); State v. Hirons, 1 Houst. 
 
 court of chancery, is now given by (Del.) 252 (1856) ; Nelson v. Hagers- 
 
 the statute. For man v. Marsh, 11 N. town Bank, 27 Md. 51 (1867); 
 
 Y. 544, 548 (1854) ; Shumway v. Oberle v. Lerch, 18 N. J. Eq. (3 C. 
 
 Cooper, 16 Barb. (N. Y.) 556 E. Gr. ) 846 (1867); Jones v. 
 
 (1853). Edwards, 8 Jones (N. C.) L. 336 
 
 * See Forman v. Marsh, 11 N. Y. (1861). 
 
 544, 548 (1854), reversing Foreman v. 
 
 Foreman, 7 Barb. ( N. Y. ) 215
 
 §§ 708-709.] WHO JIAY APPLY FOR SURPLUS. 831 
 
 § 708. Who entitled to apply for surplus.— All liens 
 upon or interests in the mortgaged premises, which are inferior 
 to the mortgage sought to be foreclosed, are transferred 
 to the surplus on the sale of the premises ;' consequently, 
 all persons owning such liens or interests are entitled to 
 participate in the distribution of the surplus.' The plaintiff 
 not being permitted, in most cases, to allege all of his 
 demands in his complaint, is entitled to an order of reference 
 to enable him to assert and prove a lien junior to the mort- 
 gage foreclosed ;' otherwise such demands as are junior to 
 the mortgage foreclosed and are not alleged in the complaint, 
 would be cut off unless the sale was made subject to them.* 
 
 The owner of a lien who was not made a party to the 
 suit and whose lien was not cut off by the foreclosure, has 
 no right to share in the surplus arising from the proceeds of 
 the sale.* Consequently, a person whose claim upon the 
 property is prior to the mortgage foreclosed, has no claim 
 upon or right to the surplus ;* and a senior mortgagee, or 
 other person claiming the rights of a senior mortgagee by 
 subrogation or otherwise, has no right to participate in the 
 surplus realized from a sale on the foreclosure of a junior 
 mortgage.' 
 
 § 709. Protecting claims to surplus. — Where surplus 
 moneys from the sale of mortgaged premises are brought 
 into court, they take the place of the land, and creditors 
 having liens upon or interests in the land subsequent to the 
 
 'SeeMatthewsv. Duryee,45Barb. 1 Barb. Ch. (N. Y.) 490 (1846); 
 
 (N. Y.) 69 (1865) ; s. c. 3 Abb. App. Roosevelt v. Elithorp, 10 Paige Ch. 
 
 Dec. (N. Y.) 220 ; 17 Abb. (N. Y.) Fr. (N. Y.) 415 (1843) ; Tower v. White, 
 
 256 ; Averill v. Loucks, 6 Barb. (N. 10 Paige Ch. (N. Y.) 395 (1843). 
 
 Y.) 470 (1849) ; Blydenburgh v. * See Emigrant Industrial Sav. 
 
 Northrop, 13 How. (N. Y.) Pr. 289 Bank v. Goldman, 7oN.Y. 127(1878); 
 
 (1856). Bache v. Doscher, 67 N. Y. 429 
 
 " Field V. Hawxhurst, 9 How. (1876) ; Root v. Wheeler, 12 Abb. 
 
 (N. Y.) Pr. 75 (1853). (N. Y.) Pr. 294 (1861) ; Winslow v. 
 
 3 Mutual Life Ins. Co. V. Trucht- McCall, 32 Barb. (N. Y. ) 241 
 
 nicht, 3 Abb. (N. Y.) N. C. 135 (1860). 
 
 (1877). 6 See DeRuyter v. St. Peter's 
 
 * Homeopathic Mut. Life Ins. Co. Church, 2 Barb. Ch. (N. Y. ) 555 (1 848). 
 
 V. Sixbury, 17 Hun (N. Y.) 424 1 Firestone v. State, 100 Ind. 22G 
 
 (1879). See Wheeler v. VanKuren, (1884).
 
 832 PROTECTING CLAIMS TO SURPLUS. [§ 710. 
 
 decree under which the sale is made, have the same claim 
 upon the surplus moneys which they had upon the land 
 previous to the decree.' The rights and equities of junior 
 claimants are before the court, and are as much the object of 
 its care as are those of the owner of the mortgage 
 foreclosed, and the surplus moneys can not be disposed of 
 until such claimants are brought into court.' 
 
 In ordering a sale of the mortgaged premises for the 
 satisfaction of the debt, the court should take into considera- 
 tion all the liens which exist subsequent to that of the 
 mortgage foreclosed ; as all such liens are cut off by the fore- 
 closure, they should be protected by the court in the decree 
 of sale ; otherwise they will be lost. In such cases the court 
 should not content itself with simply giving such directions 
 in the decree as will certainly produce payment of the 
 plaintiff's lien, without regard to the effect such directions 
 may have upon those liens which are subsequent, but it 
 should make such a decree as will fully protect the rights 
 and preserve the equities of all, at the same time maintaining 
 the priority of the plaintiff's claim.* 
 
 § 710. Adjusting equities. — A court will adjust the 
 equities between subsequent lienors, whenever they can be 
 established without regard to the manner in which the 
 surplus is brought into court.* Thus, where different 
 parcels of mortgaged premises are encumbered by separate 
 judgments or mortgages, the equitable rules regulating the 
 marshaling of assets will control the proceedings to deter- 
 mine their priorities and to distribute the surplus.* 
 
 ' Matthews v. Duryee, 45 Barb. ings Bank v. Osley, 4 Hun (N. 
 
 (N. Y.) 69 (1865) ; s. c. 3 Abb. App. Y.) 657 (1875) ; Miller v. Dooley, 1 
 
 Dec. (N. Y.) 220 ; 17 Abb. (N. Y.) Law Bull. 50 (1879). 
 
 Pr. 256 ; Averill v. Loucks, 6 Barb. * Livingston v. JMildrum, 19 N. 
 
 (N. Y.) 470 (1849) ; Wiggin v. Hey- Y. 440 (1859). See Snyder v. Staf- 
 
 wood, 118 Mass. 514 (1875). ford, 11 Paige Cli. (N. Y.) 71 (1844). 
 
 » DeForest v. Farley, 62 N. Y. * Oppenheimer v. Walker, 3 Hua 
 
 628 (1875) ; Livingston v. Mildrum, (N. Y.) 30 (1874) ; s. c. 5 T. «& C. 
 
 19 N, Y. 440 (1859) ; Tator v. (N. Y.) 325 ; Snyder v. Stafford. 11 
 
 Adams, 20 Hun (N. Y.) 181 (1880) ; Paige Ch. (N. Y. ) 71 (1844); 
 
 Beekman v. Gibbs, 8 Paige Cb. (N. James v. Hubbart, 1 Paige Ch. (N. 
 
 Y.)511 (1840). See Union Dime Sav- Y.) 228, 234 (1828).
 
 §§ 711-712.] PAYMENT OF LIENS PEIOKITY. 
 
 833 
 
 § 711. Liens to be paid in order of priority in time. — 
 All incumbrances on mortgaged premises inferior to the 
 mortgage on which the sale is based, must be paid in 
 the order of time in which they respectively became liens.* 
 
 A mortgage will be preferred to a judgment lien in the dis- 
 tribution of the surplus, where, under a contract of sale, the 
 deed was left in escrow until a certain amount should be 
 paid, and a mortgage given to secure the remaining indebted- 
 ness, and the judgment was recovered against the purchaser 
 prior to the delivery of the deed and the execution of the 
 mortgage, because the equitable Hen which the mortgage 
 secured was prior in fact to the judgment.* A judgment 
 will not be preferred to a prior unrecorded mortgage given 
 to secure future advances or liabilities, unless there has been 
 a fraudulent intention on the part of the mortgagee in with- 
 holding his mortgage from record.* 
 
 §712. Questions of priority — How determined. — In 
 
 New York, where a surplus arises upon the foreclosure of 
 
 » New York Life Ins. & Trust Co. 
 V. Vanderbilt, 12 Abb. (N. Y.) Pr. 
 458 (1861) ; Savings Bank of Utica 
 V. Wood, 17 Hun (N. Y.) 133 
 (1879) ; Oppenheimer v. Walker, 8 
 Hun (N. Y.) 80 (1874) ; 8. C. 5 T. & 
 C. (N. Y.) 825. See Patty v. Pease, 
 8 Paige Ch. (N. Y.) 277 (1840); 
 Skeel V. Sparker, 8 Paige Cti. (N. 
 Y.) 182 (1840) ; Guion v. Knapp, 
 6 Paige Ch. (N. Y.) 35 (1836) ; Jen- 
 kins V. Freyer, 4 Paige Ch. (N. Y.) 
 53 (1833) ; Iglehart v. Crane, 42 111. 
 261 (1866) ; Sheperd v. Adams, 32 
 Me. 63 (1850) ; Holdcn v. Pike, 24 
 Me. 427 (1844); Chase v. Woodbury, 
 60 ]SIass. (6 Cush.) 148 (1850) ; Allen 
 V. Clark, 84 Mass. (17 Pick.) 47 
 (1835); Wikoflf v. Daris, 4 N. J. 
 Eq. (3 H. W. Gr.) 224 (1843); 
 Shannon v. Marselis, 1 N. J. Eq. (1 
 Saxt. ) 418 (1881); Brown v. 
 Siuimons, 44 Vt. 475 (1871); 
 Lyman v. Lyman, 82 Vt. 79 (1859) ; 
 
 Jones V. Myrick, 8 Gratt. (Va.) 179 
 (1851) ; Henkle v. Allstadt, 4 Gratt. 
 (Va.) 284 (1848) ; Herbert's Case, 3 
 Coke, 115 (1584). Compare Parkman 
 V. Welch, 86 Mass. (19 Pick.) 281 
 (1837). 
 
 ' McKinstry v. Mervin, cited in 8 
 Johns. Ch.(N.Y.) 466 (1815); Haines 
 V. Beach, 3 Johns. Ch. (N. Y.) 459 
 (1818). See People v. Bergen, 53 
 N. Y. 404 (1878) ; Peabody v. Rob- 
 erts, 47 Barb. (N. Y.) 91 (1866); 
 Freeman v. Schroeder, 43 Barb. (N. 
 Y.) 618 (1864) ; Averill v. Loucks, 6 
 Barb. (N. Y.) 470 (1849). As to 
 priority of liens on surplus moneys 
 on foreclosure, see Savings Bank of 
 Utica V. Wood, 17 Hun (N. Y.) 133 
 (1879). 
 
 « Cook V. Kraft, 8 Lans. (N. Y.) 
 512 (1871) ; 8. c. 41 How. (N. Y.) 
 Pr. 279 ; 60 Barb. (N. Y.) 410. 
 
 « Thomas v. Kelsey, 30 Barb, (N. 
 Y.) 268 (1859). ^^ ^ 
 
 (53)
 
 834 DETEimiKUNG PRIORITIES. [§713. 
 
 a first mortgage in a county court, the claims of junior 
 mortgagees and judgment creditors must be litigated before 
 a referee appointed in the foreclosure by the same court ; 
 an action for that purpose can not be maintained in the 
 supreme court.' Where there is a surplus arising from 
 the sale of mortgaged premises, such surplus may, in the 
 absence of contesting creditors, be applied directly to the 
 payment of another debt owing by the mortgagor to 
 the assignee of the mortgage and secured upon said 
 premises.' And where there are other claimants, the 
 plaintiff will have the same right to present and establish a 
 claim to the surplus as a defendant to the foreclosure or any 
 other person.* 
 
 Where the demands of the plaintiff, in addition to the 
 claim on his mortgage, are junior to such mortgage, they 
 should be set out in the complaint, so that they may be 
 litigated and disposed of by the decree of foreclosure.* The 
 sale of the property can not be made subject to subsequent 
 liens which the plaintiff may have against it.* 
 
 § 713. Claims must be liens on mortgaged premises. — 
 To enable a creditor to enforce his claim to the surplus 
 moneys, he must establish a lien on the mortgaged premises. 
 The surplus moneys arising from a sale on foreclosure take 
 the place of the land for the purpose of distribution among 
 the persons having claims thereto.* A simple contract 
 
 ' Fliess V. Buckley, 90 N. Y. 286 the land equal to the surplus, was a 
 
 (1882), affirming 24 Hun (N. Y.) 514; sufficient defence. Eddy v. Smith, 
 
 fi. c. 22 Hun (N. Y.) 551. 13 Wend. (N. Y.) 488 (1835). 
 
 * Beekman's Fire Ins. Co. v. First * Tower v. While, 10 Paige Ch. 
 
 M. E. Church of New York, 29 (N.Y.) 395 (1843). See Wheeler v. Van 
 
 Barb. (N. Y.) 658 (1859); 8. c. 18 Kuren, 1 Barb. Ch. (N. Y.) 490 
 
 How. (N. Y.) Pr. 431. (1846) ; The Homeopathic Mutual 
 
 3 Field V. Hawxhurst, 9 How. (N. Life Ins. Co. v. Sixbury, 17 Hun (N. 
 
 Y.) Pr. 75 (1853) ; Mutual Ins. Co. v. Y.) 424 (1879). 
 
 Truchtnicht, 3 Abb. ( N. Y. ) N. * Roosevelt v. Elithorp, 10 Paige 
 
 C. 135 (1877). Thus, where a mort- Ch. (N. Y.) 415 (1843) ; The Homeo- 
 
 gagee sold under the statute and had pathic Mutual Life Ins. Co. v. Six- 
 
 a surplus in his hands, and the bury, 17 Hun (N. Y.) 424 (1879). 
 
 mortgagor's grantee sued for it, it * Clarkson v. Skidmore, 46 N. Y, 
 
 was held that the fact that the 297 (1871) ; Livingston v. Mildrum, 
 
 former had a judgment lien upon 19 N. Y. 440 (1859); Matthews v.
 
 § 714.] CLAIMS MUST BE LIENS ON PREJnSES. 835 
 
 creditor can not claim any portion of the fund ;* claims, 
 however just, which have not been perfected into liens, 
 under which the property could be sold on execution, can 
 not be taken into account by the referee.' The general 
 legal liens of the judgment creditors of a mortgagor, however, 
 can not, in equity, prevail against prior equitable claims upon 
 the mortgaged premises.* 
 
 The inchoate rights of mechanics and material-men, under 
 the statute giving them a lien, seem to be claims of such a 
 nature, however, that, although not established by judg- 
 ment, they are entitled to be considered by the referee on 
 an application for the surplus, and to share in the distri- 
 bution thereof.* 
 
 §714. Equitable distribution — Claims liens on two 
 funds. — In the distribution of surplus moneys arising on the 
 sale of mortgaged premises, a prior general lien thereon will 
 be preferred to a subsequent specific lien, especially if 
 the holder of the former has no other fund to resort to and the 
 owner of the specific lien has. This rule is based upon 
 the well settled principle of equity that where one creditor 
 has a lien upon two funds, and another creditor has a lien 
 upon only one of those funds, the latter has a right to require 
 the former to exhaust his remedies against the fund 
 on which he alone has a lien before resorting to the 
 other fund.* 
 
 Duryee, 45 Barb. (N. Y.) 69 (1865) ; » Husted v. Dakin, 17 Abb. (N. 
 
 afif'd 4 Keyes (N. Y.) 525 ; Averill Y.) Pr. 137 (1857) ; King v. West, 
 
 V. Loiicks, 6 Barb. (N. Y.) 471 10 How. (N. Y.) Pr. 833 (iS5-l). See 
 
 (1849) ; Blyden burgh v. Northrop, Mutual Life Ing. Co. v. Bowen, 47 
 
 13 How. (N. Y.) Pr. 289 (1856) ; Barb. (N. Y.) 618 (18C6). 
 
 Fliess V. Buckley, 22 Hun (N. Y.) » s^eet v. Jacocks, 6 Paige Ch. 
 
 551 (1880); affirmed 90 N. Y. 286 ; (N. Y.) 355 (1837); s. c. 31 Am. 
 
 Elmendorf v. Lockwood, 4 Lans. Dec. 252; Arnold v. Patrick, 6 
 
 (N. Y.) 396 (1871) ; fnyder v. Staf- Paige Ch. (K Y.) 310 (1837); White 
 
 ford, 11 Paige Ch. (N. Y.) 71 (1844). v. Carpenter, 2 Paige Ch. (N. Y.) 
 
 » Delafield v. White, 19 Abb. (^. 217 (1830) ; In re Howe, 1 Paige Ch. 
 
 Y.) N. C. 104 (1887). See People e« (N. Y.) 125 (1838). 
 
 rd. Short v. Bacon, 99 N. Y. 275 * Livingston v. Mildrum, 19 N.Y. 
 
 (1885); Dunning v. Ocean Nat. 440(1859). 
 
 Bank, 61 N. Y. 497 (1875) ; s. c. 19 ' ]Mecnanics' Bank v. Edwnrd', 1 
 
 Am. Rep. 298. Barb. (N. Y.) 271 (1817) ; 8. c. 2
 
 636 DISTRIBUTINa SURPLUS MORTGAGOR DEAD. [§715. 
 
 § 715. Distribution of surplus— Mortgagor deceased. 
 —Where, after the death of a mortgagor, an action 
 is brought to foreclose a mortgage which accrued during 
 his Hfe-time, and letters testamentary or of administration 
 were issued upon his estate by a surrogate within four 
 years prior to the sale, the New York Code of Civil Procedure' 
 requires that the surplus moneys arising from such sale shall be 
 paid into the surrogate's court from which the letters were 
 issued.' 
 
 Where, after the death of a mortgagor, an action is 
 commenced to foreclose a mortgage on his real estate, in 
 which a sale is had in accordance with the decree of the 
 court, the surplus arising on the sale may be distributed 
 by and under the direction of the court rendering such 
 decree ;* such surplus should be distributed ratably among 
 all the general and judgment creditors of the deceased owner, 
 after notice to them and after an opportunity has been 
 given them to be heard.* But where a general creditor, who 
 had no notice of the proceedings for the distribution of 
 such surplus, until after the order of the court confirming 
 the report of the referee as to the distribution of the 
 moneys was granted, applies to be made a party to the pro- 
 ceedings and for an opportunity to be heard, his application 
 will be granted.* 
 
 Where a mortgage is foreclosed after the death of the 
 mortgagor or owner of the equity of redemption, the 
 surplus money passes to his heirs or devisees, and 
 can not be collected by his executor or administrator, 
 
 Barb. (N. Y.) 545; 6 N. Y. Leg. Obs. 427 (1871) ; German Savings Bank 
 
 159. V. Sharer, 25 Hun (N. Y.) 409 
 
 • N. Y. Code Civ. Proc. §§ 2798, (1881). 
 
 2799. « German Savings Bank v. Sharer, 
 
 ' Ag to the right to have the sur- 25 Hun (N. Y.) 409 (1881). 
 
 plus paid into the surrogate's court, * Loucks v. VanAUen, 11 Abb. 
 
 see White v. Poillon, 25 Hun (N. Y.) (N. Y.) Pr. N. S. 427 (1871) ; Ger- 
 
 69 (1881) ; and as to the applicability man Sav. Bank v. Sharer, 25 Hun 
 
 of this section of the Code to sales (N. Y.) 409 (1881) ; White v. Poillon, 
 
 where the foreclosure is conducted 25 Hun (N. Y.) 69 (1881). 
 
 by an action, see Loucks v. Van- » German Sav, Bank v. Sharer, 25 
 
 Allen, 11 Abb. (N. Y.) Pr. N. S. Hun (N. Y.) 409 (1881).
 
 §716.] life-tenant's interest in surplus. 837 
 
 although the mortgage may contain an agreement to 
 pay any surplus arising on such sale to the mortgagor, his 
 executors or administrators.' In such a case creditors must 
 be paid before legatees,' because debts are in the nature 
 of charges upon the realty, and it is only the residue left 
 after paying such debts that can be divided among the 
 heirs or devisees.* 
 
 Specific devisees of the land sold are entitled to the 
 surplus moneys arising therefrom, according to their respec- 
 tive liens under the will, subject, however, to the assertion of 
 other legal claims which were liens upon the land before its 
 sale, or which have equitably become prior liens upon the 
 fund arising therefrom since that time.* 
 
 § 716. Interest of life-tenant in surplus.— Upon a dis- 
 tribution in the surrogate's court of the surplus moneys 
 arising from a sale of mortgaged premises on foreclosure, 
 under the provisions of the Code,* where there is a life 
 estate in the land sold, the fund must be invested under the 
 direction of the court and the income thereof paid to 
 the beneficiary until the determination of such life estate ; the 
 surrogate can not order the payment of a gross sum in lieu 
 thereof.* 
 
 But in the matter of Zahrt,' it was said that where land, in 
 which a widow, by the terms of her deceased husband's 
 will, has a life estate, is sold upon foreclosure, leaving a sur- 
 plus, it rests in the sound discretion of the court whether 
 or not she shall recieve a gross sum for the value of such 
 
 > See Dunning v. Ocean Nat. 286 (1882) ; Dunning v. Ocean Nat. 
 
 Bank, 61 N. Y. 497 (1875) ; 8. C. 19 Bank, 61 N. Y. 497 (1875) ; s. c. 19 
 
 Am. Rep. 293, aflf'g 6 Lans. (N. Y.) Am. Rep. 293. 
 
 396. ' N. Y. Code Civ. Proc. § 2799. 
 
 « Clark's Case, 15 Abb. (N. Y.) « See Zalirt's Estate, 11 Abb. (N. 
 
 Pr. 227 (1862). Y.) N. C. 225 (1882), citing Arrow- 
 
 » German Sav. Bank v. Sharer, 25 smith v. Arrowsmith, 8 Hun (N. Y.) 
 
 Hun (N. Y.) 409 (1881). See N. Y. 606 (1876) ; In re Isrglesden, 3 Redf. 
 
 Code Civ. Proc. § 2750. (N. Y.) 375, 378 (1879). See Lewis 
 
 * Delafield v. White, 19 Abb. (N. v. Smitli, 9 N. Y. 502 (1854). 
 
 T.) N. C. 104 (1887). See People ex ' 94 N. Y. 605 (1S84). See N. T. 
 
 rd. Short v. Bacon, 99 N. Y. 275 Code Civ. Proc. § 2793. 
 (1885) ; Fliess v. Buckley, 90 N. Y.
 
 83S PEIOB LNCUMBKANCEKS SUllPLUS. [§§717-718. 
 
 estate, to be estimated by the rules of practice established 
 by the supreme court.' 
 
 § 717. Rights of prior incumbrancers not parties.— A 
 prior claimant, whatever his lien may be, is not entitled to 
 participate in the distribution of the surplus, unless he was 
 a party to the foreclosure,* for where he was not made a 
 party, his lien will not be affected, nor the land discharged 
 of his incumbrance, nor the lien transferred to the surplus 
 moneys.' Hence, where a prior incumbrancer is not made a 
 party and his lien is not affected by the foreclosure, he will 
 have no claim to the surplus, unless he releases to the 
 purchaser all future claims upon the equity of redemption.* 
 It is said that this rule is not technical, but is founded on the 
 equitable principle that such a party can not have a lien upon 
 both the land and the surplus.* 
 
 § 718. Liens attaching pendente lite. — It is said in 
 Koch V. Purcell,* that one who takes a mortgage after a lis 
 pendens has been filed, will have a right to be heard on the 
 reference for the distribution of the surplus, although he was 
 not made a party to the foreclosure. And it has been 
 held that the surplus remaining after the payment of the 
 mortgage debt, may, on application, be paid to an incum- 
 brancer not a party to the suit, if it appears that he is, in 
 equity, entitled to receive it.^ 
 
 Incumbrancers, and persons acquiring other interests in 
 the mortgaged premises pendente lite, need not be made 
 
 * N. Y. Supreme Court Rule 71. * Emigrant Industrial Savings 
 
 » Root V. Wheeler, 12 Abb. (N. Y.) Bank v. Goldman, 75 N. Y. 127 
 
 Pr. 294 (1861) ; Mutual Life Ins. Co. (1878) ; Bache v. Doscher, 67 N. Y. 
 
 of N. Y. V. Truchtnicht, 3 Abb. (N. 429 (1876) ; Root v. Wiieeler, 13 
 
 Y.) N. C. 135 (1877) ; Winslow v. Abb. (N. Y.) Pr. 294 (1861) ; Wins- 
 
 McCall. 32 Barb. (N. Y.) 241 (1860). low v. McCall, 32 Barb. (N. Y.) 241 
 
 See Koch v. Purcell, 45 N. Y. Supr. (1860). 
 
 Ct. (13 J. & S.) 162 (1879). » Mutual Life Ins. Co. of N. Y. v. 
 
 » Mutual Life Ins. Co. of N. Y. Truchtnicht, 3 Abb. (N. Y.) N. C. 
 
 V. Truchtnicht, 3 Abb. (N. Y.) N. 135 (1877). 
 
 C. 135 (1877) ; Winslow v. McCall, • 45 N. Y. Supr. Ct. (13 J. «& S.) 
 
 32 Barb. (N. Y.) 247 (1860) ; Waller 162 (l«7i)). 
 
 V. Harris, 7 Paige Ch. (N. Y.) 167 ' Ellis v. Southwell, 29 111. 549 
 
 (1838); aff'd 20 Wend. (N. Y.) 555. (1863)
 
 § 719.] EQUITABLE PEIOEITIES TO SURPLUS. 839 
 
 parties to the foreclosure, because their interests in the 
 subject matter of the suit will be bound and concluded by 
 the decree.' If the liens of such persons are not presented 
 and shown to exist, the surplus may be distributed without 
 notice to them ; where their liens are presented in proper 
 form, they will be entitled to notice of the proceedings 
 to distribute the surplus, and their rights will be protected 
 by the court." 
 
 § 719. Equitable priorities between subsequent mort- 
 gagees. — Where there are several liens upon the mortgaged 
 premises, the surplus money is to be applied to their discharge 
 in the order of their priority,' and, presumptively, the mort- 
 gage first recorded is the prior lien.* This presumption, 
 however, may be overcome by proof that the mortgage 
 first recorded, by verbal agreement between the mortgagor 
 and the mortgagee, is not to become operative until the 
 whole consideration is paid.* 
 
 An agreement between a mortgagee and a mortgagor 
 that the mortgage shall be second in time to another 
 mortgage on the same premises will, if such agreement is 
 made prior to the delivery of the mortgage, be binding 
 
 ' Cook V. Mancius, 5 Johas. Ch. one to secure $221.56, payable in 
 
 ( N. Y. ) 89 ( 1821 ) ; Darling v. nine equal annual installments, and 
 
 Osborne, 51 Vt. 158 (1878), See the other $86.23, payable in three 
 
 Harrington v. Slade, 22 Barb. (N. equal annual installments, the first 
 
 Y.) 161 (1856) ; People's Bank v. installment to become due Dec. 4, 
 
 Hamilton Manuf. Co., 10 Paige 1856, it was agreed that the mort- 
 
 Ch. (N. Y.) 481 (1843); Sedgwick gage securing the $221.56 should be 
 
 V. Cleveland, 7 Paige Ch. (N. Y.) the first lien on the premises. This 
 
 287 (1838). mortgage was subsequently assigned 
 
 * Cook V. Mancius, 5 Johns. Ch. by the mortgagee to the defendant, 
 (N. Y.) 89 (1«21). See N. Y. and was foreclosed under the statute. 
 Supreme Court Rule 64. Upon the sale of the premises on Jan. 
 
 * Averill v. Loucks, 6 Barb. (N. 5, 1850, they were struck off to M. 
 Y.) 470 (1849). for $431.50, a sum larger than the 
 
 * Freeman v. Schroeder, 43 Barb. asnount due upon the mortgage, to- 
 (N. Y.) 618 (1864) ; s. c. 29 How. getter with the costs of foreclosure. 
 (N. Y.) Pr. 263. The court held that the defendant 
 
 * Where a plaintiff on Dec. 4, was entitled to have the mortgage 
 1846, executed two mortgages at the for $86.23 first satisfied out of the 
 lame time on the same piece of surplus moneys, and that the plain- 
 i'toperty, for the purchase money, tiflf was entitled only to the balance
 
 840 BURDEN OF PROOF PRIORITIES. [§§720-721. 
 
 upon the parties as well as upon an assignee of the mortc^a- 
 gee,' because, as between the holders of different mort- 
 gages, an assignee occupies no better position than did his 
 assignor." 
 
 Thus, in a case where a mortgage was assigned, but the 
 assignment was not recorded, and subsequently a satisfaction 
 piece was executed by the original mortgagee, which was 
 duly recorded, and a second mortgage was executed upon 
 the same premises, it was held that the recording act 
 protected the second mortgagee and that he had a prior 
 lien upon the surplus.* 
 
 § 720. Burden of proof in showing priorities. — To over- 
 come the presumption as to priority, the burden of proof is 
 upon the holder of the subsequent claim to show his prior 
 right by positive evidence.* If the mortgage first recorded is 
 shown not to have been a valid lien for its amount at 
 the time a subsequent mortgage was given, by reason of the 
 consideration not having been fully paid, and there was a 
 verbal agreement between the mortgagor and the mort- 
 gagee that it should not become operative until the whole 
 consideration was paid, the presumption of priority will be 
 destroyed.' And where a mortgage is recorded with notice 
 to the mortgagee of the existence of a prior unrecorded 
 mortgage, such notice will destroy the priority of the lien 
 of the mortgage last executed.* 
 
 § 721. Rights of equal mortgagees — Senior mort- 
 gagees. — Where the liens are equal in rank they will be 
 protected by the court, and the power of the court to 
 
 remaininsr after paying that mort- (N. Y.) Pr. N. 8. 97(1873); s. c. 53 
 
 gage, w.ilimtfcresl. Ijaiberv, Gary, N. Y. 404; Peabody v. Roberts, 47 
 
 11 Barb. (N. Y.) 549 (1851). Burb. (N. Y.) 91 (1866) ; Freeman v. 
 
 ' Freeman v. Schroeder, 43 Barb. Schroeder, 43 Barb. (N. Y.) 618 
 
 (N. Y.) 618 (1864); e. c. 29 How. (1804); s. c. 29 How. (N. Y.) Pr. 
 
 (N. Y.) Pr. 2G3. 263. 
 
 "^ Yerger v. Barz, 56 Iowa, 77 » Freeman v. Schroeder, 43 Barb, 
 
 (1881). (N. Y.) 618 (1864); s. c. 29 How. 
 
 ' Eicon V. VanSchoonhoven, 19 (N. Y.) Pr. 263. 
 
 Hun (N. Y.) 158 (1879). « Haywood v. Shaw, 16 How. (N. 
 
 * People, etc. v. Bergen, 15 Abb. Y.) Pr. 119(1858).
 
 § 721.] 
 
 EIGHTS OF EQUAL MOETGAGEES. 
 
 841 
 
 protect such equality will not be impaired by an error into 
 which the referee may have fallen in conducting the sale." 
 A senior mortgagee, or one who has acquired his prior 
 rights by subrogation, can claim no right to the surplus 
 moneys realized on the foreclosure of a junior mortgage/ 
 
 • Eleventh Ward Savings Bank v. 
 Hay, 55 How. (N.Y.) Pr. 444 (1878). 
 In this case three actions were com- 
 menced to foreclose eeparate mort- 
 gages of equal date, lien, time of 
 record, and amount of purchase 
 money upon the same parcel of land, 
 the three mortgages having been 
 originally made to secure a separate 
 amount to each of the several gran- 
 tors of the premises. The actions 
 were numbered 1, 3 and 3 ; three 
 separate judgments were entered, all 
 of which were dated Nov. 20, and 
 were filed on Nov. 22. The referee 
 appointed by said judgments to sell 
 the mortgaged premises, offered 
 them for sale under the judgment in 
 action No. 1, and the premises were 
 sold for $34,500. Afterwards the 
 same premises were offered for sale 
 xrnder judgment No. 2, and were 
 struck off to the same purchaser for 
 $250, and immediately thereafter 
 the same premises were offered by 
 the referee for sale under the third 
 judgment, and were struck off to the 
 same purchaser for $250. On the 
 petition of one of the sureties for the 
 payment of said mortgage debt, 
 asking that an order be made in 
 said actions directing the referee to 
 apply the amount of the proceeds of 
 the sales under said judgments 
 equally to each, the court held : (1) 
 that no one of the mortgages had 
 any priority over the others and that 
 the referee should not be permitted 
 to give precedence to one of the 
 judgments simply because he found 
 it marked No. 1 ; that the coiu't 
 
 itaelf had no power to give that judg- 
 ment or that mortgage priority ; (2) 
 that it is the duty of the court to 
 protect the equality of liens where it 
 exists, and that, in performing that 
 duty, it will look behind the proceed- 
 ings of the referee to the transaction 
 out of which the liens arose; (3) that, 
 as the three mortgages were equal 
 liens, equity required that the money 
 received at the sale should be divided 
 among them equally. 
 
 * See Brown v. Crookston Agricul- 
 tural Assoc. , 34 Minn. 545 (1886). See 
 Ward V. McNaughton, 43 Cal. 159 
 (1872) ; Soles v. Sheppard, 99 111. 
 616 (1881). In a recent caf5e it 
 appeared that M. and C. each owned 
 a one-half interest in a piece of real 
 estate on which D., as a special 
 guardian, held a mortgage executed 
 by M. At the request of both M. 
 and C, and upon their promise to 
 give him a second mortgage upon 
 the same property, which would 
 amply secure his claims, without an 
 order of the court, D. released his 
 mortgage so that they could raise 
 money on a first mortgage. This 
 mortgage was given to plaintiff's 
 testator to secure $1,500, C. signing 
 as surety for M. thereun ; before 
 another mortgage was given to D., 
 M. executed a mortgage upon his 
 undivided share to C. to secure her 
 against loss on the mortgage given 
 to plaintiff's testator. The mortgage 
 subsequently given to D. was not 
 executed by C. In proceedings to 
 obtain the surplus arising ou the 
 foreclosure of the mortgage given to
 
 842 EQUAL MORTGAGEES CLAIMING SURPLUS. [§ 722 
 
 because his lien is not disturbed thereby and his remedy is 
 to foreclose his senior mortgage.' And where one purchases 
 at a judicial sale " subject to all incumbrances," he is not 
 entitled to have the surplus moneys applied to the payment 
 of a prior recorded mortgage, the existence of which was 
 unknown to all the parties because of an error in index- 
 ing it.* 
 
 § 722. Several mortgages security for same debt,— 
 In a case where the plaintiff, who owned two mortgages 
 against the same defendant upon two distinct parcels of 
 land, brought actions to foreclose both mortgages, and on 
 the sale of one of the parcels there was a surplus, and of the 
 other a deficiency, the court held that the surplus of the one 
 could not be applied to supply the deficiency of the other.' 
 
 And it has been held that a junior mortgage, taken as 
 collateral security for another obligation, does not entitle the 
 mortgagee to receive his debt out of the surplus arising from 
 the foreclosure of a mortgage prior to his collateral mort- 
 gage until he has exhausted his principal security.* It was 
 held in Cox v. Wheeler,' however, that where a mortgagee, 
 whose mortgage was payable in installments, sold the prem- 
 ises for the payment of one installment subject to the future 
 installments, he was entitled to the surplus moneys arising 
 from the foreclosure beyond the installment which was 
 due and the costs of the sale. 
 
 plaintiff's testator, the court held was held by the court, that upon the 
 
 that as between D's and C's mort- foreclosure of the first mortgage, the 
 
 gages, the former was the prior lien mortgage executed by the sisters 
 
 and entitled to have the surplus was entitled to priority over the 
 
 applied thereon. Plumb v. Thomp- judgment in the surplus moneys. 
 Bon, 15 N-. Y. Wk. Dig. 310 (1882). ' Firestone v. State, 100 Ind. 226 
 
 In Savings Bank of Utica v. Wood, (1884). 
 17 Hun (N. Y.) 133 (1879), it appeared ' Buttron v. Tibbitts, 10 Abb. (N. 
 
 that a nyjrtgage was made for the Y.) N. C. 41 (1881). 
 benefit of a brother on two tracts of ' Bridgen v. Carhartt, Hopk. Ch. 
 
 land, one owned by himself and his (N. Y.) 234 (1824). See Fliess v. 
 
 sisters as tenants in common, the Buckley, 24 Hun (N. Y.) 514 (1881) 
 other owned by himself individually; ■* Soule v. Ludlow, 3 Hun (N. Y.) 
 
 a judgment was afterwards obtained 503 (1875) ; s. c. 6 T. & C. (N. Y.) 
 
 against him, and subsequently the 24. See post % 730. 
 sisters mortgaged their interest. It ■> 7 Paige Ch. (N. Y.) 248 (1838).
 
 §§ 723-724.] UifiiEcuiiDED mortgage. 843 
 
 § 723. Priority of unrecorded mortg^age over subse- 
 quent judgment. — In order that mortgages may stand in 
 the relation of being prior and subsequent to one another, 
 they must cover the same land.' It has been held that an 
 unrecorded mortgage to secure future advances is entitled 
 to priority over a subsequently docketed judgment,' unless 
 there has been a fraudulent intention on the part of the 
 mortgagee in withholding his mortgage from record.* 
 
 A mortgage to secure future indorsements, if recorded, 
 will have priority over subsequent judgments against the 
 mortgagor, as well for indorsements made after the judg- 
 ments as before.* And where a mortgage is given on prop- 
 erty, while a judgment against the mortgagor is marked 
 " secured on appeal," on which it would otherwise be a lien, 
 and such judgment is thereafter restored as a lien, the 
 mortgage will be entitled, as against such judgment, to 
 priority of payment out of the surplus moneys arising on the 
 foreclosure of a prior mortgage.* 
 
 § 724. Second mortgage and junior judgments. — 
 
 Where mortgaged premises are sold under a prior judgment 
 and the surplus arising from such sale is brought into 
 court, it will belong to the second mortgagee, and subse- 
 quent mortgagees of the land will be preferred to judg- 
 ment creditors of the mortgagor, if the mortgages are 
 based upon equitable matters which arose prior to the 
 
 ' Westervelt v. Voorhis, 42 N. J. the railway company, it mortgaged 
 
 Eq. (15 Stew.) 179 (1886). its property to the plaintiff's trust 
 
 * Thomas v. Kelsey, 30 Barb. (N. company. It was held that the trust 
 Y.) 268 (1859). See Savings Bank company knew, or was bound to 
 of Utica V. Wood, 17 Hun (N. Y.) know, that the title of the railway 
 133 (1879) ; Wheeler v. Kirtland, 24 company was based on the decree 
 N. J. Eq. (9 C. E. Gr.) 553 (1873). and order, and that its mortgage 
 
 * In the case of the Central Trust was inferior as a lien to the defen- 
 Co. V. Sloan, 65 Iowa, 655 (1885), dant's judgment. See Sloan v. Cen- 
 the Central Iowa Railway Co. took tral Iowa R. Co., 62 Iowa, 728 
 the title to its property under a (1883). 
 
 decree and order of the circuit court * Ackerman v, Hunsicker, 85 N. 
 
 of the United States, which bound Y. 43 (1881) ; 8. c. 39 Am. Rep. 621. 
 
 it to pay defendant's claim. After- * Union Dime Sav. Inst. v. Dur- 
 
 wards, but before the defendant had yea, 3 Hun (N. Y.) 210 (1874\ 
 put his claim into judgment against
 
 844 JTDGMENT LIEN8. [§§725-726. 
 
 docketing of the judgments, notwithstanding the fact that 
 the judgments were recovered before the execution of the 
 second and subsequent mortgages; because, a judgment 
 creditor is entitled only to such rights in the real estate 
 as the judgment debtor rightfully possessed at the time the 
 judgment was perfected.' 
 
 § 725. Preference of mortgage over mechanic's lien.— 
 In the distribution of the proceeds arising from the sale of 
 mortgaged premises, a mortgage executed prior to the per- 
 formance of work by means of which a mechanic secures a 
 lien on the premises, is to be preferred by the referee to such 
 mechanic's lien.* 
 
 § 726. Lien of judgment on surplus.— A judgment 
 recovered against the owner of the equity of redemption in 
 mortgaged premises prior to a sale on foreclosure, will be 
 a lien on the surplus moneys arising from such sale; but if 
 the judgment is not perfected until after the sale is 
 made, although docketed before the surplus moneys are 
 distributed, it will not be a lien on such surplus.* A 
 mistake in docketing a judgment, by stating erroneously 
 the date on which it was recovered, has been held not 
 to affect its lien, even against subsequent judgment cred- 
 itors.* 
 
 » Tallman v. Farley, 1 Barb. (N. T.) 298 (1874) ; Snyder v. Stafford, 
 
 Y.) 280 (1847). As to when second 11 Paige Ch. (N. Y.) 71 (1844) ; 
 
 mortgagees have priority over judg- German Savings Bank v. Carring- 
 
 nient creditors, whose judgments are ton, 14 N. Y. Week. Dig. 475 
 
 prior to the recording of the mort- ( 1882 ) ; affirmed 89 N. Y. 632 ; 
 
 gage, see Tallman v. Farley, 1 Barb. Dempsey v. Bush, 18 Ohio St. 376 
 
 (N. Y.) 280 (1847) ; Ray v. Adams, (1868). Judgments over ten years 
 
 4 Hun (N. Y.) 332 (1875) ; Cook v. old are not liens on the surplus. 
 
 Kraft, 3 Lans. (N. Y.) 512, 615 Floyd v. Clark, 2 Law Bull. 36 
 
 (1871). (1880). 
 
 * Oppenheimer v. Walker, 3 Hun * Fish v. Emerson, 44 N. Y. 376 
 
 (N. Y.) 30 (1874). (1871) ; Sears v. Burnham, 17 N. 
 
 "Denbam v. Cornell, 67 N. Y. Y. 445 (1858); Sears v. Mack, 2 
 
 556, 562 (1876) ; Sweet v. Jacocks, 6 Bradf. (N. Y.) 394 (1853) ; Edwards 
 
 Paige Ch. (N. Y.) 355 (1837) ; s. c. v. Sams, 3 111. App. 168 (1879j. See 
 
 31 Am. Dec. 352 ; Douglass v. Hus- Neele v. Berryhill, 4 How. (N. Y.) 
 
 ton, 6 Ohio, 156 (1833). See Shep- Pr. 16 (1849) ; Hodgen v. Guttery, 
 
 ard V. O'Neil, 4 Barb. (N. Y.) 125 58 111. 431 (1871) ; Stedman v. Per- 
 
 (1848) ; Hull v. Spratt, 1 Hun (N. kins, 42 Me. 130 (1856).
 
 § 727.] LIEN OF JUDGaiENT ON SURPLUS. 845 
 
 A judgment creditor, who is properly made a defendant 
 while his judgment is alive, will not lose his right to share in 
 the surplus by the fact that the lien of his judgment expires 
 pending the action.' But a judgment creditor, whose judg- 
 ment was not a Hen on the mortgaged premises, will have no 
 right to share in the proceeds of a sale of the decedent's real 
 estate.* Thus, the vendee of land, who in an action for 
 specific performance, has recovered a judgment for the 
 purchase money paid, which was adjudged to be a lien, 
 from the time of filing his lis pendens, on the surplus 
 arising from a sale made upon the foreclosure of a prior 
 mortgage, is entitled to priority in the payment of his 
 judgment out of such surplus, as against a judgment creditor 
 whose judgment was recovered after the filing of such lis 
 pendens.* 
 
 A judgment creditor, who purchases mortgaged premises 
 at an execution sale under his judgment, is entitled to the 
 surplus arising on a sale made under a prior mortgage, in 
 preference to the holder of a junior judgment.* But a 
 mortgagee, on recovering a judgment for deficiency against 
 his mortgagor's administrator, can not maintain an action 
 to have his judgment declared a lien upon the surplus 
 moneys arising upon the foreclosure of a mortgage on other 
 lands given by the same mortgagor to another mortgagee.' 
 The only remedy of such a judgment creditor, besides that 
 against the personalty in the administrator's hands, is an 
 action against the mortgagor's heirs or devisees ; if they 
 are insolvent, the court may direct the surplus to be held 
 and applied in satisfaction of the judgment.* 
 
 § 727. What interests bound by lien of judg-ment. — 
 The only interest bound by a judgment lien is the actual 
 
 ' Dempsey v. Bush, 18 Ohio St * Shepard v. O'Neil, 4 Barb. (N. 
 
 376 (1868). T.) 125 (1848) ; Snyder v. Stafford, 
 
 » Davis V. Davis, 4 Redf. (N. Y.) 11 Paige Ch. (N. Y.) 71 (1844). 
 
 355 (1879). * Fliess v. Buckley, 24 Hun (N. 
 
 » Hull V. Bpratt, 1 Hun (N. Y.) Y.) 514 (1881) ; aff'd 90 N. Y. 291. 
 
 298 (1874). But he is not entitled • Fliess v. Buckley, 24 Hun (N. 
 
 to interest thereon from the time of Y.) 514 (1881) ; aff'd 90 N. Y. 
 
 fi'ing his lis pendent. 291. See ante % 216.
 
 846 LIEN OF JUDGMENT ON SURPLUS. [§ 728. 
 
 interest which the debtor has in the property at the time 
 the judgment is docketed ; when the judgment debtor has 
 no interest in the premises other than the mere naked legal 
 title, the lien of the judgment will not attach.' Thus, if 
 a judgment debtor is in possession merely under a con- 
 tract to purchase, a court of equity will permit the actual 
 owner of the premises to show that the judgment debtor 
 has no real interest therein. 
 
 A lien thus acquired constitutes no legal interest in the 
 land itself, but is merely a general claim as distinguished 
 from a specific lien securing a preference on subsequently 
 acquired interests in the property ;* still, a court of equity 
 will always protect the equitable rights of third parties 
 existing at the time the judgment lien attaches to the 
 property.* 
 
 § 728. Satisfying judgments from surplus. — Where 
 there are judgment liens upon the mortgaged premises when 
 sold, such liens are, by the sale, transferred to the surplus 
 and must be satisfied therefrom in the order of their 
 priority, before the owner of the equity of redemption will 
 be entitled to receive any part thereof ;* such lienors will be 
 
 ' Hays V. Reger, 102 Ind. 527 T.) 280 (1828) ; Snyder v. Martin, 
 
 (1885) ; s. c. 3 West. Rep. 308 ; 17 W. Va. 276 (1880) ; 8. c. 41 Am. 
 
 Thomas v. Kennedy, 24 Iowa, 397 Rep. 671. See Morris v. Mowatt, 2 
 
 (1868) ; 8. C. 95 Am. Dec. 740 ; Paige Ch. (N. Y.) 586 (1831) ; Coster 
 
 Brown v. Pierce, 74 U. S. (7 Wall.) v. Bank of Georgia, 24 Ala. 37 
 
 205 (1868) ; bk. 19 L. ed. 134. See (1853) ; O'Rourke v. O'Connor, 39 
 
 Wheeler v. Wheedon, 9 How. (N. Cal. 442 (1870) ; Orth v. Jennings, 8 
 
 Y.) Pr. 303 (1853). Blackf. (Ind.) 420 (1847) ; Churchill 
 
 » White V. Carpenter, 2 Paige Ch. v. Morse, 23 Iowa, 229 (1867) ; s. c. 
 
 (N. Y.) 217 (1830) ; Baker v. Mor- 92 Am. Dec. 422 ; Walke v. Moody, 
 
 ton, 79 U. S. (12 Wall.) 158 (1870) ; 65 N. C. 599 (1871) ; Shryock v. 
 
 bk. 20 L. ed. 265. See Buchan v. Waggoner, 28 Pa. St. 430 (1857) ; 
 
 Sumner, 3 Barb. Ch. (N. Y.) 165 Cover v. Black. 1 Pa. St. 493 
 
 (1847) ; s. c. 47 Am. Dec. 305 ; Ells (1845) ; Ashe v. Livingston, 2 Bay 
 
 V. Tousley, 1 Paige Ch. (N. Y.) 280 (S. C.) 80 (1797) ; Withers v. Carter, 
 
 (1828) ; Massingill v. Downs, 48 U. 4 Gratt. (Va.) 407 (1848) ; s. c. 50 
 
 S. (7 How.) 767 (1849) ; bk. 12 L. Am. Dec. 78 ; Brown v. Pierce, 74 
 
 ed. 906 ; Conard v. Atlantic Ins. U. S. (7 Wall.) 205 (1868) ; bk. 19 
 
 Co., 26 U. S. (1 Pet.) 443 (1828) ; L. ed. 134. 
 bk. 7 L. ed. 213. * Eddy v. Smith, 13 Wend. (N. 
 
 » Ells V. Tousley, 1 Paige Ch. (N. Y.) 488 (1835).
 
 § 729.] LIEN OF JUDGMENT ON SURPLUS. 847 
 
 entitled to the payment of their claims before a widow 
 can receive an assignment of her dower from the sur- 
 plus.* 
 
 Where there is a surplus fund in court arising from a fore» 
 closure against the executors or administrators of a deceased 
 mortgagor, a creditor who has obtained a proper decree in a 
 surrogate's court will be preferred in its distribution to 
 legatees claiming the fund.* 
 
 § 729. Specific lien of judgment and executory con- 
 tract. — Judgment creditors who obtain a specific lien upon 
 the land before foreclosure, are entitled to priority of pay- 
 ment out of the surplus according to the dates of their 
 respective judgments.* Where mortgaged premises have 
 been sold upon execution under a judgment junior to the 
 mortgage, and the time for redemption has not expired at 
 the time of the foreclosure sale, the general lien of the 
 judgment will become a specific lien upon the surplus to the 
 extent of the purchaser's bid on the execution sale, and 
 of the inter£st thereon.* 
 
 But where a mortgagee obtained a decree of foreclosure, 
 by virtue of which the property was sold, and being 
 also a judgment creditor of the mortgagor, had an execu- 
 tion levied on the mortgaged premises, to which, however, 
 the mortgagor had no title at the time of the levy, it was 
 held that such judgment creditor was not entitled to partici- 
 pate in the surplus, even though the mortgagor, during the 
 
 ' New York Life Ins. Co. v. (1842) ; Tennant v. Stoney, 1 Rich. 
 
 Mayer, 19 Abb. (N. Y.) N. C. 92 (S. C.) Eq. 223 (1845) ; s. c. 44 Am. 
 
 (1887). Dec. 213 ; Fiemoult v. Dedire, 1 P. 
 
 » Clark's Case, 15 Abb. (N. Y.) Wms. 429 (1718) ; Finch v. Earl of 
 
 Pr. 227 (1862). Winchelsea, 1 P. Wms. 277(1715) ; 
 
 * Purdy V. Doyle, 1 Paige Ch. (N. Lovegrove v. Cooper, 3 Sm. & G. 
 
 Y.) 558 (1829). As to the proposition 271 (1854); Wilson v. Fielding, 2 
 
 that specific liens, whether legal or Vern. 763 (1718) ; s. c. 10 Mod. 426; 
 
 equitable, secured on mortgaged Adams Eq. 256 ; 1 Story Eq. Jur. 
 
 premises before the sale, will be §§ 551, 553 ; 2 White&T & L. Cas. 
 
 respected by courts of equity, see pt. 1, 290. 
 
 Codwise v. Gelston, 10 Johns. (N. ■* Snyder v. Stafford, 11 Paige 
 
 Y.) 522 (1812); Atlas Bank v. Ch. (N. Y.) 71 (1844) 
 Nahant Bank, 44 Mass. (3 Met.) 581
 
 848 JUDGMENT BY CONTESSION. [§§ 730-731. 
 
 pendency of the foreclosure suit, became the owner of 
 the equity of redemption.* 
 
 It is thought that an agreement to execute a mortgage on 
 particular lands described therein, is in equity a specific 
 lien on such lands, and that in the distribution of the 
 surplus arising on a sale under a prior mortgage, it will be 
 preferred to subsequent judgment liens.* While an oral 
 agreement to execute a mortgage is executory and within the 
 statute of frauds and not enforceable, yet if the promisor 
 has actually completed the agreement by properly executing 
 and delivering a formal mortgage, it will become as effective 
 for all purposes as if it had been reduced to writing 
 originally.* 
 
 § 730. Judgment by confession as an indemnity. — A 
 judgment by confession, given to secure and indemnify a 
 party as a surety, is a lien upon the equity of redemption 
 of the defendant's mortgaged premises, and will be entitled 
 to payment out of the surplus in the order of its lien, 
 although the party may not have been damnified. The 
 security will be transferred from the equity of redemption 
 to the surplus arising on the sale, and its lien can be 
 discharged only by the full discharge of the surety from 
 all liability.* 
 
 § 731. Judgment against sheriff. — It has been held that 
 where a judgment creditor is entitled to the surplus, or 
 a part thereof, the fact that he has recovered a judgment 
 against the sheriff for not returning his execution upon the 
 judgment will not affect his claim to the surplus, nor the 
 claim of his assignee of the first judgment, where such 
 judgment has been assigned, in the absence of a showing that 
 the assignment was made for the benefit of the sheriff; the 
 
 » Smith V. Smith, 13 Mich. 258 Burdick v. Jackson, 7 Hun. (N. T.) 
 
 (1865). 490 (1876) ; Arnold v. Patrick, 6 
 
 » See Otis v. SiU, 8 Barb. (N. Y.) Paige Ch. (N. Y.) 310 (1887). See 
 
 119 (1849) ; White v. Carpenter, 2 Siemon v. Schurck, 29 N. Y. 598 
 
 Paige Ch. (K Y.) 217 (1830). (1864). 
 
 ■Dodge V. Wellman, 1 Abb. '♦Lansingv. Clapp, 3E[ow. (N. Y.) 
 
 App. Dec. (N. Y. ) 512 (1869); Pr. 238 (1847). See an^e § 726.
 
 §§ 732-733.] JUDG3IENT BY CONFESSION. 849 
 
 mere fact that the assignee purchased the judgment at the 
 request of the sheriff does not show that it was purchased 
 for the sherifT's benefit.' 
 
 § 732. Judgment confessed by one member of a firm. 
 — A judgment confessed by two members of a firm of three, 
 for a partnership debt, has a priority of lien over a subse- 
 quent judgment recovered against all the members of the 
 firm.' 
 
 In a proceeding under the general rules of practice of the 
 New York supreme court,' to ascertain the priorities of 
 the several liens upon the surplus moneys arising upon the 
 foreclosure of a mortgage, the rule in equity as to the appli- 
 cation of partnership and individual property among firm 
 and individual creditors does not apply, but the rule of law 
 controls which gives a judgment creditor of the firm, who 
 has acquired a lien upon the lands of a partner by docketing 
 the judgment, a claim upon the surplus superior to the 
 claim of a junior judgment creditor of the partner.* 
 
 § 733. Married woman's equitable right to surplus. — 
 It has been said that upon the foreclosure of a mortgage 
 upon real property belonging to a married woman, the 
 surplus brought into court is subject to its jurisdiction as 
 a court of equity ; and that, independently of the married 
 woman's acts,* the court will not allow the fund to be 
 reached by the husband's creditors without first making 
 suitable provision for the wife and her children.' It seems 
 that where the surplus is small and not more than sufificient 
 to support her, the whole thereof should be paid to the wife.' 
 
 ' Lansing v. Clapp, 8 How. (N. • See Udall v. Kenney, 3 Cow. (N. 
 
 Y.) Pr. 238 (1847). Y.) 590 (1824) ; Sleight v. Read, 18 
 
 » Stevens v. Bank of Central N. Barb. (N. Y.) 159 (1854) ; s. c. 9 
 
 Y., 31 Barb. (N. Y.) 290 (1859). How. (N. Y.) Pr. 278 ; Dumond v. 
 
 » N. Y. Supreme Court Rule 64. Magee, 4 Johns. Ch. (N, Y.) 318 
 
 <Meech v. Allen, 17 N. Y. (1820); Wiswall v. Hall, 3 Paige 
 
 300 (1858) ; New York Life Ins. Co. Ch. (N. Y.) 313 (1832) ; Mumford v. 
 
 V. Mayer, 19 Abb. (N. Y.) N. C. 92 Murray, 1 Paige Ch. (N. Y.) 620 
 
 (1887) ; Averill v. Loucks, 6 Barb. (1829). 
 
 (N. Y.) 470 (1849), ' Sleight v. Read, 18 Barb. (N. 
 
 ' N. Y. Laws of 1848, chap. 200 ; Y.) 159 (1854) ; s. c. 9 How. (N. Y.) 
 
 1849, chap. 375. Pr. 278. 
 
 (54)
 
 850 
 
 DOWER IN SURPLUS. 
 
 [§ 734. 
 
 § 734. Dower in surplus moneys. — Since surplus moneys 
 arising upon the sale of mortgaged lands take the place of 
 the lands for parties having liens or vested rights therein, the 
 widow of the owner of the equity of redemption is entitled 
 to dower in the surplus the same as she was in the land 
 before the sale.' But where she unites with her husband 
 in the execution of a mortgage on real estate belonging to 
 him, and the property is afterwards sold under such mort- 
 gage, she will be entitled to dower only in the surplus after 
 the payment of the mortgage,' because her mortgage will 
 operate to its extent to extinguish her right.* 
 
 The right of the wife of a mortgagor to dower in the 
 surplus remaining after discharging the mortgage lien, was 
 once doubted in those cases where the husband survived the 
 foreclosure sale but died before the distribution of the sur- 
 plus ;* but it is now well settled in New York' and in other 
 
 * See Matthews v. Duryee, 17 
 Abb. (N. T.) Pr. 256 (1864); affirmed 
 
 4 Keyes ( N. Y. ) 525 ; Vartie v. 
 Underwood, 18 Barb. (N. Y.) 564 
 (1854) ; Denton v. Nanny, 8 Barb. 
 (N. Y.) 618 (1850) ; Titus v. Neilson, 
 
 5 Johns. Ch. (K Y.) 458 (1821); 
 Tarbele v. Tarbele, 1 Johns. Ch. (N. 
 Y.) 45 (1814); Elmendorf v. Lock- 
 wood, 4 Lans. (N. Y.) 393 (1871) ; 
 Kling V. Ballentine, 40 Ohio St. 394 
 (1883). 
 
 " Smith V. Jackson, 2 Edw. Ch. 
 (N. Y.) 28 (1834) ; Titus v. Neilson, 
 5 Johns. Ch. (N. Y.) 458 (1821); 
 Hawley v. Bradford, 9 Paige Ch. 
 (N. Y.) 200 (1841) ; 8. c. 37 Am. 
 Dec. 390 ; Bank of Commerce v. 
 Owens, 31 Md. 320 (1869) ; s. c. 1 
 Am. Rep 63 ; Hinchman v. Stiles, 
 9 N. J. Eq. (1 Stockt.) 361 (1853) ; 
 Hartshorne v. Hartshorne, 2 N. J. 
 Eq. (1 H. W. Gr.) 349 (1840). 
 
 * Elmendorf v. Lockwood, 4 Lans. 
 (N. Y.) 393 (1871). In the case of 
 New York Life Ins. Co. v. Mayer, 
 19 Abb. (N. Y.) N. C. 92 (1887), it 
 
 was questioned whether a claim of 
 the wife to dower, not being a 
 vested interest in the lands or a lien 
 upon them, which is cut off by 
 foreclosure, can be entertained in pro- 
 ceedings for the distribution of the 
 surplus, citing Dunning v. Ocean 
 Nat. Bank, 61 N. Y. 497 (1875) ; 8. 
 c. 10 Am. Rep. 293; Mutual Life Ins. 
 Co. of N. Y. V. Truchtnicht, 3 Abb. 
 (N. Y.) N. C. 133 (1877) ; Matthews v. 
 Duryee, 45 Barb. (N. Y.) 69 (1865) ; 
 German Savings Bank v. Sharer, 25 
 Hun (N. Y.) 409 (1881); Fliess v. 
 Buckley, 24 Hun (N. Y.) 514 (1881) ; 
 aff'd in 90 N. Y. 286. 
 
 * Frost V. Peacock, 4 Edw. Ch. 
 (N. Y.) 678 (1846). 
 
 » Malloney v. Horan, 49 N. Y. Ill 
 (1872); 8. c. 10 Am. Rep. 335; 
 Matthews v. Duryee, 45 Barb. (N. 
 Y.) 69 (1865); aff'd 3 Abb. App. 
 Dec. (N. Y.) 220 ; 17 Abb. (N. Y.) 
 Pr. 256 ; Denton v. Nanny, 8 Barb. 
 (N. Y.) 618 (1850) ; Blydenburgh v. 
 Northrop, 13 How. (N. Y.) Pr. 289 
 (1856) ; Titus v. Neilson, 5 Johns.
 
 § 735.] DOWER IN SURPLUS. 851 
 
 states,* that where a widow joins her husband in a mortgage 
 on land of which he was seized, she is entitled to dower in 
 the surplus moneys arising from the foreclosure sale. She 
 will have a right of dower in the equity of redemption 
 merely, however, and not in the whole premises.* 
 
 It is said that if a husband dies after a foreclosure sale and 
 the distribution of the surplus, the wife can not claim an 
 interest in such surplus, but that if he dies after the sale 
 and while the surplus, or any part of it, is within the control 
 of the court, she will be dowable of the surplus so far as her 
 right can be equitably paid from the portioft remaining 
 undistributed. If the husband is living, one-third of such 
 surplus should be invested for her during their joint lives; 
 if he is dead, she will be entitled to the income of one-third 
 thereof for life.* 
 
 A widow is dowable only in that portion of the surplus 
 which still remains in the hands of the court at the time her 
 application therefor is made ; if any of those interested in 
 the surplus have received their portion, they can not be 
 called upon to refund it ; neither can those who have not 
 received their share be required to suffer loss by reason of 
 the demand made.* 
 
 § 735. Inchoate right of dower. — Some courts have 
 gone to the extent of protecting the inchoate right of dower 
 of the wife during coverture in the surplus from a mort- 
 gage sale by'permitting her, as against subsequent lienors, 
 to have one-third of such surplus invested for her benefit, and 
 
 Ch. (N. Y.) 453 (1821); Bell v. Bank of Ohio v. HintoD, 21 Ohio 
 
 Mayor, etc. of New York, 10 Paige St. 509 (1871). 
 
 Ch. (N. Y. ) 49 (1843); Hawley « Hawley v. Bradford, 9 Paige 
 
 V. Bradford, 9 Paige Ch. (N. Y.) Ch. (N. Y.) 200 (1841). 
 
 200 (1841); 8. 0. 37 Am. Dec. » Vartie v. Underwood, 18 Barb. 
 
 390. (N. Y.) 561 (1854); Denton v. Nanny, 
 
 > Hinchman v. Stiles, 9 N. J. Eq. 8 Barb. (N. Y.) 618 (1850) ; Matthews 
 
 (1 Stockt.) 454 (1853); Taylor v. v. Duryee, 4 Keyes (N. Y.) 525 
 
 Fowler, 18 Ohio, 567 (1849) ; 8. c. (1868). In Indiana, Iowa and possi- 
 
 51 Am. Dec. 469; Rands v. Kendall, bly some other states, she is entitled 
 
 15 Ohio, 671 (1846) ; Fox v. Pratt, to one-third in fee. 
 
 27 Ohio St. 512 (1875) ; Culver v. * State Bank of Ohio v. Hinton, 
 
 Harper, 27 Ohio St. 464 (1875) ; State 21 Ohio St. 509 (1871).
 
 852 INCHOATE DOWER EN SURPLUS. [§ 736. 
 
 kept invested during the joint lives of herself and her 
 husband, the interest to be subject to the order of the 
 court during the life of the husband and to be paid to b«r 
 during her life, in case she survives him.* 
 
 In the case of the New York Life Insurance Company v. 
 Mayer,* it was held that the claim of the wife of a mortgagor, 
 who joined in the execution of the mortgage, upon the surplus 
 moneys arising on a foreclosure, for the value of her inchoate 
 right of dower, is superior to the claims of judgment creditors 
 of the mortgagor, notwithstanding the fact that there was a 
 provision in the mortgage for the return of the surplus, if 
 any, to the mortgagor, his heirs or assigns." 
 
 § 736. Investment of dower in surplus— Payment of 
 gross sum. — It is thought that where the widow of a 
 mortgagor, or owner of the equity of redemption, who has 
 answered as such and submitted to the decree of the court, 
 is entitled to dower in the surplus proceeds of the sale 
 of the mortgaged premises, one-third thereof may be 
 ordered to be invested at interest for her benefit ;* or, under 
 the provisions of the New York Code of Civil Procedure* 
 and the rules of the supreme court,* such widow may 
 consent to accept a gross sum in lieu of the annual interest 
 
 • Vartie v. Underwood. 18 Barb. Underwood, 18 Barb. (N. Y.) 561 
 
 (N. Y.) 561 (1854). See Malloney v. (1854) ; Denton v. Nanny, 8 Barb. 
 
 Horan, 49 N. Y. Ill (1872) ; 8. c. 10 (N. Y.) 618 (188t)); Douglas v. 
 
 Am. Rep. 335 ; Mills v.VanVoorhies, Douglas, 11 Hun (N. Y.) 406 (1877); 
 
 20 N. Y. 413 (1859) ; Denton v. Jackson v. Edwards, 7 Paige Ch. 
 
 Nanny, 8 Barb. (N. Y.) 618 (1850) ; (N. Y.) 386 (1839) ; Hawley v. Brad- 
 
 Blydenburgh v. Northup, 13 How. ford, 9 Paige Ch. (N. Y.) 200 (1841). 
 
 (N. Y.) Pr. 289 (1856) ; Matthews v. Contra, Aikman v. Harsell, 98 N. 
 
 Duiyee, 4 Keyes (N. Y.) 525 (1868) ; Y. 186 (1885) ; Moore v. Mayor, 8 
 
 Vreeland v. Jacobus, 19 N. J. Eq. N. Y. 110 (1853) ; Frost v. Peacock, 
 
 (4 C. E. Gr.) 231 (1868). 4 Edw. Ch. (N. Y.) 678 (1846) ; 
 
 « 19 Abb. (N. Y.) N. C. 92 (1887). Titus v. Neilson, 5 Johns. Ch. (N. 
 
 « See Simar v. Canaday, 53 N. Y. Y.) 453 (1821) ; Bell v. Mayor, &c., 
 
 298 (1873) ; 8. c. 13 Am. Rep. 523 ; 10 Paige Ch. (N. Y.) 55 (1843). 
 
 Mills V. VanVoorhies, 20 N. Y. 412 * Tabele v. Tabele, I Johns. Ch. 
 
 (1859) ; Matthews v. Duryee, 3 Abb. (N. Y.) 45 (1814). 
 
 (N. Y.) App. Dec. 220 (1868), affirm- " N. Y. Code Civ. Proc. § 2793. 
 
 ing 45 Barb. (N. Y.) 69 ; s. c. 17 « N. Y. Supreme Court Rule 71. 
 Abb, (N. Y.) Pr. 256; Vartie v.
 
 §^ 737-738.] PAYING GEOSS SUM FOR DOWER. 853 
 
 or income for life from the one-third so invested, and such 
 gross sum shall be estimated according to the then value of 
 an annuity of five per centum on the principal sum, during 
 the probable period of her life as ascertained from the Ports- 
 mouth or Northampton annuity tables.' 
 
 Where the husband is living, the value of the wife's inchoate 
 right of dower is ascertained by computing the value of an 
 annuity for her life, in one-third of the proceeds of the estate 
 to which her inchoate right of dower attaches, and deduct- 
 ing therefrom the value of a similar annuity for his life; 
 the difference between these two sums will be the present 
 value of her inchoate right of dower.* 
 
 § 737. Homestead right in surplus. — It has been held 
 that where a mortgaged homestead is sold for more than 
 enough to pay the mortgage debt, the surplus, to the extent 
 allowed by statute for a homestead, should be delivered to 
 the debtor for the purchase of another homestead ; in case 
 of his death, such portion should be invested in a home for 
 his widow or his children.* It is believed where a sale 
 is made under a mortgage containing a waiver of exemption, 
 that the mortgagor is, nevertheless, entitled to the exemption 
 allowed by law to heads of families out of the surplus 
 proceeds of such sale, as against subsequent judgment 
 creditors.* 
 
 § 738. Where claim of collateral assignee less than 
 mortgage. — A mortgagee holding several notes secured 
 by mortgage may assign the security to an assignee of one of 
 the notes, so as to give him a preference in the application 
 
 > See Schell v. Plumb, 55 N. Y. » Jackson v. Edwards, 7 Paige 
 
 592 (1874) ; 8. c. 16 Abb. (N. Y.) Pr. Ch. (N. Y.) 386, 408 (1839). See 
 
 N. S. 19 ; 46 How. (N. Y.) Pr. Doty v. Baker, 11 Hun (N. Y.) 225 
 
 19 ; Winslow v, McCall, 32 Barb. (1877) ; Gordon v. Tweedy, 74 Ala. 
 
 (N.Y.) 249 (1860); Davis v. Standish, 232 (1883); 8. C. 49 Am. Rep. 813. 
 
 26 Hun (N.Y.) 616 (1882); Tabelev. » McTaggert v. Smith, 14 Bush 
 
 Tabele, 1 Johns. Ch. (N. Y.) 45 (Ky.) 414 (1878). 
 
 ( 1814 ) ; Matthews v. Duryee, 4 * Quinn's Appeal, 86 Pa. St. 447 
 
 Keyes (N. Y.) 525 (18G8) ; Wager v. (1878) ; Hill v. Johnson, 29 Pa. St. 
 
 Schuyler, 1 Wend. (N. Y.) 553 362(1857). 
 (1828).
 
 854 COLLATERAL ASSIGNEE'S CLAIM TO SURPLUS. [§ 739. 
 
 of the proceeds realized from a sale of the mortgaged prem- 
 ises ; and where the assignment of the mortgaged premises 
 purports to " bargain, sell and assign " the same to secure 
 the payment of the note so assigned, it is a transfer of the 
 entire legal estate or interest of the mortgagee therein, and 
 he will retain only an equitable interest in the surplus after 
 satisfying the amount due to the assignee.' 
 
 Where a bond and mortgage are assigned as collateral 
 security for a loan, with an agreement on the part of the 
 lender, that on payment of the mortgage he will account for 
 the excess of the principal over and above the amount 
 of the loan, and the mortgage is foreclosed by the lender 
 without making the borrower a party to the action and the 
 premises are bid in by the lender, the equitable interest which 
 the borrower had in the mortgage will attach to the land, 
 ajid he will be entitled to the surplus in case of a sale 
 thereof by the lender for more than the amount of his 
 claim.* 
 
 If one mortgagor is surety for another, where they own 
 undivided shares in the property, the surety will have a 
 right to require that the share of his principal shall be sold 
 first on a foreclosure, if enough can be realized in that way 
 to pay the mortgage debt ; if the entire premises are sold 
 and a surplus is produced, the surety will be entitled to have 
 such surplus, to the extent of his entire undivided share, 
 paid to him.* 
 
 § 739. Purchase of part of premises by mortgagee. — 
 It has been said that where one who holds a mortgage, 
 purchases an absolute title to a portion of the premises, and 
 afterwards forecloses the mortgage and sells the whole 
 premises under a decree, he will be entitled in the distribution 
 
 » Solberg v. Wright, 33 Minn. 224 Albion v. Bums, 46 N. Y. 170 
 
 (1885). (1871); Smith v. Townsend, 25 N. 
 
 » Dalton V. Smith, 86 N. Y. 176 Y. 479 (1862) ; Vartie v. Uaderwood, 
 
 (1881) ; Hoyt v. Martense, 16 N. Y. 18 Barb. (N. Y.) 561 (1854) ; Neim- 
 
 231 (1857); Slee v. Manhattan Ins. cewicz v. Gahn, 3 Paige Ch. (N. Y.) 
 
 Co., 1 Paige Ch. (N. Y.) 48 (1828). 614 (1832) ; Loomer v. Wheelwright, 
 
 ' Erie County Sav. Bank v. Roop, 3 Sandf. Ch. (N. Y.) 135 (1845). 
 80 N. Y. 591 (1880). See Bank of
 
 §1 740-741.] LESSEE FOK YEARS — SURPLUS. 855 
 
 of the surplus, not to the amount which he paid for the 
 portion purchased by him, but only to so much as his portion 
 ratably contributed to the price brought by the whole 
 tract.* 
 
 § 740. Interest of lessee for years in surplus. — Where 
 a tenant for years holds under a lease without covenants, 
 which is subject to a mortgage, he will not be entitled to share 
 in the surplus arising from the sale upon the foreclosure of 
 such mortgage." But a lessee for years of mortgaged 
 premises, holding under a lease containing a covenant for 
 quiet enjoyment, is entitled, on the contrary, to receive from 
 the surplus moneys arising on the sale, the value of the 
 use of the premises during the remainder of his term, less 
 the rents reserved and other payments to be made by 
 him under the lease.* 
 
 In the absence of proof that the value of the leasehold is 
 in excess of the rents reserved, or that it has such value, the 
 lessee of mortgaged premises is not entitled to receive 
 any portion of the surplus arising from a sale thereof, 
 because in the absence of such proof, the presumption is 
 that the rent reserved is the fair value of the use and that 
 no injury is sustained by the lessee.* Where, therefore, 
 a lessee and the owner of the equity of redemption were the 
 only claimants for the surplus arising on a foreclosure sale, 
 and no evidence was produced by the former tending to 
 show that the leasehold estate had any value in excess 
 of the rents, it was held that the whole surplus was properly 
 awarded to the owner.* 
 
 § 741. Mechanic's lien. — The Inchoate rights of mechanics 
 and material men under the statute giving them liens, are 
 entitled to share in the surplus funds arising on a mortgage 
 foreclosure sale, although such liens may not be established 
 
 « Frost V. Peacock, 4 Edw. Ch. * Larkin v. Misland, 100 N. Y. 212 
 
 (N. Y.) 678 (1846). (1885) ; Ckrkson v. Skidmore, 46 
 
 « Burr V. Stenton, 43 N. Y. 463 N. Y. 297, 303 (1871). 
 
 (1871). ' Larkiu v. Misland, 100 N. Y. 213 
 
 » Clarkaon v. Skidmore, 46 N. Y. (1885). 
 297(1871).
 
 856 MEOHAino's lien — SURPLUS. [§742. 
 
 by judgment ;' but they will always be inferior to the lien 
 of a prior bona fide mortgage.' 
 
 The delivery and acceptance of a deed to premises, " sub- 
 ject to all contracts outstanding relating to said premises 
 and buildings" then in course of erection, and all " moneys 
 now due or to grow due on account of said contracts or 
 either of them, and all incumbrances of whatsoever nature 
 and kind now a lien upon said premises or any part thereof," 
 has been held to charge the premises with an equitable lien 
 in favor of the mechanics and material men for their claims ; 
 and such lien will attach to the surplus moneys arising on 
 the foreclosure of a prior mortgage.* 
 
 But such a clause in a deed covers only claims in existence 
 at the time of the execution of the deed, and not claims 
 arising pursuant to contracts made after the transfer. It is 
 immaterial that such claims arise upon contracts with the 
 husband of the grantor for the erection of the building, 
 so that the grantor is not personally liable for their payment ; 
 the consideration for the equitable liens so created is the 
 transfer of the land.* 
 
 § 742. Rights of cestuis que trust in surplus. — In the 
 
 distribution of the surplus arising from the sale of mort- 
 gaged premises made under the foreclosure of a mortgage 
 executed by one who held the legal title to the premises as 
 trustee ex maleficio, the owner of the equitable title under 
 such trust ex maleficio is entitled to claim the surplus after 
 the payment of the mortgage debt, to the exclusion of 
 judgment creditors of the mortgagor.' 
 
 Where the grantee in a deed of trust subsequently con- 
 veyed the premises by a deed of warranty and afterwards 
 
 ' Livingston v. Mildrum, 19 N. * See Oppenheimer v. Walker, 3 
 
 Y. 440 (1859). See Bergen v. Sned- Hun (N. Y.) 30 (1874). 
 
 eker, 8 Abb. (N. Y.) N. C. 50, 56 » Crombie v. Rosenstock, 19 Abb. 
 
 (1879). As to the right to the sur- (N. Y.) N. 0. 312 (1887). 
 
 plus under a mechanic's lien not * Crombie v. Rosenstock, 19 Abb. 
 
 continued by the court, after the ex- (N. Y.) N. C. 312 (1887). 
 
 piration of one year, where the * Landell's Appeal, 105 Pa. St. 153 
 
 premises are sold under foreclosure, (1884). 
 Bee Emigrant Industrial &c., Bank 
 V. Goldman, 75 N. Y. 127 (1878).
 
 §§ 743-744.] LIEN roK attorney's fees. 857 
 
 transferred them again by a deed of trust, the benefi- 
 ciary in the latter knowing of the warranty deed, and 
 upon a foreclosure under the first incumbrance there was a 
 surplus, the grantor being insolvent and a non-resident, it 
 was held that the grantee in the warranty deed was entitled 
 to the surplus in preference to the beneficiary in the deed 
 of trust.' 
 
 § 743. Lien for attorney's fees on surplus. — The lien 
 of an attorney on a judgment for his fees extends to the sur- 
 plus moneys arising on a foreclosure, as such fees are a part of 
 the judgment," and will be protected.* In the case of Atlantic 
 Savings Bank v. Hetterick,* the order of reference for the 
 distribution of the surplus moneys on a foreclosure sale 
 directed that the amount due to the claimant thereof be 
 ascertained by the referee, and also the amount due to any 
 other person having a lien on such surplus moneys. The court 
 held that the lien of the attorney who procured the judg- 
 ment for the claimant, upon which he founded his claim 
 to the surplus moneys and another judgment decreeing 
 it to be paid out of such moneys, was properly sustained.* 
 
 § 744. Disposition of surplus moneys not applied for. — 
 The New York Code of Civil Procedure' provides that " if 
 there is any surplus of the proceeds of the sale of mortgaged 
 
 ' Johnson v. Wilson, 77 Mo. 639 • Atlantic Savings Bank v. Hiler, 
 
 (1883). 8Hun(N. Y.) 209 (1874); Atlantic 
 
 ' Atlantic Savings Bank v. Het- Savings Bank v. Hetterick, 5 T. & C. 
 
 terick, 5 T. «& C. (N. Y.) 239 (1875). (N. Y.) 239 (1875). 
 
 In the case of Kennedy v. Brown, * 5 T. & C. (N, Y.) 239(1875). 
 
 50Mich. 336(1883), the mortgagee bid » The claimant having appeared 
 
 off the premises on foreclosure at a before the referee and been heard, 
 
 figure exceeding the amount of the without objecting to the examination 
 
 debt, costs, taxes, and insurance by of the attorney's account on which 
 
 about $40 ; the mortgage provided his demand was based, it was held, 
 
 for an attorney's fee of $50 ; the that the proceeding amounted to an 
 
 court held that the mortgagee was arbitration, if not a reference, to 
 
 bound to pay over the surplus of determine the attorney's demand, by 
 
 $40 to the sheriff for the benefit of which the claimant was bound, 
 
 the owner of the equity of redemp- Atlantic Savings Bank v. Hetterick, 
 
 lion, and that if he did not do so, the 5 T. & C. (N. Y.) 239 (1875). 
 
 latter could sue him for money had • N. Y, Code Civ. Proc. § 1633, 
 and received to his use.
 
 858 DISPOSING OF SUEPLUS NOT APPLIED FOR. [§ 744. 
 
 premises, after paying the expenses of the sale and satisfying 
 the mortgage debt and the costs of the action, it must 
 be paid into court for the use of the person or persons 
 entitled thereto.^ If any part of the surplus remains in 
 court for the period of three months, the court must, if no 
 application has been made therefor, and may, if an applica- 
 tion therefor is pending, direct it to be invested at interest, 
 for the benefit of the person or persons entitled thereto, to 
 be paid upon the direction of the court."* 
 
 The rules of the supreme court' provide for the deposit 
 and investment of surplus moneys, the taking of securities 
 therefor, and the inspection of the county treasurer's and 
 chamberlain's accounts thereof. 
 
 > The surplus moneys derived (N. Y.) N. C. 135 (1877) ; Tator v. 
 
 from a sale under foreclosure, be- Adams, 20 Hun (N. Y.) 131 (1880) ; 
 
 long to the mortgagor or owner of the Savings Bank of Utica v. Wood, 17 
 
 equity of redemption, and not to the Hun (N. Y.) 133 (1879); Hurst v. Har- 
 
 purchaser on the foreclosure sale. per, 14 Hun (N. Y.) 280 (1878); Sav- 
 
 Day V. Town of New Lots, 11 N. Y. ings Institution v. Osley, 4 Hun (N.Y.) 
 
 State Rep. 361 (1887). 657 (1875) ; Oppenheimer v. Walker, 
 
 «N. Y. Code Civ. Proc. §1633 3 Hun (N. Y.) 30 (1874); Atlantic 
 
 See White v. Bogart, 73 N. Y. Savings Bank v. Hiler, 5 T. & C. 
 
 256 (1878) ; Dunning v. Ocean Nat. (N. Y.) 239 (1874) ; s. c. 3 Hun (N. 
 
 Bank, 61 N. Y. 497 (1875) ; s. c. Y.) 209. 
 
 19 Am. Rep. 293 ; Mutual Life Ins. » N. Y. Supreme Court Rules 68, 
 
 Co. of N. Y. V. Truchtnicht, 3 Abb. 69, 70.
 
 CHAPTER XXXIII. 
 
 PROCEEDINGS ON STJBPLUS MONEYS. 
 
 PRACTICE- DISTRIBUTION BY SURROGATE'S AND SUPREME COURTS 
 
 —APPLICATION FOR SURPLUS-APPOINTING REFEREE-HIS 
 
 POWERS AND DUTIES-WHAT MAY BE LITIGATED 
 
 —TESTIMONY SIGNED— REFEREE'S REPORT 
 
 —CONFIRMATION — ORDER FOR 
 
 DISTRIBUTION— APPEAL. 
 
 I 745. Distribution of surplus by 
 surrogate. 
 
 746. Distribution of surplus by 
 
 surrogate— Foreclosure by 
 advertisement. 
 
 747. Distribution by supreme 
 
 court. 
 
 748. Action to enforce claim to 
 
 surplus. 
 
 749. Recovering surplus wrong- 
 
 fully paid. 
 
 750. Application for surplus 
 
 moneys. 
 
 751. Who entitled to notice — 
 
 How served. 
 
 752. Certificate and proof of de- 
 
 positing surplus. 
 
 753. Appointment of referee. 
 
 754. Order of reference and oath 
 
 of referee. 
 
 755. Presenting proof of claim. 
 
 § 756. Conduct of the reference. 
 
 757. Powers of the referee. 
 
 758. What claims may be liti- 
 
 759. Extent of referee's inquiry. 
 
 760. Right of claimant not filing 
 
 notice to appear. 
 
 761. Testimony to be signed and 
 
 filed. 
 
 762. Referee's report — Filing 
 
 same. 
 
 763. Exceptions to the referee's 
 
 report. 
 
 764. Hearing exceptions to report. 
 
 765. Confirmation of referee's 
 
 report. 
 
 766. Opening and setting aside 
 
 referee's report. 
 
 767. Appeal from order for dis- 
 
 tribution. 
 
 § 745. Distribution of surplus by surrogate.— The 
 New York Code of Civil Procedure' provides, that "where 
 real property, or an interest in real property, liable to be 
 disposed of as prescribed by the statute, is sold in an action 
 or a special proceeding, to satisfy a mortgage or other lien 
 thereupon, which accrued during the decedent's life-time, 
 and letters testamentary or letters of administration upon 
 the decedent's estate, were, within four years before the sale,* 
 
 «N, 
 2799. 
 
 Y. Code Civ. Proc. §§ 2798, 
 
 ' The words " within four years be- 
 fore the sale," as used in the Code Civ. 
 
 8.'9
 
 860 SURROGATE DISTRIBUTING SURPLUS. [§ 746 
 
 Issued from a surrogate's court of the state, the surplus 
 money must be paid into the surrogate's court from which 
 the letters issued." "Where money is thus paid into a 
 surrogate's court, and a petition for the disposition of 
 property, as prescribed by the statute, is pending before 
 him, or is presented at any time before the distribution of 
 the money, the money must be distributed as if it was the 
 proceeds of the decedent's real property, sold pursuant to 
 the decree." 
 
 These sections of the Code of Civil Procedure are very sim- 
 ilar in language to those of the former statute.* The former 
 statute was held not to apply to a foreclosure by advertise- 
 ment," and for that reason it is thought by some that these 
 sections of the Code do not now apply, where a foreclosure 
 is conducted by advertisement. It is certain, however, 
 that whether these sections do or do not apply to such 
 proceedings, the surplus proceeds of a sale made under a 
 decree of foreclosure, rendered more than four years after 
 a grant of letters testamentary or of administration, are to 
 be distributed in the action, though the judgment directing 
 the sale was entered within the four years.* 
 
 §746. Distribution of surplus by surrogate — Fore- 
 closure by advertisement. — The New York Code of Civil 
 
 Proc.§ 2798, and the words "making German Sav. Bank v. Sharer, 25 
 
 the sale" in Laws of 1871, chap. Hun (N. Y.) 409 (1881); Fliess v. 
 
 834,— relating to the payment into Buckley, 24 Hun (N. Y.) 514 (1881). 
 
 the proper surrogate's court of sur- * See White v. PoUlon, 25 Hun 
 
 plus moneys arising on the sale of (N. Y.) 69 (1881). Upon the distri- 
 
 real property, if letters testamentary bution in the surrogate's court, 
 
 or of administration have been under §2799, of surplus moneys 
 
 issued within a certain time, — refer to arising on a foreclosure, where 
 
 the date of the sale, and not to the there is, under a will, a life tenancy 
 
 commencement of the action or pro- in the lands sold, the fimd must 
 
 ceedings resulting in the sale ; be invested and the income paid 
 
 White V. Poillon, 25 Hun (N. Y.) 69 to the beneficiary until the determi- 
 
 (1881). nation of the life estate. The surro- 
 
 ' See Laws of 1867, chap. 658, as gate can not order the payment of a 
 
 amended by Laws of 1870, chap. gross sum in lieu thereof. Zahrt's 
 
 170. Estate, 11 Abb. (N. Y.) N. C. 225 
 
 • See Loucks v. VanAllen, 11 (1882), citing Arrowsmith v. Arrow- 
 
 Abb. (N. Y.) Pr. N. S. 427 (1871) ; smith, 8 Hun (N. Y.) 606 (1876);
 
 § 747.] DISTELBUTING SURPLUS. 861 
 
 Procedure' provides, that "the commencement or pendency 
 of an action or special proceeding, having for its object the 
 sale, either absolutely or contingently, of property liable to 
 be disposed of as prescribed by this statute; or the foreclosure 
 by advertisement of a mortgage thereupon ; or any proceed- 
 ing to sell such property, taken pursuant to a judgment, or 
 by virtue of an execution, does not affect any of the proceed- 
 ings taken in the surrogate's court for the sale of such prop- 
 erty, unless the surrogate so directs. After making a decree 
 directing a mortgage, lease or sale, the surrogate may, and 
 in a proper case, he must, stay the order to execute the decree, 
 with respect to the property affected by the action, or special 
 proceeding, or by the proceedings then pending, until the 
 determination thereof, or the further order of the surrogate 
 with respect thereto. If, in the course thereof, a sale of 
 any of the property has been made, before making the 
 decree in the surrogate's court, the decree must provide 
 for the application of the surplus proceeds belonging to the 
 decedent's estate. If such a sale is made afterwards, 
 the directions contained in the decree, relating to the 
 property sold, are deemed to relate to those proceeds."* 
 
 § 747. Distribution by supreme court. — The New York 
 Code of Civil Procedure provides, that " an attorney or other 
 person who receives any money, arising upon a sale, made 
 as prescribed in the title regulating foreclosures by adver- 
 tisement, must, within ten days after he receives it, pay 
 into the supreme court the surplus, exceeding the sum due 
 and to become due upon the mortgage, and the costs and 
 expenses of the foreclosure, in like manner and with like 
 effect, as if the proceedings to foreclose the mortgage were 
 taken in an action, brought in the supreme court, and triable 
 in the county where the sale took place."* 
 
 The Code provides further, that " a person who had, at 
 the time of the sale, an interest in or lien upon the property 
 
 In re Igglesden, 3 Red! (N. T.) McJimsey, 1 Edw. Ch. (N. T.) 551 
 
 375, 378 (1877). ( 1833 ) ; Stilwell v. Swarthout, 10 
 
 ' N. T. Code Civ. Proc. § 2797. N. Y, Week. Dig. 369 (1880). 
 
 * See Hoey v. Kinney, 10 Abb. »N. Y. Code Civ. Proc. §2404. 
 (N. Y.) Pr. 400 (1860) ; Breevoort v.
 
 862 DISTRIBUTION BY SUPREME COURT. [§ 748. 
 
 sold, or a part thereof, may, at any time before an order is 
 made, as prescribed by the statute, file in the office of the 
 clerk of the county, where the sale took place, a petition 
 stating the nature and extent of his claim, and praying for 
 an order, directing the payment to him of the surplus 
 money, or a part thereof,*" 
 
 "A person filing a petition, as prescribed in the above 
 section, may, after the expiration of twenty days from the 
 day of sale, apply to the supreme court, at a term held 
 within the judicial district, embracing the county where his 
 petition is filed, for an order, pursuant to the prayer of 
 his petition. Notice of the application must be served, in 
 the manner prescribed by statute for the service of a paper 
 upon an attorney in an action, upon each person, who has 
 filed a like petition, at least eight days before the applica- 
 tion ; and also upon each person, upon whom a notice of sale 
 was served, as shown in the affidavit of sale, or upon his 
 executor or administrator. But, if it is shown to the 
 court, by affidavit, that service upon any person, required to 
 be served, can not be so made with due diligence, notice 
 may be given to him in any manner which the court 
 directs.'" 
 
 § 748. Action to enforce claim to surplus. — A party 
 entitled to the surplus moneys arising from a sale on fore- 
 closure may maintain an action therefor." Thus, where an 
 attachingcreditor recovered a judgment, and the land attached 
 was sold on a prior mortgage under a power of sale contained 
 therein, it was held that the attaching creditor could, by 
 an action in equity, enforce his lien against the surplus 
 proceeds of the sale remaining in the hands of the first 
 
 * N. Y. Code Civ. Proc. § 2405. uted by the surrogate's court, con- 
 » N. Y. Code Civ. Proc. § 2406, tract creditors are in no better 
 
 * See Cope v. Wheeler, 41 N. Y. position to assert any further equit- 
 303, 308(1869); Matthews V. Dury 66, able lien against moneys arising 
 45 Barb. (N. Y.) 69 (1865) ; Bevier from the sale of a decedent's real 
 V. Schoonmaker, 39 How. (N, Y,) estate, than they would be if he were 
 Pr. 411 (1864), The remedy of living, Delafield v. White, 19 Abb. 
 parties having a lien on the surplus, (N. Y.) N, C. 104, 109 (1887) ; B, 0. 
 Is by motion and not by action, and, 7 N. Y. St. Rep. 301. 
 
 except where the surplus is distrib-
 
 §§ 749-750.] ACTION ON claim to surplus. 8G3 
 
 mortgagee.* And it has been held, that after the surplus 
 has been paid, under an order of the court, to an assignee 
 of the mortgagor, if the widow, who neglected to appear 
 in the foreclosure, was not notified of the reference for 
 the distribution of the surplus, she can maintain an action 
 against such assignee to recover her dower in the surplus.* 
 
 Where a surplus arises upon the foreclosure of a first 
 mortgage, the claims thereon of a second mortgagee and of 
 judgment creditors may be determined before a referee 
 appointed by the court in which the judgment of foreclosure 
 was rendered, and an action can not be maintained for that 
 purpose.* 
 
 A mortgagee on recovering a judgment of deficiency against 
 the administrators of a deceased mortgagor, can not maintain 
 an action to have his claim declared a lien on the surplus 
 arising on the foreclosure of a mortgage on other lands 
 given by the same mortgagor to another mortgagee ; his 
 only remedy, aside from that against the personal estate of 
 the decedent, is by an action against the mortgagor's 
 heirs or devisees ; if they are insolvent, the court may 
 direct the surplus to be held and applied to the judgment.* 
 
 § 749. Recovering surplus wrongfully paid. — It is 
 believed that where surplus moneys have been paid to a 
 person not entitled thereto, under an order irregularly 
 obtained, the court has authority by a summary proceeding 
 to compel such person to restore the fund thus irregularly 
 obtained without the proper order of the court.' 
 
 § 750. Application for surplus moneys. — In New York, 
 on filing the referee's report of the sale, " any party 
 to the suit, or any person who had a lien on the mortgaged 
 premises at the time of the sale, upon filing with the clerk 
 where the report of sale is filed a notice, stating that he 
 is entitled to such surplus moneys or some part thereof, and 
 
 ' Wiggin V. Hey wood, 118 Mass. * Fliess v, Buckley, 24 Hun (N. 
 
 514 (1875). Y.) 514 (1881) ; afE'd 90 N. Y. 286. 
 
 ^ Matthews v. Duryee, 45 Barb. * Burchard v. PhiUips, 11 Paige 
 
 (N. Y.) 69 (1865). Ch. (N. Y.) 66, 70 (1844). 
 
 » Fliess V. Buckley. 90 N. Y. 286 
 (1882).
 
 864 NOTICE OF CLAIM TO SURPLUS. [§ 751. 
 
 the nature and extent of his claim, may have an order 
 of reference, to ascertain and report the amount due to him, 
 or to any other person, which is a lien upon such surplus 
 moneys, and to ascertain the priorities of the several liens 
 thereon; to the end that, on the coming in and confirma- 
 tion of the report on such reference, such further order may 
 be made for the distribution of such surplus moneys as 
 may be just. The referee shall, in all cases, be selected by 
 the court.* 
 
 Questions of priority between parties having claims upon 
 the equity of redemption may be properly litigated 
 upon the application for the surplus after it has been 
 paid into court ;' but until it is ascertained that there is 
 a surplus, such parties should not be permitted to litigate 
 their claims as between themselves.* 
 
 An application for surplus moneys, made either by 
 petition or on motion, will be fatally defective, unless it estab- 
 lishes a prima facie right to a part at least of the surplus; 
 and it does not do this unless it shows how the parties cited 
 claim an interest in the mortgaged lands.* 
 
 §751. Who entitled to notice — How served. — "The 
 owner of the equity of redemption, and every party who 
 appeared in the cause, or who shall have filed a notice of 
 claim with the clerk, previous to the entry of the order 
 of reference, shall be entitled to service of a notice of the 
 application for the reference, and to attend on such refer- 
 ence, and to the usual notices of subsequent proceedings 
 relative to such surplus. But if such claimant or such 
 owner has not appeared, or made his claim by an attorney 
 of this court, the notice may be served by putting the same 
 into the post-ofifice, directed to the claimant at his place of 
 residence, as stated in the notice of his claim, and upon the 
 owner in such manner as the court may direct.'" 
 
 ' N. Y. Supreme Court Rule 64. * Allen v. Wayne Circuit Judges, 
 
 » Schenck v. Conover, 13 N. J. 57 Mich. 198 (1885). 
 
 Eq. (2 Beas.) 31 (1860) ; s. c. 78 Am. » N. T. Supreme Court Rule 64. 
 
 Dec. 95. See FrankUn v. YanCott, 11 Paige 
 
 » Union Ins. Co. v. VanRensselser, Ch. (N.T.) 129 (1844); Hulbert v. Mc- 
 
 4 Paige Ch. (N. Y.) 85 (1883). Kay, 8 Paige Ch. (N. Y.) 652 (1841);
 
 §§ 752-753.] APPOINTMENT OF REFEREE. 8G5 
 
 § 752. Certificate and proof of depositing surplus. — 
 On an application for the distribution of the surplus, the 
 moving party should produce to the referee the certificate 
 of the county treasurer or of the chamberlain of New York, 
 if the suit is pending there, or of the person with whom the 
 surplus is required to be deposited, either by law or by 
 the decree of the court, showing the amount thereof ;' and 
 showing also, that no notice of claim to such surplus was 
 annexed to the report of sale, and that no claim to the same 
 was filed previous to the order of reference : or, if claims 
 have been filed, the certificate should set forth the names of 
 the claimants, and of their attorneys, if any, and their places 
 of residence.* 
 
 The party moving for the reference should also show by 
 affidavit, what unsatisfied liens appear by the official 
 searches used in the progress of the action, where there 
 are any, and what other unsatisfied liens are known to 
 exist.* 
 
 § 753- Appointment of referee.— Upon the filing of a 
 claim to the surplus moneys by a party to the suit, or by 
 any person who claims an interest in such surplus, the court 
 may appoint a referee to ascertain and determine the rights 
 of the several claimants.* Such a reference is not a collat- 
 eral action ;* it is a special proceeding,* and decides direct 
 issues necessary to be determined before the court can finally 
 and completely distribute the surplus arising from the sale 
 of the mortgaged premises.* 
 
 In re Solomon, 4 Redf. (N. Y.) 509 some courts such a reference is 
 (1880) ; Allen v. Wajne Circuit allowed as a maUer of course; but in 
 Judges, 57 Mich. 198 (1885) ; Smith otliera, it is allowed only on applica- 
 V. Smith, 13 Mich. 258 (1865) ; N.Y. tion upon notice. Ward v. Mont- 
 Code Civ. Proc. § 2406. clair R. R. Co. 26 N. J. Eq. (11 C. 
 
 > N. Y. Supreme Court Rules 61, E. Gr.) 260 (1875). 
 
 64. * Mutual Life Ins. Co. v. Bowen, 
 
 « Hulbert v. McKay, 8 Paige Ch. 47 Barb. (N. Y.) 618 (ISGG). 
 
 (N. Y.) 651 (1841). See Franklin v. • Mutual Life Ins. Co. v. Anthony, 
 
 VanColt, 11 Paige Ch. (N. Y.) 129 23 N. Y. Week. Dig. 437 (1886). 
 
 (1845). ' Mutual Life Ins. Co. v. Bowen, 
 
 • N. Y. Supreme Court Rule 64. 47 Barb. (N. Y.) 618 (1866). 
 
 ♦ According to the practice in 
 
 (55)
 
 866 • THE REFERENCE. [§§ 754-755. 
 
 Where there are surplus moneys in the hands of a 
 mortgagee, arising upon the foreclosure of a mortgage by 
 advertisement, and two separate actions have been brought 
 by judgment creditors of the mortgagor to have such sur- 
 plus applied towards the payment of their respective 
 judgments, and a reference has been ordered to determine 
 to whom such surplus shall be paid, and neither party 
 appeals from such order, or applies for an order requiring 
 the referee to report the evidence, the proceeding must 
 be treated in all respects as a reference made in pursu- 
 ance of the supreme court rule to settle claims to surplus 
 moneys in foreclosure cases. By neglecting to appeal from 
 such order of reference, both parties tacitly consent to that 
 method of determining their respective rights.' 
 
 § 754. Order of reference and oath of referee. — The 
 
 New York Code of 'Civil Procedure' provides, that "upon 
 the presentation of the petition, with due proof of notice 
 for application, the court must make an order, referring 
 it to a suitable person, to ascertain and report the amount 
 due to the petitioner, and to each other person, which is 
 a lien upon the surplus money, and the priorities of the 
 several liens thereupon. Upon the coming in and confirma- 
 tion of the referee's report, the court must make such 
 an order, for the distribution of the surplus money, as justice 
 requires." 
 
 The referee in a proceeding for the distribution of surplus 
 moneys, before proceeding to examine the certificates or to 
 receive evidence, should be sworn faithfully and fairly to try 
 the issues referred to him, according to the best of his 
 understanding;* the neglect of the referee to take such oath, 
 is not a fatal error, however, and the omission may be 
 subsequently supplied.* 
 
 § 755- Presenting proofs of claims.— The parties prose- 
 cuting a reference for the distribution of surplus moneys, 
 
 ' Kirby v. Fitzgerald, 31 N. Y. * N. Y. Code Civ. Proc. § 721. 
 
 417 (1865).- See Mutual Life Ins. Co. v. Anthony, 
 
 ' § 2407. 23 N. Y. Week. Dig. 427 (1886). 
 » N. Y. Code Civ. Proc. 8 1016.
 
 § 755.] PRESENTIN-G PROOFS OF CLAIJIS. 807 
 
 must establish their respective claims and the amounts 
 thereof before the referee, in the same manner as is required 
 of creditors coming in under a decree in the settlement of 
 the estate of an insolvent debtor ; the referee should 
 examine the parties upon oath concerning their respective 
 claims.* 
 
 In a case where the claimants offered in evidence a 
 transcript of a judgment recovered by them, in an action 
 commenced against a person of the same name as the owner 
 of the equity, it was held that there was a presumption that 
 the owner of the equity and the judgment debtor were the 
 same person." 
 
 Under the former chancery rules the correct practice, where 
 a person had an equitable lien upon the surplus moneys, 
 was to deliver a notice of his claim to the master who made 
 the sale, or to file it with the clerk in whose office the 
 surplus moneys were deposited by the master ; or, in case 
 an order of reference was entered upon the application of 
 some other claimant before he became aware of his rights, to 
 appear before the master, upon the reference, and to present 
 and establish his claim there. If he neglected to do this, 
 without a sufficient excuse, the court would not hear his 
 claim to such surplus moneys upon a petition." 
 
 But now any party to the suit, or any person not a party to 
 the suit, who has a lien on the mortgaged premises at the 
 time of the sale, is entitled to appear before the referee and 
 to prove his claim.* A plaintiff who holds mortgages or 
 other liens which are junior to the mortgage foreclosed, is 
 entitled to appear and prove such liens the same as any 
 other party to the action or any other holder of a lien.* 
 
 » Hulbert v. McKay, 8 Paige Ch. 14 New York Week. Digest, 143 
 
 (K Y.) 651 (1841). See DeRuyter v. (1883). 
 
 St. Peter's Church, 2 Barb. Ch. (N. » DeRuyter v. St. Peter's Church, 
 
 Y.) 555 (1848). Aref eree appointed to 2 Barb. Ch. (N. Y.) 555 (1818). 
 
 take and report testimony, is not * Field v. Hawxhurst, 9 Plow. (N. 
 
 bound to take irrelevant testimony. Y.) Pr. 75 (1853). 
 
 In re Silvernail, 45 Hun (iN. Y.) 575 " Mutual Life Ins. Co. of N. Y. v. 
 
 (1887). Truchtnicht, '6 Abb. (N. Y.) N. 0. 
 
 « Bowery Sav. Bank v Keenan, 135 (1877).
 
 868 CONDUCT OF REFERENCE. [§§ 756-757. 
 
 § 756. Conduct of the reference.— The Code of Civil 
 Procedure and the rules of the supreme court do not 
 prescribe the general powers of the referee on a reference 
 for the distribution of surplus moneys.' The object of such 
 a proceeding is to ascertain the amount due to each of the 
 persons having liens upon the surplus and the priorities of 
 such liens, in order that on the coming in of the report, 
 the court may make an order for the distribution of such 
 fund.' The proceedings on such a reference are similar 
 to those taken earlier in the foreclosure to compute the 
 amount due on the mortgage. 
 
 The referee appointed in proceedings to distribute the 
 surplus, is a substitute for the former master in chancery 
 under the old chancery practice, and his general powers and 
 duties, not being prescribed by statute nor by the rules of the 
 supreme court, are the same as those possessed by a master 
 in chancery, and that part of the former practice, which is 
 not inconsistent with the Code, is thought to be still in force 
 in its application to such references.* 
 
 § 757- Powers of the referee. — The proceedings on a 
 reference to ascertain the priority of liens on surplus 
 moneys are a part of the original action ; the reference is 
 not a collateral matter, and any issue may be litigated 
 in it, which must be determined by the court before 
 the whole of the fund can be fully and completely dis- 
 tributed.* Thus, it has been held that the referee has 
 authority to inquire into the validity of conveyances or liens; 
 and such conveyances as well as liens may be attacked 
 as fraudulent ;* he also has power to examine into questions 
 
 > N. T. Code Civ. Proc. § 1018, * Mutual Life Ins. Co. v. Bowen, 
 
 applies only to the trial of issues 47 Barb. (N. Y.) 618 (1866). 
 
 joined in an action. * Fliess v. Buckley, 90 N. Y. 288 
 
 « See Laws of 1868, chap. 804, § 3. (1882) ; Bergen v. Carman, 79 N. Y. 
 
 »Ketchum v. Clark, 22 Barb. 146 (1879). citing Halsted v. Halsted, 
 
 (N. Y.) 319 (1856); Palmer v. Pal- 55 N.Y. 442(1874); Schaf er v. ReiUy, 
 
 mer, 13 How. (N. Y.) Pr. 363 (1856); 50 N. Y. 61 (1872) ; McRober^s v. 
 
 VanZandt v. Cobb, 10 How. (N. Y.) Pooley, 12 N. Y. Civ. Proc. Rep. 139 
 
 Pr. 348 (1854) ; Graves v. Blanchard, (1887). 
 4 How. (N. Y.) Pr. 303 (1850) ; 1 
 Van Sant. Eq. Pr. 21, 22, 523.
 
 § 757.] POWEKS OF REFEREE. 869 
 
 of usury ;' but he can not examine into an allegation of 
 usury as against a prior judgment.* 
 
 A referee is authorized to make an equitable adjustment 
 of all claims to the surplus moneys. He has full power to 
 hear all the evidence that may be offered affecting the 
 matters in controversy. The reference is provided to afford 
 an opportunity to the parties interested to litigate and dispose 
 of their claims and liens upon the surplus. He may receive 
 proof that an asserted lien is for any cause without foun- 
 dation, or that it has been over stated in amount or 
 satisfied and discharged, or that the claimant has placed 
 himself in a position where the law will not permit him to 
 participate in the distribution of the surplus. In fact, 
 the authority which the referee is entitled to exercise in the 
 hearing and disposition of claims, is as extensive as the claims 
 themselves, or as the legal and equitable objections that 
 may be made to their allowance.* 
 
 The court held in the case of Tator v. Adams,* that 
 although there had previously been some doubt as to the 
 powers of referees in proceedings to distribute surplus 
 moneys, the decision of Bergen v. Snedeker' has settled the 
 matter. It was held there, that a question of fraud may be 
 investigated before the referee; and it follows, by analogy^ 
 than any question may be examined tending to show the 
 equities of the claimants.* 
 
 The power of a referee, to determine the validity of a claim 
 in proceedings to distribute surplus moneys, is not confined 
 to so much thereof only as will exhaust the surplus, but 
 his decision sustaining a claim and overruling defences 
 
 ' Mutual Life Ins, Co. v. Bowen, enlarged the rule, as it was supposed 
 
 47 Barb. (N. Y.) 618 (1866), to exist when the case of the Union 
 
 • Slosson V. Duff, 1 Barb. (N. T.) Dime Savings Institution v. Osley, 4 
 
 432 (1847). Hun (N,Y,) 657 (1875), was decided. 
 
 » Kingsland v. Chetwood, 39 Hun * 20 Hun (N. Y.) 131 (1880). 
 
 (N. Y.) 602, 607 (1886), which holds »8 Abb. (N, Y,) N, C. 50, 57 
 
 that this measure of authority (1879) ; s. c. 21 Alb. L, J. 54. 
 
 seems to be within the decision of • See Schafer v. Reilly, 50 N. Y. 
 
 Bergen v. Carman, 79 N. Y. 146 61 (1872) ; Mutual Life Ins. Co. v. 
 
 (1879), and Fliess v. Buckley, 90 N. Bowen, 47 Barb. (N. Y.) 618 (1866) 
 Y. 286 (1882), which very much
 
 870 WHAT CLAIMS MAY BE LITIGATED. [§758. 
 
 thereto will be binding and conclusive upon the parties in all 
 other matters.' Whenever the facts in a case would warrant 
 an action in equity to declare a claim to be a lien on a fund, a 
 referee in surplus money proceedings may hear and deter- 
 mine an application to establish such lien, and if he is of 
 the opinion that it should be granted, he may report directly 
 in favor thereof.* 
 
 § 758. What claims may be litigated.— The only claims 
 that can be considered in a proceeding before a referee for 
 the distribution of surplus moneys, are such Hens as would 
 subject the estate to be sold without the further intervention 
 of the court ; claims which have not been perfected into liens 
 can not be considered, however equitable they may be.* It 
 would seem, however, that the inchoate rights of mechanics 
 and material-men, where liens are given to them by statute, 
 are claims of such a nature that, although not established by 
 judgment, they are entitled to be considered by the referee 
 and to share in the distribution of the surplus moneys.* 
 
 On a reference to ascertain to whom surplus moneys arising 
 on a foreclosure belong, the referee is authorized to state 
 the account of a tenant in common who has been in posses- 
 sion of the premises and collected the rents, and to charge his 
 
 ' Bergen v. Carman, 79 N. Y. ' Crombie v. Kosentock, 19 Abb. 
 
 146 (1879) ; Halstad v. Halsted, 55 N. (N. Y.) N. C. 312 (1887). See Fliess v. 
 
 Y. 442 (1874) ; Husted v. Dakin, 17 Buckley, 90 N. Y. 286 (1882) ; Ber- 
 
 Abb. (N. Y.) Pr. 137 (1857) ; King gen v. Carman, 79 N. Y. 146 
 
 V. West, 10 How. (N. Y.) Pr. 333 (1879); Halsted v. Halsted, 55 N. Y. 
 
 (1854) ; Sleight v. Read, 9 How. (K 442 (1874) ; Kingsland v. Cbetwood, 
 
 Y.) Pr. 278 (1854) ; Rogers v. Ivers, 39 Hun (N. Y.) 602 (1886) ; Tator v. 
 
 23 Hun (N. Y.) 424 (1881) ; Tutor v. Adams, 20 Hun (N. Y.) 131 (1880) ; 
 
 Adams, 20 Hun (N. Y.) 131 (1880) ; Bowen v. Kaugbran, 1 N. Y. State 
 
 Union Dime Sav. Inst. v. Osley, 4 Rep. 121 (1886). 
 
 Hun (N. Y.) 657 (1875); Mutual 3 Husted v. Dakin, 17 Abb. (N. 
 
 Life Ins. Co. v. Salem, 5 T. & C. Y.) Pr. 137 ( 1857 ) ; Mutual Life 
 
 (N. Y.) 246 (1875) ; Atlantic Sav. Ins. Co. v. Bowen, 47 Barb. (N. Y.) 
 
 Bank v. Hetterick, 5 T. «fc C. (N. 618(1866); King v. West, 10 How. 
 
 Y.) 239 (1875) ; Bergen v. Snedeker, (N. Y.) Pr. 333 (1854). 
 
 21 Alb. L. J. 54 (1880) ; s. c. 8 Abb. * Livingston v. Mildrum, 19 N. 
 
 (N. Y.) N. C. 50 ; McRoberts v. Y. 440 (1859). 
 Pooley, 12 N. Y. Civ. Proc. Rep. 
 139 (1887).
 
 §758.] WUAT CLAIMS MAY BE LITIGATED. 871 
 
 share of the surplus with the excess so collected over the part 
 to which he was entitled ;' and it was held in the case of Atlan- 
 tic Savings Bank v. Hiler,* that where an attorney for a judg- 
 ment creditor claims a lien upon the judgment for his fees 
 in procuring it, the referee may protect such lien by order- 
 ing a portion of the amount due on the judgment to be 
 paid to such attorney. 
 
 So the referee may determine whether or not a clause 
 reserving a life estate to the mortgagor, appearing in a 
 mortgage produced by a claimant, was inserted by mistake : 
 and if he finds that it was so inserted, he may give the 
 mortgage priority as against subsequent judgment creditors 
 who ask to have the value of such life estate first set apart 
 from the surplus and applied to the payment of their debts." 
 
 Where it appears tliat the intention in executing cer- 
 tain* written instruments was to assign the rights of the 
 parties in the surplus moneys, though express words of 
 assignment were not used, such instruments will be held to 
 be equitable assignments, and the referee may report 
 directly in favor of the equitable assignee.* 
 
 A judgment lien upon surplus moneys can not be 
 attacked on such a reference by a junior claimant, because of 
 a mere irregularity not affecting the jurisdiction of the court 
 in which it was- rendered.' Subsequent incumbrancers of 
 mortgaged premises have no claim upon and are not 
 entitled to share in the surplus moneys arising upon a 
 statutory foreclosure of which they had no notice, because 
 their liens are not affected by the proceedings and are 
 not transferred from the land to the surplus.* 
 
 In a proceeding for the distribution of surplus moneys, 
 arising from the sale of mortgaged premises under a decree 
 for the foreclosure of a first mortgage, where the holders of 
 
 « Kingsland v. Clietwood, 39 Hun « White v. Bogart, 73 N. Y. 256 
 
 (N. Y.)0U2(1886). (1878). 
 
 » 3 Hun (N. y.) 209 (1874). « Root v. Wheeler, 12 Abb. (N. Y.) 
 
 « Tator V. Adams, 20 Hun (N. Y.) Pr. 294 (1861) ; Wiiislow v. McCall. 
 
 131 (1880). 32 Barb. (N. Y.) 241 (1860). 
 
 ■* Bowen v. Kaiighran, 1 N. Y. 
 State Rep. 121 (1886).
 
 872 EXTENT OF eeferee's lnquiet. [§§ 759-760. 
 
 a fourth mortgage set up before the referee usury in a third 
 mortgage, it was held that the third mortgage, being 
 affected or tainted with usury, was void as to the holders of 
 the fourth mortgage, and was no lien, either at law or in 
 equity, on the surplus moneys.' 
 
 § 759. Extent of referee's inquiry. — It has been said 
 that where an order of reference directs the referee to inquire 
 and report, not only as to the amount due to the party 
 obtaining such order, but also as to the liens of any other 
 persons upon the surplus moneys, the referee therefor should 
 ascertain the whole amount of such surplus by the certificate 
 of the treasurer of the county or of the city chamberlain, as 
 the case may be, and if the lien of the party obtaining the 
 reference and entitled to priority is not large enough to 
 exhaust the whole surplus, it is then the duty of the referee 
 to go further and to ascertain who is entitled to the residue 
 of such surplus; so that, upon the coming in of the report, 
 an order may be made which will dispose of the whole 
 surplus fund. Prima facie the owner of the equity of 
 redemption is entitled to the surplus, and if no one attends 
 before the referee and produces evidence of a better right, 
 and there is no evidence before him that the person entitled 
 thereto prima facie has parted with his right, it is the duty 
 of the referee to report that the residue of such suplus 
 belongs to the owner of the equity of redemption.* 
 
 § 760. Right of claimant not filing notice to appear. 
 
 — An incumbrancer or lienor who has neglected to file 
 a notice of his claim upon the surplus moneys, may appear 
 before the referee pending the reference as to such surplus, 
 and file his claim in proper manner; he will then be entitled 
 to be heard upon the reference as to the validity of his 
 claim, upon such equitable terms as to costs as the referee 
 may direct.* 
 
 Where an order of reference has been entered upon the 
 application of another claimant, before the petitioner became 
 
 > Mutual Life Ins. Co. of N. Y. v. Bowen, 47 Barb. (N. Y.) 618 (1866). 
 » Franklin v. VanCott, 11 Paige Ch. (N. Y.) 129 (1844). 
 » Hulbert v. McKay, 8 Paige Ch. (N. Y.) 651 (1841).
 
 §§ 761-762.] TESTIMONY SIGNED AND FILED. 873 
 
 aware of his rights, he will, nevertheless, be authorized to 
 appear on the reference and to present and establish his 
 claim to the surplus.' But he can not, pending such 
 reference, maintain an independent proceeding by a new 
 petition or motion.* 
 
 § 761. Testimony to be signed and filed. — Under the 
 New York practice, the testimony upon a reference in pro- 
 ceedings for the distribution of the surplus, must be signed 
 by the witnesses and filed with the report of the referee ; a 
 note of the time of the filing must be entered by the clerk 
 in a proper book under the title of the foreclosure ; and such 
 report will become absolute and stand in all things confirmed, 
 unless exceptions thereto are filed and served within eight 
 days after the service of the notice of the filing.* 
 
 This rule is imperative, unless its provisions are waived by 
 some act of the parties ; the mere omission of the parties to 
 request that the signatures of the witnesses be affixed to their 
 testimony, will not amount to a waiver.* 
 
 Where a witness fails to sign his testimony, the remedy 
 for the irregularity is by motion for the purpose of securing 
 its correction and not by filing exceptions to the report 
 of the referee.* The testimony taken by a referee must be 
 filed with his report ; until this is done, the filing will 
 be incomplete, and the time within which exceptions to the 
 report must be filed and served will not begin to run.* 
 
 § 762. Referee's report — Filing same.— Upon a refer- 
 ence to ascertain who are entitled to the surplus moneys 
 brought into court under a foreclosure, the referee must 
 
 » See DeRuyter v. St. Peter's See Greene v. Bishop, 1 Cliff. C. C. 
 
 Church, 2 Barb. Ch. (N. Y.) 555 186 (1858). 
 
 (1848) ; Hulbert v. McKay, 8 Paige « Pope v. Perault, 22 Hun (N. Y.) 
 
 Ch. (K Y.) 651 (1841). 468 (1880). And it is said that 
 
 * DeRuyter v. St. Peter's Church, although a court stenographer is 
 2 Barb. Ch. (N. Y.) 555 (1848). not obliged to part with his notes 
 
 • N. Y. Supreme Court Rule 30. until his fees are paid, yet if he deliv- 
 
 * Bowne v. Leveridge, 2 Month. ers them to the referee to be examined 
 Law Bull. 88 (1880). by him or used as the basis of his 
 
 • National State Bank v. Hibbard, report, but not to be filed until his' 
 45 How. (N. Y.) Pr. 281, 287 (1873). fees are paid, the referee must,
 
 874 EXCEPTIONS TO REFEREE's REPORT. [§763. 
 
 ascertain and report the facts as directed in the order of his 
 appointment ; such report should show on its face that 
 every party entitled to notice to attend upon the reference, 
 was duly summoned to appear; it should also state what 
 parties appeared on the reference.' 
 
 After the report of the referee has been prepared it should 
 be filed, and an order for the confirmation thereof should be 
 entered with the order for the distribution of the surplus. 
 The latter will be granted as a matter of course, unless 
 exceptions to the report have been filed within the time 
 allowed. The order of distribution, however, should never 
 be granted until the time has expired within which excep- 
 tions to the report may be filed.* 
 
 § 763. Exceptions to the referee's report— Any person 
 interested in the distribution of the surplus moneys may 
 file exceptions to the report of the referee, if he considers 
 himself aggrieved thereby ; if two or more persons wish 
 to file the same objections to the report, they may do so 
 either by joining in the same exceptions or by stating their 
 exceptions separately. Parties who have appeared on the 
 reference, are entitled to notice of the filing of the referee's 
 report,* and their exceptions thereto, if any, must be filed 
 within eight days from the date of the service of such 
 notice, or the report will stand confirmed. If such excep- 
 tions to the referee's report are filed and served as above 
 specified, they may be brought to a hearing at any special 
 term of the court, on the notice of any party interested 
 therein.* 
 
 Where parties who have appeared on the reference are 
 entitled to file exceptions to the report, they must be served 
 
 nevertheless, file them with his v. Phillips, 3 N. T. Leg. Obs. 35 
 
 report, even though the stenogra- (1844). 
 
 pher's fees leuiaiu unpaid. Pope v. '■'Franklin v, VanCott, 11 Paige 
 
 Perault, 23 Huu (N. Y.) 468 (1880). Ch. (N. Y.) 129 (1844); Ex parte 
 
 •Franklin v. VanCott, 11 Paige Allen, 2 N. J. Eq. (1 II. W. Gr.) 
 
 Ch. (N. Y.) 129 (1844) ; Hulbert v. 888 (1841). 
 
 McKay, 8 Paige Ch. (N. Y.) 651 » N. Y. Supreme Court Rule 64. 
 
 (1841). See Cram v. ]\Iitchcll, 3 N. * N. Y. Supreme Court Rule 30. 
 Y. Leg. Obs. 163 (1844); Eurchard
 
 § 764.] HEAEENG EXCEPTIONS TO EEPOET. 875 
 
 with notice of the filing thereof ; unless exceptions are served 
 and filed by them within eight days after the service of the 
 notice of filing the referee's report, such report will become 
 absolute.* And where no exceptions are taken to the 
 report by such parties, it must be confirmed by the entry of 
 the usual order; proof by certificate or affidavit that 
 such report has become absolute must be produced, before 
 an order to pay the amounts reported will be granted.* 
 
 § 764. Hearing exceptions to report. — Where excep- 
 tions have been filed to the referee's report and a motion 
 for the final hearing is brought on, the party excepting 
 must furnish the court with copies of the report and of the 
 exceptions and proofs of claims.* The rules of the New 
 York supreme court* require that the testimony taken by 
 the referee shall be signed and filed.* But in those states 
 where the testimony is not required to be annexed to and 
 returned with the report, if the party excepting thereto 
 desires to review some question upon the evidence taken 
 before the referee, or if any party desires to use such 
 evidence on the argument of the exceptions, a duly certified 
 copy thereof must be obtained from the referee." 
 
 At such hearing the court will not only look to the 
 proofs of claims, but it will also receive any other evidence 
 in its discretion, such as stipulations, and the admissions 
 of the parties presented on the hearing.^ But affidavits 
 taken subsequently to the report can not be read at such 
 hearing, and no evidence can be produced which was not 
 introduced before the referee.* 
 
 If the court allows the exceptions or any of them, it may 
 modify or set aside the report, or send it back to the referee 
 with proper directions to proceed thereon de novo, or to 
 
 > Catlin V. CatUn, 2 Hun (N. Y.) • In re Merritt, 1 VanSant. Eq. 
 
 878 (1874) ; N. Y. Supreme Court Pr, 566 n ; 1 Hoff. Ch. Pr. 545 ; 1 
 
 Rule 30. Barb. Ch. Pr. 549. 
 
 * Franklin v. VanCott, 11 Paige ■" Gregory v. Campbell, 16 How. 
 
 Ch. (N. Y.) 129 (1844). (N. Y.) Pr. 417 (1858). 
 
 » 1 VanSant Eq. Pr. 571. * Hedges v. Cardonnel, 2 Atk. 408 
 
 « N. Y. Supreme Court Rule 30. (1743). See Jenkins v. Eldredge, 3 
 
 » See ante § 761. Story C. C. 299, 306 (1845).
 
 876 OPENING referee's report. [§§ 765-766. 
 
 correct specified defects therein, as by ascertaining some fact 
 which may be necessary to enable the c^urt to reach a 
 proper decision. In any event, a new order of reference 
 should be made, reserving the distribution of the surplus 
 and the costs of the proceeding until the coming in of the 
 new report. 
 
 § 765. Confirmation of referee's report. — The court has 
 power in its discretion to confirm, or set aside, or refer 
 back the report of a referee appointed to ascertain the 
 rights of claimants to surplus moneys on foreclosure, and is 
 not restricted in the exercise of this power by the rules 
 governing a motion for a new trial.' 
 
 § 766. Opening and setting aside referee's report. — 
 After a sale under a foreclosure, and before the distribution 
 of the surplus moneys, a party who has a judgment lien on 
 the premises at the time of the sale may have the proceed- 
 ings opened, so that he may be heard upon his right to 
 share in the surplus;* because, while the moneys remain in 
 the court undistributed, it may at any time vacate an 
 order confirming the report and refer the matter back to the 
 referee for a further report.* Thus, it has been held that 
 where a general creditor, who had no notice of the proceed- 
 ings to distribute the surplus until after the entry of the 
 order confirming the report of the referee, applies to be 
 made a party to the proceeding, his application should 
 be granted.* 
 
 But where the report of the referee directs a distribution 
 of the surplus as it should be legally and equitably made, 
 his report will not be set aside or disregarded, or the order 
 confirming it vacated, simply on account of an irregularity 
 
 ' Mutual Life Ins. Co. v. Anthony, ( 1883 ) ; s. c. 5 Month. Law Bull. 
 
 23 N. Y. Week. Dig. 427 (1886); 50. 
 
 Dold V. Haggerty, 24 Hun (N. Y.) » Mutual Life Ins. Co. v. Salem, 3 
 
 883 (1881) ; s. c. 11 Rep. 746 ; Hun (N. Y.) 117 (1874) ; s. c. 5 T. & 
 
 Mutual Life Ins. Co. v. Salem, 3 C. (N. Y.) 246. 
 
 Hun (N. Y.) 117 (1874) ; s. c. 5 T. «& < Germai. Savings Bank v. Sharer, 
 
 C. (N. Y.) 246. 25 Hun (N. Y.) 409 (1881). 
 
 • Citizens' Savings Bank v. Van 
 Tassel, N. Y. Daily Reg., May 28
 
 §767.] APPEAL FROM ORDER FOR DISTRIBTTTIOIf. 877 
 
 in receiving or considering claims which were not filed 
 with the county clerk.' 
 
 § 767. Appeal from order for distribution. — Where a 
 party finds himself aggrieved by the decision of the court 
 on a motion for the confirmation of a referee's report, his 
 remedy is by appeal.* But it was held in the case of the 
 Mutual Life Insurance Company v. Anthony,' that an order 
 of the general term reversing an order of the special term, 
 which confirmed the report of a referee appointed to decide 
 conflicting claims to surplus moneys arising on a foreclosure 
 sale, and ordering a new hearing before another referee, 
 is not reviewable by the court of appeals.* 
 
 If the inquiry is considered as a special proceeding under 
 the Code, then the order of the general term is not final and 
 consequently not reviewable. If it is regarded as an 
 inquiry made for the information of the court, then the order 
 is not appealable, both because it is not final and because it is 
 discretionary. But where such an order imposes costs of the 
 appeal upon the appellant absolutely, and not conditionally, 
 it is in that respect a final determination from which an 
 appeal can be taken.* 
 
 ' Kingsland v. Chetwood, 39 Hun 146 (1879) ; s. c. sub mm. Eergen v. 
 
 (N. Y.) 602 (1886). Snedeker, 8 Abb. (N. Y.) N. C. 50 
 
 - McRoberts v. Pooley, 13 N. Y. (1879). 
 
 Civ. Proc. Rep. 139 (1887). * Bergen v. Snedeker, 8 Abb. (N. 
 
 » 105 N. Y. 57 (1887). Y.) N. C. 50 (1879). 
 
 * See Bergen v. Caimen, 79 N. Y.
 
 CHAPTER XXXIV. 
 
 STATUTORY FORECLOSURE OR FORECLOSURE B"? 
 ADVERTISEMENT. 
 
 POWER OP SALE— NOTICE OF SALE— PUBLISHING, POSTING, SERVING 
 —CONTENTS OP NOTICE— CONDUCT OF SALE— SETTING ASIDE— 
 ENJOINING— EFFECT OF SALE— AFFIDAVITS OF PROCEED- 
 INGS— RECORDING SAME— OPERATE AS DEED 
 TO PASS TITLE-U. S. LOAN COMMIS- 
 SIONERS' MORTGAGES. 
 
 g 768. General nature. ^ 
 
 769. Stipulation for foreclosure by 
 
 advertisement. 
 
 770. "What mortgages may be 
 
 foreclosed by advertisement. 
 
 771. Foreclosure by advertise- 
 
 ment, vfhere part of debt 
 otherwise collected. 
 
 772. Who may foreclose by ad- 
 
 vertisement. 
 
 773. Notice of sale — Publication. 
 
 774. What is a valid publication 
 
 of the notice. 
 
 775. Posting notice of sale. 
 
 776. Delivering notice of sale to 
 
 county clerk — His duty. 
 
 777. Personal service of notice — 
 
 Who entitled to. 
 
 778. Service on personal repre- 
 
 sentatives. 
 
 779. Service of notice on subse- 
 
 quent grantees and lienors. 
 
 780. Service of notice on wife or 
 
 widow of mortgagor or his 
 grantee. 
 
 781. Service of notice upon subse- 
 
 quent lienors. 
 
 782. Service of notice of sale — 
 
 How made. 
 
 783. Service of notice by mail. 
 
 784. Contents of notice of sale. 
 
 785. Description of mortgaged 
 
 premises in notice. 
 
 786. Desciiption of mortgage in 
 
 notice. 
 
 I 787. Notice should state place ot 
 sale. 
 
 788. Stating amount due in notice. 
 
 789. Stating amount where only 
 
 part of debt is due. 
 
 790. Statement in notice of prior 
 
 incumbrances. 
 
 791. Date of sale and signature to 
 
 notice. 
 
 792. Objections to notice of sale. 
 
 793. Postponement of sale. 
 
 794. Place of sale. 
 
 795. By whom sale to be con- 
 
 ducted. 
 
 796. Sale iff parcels. 
 
 797. Terms of sale. 
 
 798. Mortgagee may become pur- 
 
 chaser. 
 
 799. Setting sale aside. 
 
 800. Grounds for setting sale aside. 
 
 801. Enjoining sale. 
 
 803. Damages for wrongful in- 
 junction. 
 
 803. Lands situated in another 
 
 state. 
 
 804. Sale under loan commission- 
 
 ers' mortgage. 
 
 805. Notice of sale by loan com- 
 
 missioners—Contents. 
 
 806. Publication of notice of loan 
 
 commissioners' sale. 
 
 807. Posting notice of loan com- 
 
 missioners' sale — Terms. 
 
 808. Validity of loan commi:ibion' 
 
 ers' sale.
 
 §§ 768-769.] FOKECLOSUEE BY ADVEETISEMENT. 879 
 
 809. Purchaser presumed to know 
 
 authority of loan commis- 
 sioners. 
 
 810. Conduct of sale — Deed of 
 
 loan commissioners. 
 
 811. Effect of sale by advertise- 
 
 ment. 
 
 812. Sale firm and binding on all 
 
 parties. 
 
 813. Effect of sale on omitted par- 
 
 ties — Rights of tenants. 
 
 814. Purchaser's title— What pass- 
 
 es by sale. 
 
 815. Defective foreclosure. 
 
 § 816. Afladavits of the proceedingg. 
 
 817. Sufficiency of the affidavits. 
 
 818. Contents of affidavits. 
 
 819. Amending affidavits. 
 
 820. Recording affidavits. 
 
 821. Necessity of recording affida- 
 
 vits. 
 
 822. Contradicting affidavits. 
 
 823. Effect of affidavits. 
 
 824. A deed not necessary. 
 
 825. Purchaser obtaining posses- 
 
 sion — Summary proceed- 
 ings. 
 
 § 768. General nature. — Statutory foreclosure, or fore- 
 closure by advertisement, is exclusively a creature of legisla- 
 tive enactment in the various states where it is allowed ;* 
 every requirement of the statute must be strictly complied 
 with, as failure to comply with any of its material directions 
 will render the foreclosure irregular and void." 
 
 § 769. Stipulation for foreclosure by advertisement. — 
 While it is true that the parties to a mortgage may contract 
 for a private sale of the premises without notice,* in the 
 
 ' As to the provisions in New 
 York, see N. Y. Code Civ. Proc 
 § 2387. et seq. 
 
 »Cole V. Moffltt, 20 Barb. (N. 
 Y.) 18 (1854); St. John v. Bump- 
 Stead, 17 Barb. (N. Y.) 100 (1852) ; 
 Stanton v. Kline, 16 Barb. (N. Y.) 
 9 ( 1852 ) ; Cohoes v. Goss, 18 
 Barb. (N. Y.) 137 (1852); King 
 V. Duntz, 11 Barb. (N. Y.) 191 
 (1851); VanSlyke v. Sbelden, 9 
 Barb. (K Y.) 278 (1850) ; Low v. 
 Purdy, 2 Lans. (N. Y.) 422 (1869). 
 See Lawrence v. Farmers' Loan & 
 Trust Co., 13 N. Y. 200 (1855); 
 8. c. 64 Am. Dec. 512 ; Pow- 
 ell v. Tuttle, 3 N. Y. 396, 401 
 (1850) ; People v. Board of Police, 6 
 Abb. (N. Y.) Pr. 162, 164 (1858) ; 
 Doughty V. Hope, 3 Den. (N. Y.) 
 694 (1847) ; s. c. 1 N. Y. 79 ; Striker 
 V. Kelly, 2 Den. (N. Y.) 323, 330 
 (1845) : Sherwood v. Reade, 6 Hill 
 
 (N. Y.) 431 (1844) ; Sharp v. John, 
 son, 4 Hill (N. Y.) 92, 99 (1843) ; s. 
 c. 40 Am. Dec. 259 ; Sharp v. Spear. 
 4 Hill (N. Y.) 76, 84 (1843) ; Bloom 
 V. Burdick, 1 Hill (N.Y.) 141 (1841); 
 s. c. 37 Am. Dec. 299 ; Thatcher 
 V. Powell, 19 U. S. (6 Wheat.) 
 119 (1821); bk. 5L.ed. 221 ; Lockett 
 V. Hill, 1 Wood C. C. 552 (1873). 
 
 For a history of the statute for 
 foreclosure by advertisement in 
 New York, see Mowry v. Sanborn, 
 68 K Y. 153 (1877); s. c. 72 
 N. Y. 534 (1878); 65 N. Y. 581 
 (1875) ; 62 Barb. (N. Y.) 223 (1872); 
 11 Hun (N. Y.) 545 (1877) ; 7 Hun 
 (N. Y.) 380 (1876)." 
 
 3 Elliott V. Wood, 45 N. Y. 71, 
 78 (1871). See Lawrence v. Farmers' 
 Loan & Trust Co., 13 N. Y. 200 
 (1855) ; Montague t. Dav/es, 94 
 Mass. (12 Allen), 397 (1866). The 
 validity of such a power was at first
 
 880 
 
 STATUTORY FORECLOSURE. 
 
 [§ 769. 
 
 absence of a positive statutory prohibition, yet such contracts 
 >are contrary to the general policy of statutes providing for 
 foreclosure by advertisement ; to render such sales valid and 
 to bar the equity of redemption, they must be made strictly 
 in accordance with the requirements of such statutes.' 
 
 The statute of a state regulating the foreclosure of mort- 
 gages by advertisement, does not apply to mortgages on 
 real estate without the state ;' consequently, the courts of 
 New York have refused to enjoin a resident mortgagee 
 of lands situated without the state, from selling them by 
 public sale within the state according to the terms of the 
 mortgage, merely on the allegation that such power is void, 
 where it does not appear that the power is void by the law 
 of the state, or territory, where the lands are situated.* 
 
 While it is necessary under the statute to have a mortgage 
 duly recorded in the county where the premises are situated, 
 before it can be foreclosed by advertisement,* such provision 
 is wholly for the benefit of the purchaser, and an omission 
 to have it so recorded will not affect the validity of the 
 sale.* 
 
 doubted, although it is believed that 
 there is no case in which sales, there- 
 under, were held void. This doubt 
 first appeared in the case of Croft v. 
 Powel, Comyns. 603 (1739), and was 
 subsequently fortified by the remarks 
 of Lord Eldon in the case of Roberts 
 V. Bozon, 1 Pow. Mort. 9a, note, 
 (1825). There seems, however, to 
 be no reason why the absolute owner 
 of the fee should not have the power 
 to authorize any one to sell it for his 
 benefit, except that when such a 
 power is given to the mortgagee for 
 his own benefit he may abuse the 
 trust. See Demarest v. Wynkoop, 
 3 Johns. Ch. (N. Y.) 129 (1817) ; s. 
 C. 8 Am. Dec. 467 ; Waters v. Ran- 
 dall. 47 Mass. (6 Mete.) 479 (1843) ; 
 Kinsley v. Ames, 43 Mass. (2 Mete.) 
 29 (1840); Eaton v. Whiting, 20 
 Mass. (3 Pick.) 484 (1826) ; Clark v. 
 Condit, 18 N. J. Eq. (3 C. E. Gr.) 
 
 358 (1867) ; Corder v. Morgan, 18 
 Ves. 344 (1811). 
 
 ' Lawrence v. Farmers' Loan 
 & Trust Co., 13 N. T. 200, 211 
 (1855). 
 
 « Elliott V. Wood, 45 N. T. 71 
 (1871). 
 
 * Central Gold Mining Co. v. 
 Piatt, 3 Daly (N. T.) 263 (1870). See 
 Carpenter v. Black Hawk Co., 65 N. 
 Y. 43 (1875) ; Elliott v. Wood, 45 N. 
 Y. 71 (1871), aflE'g 53 Barb. (K Y.) 
 285. 
 
 < Wells V. Wells, 47 Barb. (N. 
 Y.) 416 (1867). 
 
 * Jackson v. Colden, 4 Cow. (N. 
 Y.) 266 (1825) ; Wilson v. Troup, 3 
 Cow. (N. Y.) 195 (1823) ; s. c. 14 
 Am. Dec. 458, aff'g 7 Johns. Ch. 
 (N.Y.) 25 (1825) ; and see Bergen v. 
 Bennett, 1 Cai. Cas. (N.Y.) 1 (1804). 
 Compare Wells v. Wells, 47 Barb. 
 (N. Y.) 416 (1867).
 
 §§ 770-771.] WHAT may be foeeclosed. 881 
 
 § 770. What mortgages may be foreclosed by adver- 
 tisement. — Every mortgage containing a power of sale 
 may be foreclosed by advertisement, providing it was 
 executed by parties of competent age ; but if it was executed 
 by persons under the statutory age, it can not be so fore- 
 closed.* Where a mortgage, containing a power of sale, 
 covenants for insurance, a failure to comply with the cove- 
 nant will constitute such a default as to entitle the 
 mortgagee to sell under the power contained in the mort- 
 gage, even though it may be impossible to comply with 
 the covenant," 
 
 To this general rule, however, there are some exceptions. 
 Thus, it has been held that a mortgage given to secure 
 unliquidated damages can not be foreclosed by advertise- 
 ment under the statute,' and that a mortgage upon the 
 property of an habitual drunkard can not be so foreclosed, 
 because proceedings for foreclosure can not be instituted 
 against the property of an habitual drunkard unless leave of 
 the supreme court is first obtained.* In VanBergen v. 
 Demarest,' it was held that on the application of an infant 
 heir of the mortgagor, chancery will intervene and order 
 the sale to be made under the direction of a master or 
 referee, associated with the mortgagee. 
 
 § 771. Foreclosure by advertisement, where part of 
 debt otherwise collected. — Where a mortgage has been 
 foreclosed by an action for a part of the debt, and the 
 decree provided for a second sale on a subsequent default, a 
 foreclosure can not be conducted by advertisement.' And 
 if a suit or a proceeding at law has been commenced to 
 recover the debt secured by a mortgage, a foreclosure by 
 advertisement can not be had, unless such suit or proceed- 
 ing is first discontinued, or an execution issued on the 
 
 ' Burnet v. Denniston, 5 Johns. * In re Parker, 6 Alb. L. J. G24 
 
 Ch. (N. Y.) 35 (1821). (1872). 
 
 8 Walker v. Cockey, 38 Md. 75 * 4 Johns. Ch. (N. Y.) 37 (1819). 
 
 (1873). « Cox V. Wheeler, 7 Paige Ch. 
 
 » Ferguson v. Kimball, 3 Barb. (N. Y.) 248, 250 (1838). See Gros- 
 
 Oh. (N. Y.) 619 (1846). See Fergu- vernor v. Day, Clarke Cli. (N. Y.) 
 
 «on V. Ferguson, 2 N. Y. 360 (1849). 109 (1839). 
 
 (56)
 
 882 TvrnERE paet of debt collected. [§ 772. 
 
 Judgment recovered therein has been returned unsatisfied in 
 whole or in part.* 
 
 It is thought, however, that the right to foreclose will 
 not be extinguished, where an assignee of the mortgage 
 takes a quit-claim deed of one-half of the mortgaged 
 premises; at most, such a deed can operate only to extinguish 
 a portion of the mortgage debt, and the assignee will be at 
 liberty to foreclose for the residue,* because, in the absence 
 of any words of restriction, an assignment of a legal interest 
 in a mortgage passes the power of sale with the debt 
 secured.* 
 
 The payment of a mortgage extinguishes the power of 
 sale contained in it ; if a statutory foreclosure is conducted 
 thereafter, a bona fide purchaser at the sale will acquire no 
 title in the premises.* A sale under a power, after a tender 
 of the mortgage debt by one entitled to redeem, will be 
 irregular and void.* 
 
 § 772. Who may foreclose by' advertisement. — The 
 
 foreclosure of a mortgage by advertisement must be made 
 by or in the name of the real party in interest.* In those 
 states where mortgages are regarded as mere chattel interests 
 in the premises, the personal representatives of a deceased 
 mortgagee may prosecute a statutory foreclosure.* This 
 rule includes the assignee of a mortgage,' or his executors 
 or administrators. A surviving executor may foreclose by 
 advertisement ;" so may a foreign executor or administrator.** 
 
 • Grosvenor v. Day, Clarke Ch. ' Demarest v. Wynkoop, 3 Johns. 
 (N. Y.) 109 (1839). Ch. (N. Y.) 129 (1817). 
 
 « Klock V. Cronkhite, 1 Hill (N. « Cohoes Co. v. Goss, 13 Barb. (N. 
 
 Y.) 107 (1841). Y.) 137 (1852) ; Wilson v. Troup. 2 
 
 «Slee V. Manhattan Ins. Co., 1 Cow. (N. Y.) 195, 231 (1823); s. c. 
 
 Paige Ch. (N. Y.) 48 (1828). 14 Am. Dec. 458. 
 
 • Cameron v. Irwin, 5 Hill (N.Y.) » Demarest v. Wynkoop, 3 Johns. 
 272 (1843). See Warner v. Blake- Ch. (N. Y.) 129 (1817) ; 8. c. 8 Am. 
 man, 36 Barb. (N. Y.) 501 (1862); Dec. 467. 
 
 aS'd 4 Keyes (N. Y.) 487. '<» Averill v. Taylor, 5 How. (N. 
 
 » Burnet v. Denniston, 5 Johns. Y.) Pr. 476(1850); s. c. 1 N. Y. Code 
 
 Ch. (N. Y.) 35 (1821). Rep. N. S. 213 ; Doolittle v. Lewis, 
 
 • Cohoes Co, V. Goss, 13 Barb. (N. 7 Johns. Ch. (N. Y.) 45 (1823). 
 Y.) 137 (1852) ; Wilson v. Troup, 3 
 
 Cow. (N. Y.) 195 (1823).
 
 § 773.] NOTICE OF SALE PUBLICATION. 883 
 
 It has been held in Wilson v. Troup,* that the fact that a 
 mortgagee has attempted to convey portions of the mort- 
 gaged premises will not affect his right to foreclose in his 
 own name. 
 
 Where a mortgage secures several notes held by different 
 parties, only the holder of the mortgage is entitled to fore- 
 close under the power of sale. After a foreclosure and sale, 
 he will be deemed to hold the proceeds as trustee for the 
 parties in interest.' It is believed, however, to be the better 
 practice in those cases where two or more persons are 
 jointly interested in the mortgage, for all to join in its 
 foreclosure.* 
 
 §773. Notice of sale— Publication.— The New York 
 Code of Civil Procedure provides,* that the person entitled 
 to execute a power of sale, must give notice to all parties 
 in the manner prescribed,* that the mortgage will be 
 foreclosed by a sale of the mortgaged premises, or a part 
 thereof, at the time and place specified in the notice. It 
 requires that " a copy of the notice must be published, at 
 least once in each of the twelve weeks, immediately preced- 
 ing the day of the sale,* in a newspaper published in the 
 county wherein the property to be sold, or a part thereof^, 
 is situated.'" 
 
 « 7 Johns. Ch. (N. T.) 25 (1833), plied with, or the proceedings will 
 
 aff'g 2 Cow. (N. Y.) 195 ; s. c. 14 be void. Cole v. Moffltt, 20 Barb. 
 
 Am. Dec. 458. (N. Y.) 18 (1854) ; Stanton v. Kline, 
 
 » Solberg v. Wright, 33 Minn. 224 16 Barb. (N. Y.) 9 (1852); King v. 
 
 (1885); Bottineau v. ^tna Ins. Co., Duntz, 11 Barb. (N. Y.) 191 (1851) ; 
 
 31 Minn. 125 (1888) ; Brown v. VanSlyke v. Shelden, 9 Barb. (N. 
 
 Delaney, 22 Minn. 349 (1876). See Y.) 278(1850). 
 
 Wilson V. Troup, 2 Cow. (N. Y.) 195 ^Incomputingthetimcforthepub- 
 
 (1823) ; s. c. 14 Ara. Dec. 458 ; Slee lication, posting and service of the 
 
 V. Manhattan Ins. Co., 1 Paige Ch. notice, the first day is to he exchuled 
 
 (.N. Y.) 48 (1828). and the last day included. Bunce 
 
 » Wilson V. Troup, 7 Johns. Ch. v. Reed, 16 Barb. (N. Y.) 347 (1853); 
 
 (X. Y.) 25 (1823), afE'g 3 Cow. (N. Hornby v. Cramer, 12 How. (N. Y.) 
 
 Y.) 195, 231; s. C. 14 Am. Dec. Pr.490,493(1855); Weslgate v. Hand- 
 
 458. lin, 7 How. (N. Y.) Pr. 372 (1853). 
 
 *N. Y. Code Civ. Proc. §2388. 'N. Y. Code Civ. Proc. §2383. 
 
 ' The provisions of the statute as Astothenoticeof sale by publication, 
 
 to the publication, posting and ser- see ante §477. Where the land is 
 
 vice of the notice must be strictly com- situated in more than oue county, the
 
 884 PUBLISHING NOTICE OF SALE. [§ 774. 
 
 Where the notice is published once in each week fo< 
 twelve successive weeks, it will be sufficient, even though 
 all the publications are made within seventy-eight days, 
 provided the first publication is eighty-four days prior to 
 the day of sale, excluding the day on which the sale is 
 made.' The first publication, to be sufficient, must in all 
 cases be at least eighty-four days before the day of sale, 
 the first day being excluded and the last one included.* 
 
 § 774. What is a valid publication of the notice. — The 
 
 validity of the publication will not be affected by the fact 
 that the paper in which the notice was published was not 
 calculated to give general information of the sale.* Neither 
 will a change in the name of the paper in which the notice 
 is inserted, and its removal to and consolidation with 
 another paper in the same county, affect the validity of the 
 publication of the notice, provided the paper otherwise 
 retains its identity and the advertisement is regularly 
 inserted.* 
 
 Where the publication of the notice of sale is defective, in 
 not being made as required by statute, the proceedings will 
 be void. Thus, the publication of such a notice in a weekly 
 newspaper dated on Saturday, the greater part of the 
 edition being printed on Friday, has been held not to be 
 a sufficient publication within the statute for the fore- 
 closure of a mortgage maturing on such Friday.* Where 
 the original publication of a notice is defective, a republi- 
 cation thereof, with several notices of postponement, for 
 twelve weeks, will be a sufficient compliance with the statute.' 
 
 The Code requires that the first publication of the notice 
 must be eighty-four days prior to the day of sale specified 
 
 publication required by statute may ^ Blake v. Dennett, 49 Me. 102 
 
 be made in a newspaper in either (1861). See Bragdon v. Hatch, 77 
 
 county. Wells v. Wells, 47 Barb. Me. 433 (1885). 
 
 (N. Y.) 416(1867). '•Perkins v. Keller. 43 Mich. 53 
 
 ' Howard v. Hatch, 29 Barb. (N. (1880). 
 
 Y.) 297 (1859). See Anonymous, 1 * Pratt v. Tinkcom, 21 Minn. 
 
 Wend. (N. Y.) 90 (1828). See post 142 (1874). 
 
 § 774. 6 Cole V. Moffitt. 20 Barb. (N. Y.) 
 
 * Bunce v. Reed, 16 Barb. (N. Y.) 18 (1854). 
 347 (1853).
 
 |§ 775-776.] posTiN^G kotice of sale. 885 
 
 in the notice, but it is thoug^lit that the twelve publications 
 may be made in less than eighty-four days, if they are made 
 once a week for twelve weeks.* 
 
 § 775- Posting notice of sale. — The Code provides,' that 
 "a copy of the notice must be fastened up, at least eighty- 
 four days before the day of sale, in a conspicuous place, at 
 or near the entrance of the building, where the county 
 court of each county, wherein the property to be sold is 
 situated, is directed to be held ; or, if there are two or 
 more such buildings in the same county, then in a like 
 place, at or near the entrance of the building nearest to the 
 property; or, in the city and county of New York, in a like 
 place, at or near the entrance of the building, where the 
 court of common pleas for that city and county is directed 
 by law to be held." 
 
 It is only required that the notice should be affixed to the 
 door of the building where the county courts are held ; it is 
 not necessary for the person who afifixed the notice to see it 
 there afterwards,' because, where the notice is once affixed, 
 it is presumed that it will remain so. Affixing the notice once 
 seems to satisfy the words of the statute, and it is said that 
 a weekly inspection, though prudent, is not necessary.* 
 Where the land is situated in two or more counties, the 
 notice of sale must be fastened up at or near the court 
 house door in each county, in order to sustain the sale of 
 the land in that county.* 
 
 § 776. Delivering notice of sale to county clerk — His 
 duty. — The Code also provides,* that " a copy of the notice 
 must be delivered, at least eighty-four days before the day 
 of sale, to the clerk of each county, wherein the mortgaged 
 
 > N. Y. Code Civ. Proc. § 2388. 13 (1827) ; Hornby v. Cramer, 12 
 
 Howard v. Hatch, 29 Barb. (N. Y.) How. (K Y.) Pr. 490 (1855). 
 
 297(1859) ; George v. Arthur, 2 Hun " Hornby v. Cramer, 12 How. (N. 
 
 (N. Y.) 406 (1874) ; Gautz v. Toles, Y.) Pr. 490 (1855). 
 
 40 Mich. 725 ( 18T9 ). See ante " Wells v. Wells, 47 Barb. (N. Y.) 
 
 § 773. 416 (1867). 
 
 « N. Y. Code Civ. Proc. § 2388. • N. Y. Code Civ. Proc. § 2388. 
 
 » Merrit v. Bowen, 7 Cow. (N. Y.)
 
 886 WHO TO BE SEEVED WITH NOTICE. [§777. 
 
 property, or any part thereof, is situated.'" Where a 
 notice of sale filed in the clerk's ofifice and published for 
 the first four weeks, was, by mistake, dated April 23, 1858, 
 instead of 1868, the court held that the mistake was obvious 
 on inspection and could not have misled any one, and for 
 that reason did not invalidate the proceedings.* 
 
 " A county clerk, to whom a copy of a notice of sale is 
 delivered, as prescribed by the Code, must forthwith affix 
 it in a book, kept in his office for that purpose ; must make 
 and subscribe a minute, at the bottom of the copy, of 
 the time when he received and affixed it; and must index the 
 notice to the name of the mortgagor."* 
 
 § 777. Personal service of notice — Who entitled 
 to. — The parties who are to be served with the notice 
 of sale on a foreclosure by advertisement, are those whom 
 the statute directs to be served and no others, because a 
 sale under a power, which conforms to the statute regu- 
 lating such sales, forecloses all rights and interests which 
 are subject to the power,* and service upon parties not 
 subject to such power is invalid. 
 
 The Code requires that a copy of the notice must be 
 served on the mortgagor, or his personal representatives, on 
 the wife or widow of the mortgagor, and on all subsequent 
 grantees and lienors.' Service of the notice on the mortgagor, 
 subsequent grantees, mortgagees and judgment creditors, is 
 as necessary as the publication or posting thereof.* 
 
 "The notice is required to be subscribed by the person 
 entitled to execute the power of sale, unless his name dis- 
 tinctly appears in the body of the notice, in which case it 
 may be subscribed by his attorney or agent."^ If service of 
 
 • Wells V. Wells, 47 Barb. (N. » N. Y. Code Civ. Proc. § 2388. 
 T.) 416 (1867). • Rathbone v. Clarke. 9 Abb. (N. 
 
 «Mowry v. Sanborn, 68 N. Y. Y.) rr.66 (1859), note; Cole v. Moffitt, 
 
 163 (1877), reversing 63 Barb. (N. 20 Barb. (N. Y.) 18(1854); Stanton v. 
 
 Y.) 223 (1872); s. c. 65 N. Y. Kline, 16 Barb. (N. Y.) 9 (1852); 
 
 581 (1875). King v. Duntz, 11 Barb. (N. Y.) 191 
 
 » N. Y. Code Civ. Proc. § 2390. (1851) ; VanSlyke v. Sheldon, 9 
 
 * Brackett v. Baum, 50 N. Y. Barb. (N. Y.) 278 (1850). 
 
 8 (1872). ' N. Y. Code Civ. Proc. 8 2388.
 
 § 778.] seeyijS-g persojs^al representatives. 887 
 
 the notice is not made upon a party entitled thereto, his 
 claim will not be barred or foreclosed, nor will his rights be 
 affected by the sale; the assignee of a subsequent incumbrance 
 stands in the place of the original owner thereof. Actual 
 notice of the sale will not be sufficient.' 
 
 Notice of the sale must be given to the mortgagor,* and 
 also to the owner of the equity of redemption, or the sale 
 will be void as to them.* 
 
 § 778. Service on personal representatives. — Where 
 the mortgagor is dead, the notice must be served on his 
 executor or administrator,* and where there is none, one 
 must be appointed, and the prescribed service must be made 
 upon him, in order to secure a vahd foreclosure.* 
 
 It has been said, however, that if personal representatives 
 have not been appointed, the provision requiring notice to 
 be served on them is inoperative, and the foreclosure must 
 be conducted by an action in equity.* The words " personal 
 representative," as used in the statute regulating foreclosures 
 by advertisement, mean "executor or administrator," and 
 not heir or devisee.^ 
 
 ' Mowry v. Sanborn, 65 N. Y. 581 (N. Y.) Pr. 388 (1882) ; VnnSrTiaack 
 
 (1875); Root v. Wheeler, 12 Abb. v. Saunders, 32 Hua (N. Y.) 515 
 
 (N. Y.) Pr. 294 (1861) ; Dwight v. (1884). 
 
 Phillips, 48 Barb. (N. Y.) 116 (1865); « Anderson v. Austin, 34 Barb. (N. 
 
 Winslow V. McCall, 32 Barb. (N. Y.) 319 (1861). 
 
 Y.) 241 (1860); Wetmore v. Roberts, ' See Anderson v. Austin, 34 
 
 10 How. (N. Y.) Pr. 51 (1853); Barb.(KY.)319(1861),wIieretherule 
 
 JNIickles v. Dillaye, 15 Hun (N. Y.) that, under a statutory foreclosure by 
 
 296 (1878). advertisement, notice of the sale must 
 
 * N. Y, Code Civ. Proc. § 2388. be given to the personal representa- 
 ' St. John V. Bumpstead, 17 Barb. lives of a deceased mortgagor, was 
 
 <N. Y.) 319 (1852). construed in an action for partition 
 
 •• Cole V. Moffitt, 20 Barb. (N. Y.) between the heirs at law of such 
 
 18 (1854); St. John v. Bumpstead, mortgagor, and a purchaser upon 
 
 17 Barb. (N. Y.) 100 (1852) ; Mac- such a foreclosure sale, — where two 
 
 kenzie v. Alster, 64 How. (N. Y.) mortgagors, husband and wife, 
 
 Pr. 388 (1882) ; VanSchaack v. owning separate parcels, united in a 
 
 Saunders, 32 Hun (N. Y.) 515 (1884); mortgage covering both parcels, and 
 
 Low v. Purdy, 2 Lans. (N. Y.) 422 the husband left a will devising the 
 
 (1869) ; N. Y. Code Civ. Proc. premises and naming executors, but 
 
 § 23S8. none were ever appointed or quali- 
 
 * Mackenzie v. Alster, 64 How. lied, nor were administrators witb
 
 888 SERVING SUBSEQUENT GRANTEES. [§779. 
 
 § 779. Service of notice on subsequent grantees and 
 lienors. — It is necessary to give the owner of the equity of 
 redemption notice, in order to make a foreclosure vaUd as 
 against him.' As it is also necessary to give notice to a 
 junior mortgagee, or his assignee, in order to render the 
 foreclosure of a senior mortgage valid as against him, the 
 assignment should be recorded, or the assignee will not be 
 entitled to notice." The holder of a junior mortgage, 
 through an unrecorded assignment, must be served with 
 notice, where the foreclosing mortgagee has actual knowl- 
 edge of the interest of such assignee." 
 
 Subsequent grantees and mortgagees, whose conveyances 
 or mortgages are not recorded at the time of the first 
 publication of the notice, are not entitled to service thereof, 
 where their interests are unknown to the foreclosing mort- 
 gagee ;* but where the statute requires notice to be served, 
 not only on those subsequent grantees and mortgagees 
 " whose conveyances shall be upon record at the time of the 
 first publication of the notice," but also upon all persons 
 having a lien by or under a judgment, it has been held, that 
 the lien of a judgment perfected after the publication of the 
 
 the will annexed ever appointed (1882) ; s. c. 12 Abb. (N. Y.) N. C. 
 
 upon his estate, and the wife died 110; Northrup v. Wheeler, 43 How. 
 
 intestate, and no letters of adminis- (N. Y.) Pr. 123 (1872) ; Leonard v. 
 
 tration were issued upon her estate. Morris, 9 Paige Ch. (N. Y.) 90 
 
 VanSchaack v. Saunders, 32 Hun (1841) ; Shillaber v. Robinson, 97 U. 
 
 (N. Y.) 515 (1884), citing Mowry S. (7 Otto), 68 (1877) ; bk. 24 L. ed. 
 
 V. Sanborn, 68 N. Y. 153(1877); In 967; 2 Barb. Ch. Pr. (2d ed.) 176. 
 
 re Second Ave. Methodist Episc. ' St. John v. Bumpstead, 17 Barb. 
 
 Church. 66 N. Y. 395 (1876) ; Hart- (N. Y.) 100 (1852) ; N. Y. Code Civ. 
 
 nett V. Wandell, 60 N. Y. 346, 349 Proc. § 2388. 
 
 (1875) ; s. c. 19 Am. Rep. 194 ; « Winslow v. McCall, 82 Barb. (N. 
 
 Lawrence v. Farmers' Loan & Trust Y.) 241 (I860)*; Wetmore v. Roberts, 
 
 Co., 13 N. Y. 211 (1855); Anderson 10 How. (N. Y.) Pr. 51 (1853); 
 
 V. Austin, 34 Barb. (N. Y.) 319 Decker v. Boice, 19 Hun(N. Y.) 153 
 
 (1861); Bryan v. Butts, 27 Barb. (1879). 
 
 (N. Y.) 503 (1857) ; Cole v. Moffitt, ^ So„ie v. Ludlow, 3 Hun (K Y.) 
 
 20 Barb. (N. Y.) 18 (1854) ; Cohoes 503 (1875) ; s. c. 6 T. «& C. 24. 
 
 Co. v. Goss, 13 Barb. (N. Y. ) * See Decker v. Boice, 19 Hun (N. 
 
 137 (1852) ; King v. Duntz, 11 Barb. Y.) 152 (1879) ; aff d 83 N. Y. 215 
 
 (N. Y.) 191 (1851) ; Mackenzie v. (I88O) ; N. Y. Code Civ. Proc. 
 
 Alster, 64 How. (N. Y.) Pr. 38S ^ 2388, subd. 4.
 
 § 780.] SERVING WIFE OF MOETGAGOE. 8S9 
 
 first notice, but before the sale, will not be extinguislied, 
 unless notice is served upon the judgment creditor as 
 required by statute.' 
 
 § 780. Service of notice on wife or widow of mort- 
 gagor or his grantee. — The Code requires,' that a copy 
 of the notice of sale shall be served " upon the wife or 
 widow of the mortgagor, and upon the wife or widow of 
 each subsequent grantee, whose conveyance was so recorded, 
 then having an inchoate or vested right of dower, or an 
 estate in dower, subordinate to the lien of the mortgage." 
 Where a wife has joined her husband in the execution 
 , of a mortgage, she thereby becomes a mortgagor, and as 
 such is entitled to service of notice.' 
 
 The inchoate dower of the wife of the owner of premises, 
 which are subject to a mortgage for purchase money, will not 
 be barred by foreclosure by advertisement, unless she is 
 served with a notice of the sale.* Service on her husband 
 alone will not be sufficient, for while a wife does not derive 
 title from her husband, yet she claims under him within the 
 meaning of the statute, and a sale under the power must be 
 regularly made in order to bar her dower.* 
 
 While an omission to serve the notice on the mortga- 
 gor's widow, where she joined him in the execution of the 
 mortgage, is probably not fatal to the foreclosure, yet it is 
 such a defect that her dower will not be barred.' The wife 
 of a subsequent grantee of mortgaged premises, is entitled 
 to service of the notice of foreclosure by advertisement; if she 
 is not served, her right of dower will not be cut off.' And 
 the wife of a grantee of premises already mortgaged for 
 
 ' • GrofiE V. Morehouse, 51 N. Y. ' Biackett v. Baum, 50 N. Y. 8 
 
 503 (1873). (1872). 
 
 » N. Y. Code Civ. Proc. § 2388. « Kins: v. Duntz, 11 Barb. (N. Y.) 
 
 « Anderson v. Austin, 34 Barb. 191 (1851). 
 
 (N. Y.) 319 (1861) ; King v. Duntz, ' Raynor v. Raynor, 21 Tlun (N. 
 
 11 Barb. (N. Y.) 191 (1851) ; Low Y.) 36 (1880). See Northrop v. 
 
 V. Purdy, 2 Lans. (N. Y.) 423 Wheeler, 43 How. (N. Y.) Pr. 122 
 
 (1869), (1872). 
 
 * Northrop v. Wheeler, 43 How. 
 (N. Y.) Pr. 122 (1872).
 
 890 SEEVICE OF NOTICE OF SALE. [§§ 781-782. 
 
 part of the purchase money, should be served with the 
 notice, in order to bar her inchoate right of dower.* 
 
 § 781 . Service of notice upon subsequent lienors. — The 
 
 Code requires the notice to be served upon every " person 
 having a Hen upon the property subsequent to the mort- 
 gage, by virtue of a judgment or decree, duly docketed in the 
 county clerk's office, and constituting a specific or general 
 lien upon the property."" It seems that the lien of a person 
 entitled to notice, but upon whom the notice was not served, 
 is not destroyed nor in any way affected by the sale, even 
 though he had actual notice of such sale.* 
 
 All judgment creditors, whose liens were perfected subse- 
 quently to the mortgage, are entitled to notice; and where 
 the statute requires the notice to be served upon every 
 person having a lien by or under a judgment, the lien 
 of a judgment perfected after the publication of the first 
 notice, and before the sale, will not be cut off, and the 
 lienor's right of redemption will not be barred, unless notice 
 is served upon him as prescribed by the statute.* 
 
 § 782. Service of notice of sale — How made. — The 
 
 New York Code of Civil Procedure provides,* that service 
 of the notice of sale must be made as follows: (i) ** Upon 
 the mortgagor, his wife, widow, executor, or administrator, 
 or a subsequent grantee of the property, whose conveyance 
 is upon record, or his wife or widow ; by delivering a copy 
 of the notice, as prescribed in article first of title first of 
 chapter fifth of this act, for delivery of a copy of a 
 summons, in order to make personal service thereof upon 
 the person to be served ; or by leaving such a copy, 
 addressed to the person to be served, at his dwelling- 
 house, with a person of suitable age and discretion, at least 
 fourteen days before the day of sale. If said mortgagor is 
 a foreign corporation, or being a natural person, he, or his 
 
 • Northrop v. Wheeler, 43 How. Roberts, 10 How. ( N, Y. ) Pr. 51 
 
 (N. Y.) Pr. 122 (1872). (1853). 
 
 » N. Y. Code Civ. Proc. § 2388. * Grofl v. Morehouse, 51 N. Y. 
 
 •Root V. Wheeler, 12 Abb. (N. 503(1873). 
 Y. ) Pr. 294 ( 1861 ) ; Wetmore v. » N. Y. Code Civ. Proc. § 2389.
 
 § 783.] SERVUfG NOTICE BY JIAIL. 801 
 
 wife, widow, executor, or administrator, or a subsequent 
 grantee of the property, whose conveyance is upon record, or 
 his wife or widow, is not a resident of or within the state, 
 then service thereof may be made upon them in like manner, 
 without the state, at least twenty-eight days prior to the 
 day of sale.'" 
 
 (2) " Upon any other person, either in the same method, 
 or by depositing a copy of the notice in the post-ofifice, 
 properly inclosed in a post-paid wrapper, directed to the 
 person to be served, at his place of residence, at least 
 twenty-eight days before the day of sale."* 
 
 § 783. Service of notice by mail. — In foreclosing a mort- 
 gage by advertisement, personal service of the notice of 
 sale is not always necessary, though the parties to be served 
 may reside in the same town as the party foreclosing, or his 
 attorney. It will be a sufficient compliance with the statute, 
 if properly directed copies of the notice . of sale are 
 deposited in the post-office, addressed to the parties to be 
 served at the places where they reside.' 
 
 Notice of the sale may be served on the mortgagor by 
 mail, by depositing a properly directed copy thereof in any 
 post-ofifice in the state.* If, by mistake, the notice is 
 addressed to the mortgagor at a place other than his residence, 
 the sale made thereunder will be void.' The affidavit of 
 service must show that the places to which the notices were 
 mailed to the parties addressed, were the actual residences 
 of such parties.' Whfere the affidavit fails to show these 
 facts, the omission will be fatal, because the proceedings to 
 foreclose a mortgage by advertisement are strictly statutory, 
 and omissions can not be subsequently supplied, nor defects 
 in the affidavits remedied, in a court of equity.* 
 
 « N. Y. Code Civ. Proc. § 2389, as » Robinson v. Ryan, 25 K T. 320 
 
 amended by Laws of 1887, chap. 685; (1862). 
 
 Bee also § 419 et seq. * Dwight v. Phillips, 48 Barb. (N. 
 
 2 N. Y. Code Civ. Proc. § 2389. Y.) 116 (1865). 
 
 » Stanton v. Kline 11 N. Y. 196 ' Dwight v. Phillips, 48 Barb. 
 
 (1854). (N. Y.) 116 (1865). Co7\ira, Bunce v. 
 
 * Bunce v. Reed, 16 Barb. (N. Y.) Reed, 16 Barb. (N. Y.) 347 (1853). 
 347 (1853).
 
 892 CONTENTS OF NOTICE OF SALE. [§784. 
 
 It has been said, that under a statute requiring the notice 
 to be folded and directed, the direction must be written 
 on the notice itself, if it is sent unsealed ; if the direction is 
 written upon an unsealed envelope, containing a notice sent 
 as a circular, the service will not be sufficient.* If service of the 
 notice is made by mail, the time is to be counted from its 
 deposit, and not from the date of the post-mark, or the time 
 of forwarding." Where the service is made by mail upon 
 a person, naming him as " administrator," such service will 
 be sufficient, if the notice is addressed to the proper person, 
 without adding the word " administrator."* 
 
 § 784. Contents of notice of sale. — The New York Code 
 of Civil Procedure requires,* that the notice of sale must 
 specify : " (i) The names of the mortgagor, of the mort- 
 gagee and of each assignee of the mortgage. (2) The date 
 of the mortgage, and the time when, and the place where, 
 it is recorded. (3) The sum claimed to be due upon the 
 mortgage, at the time of the first publication of the notice, 
 and, if any sum secured by the mortgage is not then due, 
 the amount to become due thereupon. (4) A description 
 of the mortgaged property, conforming substantially to 
 that contained in the mortgage." 
 
 The notice should show that the purpose of the sale is to 
 foreclose the mortgage, or what is equivalent, that a sale 
 will be had by virtue of a power contained in the mortgage.* 
 It is believed that most persons would readily perceive the 
 purpose of the notice, even if it were not distinctly stated ; 
 for that reason it is not necessary to state distinctly that the 
 mortgage will be foreclosed, if notice of a sale according 
 
 ' Rathbone v. Clarke, 9 Abb. (N. from the time of the post-mark or 
 
 Y.) Pr. 66 n. (1859). the forwarding of the letter. 
 
 * Hornby v. Cramer, 12 How. (N. * George v. Arthur, 2 Hun (N. Y.) 
 
 Y.) Pr. 490 (1855). Thus, were the 406 (1874) ; s. c. 4 T. & C. (N. Y.) 
 
 act requires the letter containing the 685. See Howard v. Hatch, 29 Barb, 
 
 notice to be deposited in the post- (N. Y.) 297 (1859). 
 office twenty -eight days prior to the * N. Y. Code Civ. Proc. § 2391. 
 
 time specified for the sale, the » Judd v. O'Brien, 21 N. Y. 18G 
 
 twenty-eight days are to be counted (1860). 
 from the lime of deposit, and not
 
 |§ 785-786.] CONTENTS OF NOTICE OF SALE. 
 
 893 
 
 to the requirements of the statute is given.' Words 
 which would import a sale of the mortgage, instead of a sale 
 of the land, if literally construed, will not vitiate the notice, 
 if the apparent meaning is that a sale of the land is 
 intended.' 
 
 The notice need not state that the subscribers have a 
 lawful right or authority to foreclose ;' and where executors 
 or administrators seek to foreclose by advertisement, it 
 is not necessary that their authority to do so should be 
 set forth in the notice. It will be sufificient if they sub- 
 scribe the notice as " administrators " or as " executors " 
 of the last will and testament of the deceased mortgagee.* 
 
 § 785. Description of mortgaged premises in notice. — 
 
 The description of the mortgaged premises in the notice of 
 sale must conform substantially to that contained in the 
 mortgage, or the sale will be invalid.* Thus, in a case 
 where the mortgage referred to a map on file, and stated 
 that the premises contained a particular number of acres, 
 and the notice gave the number of the lot, but gave neither 
 its meets, nor bounds, nor stated the quantity of land, and 
 did not refer to the map or show whether the land was a 
 village lot or a farm, it was held that the foreclosure did not 
 comply with the statute, and was void. In such a case, a 
 statement of the quantity of land and a reference to the map 
 are substantial parts of the description, and must be given.' 
 
 § 786. Description of mortgage in notice. — The notice 
 of sale must specify the names of the mortgagor and the 
 mortgagee, and of each assignee of the mortgage.' Where 
 two mortgages are being foreclosed, it is believed that a 
 
 > Leet V. McMaster, 51 Barb. (N. « Rathbone v. Clarke, 9 Abb. (N. 
 
 Y.) 236 (1868). Y.) Pr. 66 n. (1859). 
 
 2 Judd V. O'Brien, 21 N. Y. 186 ' N. Y. Code Civ. Proc. § 2391. 
 
 (1860). It is thought, where a mortgage has 
 
 * People ex rel. Bridenbccker v, been assigned as collateral security 
 Prescott, 3 Hun (N. Y.) 419 (1875). for a debt, and the debt is paid before 
 
 * People ex rel. Bridenbccker v. notice of the sale is given, that the 
 Prescott, 3 Hun (N. Y.) 419 (1875). notice need net name such as. 
 
 * Rathbone v. Clarke, 9 Abb. (N. signee, he no longer having any 
 Y.) Pr. 66 n, (1859). interest in such mortgage. See
 
 894 CONTENTS OF NOTICE OF SALE. [§§787-788. 
 
 single notice will be insufficient, especially if the descriptions 
 of the premises are not identical.' The notice will sufficiently 
 specify the place where the mortgage is recorded, if it states 
 the clerk's book and the date of record, although the number 
 of the book may be erroneously given.' 
 
 It seems that the omission of the name of the mortgagee 
 from the notice is not a fatal error, where there is an accurate 
 reference to the record of the mortgage in the clerk's office, 
 and no intention to mislead is shown ;' but an omission or a 
 mistake which tends to mislead will always be fatal, such as 
 using the word " mortgagee " for the word " mortgagor."* 
 
 § 787. Notice should state place of sale. — To be valid, 
 the notice should state the place of sale.* It has been said 
 that a notice, stating that the sale will take place at the city 
 hall, but not stating in what part of the city hall, is good, 
 since by usage the rotunda is the established part of the 
 building for such sales ; this is also true of a notice of sale 
 at the Merchants' Exchange.* 
 
 § 788. Stating amount due in notice. — As the notice of 
 sale is required to state the amount due at the time of the 
 first publication thereof, it follows that a mortgage given as 
 security for unliquidated damages, can not be foreclosed by 
 advertisement.' For the convenience of the parties, though 
 not required by statute, the amount claimed to be due at 
 
 White V. McClellan, 62 Md. 347 the office of so high a number as the 
 
 (1884). one designated. Judd v. O'Brien, 
 
 ' Morse v. Byam, 55 Mich. 594 21 N. Y. 186, 189(1860). 
 
 (1885). « Candee v. Burke, 1 Hun (N. Y.) 
 
 « Judd V. O'Brien, 21 K Y. 186 546 (1874); s. c. 4 T. & C. (KY.) 143. 
 
 (1860). A notice giving correctly the " Abbott v. Banfield, 43 N. H. 153 
 
 clerk's office and the date of record- (1861). 
 
 ing the mortgage, though with an * Burnet v. Denniston, 5 Johns, 
 
 error in the number of the book, is Ch. (N. Y.) 35 (1821). 
 
 a substantial compliance with the * Hornby v. Cramer, 12 How. (N. 
 
 statute. The place where the mort- Y.) Pr. 490 (1855). 
 
 gage is recorded will be sufficiently ' N. Y. Code Civ. Proc. § 2391 ; 
 
 indicated by naming the office and Ferguson v. Kimball, 3 Barb. Ch. 
 
 the date oftherecord, and possibly by (N. Y.) 616, 619 (1846); except, per- 
 
 mentioning the office alone. It was haps, where it contains within itself 
 
 80 held, where there was no book in a measure by which to ascertain the
 
 § 789.] STATING AilOUNT DUE IN NOTICE. 895 
 
 the time of the first pubh'cation of the notice,' should be 
 given in dollars and cents ; yet a statement that it is claimed 
 that a particular sum was due at any designated day prior to 
 the notice, will doubtless be sufficient.* 
 
 If the advertisement of sale contains a false statement, 
 tending to deceive the public as to the amount of the 
 incumbrances, and thereby deters bidders, the sale will be 
 irregular and void.* But this is not true as to a mistake, a 
 correction of which is published with the notice, before it can 
 be presumed to have influenced persons intending to bid ; as 
 where, by mistake, the notice of sale stated a prior incum- 
 brance upon the mortgaged property, at twice its actual 
 amount, and a correction thereof was published with the 
 notice two weeks before the sale.* 
 
 ^789. Stating amount where only part of debt is 
 due. — Where a sale is made under a power contained in a 
 mortgage, a portion of which is not due at the time of the first 
 publication, the notice must state the sum due and also the 
 amount to become due.* And where a sale is made subject 
 to future installments, part of which have been paid, without 
 specifying the amount of such installments, the notice will 
 be void,' and a sale under such a notice, for a single 
 installment,' will extinguish the lien of the mortgagee on the 
 
 amount of damages ; Jackson v. Sibley, 5 Lans. (N. T.) 55 (1871). 
 
 Turner, T.Wend. (N. Y.) 458 (1831). See Klock v. Cronkhite, 1 Hill (N. 
 
 See Mowiy V. Sanborn, 68 N. Y. 153 Y.) 107(1841) ; Jencks v. Alexander, 
 
 (1877). 11 Paige Ch. (N. Y.) 619 (1845). 
 
 ' Stating in the notice the amount * Hubbell v. Sibley, 5 Lans. (N. 
 
 due on the day before the first pub- Y.) 51 (1871) ; aff'd 50 N. Y. 468 
 
 lication, is not fatal. It is surplusage (1872). See Mowry v. Sanborn, 62 
 
 to state that the premises are subject Barb. (N. Y.) 223 (1872); rev'd on 
 
 to a lease ; and the neglect to state another point, 65 N. Y. 581 (1875) ; 
 
 how long the lease mentioned in a no- Jencks v. Alexander, 11 Paige Ch, 
 
 ticehas to run will not affect the sale. (N. Y.) 619 (1845). 
 
 Hubbell V. Sibley, 5 Lans. (N. Y.) » N. Y. Code Civ. Proc. § 2391. 
 
 61 (1871); aft'd 50 N. Y. 468 See Jencks v. Alexander, 11 Paige 
 
 (1872). Ch. (N. Y.) 619, 626 (1845). 
 
 « Judd V. O'Brien, 21 N. Y. 186, » Jencks v. Alexander, 11 Paige 
 
 189 (1860). Ch. (N. Y.) 619, 626 (1845); N. Y 
 
 * Burnet v. Denniston, 5 Johns. Code Civ. Proc. § 2391. 
 
 Ch. (N, Y.) 35 (1821) ; Hubbell v. i Minor v. Hill, 58 Ind. 176 (1877;;
 
 896 DATE OF SALE AND SIGNATURE. [§§ 790-791. 
 
 entire premises.' In such a case, however, the mortgagee 
 will be entitled to retain out of the proceeds of the sale, 
 the sums due and to become due upon the mortgage, besides 
 the costs and the expenses of the foreclosure.* 
 
 § 790. Statement in notice of prior incumbrances.— 
 
 It is not necessary to set forth in the notice of sale incum- 
 brances subject to which the sale is to be made. Thus, the 
 unexpired term of a lease, subject to which the premises are 
 to be sold, need not be recited in the notice of sale.' Where 
 unnecessary matters are recited in the notice, they will not 
 render it defective, and the sale thereunder void, unless 
 perhaps, such matters mislead the public, and thereby 
 prevent persons from bidding who might otherwise have 
 become purchasers. If, however, such matters are inserted 
 in the notice of sale by mistake, and are corrected before it 
 can be presumed that persons entitled to bid would be 
 influenced thereby, the proceedings will not be prejudiced.* 
 
 § 791. Date of sale and signature to notice. — The 
 
 date of the sale should be correctly given ; but where, by 
 mistake, an incorrect date is given, which is obvious on 
 inspection and could not mislead, it will not invalidate the 
 proceedings; as where, by mistake, 1858 was inserted, instead 
 of 1868.' 
 
 The Code requires the notice to be subscribed by the 
 person entitled to execute the power of sale ;' where 
 the name of the mortgagee was omitted from the body of a 
 notice of sale, but was signed at the bottom thereof, it was 
 held to be sufficient.* A notice signed by a duly authorized 
 
 8. c. 26 Am. Rep. 71. Compare Y.) 35, 42 (1821) ; Jencks v. Alexan- 
 
 Hill V. Minor, 79 Ind. 48 (1881). der, 11 Paige Ch. (N. Y.) 619 (1845). 
 
 • Poweshiek Co. v. Dennison, 36 ^ Mowry v. Sanborn, 68 N. Y. 153 
 Iowa, 244 (1873) ; s. c: 14 Am. Rep. (1877), reversing 7 Hun (N. Y.) 
 524. 380 (1876). 
 
 » N. Y. Code Civ. Proc. § 2404. « N. Y. Code Civ. Proc. § 2388. 
 
 » Hubell V. Sibley, 5 Lans. (N. ' Candee v. Burke, 1 Hun (N. 
 
 T.) 51 (1871). Y.) 546 (1874) ; s. c. 4 T. & C. (N. 
 
 * See ante § 788 ; Klock v. Cronk- Y.) 143. 
 hite, 1 Hill (N. Y.) 107 (1841) ; Bur- 
 
 net V. Denniston, 5 Johns. Ch. (N.
 
 §§ 792-793.] OBJECTING TO NOTICE OF SALE. 897 
 
 person as " executor" has been held to contain a sufHcient 
 statement of his interest in the mortgage, and how it w as 
 acquired ;' and where the name of the person entitled to 
 execute the power of sale, distinctly appears in the body of 
 the notice, it may be subscribed by his attorney or agent.* 
 
 § 792. Objections to notice of sale. — Where the notice 
 is irregular or defective, objections thereto should be 
 promptly made. It has been said, that after the lapse of 
 fifteen years, a mortgagor, or other party interested, can not 
 question the regularity of the notice of sale, and that 
 apparent deficiencies will be supplied by intendment.' 
 
 A sale on foreclosure by advertisement is entirely ex parte, 
 and legal objections thereto can be taken whenever the 
 proceedings are properly brought in question.* Thus, if a 
 tender to redeem was refused by a mortgagee, a sale made by 
 him thereafter would be illegal and void, and a fraud upon 
 subsequent judgment creditors and incumbrancers.* 
 
 § 793. Postponement of sale. — The New York Code of 
 Civil Procedure provides," that " a sale may be postponed 
 from time to time. In that case, a notice of the postpone- 
 ment must be published, as soon as practicable thereafter, in 
 the newspaper in which the original notice was published ; 
 and the publication of the original notice, and of each notice 
 of postponement, must be continued, at least once in each 
 week, until the time to which the sale is finally postponed.'" 
 
 The usual practice is for the party conducting the sale to 
 attend at the time and place appointed for the sale, and 
 to give public notice of the postponement by announcement ; 
 
 ' People ex rel. Bridenbecker v. 300 (1850) ; Burnet v. Denniston, 
 
 Prescott, 3 Hun. (N. Y.) 419 (1875). 5 Johns. Ch. (N. Y.) 35 (1821). 
 
 See N. Y, Code Civ. Proc. g§ 2388, » See Miller v. Finn, 1 Neb. 254 
 
 2391. (1867). 
 
 « N. Y. Code CiT. Proc. § 2388. « N. Y. Code Civ. Proc. § 2392. 
 
 » Bergen v. Bennett, 1 Cai. Cas. ' Westgate v. Handlin, 7 How. 
 
 (N. Y.) 1 (1804) ; s. c. 2 Am. Dec. (N. Y.) Pr. 372 (1853) ; Sayles v. 
 
 281 ; Demarest v. Wynkoop, 3 Smith, 12 Wend. (N. Y.) 57 (1834) ; 
 
 Johns. Ch. (N. Y.) 129 (1817) ; s. c. 8. c. 27 Am. Dec. 117. See Jackson 
 
 8 Am. Dec. 467. v. Clark, 7 Johns. (N. Y.) 217 
 
 * Hall V. Bartlett, 9 Barb. (N. Y.) (1810). 
 
 (57)
 
 893 POSTPONING SALE PLACE OF SALE. [§ 70-1. 
 
 and it is believed that this practice should be followed, 
 because a departure from the established practice mirjht be 
 regarded as evidence of bad faith.* 
 
 If a postponement is made at the time and place appointed 
 for the sale, by stating the adjourned time and place to those 
 present, the subsequent notice, to be published until the 
 time of sale, must conform to the adjournment, as thus 
 announced. Thus, where the announcement, made at the 
 time and place first fixed for the sale, was of an adjourn- 
 ment to the tenth of the month, but the printed notice was, 
 by mistake, to the sixteenth, a sale had on the sixteenth 
 was held void." 
 
 Where a mortgagee published a notice under his adver- 
 tisement of sale, that the sale was to be adjourned, but 
 neglected to post a notice of such adjournment, the court 
 held that he was bound by his adjournment, and that his 
 sale made on the original notice, disregarding the adjourn- 
 ment, was irregular and void.' It has been held that where 
 the notice of sale was for Sunday, the mortgagee might, 
 before the day of sale, postpone it to another day and make 
 a valid sale under the notice.* 
 
 § 794. Place of sale. — The New York Code of Civil Pro- 
 cedure provides,' that the sale must be made "at public 
 auction, in the day time, on a day other than Sunday or a 
 public holiday,* in the county in which the mortgaged 
 property, or a part thereof, is situated ; except that, where 
 the mortgage is to the people of the state, the sale may be 
 made at the Capitol." The mortgagee's deed will not 
 convey a title, unless the sale was held at public auction 
 pursuant to the statutory notice, even though the mortgage 
 
 * Circumstances tending to sliow • Jackson v. Clark, 7 Johns. (N. 
 
 fraud in the adjournment of a sale, Y.) 217 (1810). 
 previously advertised on proceedings * Westgate v. Handlin, 7 How. 
 
 which were abandoned, have been (K Y.) Pr. 372 (1853). 
 held not to amount to fraud in the * N. Y. Code Civ. Proc. § 2393. 
 
 sale. See Leet v. McMaster, 51 • Selling on Sunday is not unlaw- 
 
 Barb. (N. Y.) 236 (1868). ful, for selling land under a statutory 
 
 » Miller v. Hull, 4 Den. (N. Y.) foreclosure is not a judicial procecd- 
 
 104(1847). ing. Sayles v. Smith, 18 V^eiaJL
 
 §§ 795-796.] CONDUCT of sale. 899 
 
 may contain a power of sale, expressly authorizing the 
 mortgagee, on default, to sell the premises at private sale.* 
 
 §795. By whom sale to be conducted. — A sale is 
 usually conducted by the mortgagee, but if it is made to 
 appear likely to the court that he will exercise his power 
 in a harsh, oppressive, or improper manner, the court 
 will associate a referee with him to see that the sale is 
 properly conducted, and that only so much of the mortgaged 
 premises is sold as will be sufficient to satisfy the mortgage 
 debt.' 
 
 Where the sale is conducted by the mortgagee, he is 
 regarded, in equity, as a trustee, and is bound to conduct 
 the proceedings in a fair and just manner, and in good 
 faith,' and is governed by substantially the same rules as 
 control a sale made by a referee in a. foreclosure by action.* 
 
 § 796. Sale in parcels. — The New York Code of Civil 
 Procedure requires,' that " if the property consists of two or 
 more distinct farms, tracts, or lots, they must be sold separ- 
 ately ; and as many only of the distinct farms, tracts, or lots, 
 shall be sold, as it is necessary to sell, in order to satisfy the 
 amount due at the time of the sale, and the costs and 
 expenses allowed by law. But where two or more buildings 
 are situated upon the same city lot, and access to one is 
 obtained through the other, they must be sold together." 
 
 If the land consists of distinct farms, tracts, or lots, and 
 they are sold together, the sale will be voidable, at least, if 
 not absolutely void ;' but where the premises do not consist 
 of distinct farms, parcels, or lots, they need not be sold 
 separately.^ It is believed that where lands are mortgaged 
 
 (N. T.) 57 (1834) ; a c. 27 Am. Dec. 503 (1875) ; s. c. 6 T. & C. (N. Y.) 
 
 117. Where the day first set is Sun- 24. See Ellsworth v. Lockwood, 43 
 
 day, a postponement from that day N. Y. 89 (1870). 
 ■will be regular. Westgate v. Hand- * See ante chap. xxv. ; also Soule v. 
 
 Mb, 7 How. (N. Y.) Pr. 373 (1858). Ludlow, 3 Hun (N. Y.) 503 (1875) ; 
 
 1 Lawrence v. Farmers' Loan and a c. 6 T. & C. (N. Y.) 24. 
 Trust Co., 13 N. Y. 200 (1855). * N. Y. Code Civ. Proc. § 2393. 
 
 ' VanBergenv. Demarest, 4 Johns. * Wells v. Wells, 47 Barb. (N. Y.) 
 
 C!h. (N. Y.) 37 (1819). 416 (1867). 
 
 • Soule V. Ludlow, 3 Hun (N. Y.) ' Anderson v. Austin, 34 Barb.
 
 900 CONDUCT AND TERMS OF SALE. [§797. 
 
 as one undivided lot, or parcel, and are subsequent y sub- 
 divided, the mortgagee is not bound to sell them in parcels.' 
 
 It seems, however, that a court of equity can give relief 
 against a sale of the whole mortgaged property in one 
 parcel, even where mortgaged as one tract, if a party stand- 
 ing in the position of a junior mortgagee, or as owner of the 
 property, requests a sale in parcels, and offers in good faith 
 to bid the amount of the mortgage, with the costs and 
 expenses of the sale.* Where the parcels are so situated 
 that they can be conveniently sold and conveyed separately, 
 the general rule governing a sale in parcels under a decree 
 and order of sale,' will govern a sale in a foreclosure by 
 advertisement. 
 
 While a mortgagee is not bound by the notice of sale to 
 sell the mortgaged premises in parcels in the absence of a 
 request as above stated, unless they are described in parcels 
 in the mortgage,* yet he may do so, where the premises are 
 so situated that he can sell them to better advantage;* 
 and he may also reserve certain rights for the benefit of the 
 owner of the equity of redemption, where the property is 
 amply sufificient to pay the mortgage debt.* 
 
 § 797. Terms of sale. — The Code does not require that 
 the published notice shall contain the terms of sale ; while 
 it is the practice to conform the terms of a sale to those 
 made under decrees of foreclosure, by stating in writing the 
 conditions upon which the purchaser is to pay for and 
 receive the title, yet the mortgagor, or those claiming under 
 him, can not object to the sale on the ground that the terms 
 thereof were not given in the notice of foreclosure, nor in 
 
 ( N. Y. ) 319 ( 1861 ) ; Bunce v Y. 89 (1870) ; aff'd 9 Hun (N. Y.) 548 
 
 Reed, 16 Barb. (N. Y.) 347, 350 (1853); (1877). 
 
 Holden v. Gilbert, 7 Paige Ch. (N. ^ See ante chap, xxiii. 
 
 Y.) 211 (1838). * Sherman v. Willett, 42 K Y. 
 
 ' Lamerson v. Marvin, 8 Barb. 146, 150 (1870) ; Griswold v. Fowler, 
 
 (N. Y.) 9 (1850); followed in Ells- 24 Barb. (N.Y.) 135 (1857); Lamerson 
 
 worth V. Lockwood, 9 Hun (N. Y.) v. Marvin, 8 Barb. (N. Y.) 9 (1850). 
 548 (1877) ; Hubbell v. Sibley. 5 ^ Sherman v. Willett, 43 N. Y. 
 
 Lans. (N. Y.) 51 (1871). See ante 146, 151 (1870). 
 §§ 489, 492 and chap, xxiii. « Sherman v, Willett, 42 N. Y. 
 
 * Ellsworth V. Lockwood, 42 K 146 (1870).
 
 § 798.] TERMS OF SALE. 901 
 
 the affidavits of sale, and tl^at the owner of the equity 
 of redemption had no knowledge or notice of the terms of 
 3ale, and had never ratified them.' 
 
 The sale may be made for cash or upon time, as to a part 
 or the whole of the amount, in the discretion of the mort- 
 gagee, and where time is given for the payment of the 
 whole, or a portion of the purchase money, the mortgagee 
 may determine what security he will require.* Where the 
 sale is made for cash, a reasonable deposit may be required, 
 although the advertisement may not specify such terms, 
 nor state that the terms would be made known on the day 
 of the sale.* Where a sale is made for cash, payment may 
 be made by a check;* or, by discharging a debt due from 
 the mortgagee to the purchaser.* 
 
 Upon a sale under the foreclosure of a second mortgage 
 by advertisement, it is proper for the mortgagee to make the 
 sale subject to the prior mortgage ;^ or he may advertise 
 and sell the property free and clear of all incumbrances, if 
 the prior mortgage is due, and pay it off out of the proceeds 
 of the sale. 
 
 § 798. Mortgagee may become purchaser.— The Code 
 provides,' that " the mortgagee, or his assignee, or the legal 
 representative of either, may, fairly and in good faith, pur- 
 chase the mortgaged property, or any part thereof, at 
 the sale.'" The sale may be made by the mortgagee, or the 
 owner of the mortgage, and he may himself become the 
 
 ' Story V. Hamilton, 20 Hun (N. • Story v. Hamilton, 86 N. Y. 
 
 y.) 133 ; aff'd 86 N. Y. 428 (1881). 428 (1881), aflf'g 20 Hun (N. Y.) 
 
 « Cox V. Wheeler, 7 Paige Ch. (N. 133 (1880). 
 
 Y.) 248, 251 (1838) ; Whitfield v. ' N. Y. Code Civ. Proc. ^ 2394. 
 
 Riddle, 78 Ala. 99 (1884). « Mowry v. Sanborn, 68 N. Y. 
 
 8 Pope V. Burrage, 115 Mass. 282 160 (1877); Hollingsworth v. Spald- 
 
 (1874); Model House Assoc, v. ing, 54 N. Y. 636(1873) ; Hubbell v. 
 
 Boston, 114 Mass. 133 (1873) ; Good- Sibley, 50 N. Y. 468 (1872), afif'g 5 
 
 dale V. Wheeler, 11 N. H. 424 Lans. (N. Y.) 51 ; Jackson v. Col- 
 
 (1840). den, 4 Cow. (N. Y.) 266 (1825); 
 
 * McConneaughey v. Bogardus, Valentine v. Belden, 20 Hun (N. Y.) 
 
 106 111. 321 (1883). 537 (1880); Cox v. Wheeler, 7 Paige 
 
 « Cooper V. Hornsby, 71 Ala. 63 Ch. (N. Y.) 248 (1838). 
 (1881); Tartt v. Clayton, 109 111. 579 
 (1884).
 
 902 MORTGAGEE MAT PURCHASE. [§798. 
 
 purchaser and make the affidavit which stands in the place 
 of a deed.' 
 
 It has been held, that even without the above statutory- 
 provision, the mortgagee, or his assignee, or the legal 
 representative of either, would have a right to purchase 
 the premises.' The better opinion, however, seems to be 
 that a court of equity will not allow the person holding a 
 mortgage containing a power of sale to become the purchaser 
 at a sale made thereunder, unless he is expressly authorized 
 so to purchase, by the terms of the mortgage.* 
 
 But where the mortgage contains a provision allowing the 
 mortgagee to become the purchaser, he may make the deed 
 in his own name, directly to himself.* Such a purchase, 
 made by the mortgagee for his sole benefit, is valid, and 
 will effectually foreclose the entire equity of redemption, 
 if he faithfully discharges, in all respects, the duties imposed 
 upon him as donee of the power.* 
 
 If a mortgagee purchases on a sale for an installment due, 
 his mortgage will be merged ; but it seems that if a third 
 person purchases, the mortgagor, on being compelled by 
 suit on the bond to pay the balance of the debt, is entitled 
 to an assignment of the mortgage to enable him to secure 
 repayment of the debt out of the land.' 
 
 The payment of a mortgage extinguishes the power of 
 sale under it ; if a statutory foreclosure thereof is after- 
 wards made for the benefit of an assignee of the mortgage, 
 and he bids in the property, he will acquire no title, because 
 one who has no power to sell is not a purchaser in good 
 
 > Hubbell V. Sibley, 5 Lans. (N. Cow. (N. Y.) 195 ; Hall v. Bliss, 
 
 Y.)51 (1871); aff'd 50 N.Y. 468 (1873). 118 Mass. 554, 558 (1875); s. c. 19 
 
 « Elliott V.Wood, 53 Barb. (N.Y.) Am. Rep. 476, 480; Dexter v. 
 
 285 (1869) ; aff'd 45 N. Y. 71. Shepard, 117 Mass. 480 (1875). 
 
 3 Hall V. Bliss, 118 Mass. 554, " See Wilson v. Troup, 7 Johns. 
 
 558 (1875) ; s. c. 19 Am. Rep. 476, Ch. (N. Y.) 25 (1823) ; s. c. 2 Cow. 
 
 480 ; Dyer v. Slmrtleff, 112 Mass. (N. Y.) 195 ; Hall v. Bliss, 118 
 
 165 (1873); s. c. 17 Am. Rep. Mass. 554, 558 (1875) ; s. c. 19 Am. 
 
 77 ; Downes v. Grazebrock, 3 Meriv. Rep. 476, 480 ; Dexter v. Shepard, 
 
 200(1817). 117 Mass. 480 (1875). 
 
 * Wilson V. Troup, 7 Johns. « Cox v. Wheeler, 7 Paige Ch. (N. 
 
 Ch. (N. Y.) 25 (1823); s. c. 2 Y.) 248 (1838).
 
 §§ 799-800.] SETTma sale aside. 
 
 903 
 
 faith at his own sale.* Whether any person can acquire a 
 good title at such a sale, is questionable.* 
 
 § 799' Setting sale aside. — The proceedings in a fore- 
 closure by advertisement may be set aside for fraud, mistake, 
 unfairness, or bad faith, under the same circumstances and 
 in the same cases, in which a sale would be set aside in 
 a foreclosure by an equitable action.' Any person, whose 
 interests are injuriously affected by the sale, may apply to 
 have it set aside ; but on such an application, a bona fide pur- 
 chaser will be protected.* To entitle a person to protection 
 by the court as a bona fide purchaser, it must be made 
 clearly to appear that the purchase was made in good faith, 
 and that the consideration was paid, before notice of defects 
 in the title, or of irregularities in the sale, was received.* 
 
 On an application to have a sale set aside as illegal and 
 fraudulent, the purchaser at the sale, as well as all persons 
 claiming rights under him, must be made parties to the pro- 
 ceeding.* And where a sale is set aside on such application, 
 it will have the effect of re-instating and preserving unim- 
 paired, the Hen of the mortgage.^ In such a case, the 
 purchaser will stand as the assignee of the mortgagee, and 
 will be vested with all of his rights.* 
 
 § 8oo. Grounds for setting sale aside. — Mere inade- 
 quacy of price is not of itself a ground for setting aside a 
 sale, made pursuant to a power contained in a mortgage,' 
 
 > Warner v. Blakeman, 4 Abb. » Grover v. Hale, 107 111. 638 
 
 App. Dec. (N. Y.) 530 (1863) ; s. c. (1883) ; Redden v. Miller, 95 111. 336 
 
 4 Keyes (K Y.) 487, aff'g 36 Barb. (1880); Brown v. Welch, 18 111. 343 
 
 (N. Y.) 501 ; Cameron v. Irwin, 5 (1857) ; s. c. 68 Am. Dec. 519. 
 
 Hill (N. Y.) 372 (1843). * See Candee v. Burke, 1 Huu (N. 
 
 2 Warner v. Blakeman, 4 Abb. Y.) 546 (1874) ; s. c. 4 T. & C. (N. 
 App. Dec. (N. Y.) 530 (1863) ; s. c. Y.) 143. 
 
 4 Keyes (N. Y.) 487. '' Stackpole v. Robbins, 47 Barb. 
 
 3 Soule V. Ludlow, 3 Hun (N. Y.) (N. Y.) 212 (1868) ; Lash v. Mc- 
 503 (1875); s. c. 6 T. & C. (X. Y.) Cormick, 17 Minn. 407 (1871). 
 
 24; Hubbell v. Sibley, 5 Lans. (K "Jackson v. Bowen, 7 Cow. (N. 
 
 Y.) 51 (1871); Clevinger v. Ross, 109 Y.) 13 (1827) ; Vroom v. Dilmas, 4 
 
 111. 349 (1884). See anU chap. xvi. Paige Ch. (N. Y.) 526 (1834). 
 
 ■•Warner v. Blakeman, 36 Barb. » See an«e § 539; also Laclede Bank 
 
 (N. Y.) 501 (1862), aff'g 4 Keyes v. Keeler, 109 111. 385 (1884); Clea- 
 
 (N. Y.) 487. ver v. Green, 107 111. 67 (1883).
 
 904 ENJonnoiTG sale, [§801. 
 
 unless the inadequacy is so gross as to amount to evidence 
 of fraud against the debtor's rights.' An application for 
 setting aside a sale, made pursuant to a power, is always 
 addressed to the sound discretion of the court, the same as 
 an application to set aside a sale made pursuant to a decree 
 in a foreclosure by action ;' and the application will be 
 denied, if the party applying has been guilty of laches.* 
 
 It is no ground for setting a sale aside that the mortgagee 
 refused, at the request of the owner of the premises, who had 
 assumed the payment of the mortgage, to sell a part of the 
 tract first, if such part did not correspond to any prior 
 known division, and no description thereof was suggested at 
 the time by which a conveyance could be made.* 
 
 § 8oi. Enjoining sale. — Where it is inequitable that the 
 mortgagee should sell the property under the power of sale 
 contained in the mortgage, an injunction restraining such 
 sale will be granted on the application of the mortgagor,' or 
 of any other person interested in preventing the sale. 
 
 Thus, if the mortgagee claims a larger amount in his 
 notice than is actually due,,* and the party applying for the 
 injunction offers to pay the amount really due,^ or if 
 the mortgage is usurious," or if the amount due can be 
 
 1 Magnusson v. Williams, 111 111. « Cole v. Savage, Clarke Cli. (N. 
 
 450(1886). Y.) 483 (1841). Thus, where less 
 
 ^ See ante % 529. than the face of the mortgage was 
 
 » Depew V. Depew, 46 How. (N. advanced when it was given, and 
 
 T.) Pr. 441 (1874). the mortgagee advertised under the 
 
 * Ellsworth V. Lockwood, 9 Hun power, claiming the whole face of 
 
 (N. Y.) 547 (1877). It was held in the mortgage as being due, it was 
 
 New York, prior to the revised held, that the mortgagor's grantee 
 
 statutes, that the omission to record might maintain a bill in equity to 
 
 a power of sale before a conveyance restrain the sale and to ascertain the 
 
 did not vitiate the sale. Jackson v. amount actually due. Cole v. Sav- 
 
 Colden, 4 Cow. (N. Y.) 266 (1825); age, Clarke Ch. (N. Y.) 482(1841). 
 
 Wilson V. Troup, 2 Cow. (N. Y.) 195 i Vechte v. Brownell, 8 Paige Ch. 
 
 (1823) ; s. c. 14 Am. Dec. 458. (N. Y.) 212 (1840). 
 
 » Where there is a defence to s Hyland v. Staiford, 10 Barb. (N. 
 
 the mortgage, the mortgagor may Y.) 558 (1850) ; Cole v. Savage, 
 
 protect himself either by commenc- Clarke Ch. (N. Y.) 482 (1841) ; Bur- 
 
 ing an action to restrain the sale, or net v. Denniston, 5 Johns. Ch. (N. 
 
 by attending the sale and giving y.) 35, 41 (1821). 
 notice of the facts.
 
 § 802.] ENJOXNIN-G SALE DA^IAGES FOR. 905 
 
 determined only by a Judicial finding, an injunction restrain- 
 ing the sale may be properly granted.* 
 
 Where the mortgage is valid and due, and the mortgpgee 
 is conducting the foreclosure according to statute, the sale 
 will not be enjoined.' The mortgagee is entitled to fore- 
 close at any time after default, and the simple fact that 
 the time selected for the sale is at a season of the year 
 when property will not sell to the best advantage, or when 
 the sale is inconvenient to subsequent incumbrancers, is not 
 a ground for interfering with the sale.* 
 
 Neither will the sale be delayed to enable several owners 
 of the equity of redemption, or junior incumbrancers, to 
 settle among themselves the proportion which each is to pay 
 towards the discharge of the mortgage, unless, perhaps, 
 a sufificient sum is paid into court to secure the mortgagee 
 from loss ; in which case, it seems that a reasonable time will 
 be allowed.* Where the amount due on a mortgage has been 
 judicially determined, an injunction to stay the sale will not 
 be granted to enable an appeal to be taken, if the rights of 
 the parties can be otherwise fully protected." 
 
 § 802. Damages for wrongful injunction. — Where a 
 mortgagee has been wrongfully enjoined from proceeding to 
 .sell the mortgaged premises, and is entitled to damages in 
 consequence, such damages will consist of his necessary 
 counsel fees for services rendered in dissolving the mort- 
 gagor's injunction, and also on the reference/ besides the 
 expenses incurred,^ and his taxable costs." 
 
 ' Gooch V. Vaughan, 92 N. C. 610 ' Outtrin v. Graves, 1 Barb. Ch. 
 
 (1885) ; Purnell v. Vaughan, 77 K (N. Y.) 49 (1845). 
 
 C. 268 (1871) ; Capehart v. Biggs, « Lee v. Homer, 37 Hun (N. T.) 
 
 77 N. C. 261 (1877); Kornegay v. 634 (1885). See Rose v. Post, 56 
 
 Spicer, 76 N. C. 95 (1877). N. Y. 603 (1874) ; Disbrow v. 
 
 5 Jones V. Matthie, 11 Jur. 504 Gracia, 52 N. Y. 654 (1873) ; Hovey 
 
 (1848) ; Wbitworth V. Rhodes, 20 L. v. Rubber Tip Pencil Co., 50 N. 
 
 J. N. S. (Ch.) 105 (1850). Y. 335 (1872) ; Andrews v. Glenville 
 
 3 Bedell v. McClellan, 11 How. Woolen Co., 50 K Y. 282 (1872); 
 
 (N. Y.) Pr. 172 (1855). Aldrich v. Reynolds, 1 Barb. Ch. 
 
 * Brinkerhoff v. Lansing, 4 Johns. (N. Y.) 613 (1846) ; Edwards v. Bo- 
 
 Ch. (N. Y. ) 65 (1819); s. c. 8 dine, 11 Paige Ch. (N. Y.) 223 (1844). 
 
 Am. Dec. 538 ■■ Lawton v. Green, 64 N. Y. 32G,
 
 906 PREMISES m ANOTHER STATE. [§§ 803-804. 
 
 § 803. Lands situated in another state. — The statutes 
 of New York, regulating the foreclosure of mortgages by- 
 advertisement, do not apply to mortgages on real estate 
 situated out of the state ;' consequently, the courts of New 
 York have no authority to enjoin a mortgagee of lands 
 which are in another state, from selling such lands at 
 public sale within the state, according to the terms of 
 the mortgage security, upon the mere allegation that such 
 power is void, particularly where no contrary statute of 
 the state or territory where the lands are situated is alleged, 
 and the invalidity of the power is not made apparent.' 
 
 Thus, where a mortgage, executed by a mining corpora- 
 tion upon lands in Colorado, authorized a sale, after a certain 
 specified notice, in the city of New York, the court held, in 
 an action to restrain a sale thus authorized, that, in the 
 absence of any statutory regulation, the parties had the 
 power to agree upon the manner of sale ; that the statute of 
 New York, in reference to the sale of mortgaged premises, 
 had reference only to real estate in that state ; and that 
 there was no ground for equitable relief, as there was no 
 proof that the sale, as provided for in the mortgage, was 
 in conflict with the laws of Colorado.* 
 
 § 804. Sale under loan commissioners* mortgage. — 
 
 As the power of loan officers to foreclose a loan commis- 
 sioners' mortgage is purely statutory, they must pursue the 
 directions of the statute strictly in foreclosing such mort- 
 gage. If, therefore, the advertisement of sale is defective 
 in describing the quantity and the situation of the premises, 
 the sale will be irregular and void, and the purchaser 
 under such sale will be decreed to surrender his title to the 
 owner of the equity of redemption;* because, where 
 
 831 (1876) ; Aldrich v. Reynolds, 1 Edwards v. Bodine, 11 Paige Ch. 
 
 Barb. Ch. (N. Y.) 613 (1846). (N. Y.) 223 (1844). 
 
 « Aldrich v. Reynolds, 1 Barb. > Elliott v. Wood,4.5N.Y. 71 (1871). 
 
 Ch. (N. Y.) 613 (1846). See Rose v. « Central Gold Mining Co. v. 
 
 Post, 56 N. Y. 603 (1874) ; Hovey v. Piatt, 3 Daly (N. Y.) 263 (1870). 
 
 Rubber Tip Pencil Co., 50 N. Y. » Carpenter v. Blackhawk Gold 
 
 335 (1872); Andrews v. Glenville Mining Co., 65 N. Y. 43 (1875). 
 
 Woolen Co., 50 N. Y. 282 (1872) ; * Sherwood v. Reade, 7 Hill (N.
 
 § 804.] 
 
 LOAN COMMISSIONERS FOEECLOSURE. 
 
 9or 
 
 premises are to be taken under statutory authority, in 
 derogation of the common law, every requisite of the 
 statute having the semblance of a benefit to the owner, 
 must be strictly complied with.* And every requirement of 
 the statute, affecting the substantial rights of a party, must 
 be complied with in order to divest the title to the property 
 and to transfer it from one party to another under the 
 statutory authority.* 
 
 It is a well settled rule that where particular forms of 
 procedure are required for the execution of a power, 
 however immaterial they may appear in themselves, they 
 are considered as conditions, the observance of which, is 
 indispensable.* But the validity of a sale to a bona fide 
 purchaser will not be affected by the neglect of the commis- 
 sioners to enter in their minute book the order for and a 
 copy of the notice of sale, and a statement of the places 
 where, and the persons by whom, advertisements were 
 posted.* 
 
 Y.) 431 (1844) ; Sherman v. Dodge, 
 6 Johns. Ch. (K Y.) 107 (1822); 
 Denning v. Smith, 3 Johns. Ch. (N. 
 Y.) 332 (1818) ; Rogers v. Murray, 3 
 Paige Ch. (N. Y.) 390 (1832). See 
 "Washington Cemetery v. Prospect 
 Park «& C. I. R. Co., 68 N. Y. 591 
 (1877) ; Rathbun v. Acker, 18 Barb. 
 (N. Y.) 393 (1854); Doughty v. Hope, 
 S Den. (N. Y.) 249 (1847); Gilbert v. 
 Columbia Turnpike Co., 3 Johns. 
 Cas. (N. Y.) 107 (1802). 
 
 ' Denning v. Smith, 3 Johns. Ch. 
 (N. Y.) 333 (1818). See Powell v. 
 Tuttle, 3 N. Y. 396, 402 (1850); 
 Corwin v. Merritt, 3 Barb. (N. Y.) 
 841 (1848) ; Jackson v. Shepard, 7 
 Cow. (N. Y.) 88 (1827) ; s. c. 17 Am. 
 Dec. 502 ; Sherwood v, Reade, 7 
 Hill (N. Y.) 431, 434 (1844) ; Sharp 
 V. Johnson, 4 Hill (N. Y.) 92, 99 
 (1843); B. C. 40 Am. Dec. 259; 
 Sharp V. Speir, 4 Hill (N. Y.) 
 76 (1843); Atkins v. Kinnan, 20 
 Wend. (N. Y.) 241 (1838) ; s. c. 33 
 
 Am. Dec. 534 ; Jackson v. Esty, 7 
 Wend. (N. Y.) 148 (1831); Hubley 
 V. Keyser, 2 Pen. & W. (Pa.) 501 
 (1831) ; Williams v. Peyton, 17 U. 
 S. (4 Wheat.) 77 (1819) ; bk. 4 L. 
 ed. 518. 
 
 » Hill V. Draper, 10 Barb. (N. Y.) 
 460 (1851); Denning v. Smith, 3 
 Johns. Ch. (N. Y.) 382 (1818); 
 Stead V. Course, 8 U. S. (4 Cr.) 403 
 (1808) ; bk. 2 L. ed. 660. 
 
 • Denning v. Smith, 3 Johns. Ch. 
 (N. Y.) 332 (1818). See Nixon v. 
 Hyserott, 5 Johns. (N. Y.) 58 (1809); 
 Wyman v. Campbell, 6 Port. (Ala.) 
 219 (1838); s. c. 31 Am. Dec. 
 677 692; Hunt v. Chamberlin, 8 
 N. J. L. (3 Halst.) 336 (1826); 
 Combe v. Brazier, 2 Desaus. (S. C.) 
 Eq. 431 (1806). 
 
 * White V. Lester, 1 Keyes (N. Y.) 
 316 (1804). See Puwcirv. Tuttle, 
 3 N. Y, 396 (1850).
 
 908 NOTICE OF commissioners' sale. [§§ 805-806. 
 
 § 805. Notice of sale by loan commissioners— Contents. 
 
 — Pursuant to the statute regulating sales under mortgages 
 executed to loan commissioners,* the notice or advertisement 
 of sale is required to contain a sufficient statement to indicate 
 who executed the mortgage and to whom it was given.' 
 
 Hence, a notice of sale, upon default of payment, which 
 does not name any of the mortgagors, and wherein the 
 mortgage is stated to have been given to the " Commissioners 
 of the United States Deposit Fund," it having been exe- 
 cuted in fact, to the "Commissioners for loaning certain 
 moneys of the United States," that being the designation 
 of the officers named by the statute, will be insufficient, and 
 a sale thereunder will be invalid.* Likewise, the omission 
 from the notice of the number of the lot or of the name of 
 the mortgagor will be fatal.* 
 
 § 806. Publishing notice of loan commissioners' sale. 
 
 — In New York it will be sufficient if the notice of sale is pub- 
 lished for six successive weeks, although the first publication 
 may be less than forty-two days prior to the sale.* Yet it has 
 been said that where the statute requires the notice to be 
 published " for," that is, " during " sixty days, one insertion 
 made sixty days before the sale will not satisfy the 
 language of the statute.* 
 
 Where a county has been divided, and lands mortgaged to 
 the loaning officers of the original county, fall within the 
 new county, such loaning officers, upon a foreclosure and sale 
 of the mortgaged premises, are bound to publish a copy 
 of their advertisement of the sale in a newspaper in the 
 new county.* 
 
 ' N. Y. Laws of 1837, chap. 150, * Denning v. Smith, 3 Johns. Ch. 
 
 §§ 30, 31. (N. Y.) 332 (1818). See Jackson v. 
 
 « Thompson v. Commissioners. 79 Harris, 3 Cow. (N. Y.) 249 (1824); 
 
 N. Y. 54 (1879); s. c. 31 Alb. L. J. 15. King v. Stow, 6 Johns. Ch. (N.. Y.) 
 
 'Thompson v. Commissioners, 323(1832). 
 
 79 N. Y. 54 (1879); s. c. 21 * Wood v. Terry, 4 Lans. (N. Y.) 
 
 Alb. L. J. 15 (1879). But a gen- 80 (1871). 
 
 cral description of the land in the * Denning v. Smith, 3 Johns, 
 
 notice was sufficient under the stat- Ch. (N. Y.) 332 (1818). 
 
 ute of 1808. Jackson v. Harris, 3 ' People v. Supervisors of Dela- 
 
 Cow. (N. Y.) 241 (1824). ware County, 5 Cow. (N. Y.) 436
 
 §§ 807-808.] LOAN COilMISSlOJ^ERs' SALE. D09 
 
 § 807. Posting notice of loan commissioners* sale — 
 Terms. — The notice of such sale should be posted in three 
 public places for the same length of time that it is 
 advertised in a newspaper of the county. It has been 
 held that posting the notice in unfrequented places, or on 
 the inside of the court house door, will render the sale 
 invalid.' 
 
 The commissioners have no right to sell the premises 
 on credit, or to prescribe any terms of sale except such as 
 are authorized by the statute ; consequently, they can not 
 make it one of the terms of the sale that the purchaser shall 
 pay down only a part instead of the whole of the purchase 
 price, and that in default of the payment of the balance 
 there shall be a resale.' 
 
 If the mortgagor purchases the premises and gives a new 
 mortgage, it will be a purchase money mortgage. On a 
 subsequent default and foreclosure, the commissioners will 
 hold as against a party who has acquired title under a judg- 
 ment docketed prior to the new mortgage.* 
 
 § 808. Validity of loan commissioners' sale. — A sale of 
 mortgaged lands made by only one of the commissioners, will 
 be void ;* both commissioners must be present at, and take 
 part in, the sale; the execution of the deed by both com- 
 missioners will not aid such a sale. Neither can one 
 commissioner give a valid notice of the sale.' But when 
 both commissioners are present and unite in making a sale, 
 the fact that the entry in their minute book, purporting to be 
 the entry of both, was made and signed by only one, will 
 
 (1826) ; Rogers v. Murray, 8 Paige (N. Y.) 832 (1818) ; followed in 
 
 Ch (N. Y.) 390 (1832). Powell v. Tutlle, 3 N. Y. 404 (18.j0). 
 
 ' Denning v. Smith, 3 Johns. Ch. Sales by one commissioner, prior to 
 
 (N. Y.) 332 (1818). See also King 1867, were contirmcd by cliap. 704, 
 
 V. Stow, 6 Johns. Ch. (N. Y.) 323 Laws of 1807. 
 
 (1822). * Olmsted v. Elder, 5 N. Y. 144 
 
 « Sherwood v. Reade, 7 Hill (N. (1851) ; Powell v. Tuttle, 8 N. Y. 
 
 Y.) 431 (1844). 396 (1850) ; New York Life Ins. & 
 
 * Commi-ssioners V. Chase, 6 Barb. T. Co. v. Staats, 21 Barb. (N. Y.) 
 (N. Y.) 37 (1849). 570(1851). 
 
 * Denning v. Smith, 3 Johns. Ch.
 
 910 LOAN commissioners' sale. [§§ 809-810. 
 
 not be a fatal irregularity.' The statute as to the entry of 
 proceedings in the mortgage book, is directory only.' 
 
 A court of equity can not set aside a public sale made by 
 an officer who is not acting under its direction because of 
 the inadequacy of the sum paid by the purchaser, however 
 gross it may be.* 
 
 § 809. Purchaser presumed to know authority of loan 
 commissioners. — The purchaser at a loan commissioners' 
 sale is presumed to know the authority of such officers, 
 their authority being a matter of law and of public record ;* 
 if he purchases at a sale, in which the special authority con- 
 ferred by statute is not pursued, he will purchase at his 
 peril.* This rule is founded on the well known principle, 
 that if the agency is known and limited, it is the duty of 
 every party who deals with the agent to inquire into the 
 nature and extent of the authority conferred by the principal, 
 and to deal with the agent accordingly.* 
 
 Where a sale by loan commissioners is illegal and void, 
 the mortgagor may bring an action against the purchaser for 
 redemption, and for the value of the rents and profits of the 
 premises. In such a case, an omission to make a tender will 
 not be fatal to the action, but at most will only affect the 
 question of costs.' 
 
 § 810. Conduct of sale — Deed of loan commissioners. 
 — The conduct of the sale, and the method of conveyancing by 
 loan commissioners in New York, are defined in the case of 
 
 ' White V. Lester, 1 Keyes(N.Y.) (1818); Delafield v. Illinois, 26 
 
 816(1864). Wend. (N. Y.) 222 (1841). 
 
 » Wood V. Terry, 4 Lans. (N. T.) • See Snow v. Perry, 26 Mass. (9 
 
 80(1871). Pick.) 542 (1830); Niles v. Rans- 
 
 3 March V. Ludlum, 8 Sandf . Ch. ford, 1 Mich. 341 (1849); s. c. 
 
 (N. Y.) 35 (1845). 51 Am. Dec. 97 ; State v. Bank of 
 
 * Dart V. Hercules, 57 HI, 449 Missouri, 45 Mo. 588 (1870) ; Towle 
 
 (1870).- See Denning v. Smith, 3 v. Leavitt, 23 N. H. 360 (1851) ; s. 
 
 Johns. Ch. (N. Y.) 332 (1818) ; Mar- c. 55 Am. Dec. 195, 201 ; Hatch v. 
 
 shall County v. Cook, 38 111. 44 Taylor, 10 N. H. 547 (1840) ; Schim- 
 
 (1865). melpennich v. Bayard, 26 U. S. (1 
 
 " Sherman v. Dodge, 6 Johns. Pet.) 264, 290 (1828) ; bk. 7 L. ed. 
 
 Ch. (N. Y.) 107 (1822) ; Denning v. 138. 
 Smith, 3 Johns. Ch. (N. Y.) 333 "> Thompson v. Commissioners, 79
 
 §811.] EFFECT OF STATUTORY FOEECLOSUEE. 911 
 
 York V. Allen.' Loan commissioners have no right to enter 
 into possession of the premises, until after a failure to obtain 
 a bid for the amount due on the mortgage, or the refusal 
 of the purchaser to pay the amount of such bid. 
 
 Prior to the revised statutes, a deed from loan officers, in 
 pursuance of a sale under a loan commissioners' mortgage, 
 was conclusive on showing a default in payment by the 
 mortgagor, although the mortgaged premises might never 
 have been duly, advertised for sale; but since the adoption 
 of the revised statutes, it seems that the purchaser is bound 
 to show the regularity of the sale.' The requirement of 
 two witnesses to a deed is only directory.* 
 
 § Si I. Effect of sale by advertisement. — The Code* 
 provides, that " a sale, made and conducted as prescribed by 
 the statute, to a purchaser in good faith, is equivalent to a 
 sale, pursuant to judgment in an action to foreclose the 
 mortgage, so far only as to be an entire bar of all claim or 
 equity of redemption, upon, or with respect to, the property 
 sold, of each of the following persons: (i) the mortgagor, 
 his heir, devisee, executor or administrator; (2) each person, 
 claiming under any of them, by virtue of a title or of a hen 
 by judgment or decree, subsequent to the mortgage, upon 
 whom the notice of sale was served, as prescribed by the 
 statute ;* (3) each person so claiming, whose assignment, 
 mortgage, or other conveyance was not duly recorded in the 
 
 N. Y. 54 (1879), reversing 16 Hun house, 51 N. Y. 503 (1873). In an 
 
 (N. Y.) 86 ; B. c. 21 Alb. L. J. 15. early case, it appeared that a party, 
 
 ' 80 N. Y. 104 (1864). having a judgment subsequent to a 
 
 •Brown v. Wilbur, 8 "Wend. (N. mortgage, sold the premises \inder 
 
 T.) 657 (1832). See Rogers v. Mur- it, and acquired a right to a deed 
 
 ray, 3 Paige Ch. (N. Y.) 390 (1832). prior to the sale under the mortgage, 
 
 ' Commissioners v. Chase, 6 Barb. though he did not receive his deed 
 
 (N. Y.) 37 (1849). until after the sale ; it was held that 
 
 * N. Y. Code Civ. Proc. § 2395. the deed took effect from the time 
 
 • A judgment which is docketed when it might have been demanded, 
 after the first publication of the and that the judgment creditor's title 
 notice, and before the sale, will not was cut off by the statutory fore- 
 be barred by the foreclosure, if the closure. Klock v. Cronkhite, 1 HiU 
 creditor is not served with the notice, (N. Y.) 107 (1841), and see Post v. 
 and the holder thereof may redeem Arnot, 2 Den. (N. Y.) 344 (1845). 
 from the mortgage. Groff v. More-
 
 913 EFFECT OF STATUTORY FOKECLOSUllE. [§812. 
 
 proper book for recording the same in the county, or whose 
 judgment or decree was not duly docketed in tht county 
 clerk's office, at the time of the first pubHcation of the 
 notice of sale; and the executor, administrator, or assignee 
 of such a person ; (4) every other person, claiming under a 
 statutory lien or incumbrance, created subsequent to the 
 mortgage, attaching to the title or interest of any person, 
 designated in either of tUe foregoing subdivisions ; (5) the 
 wife or widow of the mortgagor, or of a subsequent grantee, 
 upon whom notice of the sale was served as prescribed by 
 statute, where the lien of the mortgage was superior to her 
 contingent or vested right of dower, or her estate in dower.'" 
 
 § 812. Sale firm and binding on all parties. — The title 
 of a purchaser in good faith at such a sale, is the same as 
 the title acquired by a purchaser at a sale made under a 
 decree of foreclosure in an equitable action." Where such 
 a sale is made strictly as prescribed by statute, all questions 
 which would have been determinable in an equitable action 
 to foreclose a mortgage, will be settled by such sale.' 
 
 As the statute has no saving clause for such persons as may 
 be under a disability at the time, it is believed that the courts 
 can make no exceptions in their favor on the ground of 
 any inherent equity applicable to the case. Thus, infants 
 not being excepted from the operation of the statute, the 
 courts can make no exception in their favor, and their equity 
 of redemption will be effectually and absolutely barred by a 
 regular sale under the power.* 
 
 • N. Y. Code Civ. Proc. § 2395. Ch. (N. Y.) 45, 50 (1823) ; s. c. 11 
 
 Foreclosure by advertisement under Am. Dec. 389 ; Slee v. Manhattan 
 
 a power of sale contained in a pur- Ins. Co., 1 Paige Cli. (N. Y.) 48, 69 
 
 chase money mortgage, not executed (1828) ; Otis v. McMillan, 70 Ala. 46 
 
 by the mortgagor's wife, will bar her (1881). 
 
 right of dower. Brackett v. Baum, * Warner v. Blakeman, 30 Barb. 
 
 50 N. Y. 8 (1872). Compart N. Y. (N. Y.) 501 (1862); aflf'd 4 Keycs 
 
 Code Civ. Proc. §§ 2388, 2395. (N. Y.) 487 ; s. c. 4 Abb. App. 
 
 » N. Y. Code Civ. Proc. § 2395. Dec. 530. 
 
 See Decker v. Boice, 19 Huu (N. Y.) * Demarest v. "Wynkoop, 3 Johns. 
 
 153(1879) ; aff'd 83 K Y. 215 ; Jack- Ch. (N. Y.) 129, 143 (1817) ; a. c. 8 
 
 son V. Henry, 10 Johns. (N. Y.) 185 Am. Dec. 407, 473. 
 (Ibl3) ; DoolitUe v. Lewis, 7 Johns.
 
 § 813.] EFFECT OF SALE ON OSnTTED PAETIES. 913 
 
 The theory of the statute is that all foreclosures should 
 be final, where they are free from fraud and gross irregularity.' 
 But the requirements of the statute must be strictly com- 
 plied with, in order to cut off the rights of the mortgagor 
 and of subsequent grantees or incumbrancers ; the object 
 of the statute being to relieve interested parties from the 
 expenses of an action, and to enable persons, not learned in 
 the law, to conduct foreclosure proceedings, it follows that the 
 construction placed upon the statute should be liberal and 
 not technical.' 
 
 § 813. Effect of sale on omitted parties— Rights of 
 tenants. — The claim of a party who was not duly served 
 with notice in the proceedings, will not be barred, even 
 though he had actual knowledge of the sale. Where, how- 
 ever, the value of the mortgaged premises is less than the 
 amount of the mortgage debt, with the other liens prior 
 to the lien which was not barred, such lien will be of no 
 value, and a purchaser in good faith may maintain an action 
 to enjoin the lienor from enforcing his claim.' 
 
 The rights of a tenant holding under the mortgagor, 
 where the demise was made subsequent to the mortgage, will 
 be extinguished by the sale ;* and the mortgagee, on acquir- 
 ing possession of the premises, will be entitled to the crops 
 sown by the lessee and growing on the land at the time of 
 the sale.* The same rule is true as to fixtures.* 
 
 • Wilson V. Troup, 2 Cow. (N.Y.) 5 Lans. (N. Y.) 51 (1871) ; Vroomv. 
 195 (1823) ; s. c. 14 Am. Dec. 4.58 ; Ditmas, 4 Paige Ch. (N. Y.) 526 
 Jackson v. Henry, 10 Johns. (N.Y.) (1834). 
 
 195 (1813); Doolittle v. Lewis, 7 « Root v. Wheeler, 12 Abb.(N.Y.) 
 
 Johns. Ch. (N. Y.) 50 (1823) ; s. c. Pr. 294 (1861). 
 
 11 Am. Dec. 389 ; Vroom v. Ditmas, * Simers v. Saltus, 3 Den. (N. Y.) 
 
 4 Paige Ch. (N. Y.) 531 (1834) ; Slee 214 (1846). 
 
 V. Manhattan Ins. Co., 1 Paige Ch. * Gillett v. Balcora, 6 Barb. (N.Y.) 
 
 (N. Y.) 70 (1828). The validity of a 370 (1849) ; Aldrich v. Reynolds, 1 
 
 foreclosure by advertisement cannot Barb. Ch. (N. Y.) 613 (1846) ; Shep- 
 
 be passed upon in an action to which hard v. Philbrick, 2 Den. (N. Y.) 
 
 the purchaser is not a party. Can- 176 (1846) ; Lane v. King, 8 Wend. 
 
 dee V. Burke, 1 Hun (N. Y.) 546 (N. Y.) 584 (1832). See Gardner v. 
 
 (1874) ; 8. c. 4 T. & C. (N. Y.) 143. Finley, 19 Barb. (N. Y.) 317 (1855). 
 
 * Jackson v. Henry, 10 Johns. See ante § 157. 
 
 (N.Y.) 195 (1813); HubbeU v. Sibley, « See ante §§ 426-428, 584r-587. 
 
 (58)
 
 914 puechaser's TITLE. [§§814-815. 
 
 § 814. Purchaser's title— What passes by sale.— The 
 effect of every statutory foreclosure is to transfer to the 
 purchaser the rights of the mortgagee and of the mort- 
 gagor.' The regularity of the sale, however, constitutes the 
 very foundation of the purchaser's title; if it is irregular, 
 he will acquire no rights by his purchase.' If there are 
 judgments subsequent to the mortgage, which continue a 
 lien on the premises at the time of the sale, the purchaser 
 will take the legal and equitable interest in the property as 
 against the mortgagor and all persons claiming through and 
 under him, subject to the equitable right of such lienors to 
 redeem.* 
 
 Where the mortgagee becomes the purchaser, the whole 
 mortgage debt will be extinguished ; but, if a third person 
 purchases, the mortgagor, if compelled to pay the residue of 
 the mortgage, will be entitled to an assignment thereof, 
 so as to re-imburse himself from the land.* 
 
 § 815. Defective foreclosure. — Where a foreclosure is 
 regularly conducted in all respects, except an omission to 
 serve some one party with a notice of the sale, it will be 
 valid as to all persons who were served. The persons who 
 were properly served will be barred of their right of redemp- 
 tion, but the right of redemption will still remain in the 
 party who, being entitled to notice, was not served with it.* 
 
 Thus, an omission to make the wife of the mortgagor a 
 party, she having joined in the mortgage, merely leaves her 
 the right of redemption, but it does not render the fore- 
 closure invalid as to the other parties properly served.* It 
 
 ' Vroom V. Ditmas, 4 Paige Ch. « Benedict v. Gilman, 4 Paige Ch. 
 
 (N. Y.) 536 (1834). Where the only (N. Y.) 58 (1833). See Robinson v. 
 
 deed to the purchaser produced, was Ryan, 25 N. Y. 320 (1862). 
 
 one executed nineteen years after * Cox v. Wheeler, 7 Paige Ch. (N. 
 
 the sale, it was held that as there Y.) 248 (1838). 
 
 were no intervening rights, it might * Groff v. Morehouse, 51 N. Y. 
 
 be treated a* good by relation back, 503 (1873) ; Wetmore v. Roberts. 10 
 
 especially in a court of equity. De- How. (N. Y.) Pr. 51 (1853) ; Vander- 
 
 marestv.Wynkoop, 3Johns. Ch. (N. kemp v. Shelton, 11 Paige Ch. (N. 
 
 Y.) 129 (1817) ; 8. c. 8 Am. Dec. 467. Y.) 28 (1844). 
 
 • See Jackson v. Clark, 7 Johns. « Candee v. Burke, 1 Hun (N. Y.) 
 
 (N. Y.) 217 (1810). 546 (1874).
 
 § 816.] AFFIDAVITS OF THE PEOCEEDmOS. 915 
 
 seems, however, that the purchaser at such a sale, on 
 obtaining possession of the premises, is entitled to retain it 
 until the amount due on the mortgage is paid to him.' 
 
 Where subsequent incumbrancers were not properly cut 
 off by the proceedings under the statute, a strict foreclosure 
 was formerly held to be the proper remedy to extinguish 
 such rights.' 
 
 If a statutory foreclosure is set aside for any reason, 
 proceedings for the foreclosure of the mortgage may be 
 comrnenced de novo. This is also true if an attempted fore- 
 closure fails for any cause whatever; the mortgage does not 
 become null and void by such failure, but stands restored 
 and as though no proceedings had ever been taken upon it.' 
 
 § 8i6. Affidavits of the proceedings. — The New York 
 Code of Civil Procedure* provides, that " an affidavit of the 
 sale, stating the time when, and the place where, the sale 
 was made ; the sum bid for each distinct parcel, separately 
 sold; and the name of the purchaser of each distinct parcel, 
 may be made by the person who officiated as auctioneer 
 upon the sale. An affidavit of the publication of the notice 
 of the sale, and of the notice or notices of postponement, if 
 any, may be made by the publisher^ or printer of the news- 
 paper in which they were published, or by his foreman, 
 or principal clerk. An affidavit of the affixing of a copy of 
 the notice, at or near the entrance of the proper court 
 house, may be made by the person who so affixed it, or by 
 any person who saw it so affixed, at least eighty-four 
 days before the day of sale.' An affidavit of the affixing of 
 a copy of the notice in the book, kept by the county clerk, 
 may be made by the county clerk, or by any person who 
 saw it so affixed, at least eighty-four days before the day of 
 
 * Brown v. Smith, 116 Mass. 108 may make the affidavit of publica- 
 (1874). tion, required by law to be made by 
 
 ' Benedict v. GUman, 4 Paige the printer, or his foreman, or prin- 
 
 Ch. (N. Y.) 58, 63 (1833). cipal clerk. Bunce v. Reed, 16 
 
 « Stackpole v. Bobbins. 48 N. Y. Barb. (N.Y.) 347 (1853). 
 
 665(1871). ^Hornby v, Cramer, 12 How. 
 
 * K Y. Code Civ. Proc. § 2396. (N. Y.) Pr. 490 (1855). 
 
 * The publisher of the newspaper
 
 916 WHAT AFFIDAVITS SUFFICIENT. L^^^'^* 
 
 sale. An affidavit of the service of a copy of the notice upon 
 the mortgagor, or upon any other person, upon whom the 
 notice must or may be served, may be made by the person 
 who made the service. Where two or more distinct parcels 
 are sold to difTerent purchasers, separate affidavits may 
 be made with respect to each parcel, or one set of affidavits 
 may be made for all the parcels.'" 
 
 The Code also provides," that " the matters required io be 
 contained in any or all of the affidavits above specified, may 
 be contained in one affidavit, where the same person deposes 
 with respect to them. A printed copy of the notice of 
 sale must be annexed to each affidavit ; and a printed copy 
 of each notice of postponement must be annexed to the 
 affidavit of publication, and to the affidavit of sale. But 
 one copy of the notice suffices for two or more affidavits, 
 where they all refer to it, and are annexed to each other, 
 and filed and recorded together.'" 
 
 § 817. Sufificiency of the affidavits. — It has been held, 
 that a sale made under a foreclosure by advertisement, pursu- 
 ant to the statute, will bar the equity of redemption, 
 although the usual affidavits may not be made.* The earlier 
 cases held, that every requirement of the statute must be 
 strictly complied with; and that if the premises are purchased 
 by the mortgagee, the foreclosure will not be complete with- 
 out the affidavits which stand in the place of the deed.' 
 But it is said in the case of Mowry v. Sanborn,' that the 
 
 'N. Y. Code Civ. Proc. §2396. 29 Barb. (K Y.) 297 (1859); 
 
 See Mowry v. Sanborn, 73 N. Y. Osborn v. Merwin, 12 Hun (K Y.) 
 
 534 (1878) ; s. c. 68 N. Y. 153 ; 65 332 (1877), revs'g 50 How. (N. Y.) 
 
 3S\ Y. 581 ; Hubbell v. Sibley, 50 Pr. 183 (1875). See K Y. Code 
 
 N. Y. 468 (1872) ; Bryan v. Butts, Civ. Proc. § 2400. 
 
 27 Barb. (N. Y.) 503(1857) ; Hornby ' Bryan v. Butts, 27 Barb. (N.Y.) 
 
 V. Cramer, 12 How. (N. Y.) Pr. 490 503 (1859) ; Layman v. Whiting, 20 
 
 (1855). Barb. (N. Y.) 559 (1855) ; Cohoes 
 
 « N. Y. Code Civ. Proc. § 2397. Co. v. Gross, 13 Barb. (N. Y.) 138 
 
 » Mowry v. Sanborn, 72 N. Y. (1852) ; Arnot v. McClure, 4 Den. 
 
 534(1878). (N. Y.) 41 (1847). 
 
 * See Mowry v. Sanborn. 68 K Y. « 72 N. Y. 534 (1878), revs'g 11 
 
 153(1877); Tuthill v. Tracy, 31 N. Hun (N. Y) 545. 
 Y. 157 (1865); Howard v. Hatch,
 
 §818.] CONTENTS OF AFFIDAVITS. 917 
 
 Statutory proofs of foreclosure and sale are to be liberally 
 construed, and are only required to be certain to a common 
 intent ; and that if they are so, though technically defective, 
 they will be sufficient. 
 
 If no affidavits are made, and a person other than the mort- 
 gagee becomes the purchaser, common-law proof may be 
 made of the publication of the notice.* Where the affidavits 
 of publication and sale operate as a conveyance, they can not 
 be controverted by the purchaser and those claiming under 
 him ;* but such affidavits are not conclusive as to the facts 
 therein stated, when the premises are purchased by the 
 owner of the mortgage. Where the terms of the sale are 
 not stated in the affidavits, oral evidence will be admissible 
 to prove them.* 
 
 § 8i8. Contents of affidavits, — The affidavits should 
 show that the proceedings were conducted according to the 
 statute in force when the default occurred ;* they must 
 be full enough in details to show that the statute was 
 complied with, because a foreclosure by advertisement is 
 technical and not a proceeding in which a court of equity 
 can remedy defects.' An affidavit which simply states, 
 that publication of the notice of sale was had " in each 
 week," instead of " in each and every week,"* or that 
 the notice of sale was affixed to the door of the court 
 house in said county, " the place where the courts are 
 directed to be held,'" or that the notice Avas affixed twelve 
 weeks before the sale, without showing that the party 
 making the affidavit afterwards saw it there, is sufficient.* 
 
 But it is not enough to state, that the notice was posted 
 " in a proper manner," or served on '* certain persons named 
 
 > Brewster v. Power, 10 Paige Ch. * James v, Stull, 9 Barb. (N. Y.) 
 
 (N. Y.) 562 (1844). See also Chal- 482 (1850). 
 
 mers v. Wright, 5 Robt. (N. Y.) 713 ' Dwight v. PhiUips, 48 Barb. (N. 
 
 (1866). Y.) 116 (1865). 
 
 • Layman v. Whiting, 20 Barb. (N. « Howard v. Hatch, 29 Barb. (N. 
 
 T.) 559 (1855) ; Amot v. McClure, Y.) 297 (1859). 
 
 A Den. (N. Y.) 41 (1847). ■" Bunce v. Pveed, 16 Barb. (N. Y.) 
 
 « Story V. Hamilton, 86 N. Y. 428 347 (1853). 
 
 (1881) ; Mowry v. Sanborn, 72 N. » Hornby v. Cramer, 12 How. (N 
 
 Y. 634 (1878) ; 8. c. 68 N. Y. 153. Y.) Pr. 490 (1855).
 
 918 CONTENTS OF AFFIDAVITS. [§ 819. 
 
 therein," or that it "was properly folded and directed," and 
 that a "proper postage-stamp was placed on each of said 
 letters," without stating the mode of folding and directing, 
 and the place of residence of the persons for whom the 
 notice was intended.' The affidavits must show that 
 the places to which the notices were mailed to the parties, 
 were the residences of such parties,* because the fact of 
 residence is important, and should be stated positively and 
 with accuracy ;^ but it seems that a foreclosure by advertise- 
 ment and sale will not be void, because the affidavit of service 
 of the notice on the mortgagors by mail, was on information 
 and belief only, as to their place of residence, where it is not 
 shown that the mortgagors failed to receive such notices, 
 or that they did not reside at the place mentioned in the 
 affidavit, at the time the notices were mailed to them.* 
 
 In New York, since the amendment of 1844, requiring 
 .service of the notice, as well as the publication and posting 
 thereof, the affidavit must state that such service was 
 made.* A statement in the affidavit that service was made 
 upon a person, naming him as " administrator," has been 
 held sufficient, and it has been held further, that the object 
 of the statute was thereby fully complied with.' 
 
 § 819. Amending affidavits. — If the affidavits are defec- 
 tive, it seems that amended affidavits may be filed according 
 to the facts; as against the mortgagor, at least, they may be 
 filed at any time.' But in an action for ejectment, brought 
 against the purchaser at a sale, it was held that the court 
 had no power to allow the purchaser to amend the affida- 
 vits so as to state the facts omitted. Statutory proceedings 
 
 ' Chalmers v. Wright, 5 Robt. * George v. Arthur, 2 Hun (N. 
 
 (N. Y.j 713 (18C6). Y.) 406 (1874) ; s. c. 4 T. & C. (N. 
 
 « Dwight V. Phillips, 48 Barb. (N. Y.) 6:]5. 
 
 Y.) 116 (1865). T Bunce v. Reed, 16 Barb. (N. Y.) 
 
 'Mowry v. Sanborn, 7 Hun (N. 347(1853). See Story v. Hamilton, 
 
 Y.) 380 (1876) ; s. c. 62 Barb. (N.Y.) 86 N. Y. 428 (1881) ; Mowry v. San- 
 
 223. born, 72 N. Y. 534 (1878). But a 
 
 * Mowry v. Sanborn, 62 Barb. (N. different rule seems to be held in 
 Y.) 223 (1872). Dwight v. Phillips, 48 Barb. (N. Y.) 
 
 * Layman v. Whiting, 20 Barb. 116 (1865). 
 (N. Y.) 559 (1855).
 
 §§820-821.] EEOOEDma AFTTDAVITS. 919 
 
 to foreclose a mortgage are not proceedings in a court, such 
 as to authorize the court to supply omissions, or to remedy 
 defects in the affidavits.' 
 
 § 820. Recording affidavits. — The Code provides,' that 
 the affidavits required to be made " may be filed in the 
 office for recording deeds and mortgages, in the county 
 where the sale took place. They must be recorded at length 
 by the officer with whom they are filed, in the proper book 
 for recording mortgages. The original affidavits, so filed, 
 the record thereof, and a certified copy of the record, are 
 presumptive evidence of the matters of fact therein stated, 
 with respect to any property sold, which is situated in that 
 county. Where the property sold is situated in two or more 
 counties, a copy of the affidavits, certified by the officer 
 with whom the originals are filed, may be filed and recorded 
 in each other county, wherein any of the property is situated. 
 Thereupon the copy and the record thereof have the like 
 effect, with respect to the property in that county, as if the 
 originals were duly filed and recorded therein." 
 
 The Code also provides,' that " a clerk or a register, who 
 records any affidavits, or a certified copy thereof, filed with 
 him, must make a note upon the margin of the record of the 
 mortgage, in his office, referring to the book and page, or 
 the copy thereof, where the affidavits are recorded." 
 
 §821. Necessity of recording affidavits. — An affidavit 
 of the service of the notice of sale upon the parties entitled 
 thereto, is a necessary part of the record ; without it, the 
 record will be fatally defective.* In a foreclosure by advertise- 
 ment the legal title to the premises is transferred by recording 
 
 ' Dwight V. Phillips, 48 Barb. (N. held in some cases, however, that 
 
 T.) 116 (1865). the recording of the affidavits of 
 
 * N. Y. Code Civ. Proc. § 2398. publication and posting is not neces- 
 » N. Y. Code Civ. Proc. § 2399. sary to perfect the title. See Mowry 
 
 * Mowry v. Sanborn, 65 N. Y. 581 v. Sanborn, 68 N. Y. 153, 164 
 (1875), reversing 62 Barb. (N. Y.) (1877) ; Howard v. Hatch, 29 Barb. 
 223. For further decisions, see 68 (N. Y.) 297 (1859) ; Osborn v. Mer- 
 N. Y. 153 (1877), reversing 7 Hun win, 12 Hun (N. Y.) 382 (1877); 
 (N. Y.) 380, and 72 N. Y. 534 (1878), Frink v. Thompson, 4 Lans. (N. Y.) 
 reversing 11 Hun (N. Y.) 545. It is 489 (1869).
 
 920 CONTRADICTING AFFIDAVITS. [§823. 
 
 the affidavits; a plaintiff in ejectment, claiming under a 
 statutory foreclosure, can not support his action by procur- 
 ing the necessary affidavits in the foreclosure, to be made 
 subsequently to the commencement of the action in eject- 
 ment.' 
 
 The filing and recording of the affidavits is not necessary, 
 however, as against the mortgagor's equity of redemption, 
 which is effectually barred and foreclosed by the sale, not- 
 withstanding the fact that the affidavit of the publication of 
 the notice of sale, and of the posting thereof, may not have 
 been made and recorded as required by statute, until fifteen 
 years thereafter, and after an action to redeem was brought. 
 Neither will the equitable title of the purchaser be defeated 
 by a claim to redeem." 
 
 § 822. Contradicting affidavits. — The affidavits required 
 to be filed in a foreclosure by advertisement, may be contro- 
 verted by the mortgagor, or by any person claiming under 
 him ; and any of the facts stated therein may be disproved 
 by any person except the mortgagee and those claiming 
 under him.^ 
 
 Such affidavits, being made ex parte, are only prima 
 facie evidence of the facts stated therein ;* they are merely 
 evidence of the exercise of the power of sale as prescribed 
 by statute for the benefit of the purchaser, and he may 
 show facts necessary to correct any errors therein.* But the 
 mortgagee and those claiming under him in an action to 
 recover possession of the premises, must stand on the 
 affidavits, as they existed at the time of the action." 
 
 » Tuthlll V. Tracy, 31 N. Y. 157 Hun (N. Y.) 380. See Arnot v. Mc- 
 
 (1865) ; Bryan v. Butts, 27 Barb. Clure, 4 Den. (N. Y.) 41 (1847). 
 
 (N. Y.) 503 (1857) ; Layman v. ^ gtory v. Hamilton, 86 N. Y. 428 
 
 Whiting, 20 Barb. (N. Y.) 559 (1881), affg 20 Hun (N. Y.) 133. 
 
 (1855) ; Cohoes Co. v. Goss, 13 ^ Story v. Hamilton, 86 N. Y. 428 
 
 Barb. (N. Y.) 137 (1852) ; Arnot v. (1881). 
 
 McClure, 4 Den. (N. Y.) 41 (1847). « Dwight v. Phillips, 48 Barb. (N. 
 
 « Tuthill V. Tracy, 31 N. Y. 157 Y.) 116 (1865) ; Mowry v. Sanborn, 7 
 
 (1865). Hun (N.Y.) 380 (1876). But see Bryan 
 
 » Sherman v. Willett, 42 N. Y. v. Butts, 27 Barb. (N. Y.) 503 (1857). 
 
 146 (1870); Mowry v. Sanborn, It is thought by some that, inasmuch 
 
 62 Barb. (N. Y.) 223 (1872) ; s. c. 7 as the affidavits may be made at any
 
 §§ 823-824.] EFFECT OF AFFTDAYITS. 921 
 
 § 823. Effect of affidavits. — The affidavits required in a 
 foreclosure by advertisement are simply evidence of the 
 completion of the proceedings, and are for the benefit of 
 the purchaser at the sale, and may be made at any time 
 after the sale has been completed.* The mortgagor has a 
 right to retain possession of the mortgaged premises under 
 foreclosure by advertisement, however, until the foreclosure 
 is perfected by the making and filing of the affidavits,' just 
 as under a judgment of foreclosure in an equitable action 
 he is entitled to retain possession until the execution and 
 delivery of the deed by the officer making the sale.* 
 
 The affidavits requiied by the statute are instruments of 
 conveyance as well as evidence authorizing a conveyance, 
 and the title does not pass until they are completed and 
 filed.* But the more recent cases hold, that the recording 
 of such affidavits is not necessary to pass the title to the 
 purchaser, because the statute does not make recording 
 essential, and it seems that the affidavits themselves are 
 made by the statute as good evidence of the facts as the 
 record itself.* 
 
 § 824. A deed not necessary. — Under the New York 
 Code of Civil Procedure,* *' the purchaser of the mortgaged 
 
 time after the sale, there is no rea- Barb. (N. Y.) 559 (1855) ; Arnot v. 
 
 son -why they may not be corrected McClure, 4 Den. (N. Y.) 41 (1847). 
 
 at anytime, if such corrections, when See Tuthill v. Tracy, 31 N. Y. 157 
 
 made prior to the commencement of (1865) ; Howard v. Hatch, 29 Barb, 
 
 an action to redeem, are material to (N. Y.) 297 (1859). 
 
 their maintenance, or that such * Mitchell v, Bartlett, 51 N. Y, 
 
 affidavits may be made even after 447 (1873). See ante % 588. 
 
 the commencement of such an * Bryan v. Butts, 27 Barb. (IT. 
 
 action. Bunce v. Keed, 16 Barb. (N. Y.) 503 (1857) ; Layman v. Whiting, 
 
 Y.) 347 (1853). See Story v. Hamil- 20 Barb. (N. Y.) 559 (1855) ; Arnot 
 
 ton, 86 N. Y. 428 (1881) ; Mowry v. McClure, 4 Den. (N. Y.) 41 
 
 V. Sanborn, 68 K Y. 153 (1877). (1847), 
 
 ' Tuthill V. Tracy, 31 N. Y. 157 » Mowry v. Sanborn, 68 N. 
 
 (1865). See Osborn v. Merwin, 12 Y. 153, 164 (1877) ; Howard v. 
 
 Hun (N. Y.) 332 (1877) ; Hawley v. Hatch, 29 Barb. (N. Y.) 297 (1859) ; 
 
 Bennett, 5 Paige Ch. (N. Y.) 104 Osborn v. Merwin, 12 Hun (N. Y.) 
 
 0835). 332 (1877) ; Frink v. Thompson, 4 
 
 ' Bryan v. Butts, 27 Barb. (N. Y.) Lans. (N. Y.) 489 (1869). 
 
 603 (1857) ; Layman v. Whiting, 20 « N. Y. Code Civ. Proc. § 2400.
 
 923 A DEED NOT NECESSARY. [§ 825. 
 
 premises, upon a sale conducted as prescribed by this statute, 
 obtains title thereto, against all persons bound by the sale, 
 without the execution of a conveyance. Except where he is 
 the person authorized to execute the power of sale, such a 
 purchaser also obtains title, in like manner, upon payment 
 of the purchase money, and compliance with the other 
 terms of sale, if any, without the filing and recording of 
 the affidavits, as prescribed by this statute. But he is not 
 bound to pay the purchase money, until the affidavits of 
 foreclosure, with respect to the property purchased by him, 
 are filed, or delivered, or tendered to him for filing." 
 
 § 825. Obtaining possession by purchaser— Summary 
 proceedings. — The Code provides,' that where property 
 has been duly sold upon the foreclosure, by the proceedings 
 above prescribed, of a mortgage executed by the party in 
 possession, or by a person under whom he claims, and the 
 title has been duly perfected, that notice to quit the same 
 may be given, and he may be removed therefrom in the 
 manner prescribed by statute for summary ejectment. In 
 such a proceeding, it is thought to be sufficient to produce 
 before the court the record of the proceedings on fore- 
 closure.* 
 
 If the proceedings in the foreclosure were regular, the 
 validity of the mortgage, or the motives of the applicant, can 
 not be inquired into in summary proceedings ; but it is the 
 duty of the court to examine the evidence of the foreclosure 
 and to ascertain whether the papers upon their face confer 
 a right to the possession of the property.* 
 
 • New York Code Civ. Procedure, (1875) ; Brown v. Belts, 13 Wend. 
 
 § 2232, (N. Y.) 32 (1834). 
 
 ' People ex rel. Bridenbecker v, * Getting v. Molir, 34 Ilun (N. Y.) 
 
 Prescott, 3 Hun (N. Y.) 419, 424 340 (1884).
 
 CHAPTER XXXV. 
 
 STRICT FORECLOSURE. 
 
 § 836. Nature of the remedy. 
 
 827. Effect of a strict foreclosure. 
 
 828. A severe remedy. 
 
 829. In what states allowed. 
 
 830. In what states not allowed. 
 
 831. Illinois doctrine and practice. 
 
 832. New York doctrine and prac- 
 
 tice. 
 838. Has strict foreclosure been 
 
 abolished by the Code in 
 
 New York ? 
 884. Jurisdiction of court to 
 
 decree a strict foreclosure in 
 
 another state. 
 
 § 835. Parties to a strict fore- 
 closure. 
 
 836. Who may maintain a strict 
 
 foreclosure. 
 
 837. Strict foreclosure against 
 
 infants. 
 
 838. Pleadings in a strict fore- 
 
 closure. 
 
 839. Judgment in a strict fore- 
 
 closure. 
 
 840. Time for redemption. 
 
 841. Setting aside and opening 
 
 strict foreclosure. 
 
 § 826. Nature of the remedy. — The remedy of strict 
 foreclosure, which operates to transfer to the mortgagee the 
 entire mortgaged estate, is regarded with disfavor by 
 the courts of this country. This method of foreclosure had 
 its origin at a time when a mortgage was regarded as a 
 conditional sale of the land, rather than as a security for the 
 payment of a debt. Chancellor Jones has said, in Lansing 
 V. Goelet :' " In early times when a mortgage was still 
 regarded as a conditional sale of the land, rather than as a 
 mere security for the payment of a debt, an adherence to 
 the form of the condition in the application of the remedy 
 of the mortgagee, was natural ; and it would necessarily 
 lead to the decree of strict foreclosure, requiring the mort- 
 gagor to perform the condition by paying the debt within a 
 given time, to be limited by the court, or be forever barred 
 from his right to redeem." 
 
 With the establishment of the doctrine now prevailing in 
 this country, that a mortgage is a mere security for the 
 payment of a debt, a breach of the condition for payment 
 
 • 9 Cow. (N. Y.) 346, 352 (1827), 
 92S
 
 924 
 
 NATUEE OF STRICT FORECLOSUEE. 
 
 [§ 827. 
 
 merely giving to the mortgagee a right to proceed against 
 the security, the natural remedy for such breach was to sell 
 the property and apply the proceeds thereof to the payment 
 of the mortgage debt. The advantages to the debtor of a 
 sale of the property, instead of a strict foreclosure, were 
 much discussed before the practice of ordering a sale was 
 adopted, and became the almost universal remedy as it 
 now is.* 
 
 § 827. Effect of a strict foreclosure. — The effect of a 
 strict foreclosure, is to transfer to the mortgagee the land 
 for the debt.* A strict foreclosure merely extinguishes the 
 right of redemption.* It does not become operative as a 
 satisfaction of the debt,* until the time fixed by the decree 
 for the redemption of the premises has expired.' 
 
 It has been said, that the debt will not be extinguished 
 by such a foreclosure,* unless the property is of sufficient 
 
 « See BoUes v. Duff, 43 N. Y. 469 
 (1871) ; B. c. 10 Abb. (N. Y.) Pr. N. 
 S. 399 ; 41 How. (N. Y.) Pr. 355 ; 
 55 Barb. (N. Y.) 313, 580 ; 7 Abb. 
 (N. Y.) Pr. N. S. 385 ; 38 How. (N. 
 Y.) Pr. 493, 505 ; Lansing v, Goelet, 
 9 Cow. (N. Y.) 346 (1827); Rosa 
 ▼. Boardman, 22 Hun (N. Y.) 527, 
 581 (1880) ; Mills v. Dennis. 3 Johns. 
 Ch. (N. Y.) 367 (1818) ; Miissina v. 
 Bartlett, 8 Port. (Ala.) 277 (1839); 
 Williams' Case, 3 Bland. Ch. (Md.) 
 186, 193 (1841) ; Wilder v, Haughey, 
 21 Minn. 101 (1874). 
 
 • Lansing v. Goelet, 9 Cow. (N. 
 Y.) 346, 352 (1827). In this case the 
 court say : " In a country where 
 the laws do not permit the sale of 
 real estate by execution at law, for the 
 Batisf action of debts, there might be 
 some apology for preferring the fore- 
 closure to the sale. But in modern 
 times, when the more liberal princi- 
 ple has gained the ascendency, which 
 deals with the mortgage as being, in 
 its substance and legal effect, a mere 
 security for the payment of the 
 
 debt; and in this state, where the 
 lands of the debtor are subjected to 
 sale for the satisfaction of his debts, 
 it would be strange, indeed, that a 
 court of equity should be without 
 the power to decree a sale of the 
 mortgaged premises for the satisfac- 
 tion of the debt, and the mortgagee 
 confined to a decree for a strict fore- 
 closure " 
 
 * Brainard v. Cooper, 10 N. Y. 
 359 (1852) ; Bradley v. Chester Val- 
 ley R. Co., 36 Pa. St. 150 (1860). 
 
 * Spencer v. Harford, 4 Wend. 
 (N, Y.) 381, 384 (1830). 
 
 ' Peck's Appeal, 31 Conn. 215 
 (1862) ; Edgerton v. Young, 43 111. 
 464(1867). 
 
 « Vansant v. AUmon, 23 Bl. 30 
 (1859) ; Nuuemacher v. Ingle, 20 
 Ind. 135(1863); Brown v. Wernwag, 
 4 Blackf. (Ind.) 1 (1835) ; Germania 
 Building Assoc, v. Neill, 93 Pa. St. 
 322 (1880) ; Devereaux v. Fairbanks, 
 52 Vt. 587 (1880) ; Smith v. Lamb, 
 
 1 Vt. 395 (1829) ; Strong v. Strong, 
 
 2 Aik. (Vt.) 373 (1827).
 
 §§ 828-829.] STRICT foeeclosuee. 
 
 925 
 
 value to satisfy it,' but that the foreclosure simply operates 
 as a payment /r(7 /a«/^.* In this form of foreclosure there 
 can be no judgment for deficiency ;* to recover a deficiency, 
 the mortgagee will be relegated to an action at law upon the 
 debt. 
 
 § 828. A severe remedy. — Strict foreclosure is generally 
 regarded in courts of equity as a severe remedy. It is 
 now rarely pursued or allowed, except in cases where a 
 foreclosure by an equitable action has been defectively con- 
 ducted and some judgment creditor, or other subsequent 
 lienor or incumbrancer, not having been made a party to the 
 action, has a right to redeem. As to him, a strict foreclosure 
 is proper and effective, and, furthermore, the quickest and 
 least expensive procedure that can be pursued.* 
 
 § 829. In what states allowed. — Strict foreclosure is 
 the usual procedure for enforcing mortgages in Connecti- 
 cut' and in Vermont ;* where the interests of the parties 
 seem to require it, it is also allowed in Alabama,' Illinois," 
 
 * DeGrant v. DeGraham, 1 N. 
 Y. Leg. Obs. 75 (1842); Morgan 
 V. Plumb, 9 Wend. (K Y.) 287 
 (1832). See Lansing v. Goelet, 9 
 Cow. (K Y.) 346, 352 (1827); Globe 
 Ins. Co. V. Lansing, 5 Cow. (N. Y.) 
 380 (1826) ; s. c. 15 Am. Dec. 374 ; 
 Charter v. Stevens, 3 Den. (N. Y.) 
 35 (1846) ; Craig v. Tappen, 2 Sandf. 
 Ch, (N. Y.) 78 (1844); Case v. 
 Boughton. 11 Wend. (N. Y.) 106 
 (1833) ; Spencer v. Harford, 4 Wend. 
 (N. Y.) 381, 384 (1830) ; Hatch v. 
 White, 2 Gall. C. C. 152 (1814). It 
 seems that formerly in Connecti- 
 cut a strict foreclosure operated 
 to extinguish the debt without re- 
 gard to the value of the property. 
 Swift V. Edson. 5 Conn. 531 (1825) ; 
 Derby Bank v. Landon, 3 Conn. 62 
 (1819); Fitch v. Coit, 1 Root (Conn.) 
 266 (1791); McEven v. Welles, 1 
 Root (Conn.) 202 (1790). 
 
 « Paris v. Hulett, 26 Vt. 308 (1854). 
 
 « Bean v. Whitcomb, 13 Wis. 431 
 (1861). 
 
 * Bolles V. Duff, 43 N. Y. 469, 474 
 (1871). 
 
 * Palmer v. Mead, 7 Conn. 149, 
 152 (1828) ; Conn. Gen. Stats. 35b5 
 (1855). 
 
 « Paris V. Hulett, 26 Vt. 308 
 (1854). See Sprague v. Rockwell, 
 51 Vt. 401 (1878). 
 
 ' Where the parties to the mort- 
 gage have provided for it, and it is 
 for their interests. Hunt v. Lewin, 4 
 Stew. & P. (Ala.) 138 (1833). It is 
 said to be the proper remedy, for the 
 purpose of cutting off intermediate 
 incumbrances and liens, where the 
 mortgagee has acquired title to the 
 equity of redemption and it is worth 
 no more than the debt. Hitchcock 
 v. Bank of Pennsylvania, 7 Ala. 386 
 (1844). 
 
 ^ Where the premises are not 
 worth the face of the mortgage,
 
 926 
 
 WHEKJE STRICT FORECLOSURE ALLOWED. [§ 830. 
 
 Iowa,' Maine,* Massachusetts,* Minnesota,* North Carolina* 
 and Wisconsin.* This method of foreclosure has sometimes 
 been allowed in Kentucky/ Nebraska,* New York* and 
 Ohio." 
 
 § 830. In what states not allowed. — In California, it is 
 said that the foreclosure of a mortgage in the English sense, 
 
 and the mortgagor is insolvent. 
 Stephens v. Bicknell, 27 lU. 444 
 (1862) ; s. c. 81 Am. Dec. 242 ; also 
 where the interests of both parties 
 require it. See Johnson v. Donnell, 
 15 ni. 97 (1853); Boyer v. Boyer, 89 
 111. 447(1878) ; s. c. 8 Cent. L. J. 213. 
 ' Where a junior lienholder has 
 not been made a party to a suit to 
 foreclose a prior mortgage, the pur- 
 chaser at the foreclosure sale may 
 require such lienholder to exercise 
 his right of redemption, or, in de- 
 fault thereof, to be foreclosed and 
 barred of all his rights. Shaw v. 
 Heisey, 48 Iowa, 468 (1878). 
 
 "Williams v. Hilton, 35 Me. 
 647 (1853) ; s. c. 58 Am. Dec. 729. 
 
 ' Norton v. Palmer, 142 Mass. 
 433 (1886) ; Thompson v. Tappan, 
 139 Mass. 506 (1885); Thompson 
 V. Kenyon, 100 Mass. 108 (1868) ; 
 Green v. Kemp, 13 Mass. 515 (1816) ; 
 8. c. 7 Am. Dec. 169 ; Pomeroy v. 
 Winship, 12 Mass. 514 (1885) ; s. c. 
 7 Am. Dec. 91. 
 
 * Heyward v. Judd, 4 Minn. 483 
 (1860) ; but the courts of this state 
 are adverse to this method of fore- 
 closure, and will in most cases con- 
 fine the mortgagee to a sale of the 
 property. See Wilder v. Haughey, 
 21 Minn. 101 (1874). 
 
 ' In this state foreclosure was 
 formerly made without a sale. See 
 Fleming v. Sitton, 1 Dev. & B. (N. 
 C.)Eq. 621 (1837); subsequently it 
 became the practice in all instances 
 to direct a sale on application, but if 
 no application was made, to decree a 
 
 strict foreclosure. See Green v. 
 Crockett, 2 Dev. & B, (N. C.) Eq. 
 390(1839). 
 
 * Sage V. McLaughlin, 34 Wis. 
 550 (1874) ; Bean v. Whitcomb, 13 
 Wis. 431 (1861). For the parties 
 consent, see also Bresnahan v. Bres- 
 nahan, 46 Wis. 385 (1879). 
 
 ' But the Kentucky Code of Pro- 
 cedure now provides, that there shall 
 be a sale in all cases ; Ky. Code of 
 1867, § 404 ; Code of 1876, § 375. 
 See Caut'man v. Sayre, 2 B. Mon. 
 (Ky.) 202 (1841). 
 
 * Under the territorial statutes pro- 
 viding for a sale, it was held that a 
 strict foreclosure might be decreed. 
 Woods V. Shields, 1 Neb. 453 (1871); 
 but at present, it seems that the 
 remedy is confined to a sale of the 
 premises. See Kyger v. Ryley, 3 
 Neb. 20 (1873). 
 
 •Bolles V. Duff, 43 N. Y. 469 
 (1871) ; s. c. 10 Abb. (N. Y.) Pr. N. 
 S. 399, 414 ; 41 How. (N. Y.) Pr. 
 355 ; Kendall v. Treadwell, 5 Abb. 
 (N. Y.) Pr. 16 (1857) ; s. c. 14 How. 
 (N. Y.) Pr. 165 ; Blanco v. Foote, 
 32 Barb. (N. Y.) 535 (1860) ; Frank- 
 lyn v. Hay ward, 61 How. (N. Y.) 
 Pr. 46 (1881); Ross v. Boardman, 22 
 Hun (N. Y.) 531 (1880); Benedict v. 
 Gilman, 4 Paige Ch. (N. Y.) 58 
 (1833). But it is thought that strict 
 foreclosure has been abolished iu 
 New York. See N. Y. Code Civ. 
 Proc. § 1626. 
 
 '" Where two-thirds of the value of 
 the mortgaged premises did not 
 exceed the debt. See Higgins v.
 
 § 830.] 
 
 STRICT FORECLOSURE NOT ALLOWED. 
 
 927 
 
 by which the mortgagor, after default, is called upon to pay 
 the debt by a specified day, or to be forever barred of the 
 equity of redemption, is unknown to our laws.* In Gamut v. 
 Gregg," it is said that a strict foreclosure has no place in 
 the Iowa system of procedure. Strict foreclosure in the 
 English sense of the phrase is not allowed in Florida,* 
 
 West, 5 Ohio, 554 (1832) ; Anon. 1 
 Ohio, 235 (1823). 
 
 » McMillan v. Richards, 9 Cal. 365, 
 411 (1858) ; 8. c. 70 Am. Dec. 655. 
 See Goodenow v. Ewer, 16 Cal. 461, 
 467(1860); s.c.76Am. Dec. 540. In 
 this case the court say: " In McMil- 
 lan V. Richards, supra, we had 
 occasion to consider the subject at 
 great length, and to observe upon 
 the diversity existing in the adjudged 
 cases. We there asserted what had 
 previously been held in repeated in- 
 stances, the equitable doctrine i's 
 the true doctrine respecting mort- 
 gages, and have ever since applied 
 it under all circumstances. John- 
 son V. Sherman, 15 Cal. 287 (1860) ; 
 B. c. 76 Am. Dec. 481 ; Clark v. 
 Baker, 14 Cal. 612 (1860) ; s. c. 76 
 Am. Dec. 449 ; Koch v. Briggs, 14 
 Cal. 256 (1859) ; s. c. 73 Am. Dec. 
 651 ; Haffley v. Maier, 13 Cal. 13 
 (1859) ; Nagle v. Macy, 9 Cal. 426 
 (1838). When, therefore, a mort- 
 gage is here executed, the estate 
 remains in the mortgagor, and a 
 mere lien or incumbrance upon the 
 premises is created. The proceed- 
 ings for a foreclosure of the equity 
 of redemption, as those terms are 
 •understood where the common law 
 view of mortgages is maintained, is 
 unknown to our system, so far, at 
 least, as the owner of the estate is 
 concerned. The mortgagee can 
 here, in no case, become the owner 
 of the mortgaged premises, except 
 by purchase upon a sale under a 
 judicial decree consummated by 
 
 conveyance. Proceedings in the 
 nature of a suit to foreclose an equity 
 of redemption, held by a subsequent 
 incumbrancer, may undoubtedly 
 be maintained by a purchaser under 
 the decree, where such incumbrancer 
 was not made a party to the original 
 suit to enforce the mortgage. Such 
 incumbrancer may be called upon 
 to assert his right by virtue of his 
 lien, and his equity of redemption, 
 extending to the period provided by 
 the statute of limitations, be thus 
 reduced to the statutory period of 
 six months. But the owner of the 
 mortgaged premises, where a power 
 of sale is not embraced in the mort- 
 gage, can not, under any circum- 
 stances, be cut off from his estate, 
 except by sale in pursuance of the 
 decree of the court. See Montgomery 
 V. Tutt, 11 Cal. 190 (1858) ; Whitney 
 V. Higgins, 10 Cal. 547 (1858) ; s. c. 
 70 Am. Dec. 748; Cal. Practice 
 Act, § 260. To give validity to such 
 decree, the owner must be before 
 the court when it is rendered. No 
 rights which he possesses can other- 
 wise be affected, and any direction 
 for their sale would be unavailing for 
 any purpose." 
 
 2 37 Iowa, 573 (1873). It seems, 
 however, that strict foreclosure will 
 be allowed where a junior lienholder 
 has not been made a party to the 
 foreclosure of a prior mortgage. 
 See Shaw v. Heisey, 48 Iowa, 468 
 (1878). 
 
 2 Browne v. Browne, 17 Fla. 607, 
 623(1880).
 
 928 STRICT FORECLOSURE IIST ILLINOIS. [§ 831. 
 
 Indiana,' Missouri,' Pennsylvania,' or Tennessee.* In Indi- 
 ana, however, a proceeding in the nature of a strict fore- 
 closure may be maintained by one who holds the legal title 
 to the premises, as against persons who have a mere lien 
 upon or a right of redemption in such premises ;* but such 
 a remedy is not allowable by a mortgagee as against the 
 person who holds the legal title to the land.' 
 
 § 831. Illinois doctrine and practice, — In Illinois a strict 
 foreclosure may be decreed, and generally will be, where the 
 premises are not worth the face of the mortgage and 
 the mortgagor is insolvent,' or where the interests of both 
 parties seem to require it.* 
 
 But where the amount which the owner of the equity of 
 redemption is required to pay to redeem from a foreclosure 
 sale, is less than the value of the property, a strict fore- 
 closure can not be maintained ; and under the practice in 
 Illinois,' a strict foreclosure of a mortgage should not be 
 decreed, as a general rule, when there are junior incumbrances 
 upon the property, or junior creditors or claimants of the 
 equity of redemption.'" And where the estate of a deceased 
 mortgagor is insolvent, that fact, as well as the descent of 
 the equity of redemption to infant heirs, would seem to 
 require the usual procedure of an equitable action." 
 
 But a court of equity will not sacrifice or endanger the 
 rights of a mortgagee holding the oldest and preferred lien and 
 the best equity, for the bare possibility of a wholly improb- 
 able benefit to one having a second lien and a subordinate 
 
 « Smith V. Brand, 64 Ind. 427 ' Stephens v. Bichnell, 27 HI. 444 
 
 (1878). (1862) ; s. c. 81 Am. Dec. 242. 
 
 2 O'Fallon v. Clopton, 89 Mo. 284 » Johnson v. Donnell, 15 111. 97 
 (1886); Davis v. Holmes, 55 Mo. (1853). 
 
 349, 351 (1874). » Gorham v. Farson, 119 111. 425 
 
 3 Winton's Appeal, 87 Pa. St. 77 (1887). 
 
 (1878). '"'Illinois Starch Co. v. Ottawa 
 
 * Ilord V. James, 1 Overt. (Tenn.) Hydraulic Co., 15 West Rep. 56 
 201 (1805). (1888) ; Boyer v. Boyer, 89 111. 447 
 
 « Jefferson v. Coleman, 110 Ind. (1878). 
 
 515(1886). "Boyer v. Boyer, 89 111. 447 
 
 • Jefferson v. Coleman, 110 Ind. (1878). 
 615 (1886).
 
 §§ 832-833.] STRICT foreclosure — new york. 929 
 
 equity. In a recent case' the court say: "We do not 
 understand the rule in this state to be that a strict fore- 
 closure will in no case and under no circumstances be 
 allowed where there are other creditors, or other incum- 
 brances upon the mortgaged property, or purchasers of 
 the equity of redemption. It is undoubtedly true that the 
 general rule is, that a strict foreclosure will not be permitted 
 where there is such a creditor, purchaser, or incumbrancer ; 
 but in our view there are exceptions to the general rule." 
 
 § 832. New York doctrine and practice. — In New York, 
 the usual practice is to order a sale of the premises, as 
 this is the most beneficial course for all parties. Actions 
 for strict foreclosure are of rare occurrence, and are looked 
 upon with disfavor by the courts, except in unusual cases 
 where such an action is the only method by which complete 
 justice can be rendered to all the parties in interest.' 
 
 Thus, a purchaser under a statutory foreclosure is entitled 
 to maintain an action for strict foreclosure as against the 
 wife of a mortgagor,' or against a judgment creditor or a 
 subsequent mortgagee or lienor who was not made a party 
 to the statutory foreclosure, and whose rights were therefore 
 not barred by the sale.* As to such a person, a strict 
 foreclosure is not only the proper, but it is thought to 
 be the only remedy.* 
 
 § 833. Has strict foreclosure been abolished by the 
 Code in New York ? — It is suggested that strict foreclos- 
 ure has been abolished by the New York Code of Civil 
 
 > Illinois Starch Co. v. Ottawa 474 (1871) ; s. c. 10 Abb. (N. T.) Pr. 
 
 Hydraulic Co., 15 West. Rep. 56 N. S. 399; 41 How. (N. Y.) Pr. 
 
 (1888). 355 ; Blanco v. Foote, 33 Barb. (N. 
 
 2 Franklyn v. Haywood, 61 How. Y.) 535 (1860); Franklyn v. Hay- 
 (N. Y.) Pr. 43. 46 (1881); Bene- wood, 61 How. (N. Y.) Pr. 46 
 diet V. Oilman, 4 Paige Ch. (N. Y.) (1881) ; Ross v. Boardman, 22 Hun 
 58 (1833). (N. Y.) 527 (1880) ; Kendall v. Tred- 
 
 3 Ross V. Boardman, 22 Hun (TST. well, 14 How. (N. Y.) Pr. 165 
 Y.) 527 (1880). (1857) ; Benedict v. Gilman, 4 Paige 
 
 * Bolles V. Duff, 43 N. Y. 469, Ch. (N. Y.) 58 (1833) ; Goodenow v. 
 
 474 (1871) ; s. c 10 Abb. (N. Y.) Pr. Ewer, 16 Cal. 461 (1860) ; s. c. 76 
 
 K. S. 399 ; 41 How. (N. Y.) Pr. 355. Am. Dec. 540 ; Shaw v. Heisey, 48 
 
 » Bolles V. Duff, 43 N. Y. 469, Iowa, 468 (1878). 
 
 (59)
 
 930 STRICT FORECLOSUKE. [§§ 834-835. 
 
 Procedure,' which requires that " in an action to foreclose 
 a mortgage upon real property, if the plaintiff becomes 
 entitled to final judgment, if must direct the sale of the 
 property mortgaged, or of such part thereof as is sufificient to 
 discharge the mortgage debt, the expenses of the sale, and 
 the costs of the action." 
 
 § 834. Jiirisdiction of court to decree a strict fore- 
 closure in another state. — Where the parties are within 
 the jurisdiction of the courts of a state, and process is per- 
 sonally served upon the defendants within the state, an 
 action may be maintained for strict foreclosure against 
 lands in another state." Thus, in House v. Lockwood,* an 
 action was brought to procure a strict foreclosure of a 
 mortgage given by the defendant upon lands in Cook 
 county, Illinois, to secure the payment of a sum of money 
 due to the plaintiff. The referee dismissed the complaint 
 upon the ground that the court had no jurisdiction of the 
 action, because the land was situated in another state. But 
 the court held this to be error, because the parties were 
 within the jurisdiction of the court when its process was 
 served upon them, and had appeared and put in answers 
 contesting the right of the plaintiff to maintain the action, 
 and the court thereby acquired jurisdiction to entertain the 
 suit and to grant the relief sought.* 
 
 § 835. Parties to a strict foreclosure. — The rules as to 
 parties to a strict foreclosure are the same as those which 
 govern equitable actions for a sale.* It has been said, 
 however, that the plaintiff need not make those persons 
 
 • N. Y. Code Civil Proc. § 1626. Y. 363 (1852) ; Lansing v. Goelet, 9 
 
 « See 2 Story's Eq. Jur. (13th ed.) Cow. (N. Y.) 346, 356 (1827) ; Rob- 
 
 §§ 191, 192, 193. lin v. Long, 60 How. (N. Y.) Pr. 
 
 8 40 Hun (N. Y.) 532 (1886) ; s. c. 200 (1880) ; Sutphen v. Fowler, 9 
 
 1 N. Y. St. Rep. 196. Paige Ch. (N. Y.) 280 (1841) ; Mit- 
 
 ■• In this case the court cited and chell v. Bunch, 2 Paige Ch. (N. Y.) 
 
 applied Cragin v. Lovell, 88 N. Y. 606, 616, 617 (1831); Watts v. Wad- 
 
 258 (1882) ; Bolles v. Duff, 43 N. Y. die, 31 U. S. (6 Pet.) 389, 400 (1832); 
 
 469 (1871) ; s. 0. 10 Abb. (N. Y.) bk. 8 L. ed. 437, 442. 
 
 Pr. N. S. 399 ; 41 How. (N. Y.) Pr. ' Benedict v. Gilman, 4 Paige 
 
 8.')5 ; Gardner v. Ogden, 22 N. Y. Ch. (N. Y.) 58 (1833). 
 337 (1860) ; Bailey v. Ryder, 10 N.
 
 §§ 836-837.] STRICT fokeclosuee. 931 
 
 parties to the action whose rights have already been 
 barred by a previous foreclosure ;' but all persons interested 
 in the mortgage, or in the mortgaged property, must be 
 made parties to the suit.' Thus, the owner of the equity of 
 redemption is a necessary defendant,' and so are subsequent 
 mortgagees.* 
 
 § 836. Who may maintain a strict foreclosure. — In 
 some states a mortgagee may maintain an ejectment on the 
 mortgage against the mortgagor for a condition broken ; so 
 may a grantee in a deed absolute in form given as security 
 for a debt.' And a second mortgagee may maintain an 
 action against the first mortgagee and against the owner 
 of the equity of redemption.* 
 
 Where a bill in equity is brought for a strict foreclosure after 
 the death of the mortgagee, his heirs at law are necessary 
 parties plaintiff, because in such a case the decree vests the 
 legal title to the premises in the heirs, and not in the personal 
 representatives.' 
 
 § 837. Strict foreclosure against infants. — In a strict 
 foreclosure against an infant, he is entitled to have his day 
 in court after he becomes of age, to show any error in the 
 decree ; but if there is no error,, he will be bound by 
 the decree.* This rule is based on the ancient and well 
 settled principle, that no decree should be rendered against 
 an infant without giving him an opportunity, on coming of 
 age, to show cause against it. The time usually allowed is 
 six months, and the infant is entitled to the process of the 
 court for that purpose on coming of age.* 
 
 ' Benedict v. Oilman, 4 Paige Williams v. Hilton, 35 Me. 547 
 
 Ch. (N. Y.) 58 (1833). (1858) ; s. c. 58 Am. Dec. 729. 
 
 » Lyon V. Sanford, 5 Conn. 544 • Cochran v. Godell, 131 Mass. 
 
 (1825). 464 (1881). 
 
 ' Goodenow v. Ewer, 16 Cal. 461 ' Osborne v. Tunis, 25 N. J. L. (1 
 
 (1860). Dutch.) 633 (1856). 
 
 ^Weedv. Beebe, 21Vt.495(1849). ^ jyijus v. Dennis, 3 Johns. Ch. 
 
 See Brooks v. Vermont Cent. R. (N. Y.) 367 (1818); Houston v. 
 
 Co., 14 Blatchf. C. C. 463, 473 Aycock, ( 5 Sneed. ) Tenn. 406 
 
 (1878); also Goodman v. White, 26 (1858); s. c. 3 Am. Dec. 131. 
 
 Conn. 317, 320 (1857). » Mills v. Dennis, 3 Johns. Ch. 
 
 •Finlon V.Clark, 118111.32(1886); (N. Y.) 367 (1818); McClellan v.
 
 932 STRIC FORECLOSURE PRACTICE. [§§ 838-840. 
 
 For this reason, it is thought that instead of ever seeking a 
 strict foreclosure of a mortgage against an infant heir of the 
 mortgagor, it is safer to obtain a decree for the sale of 
 the mortgaged premises, because a decree of sale will be 
 binding upon the infant from the time it is granted.* 
 
 § 838. Pleadings in a strict foreclosure. — In an action 
 for strict foreclosure, the pleadings and practice are sub- 
 stantially the same as they are in an equitable action for 
 foreclosure and sale." The specific remedy desired should 
 be demanded in the prayer of the complaint ; but this is not 
 indispensable, because in an action for foreclosure, if the 
 complaint is drawn in the ordinary form, and it appears in 
 the progress of the cause, that it is desirable, a sale may be 
 ordered, although a strict foreclosure may be prayed for, and 
 vice versa* 
 
 % 839. Judgment in a strict foreclosure. — The judgment 
 in a strict foreclosure should require the persons entitled 
 to redeem to do so within a specified time ; in default of 
 such redemption, the title should be decreed to vest abso- 
 lutely in the plaintiff.* Until the expiration of the time 
 limited in the judgment of strict foreclosure for the payment 
 of the mortgage debt, the mortgage will not be foreclosed 
 and the title will not pass to the plaintiff." 
 
 § 840. Time for redemption. — The period allowed for 
 redemption should be fixed by the court in the exercise 
 of its sound discretion ;* it may be enlarged from time to 
 
 McClellan,65Me. 508(1872); Whit- » Sage v. McLaughlin, 34 Wis. 
 
 ney v. Stearnes, 53 Mass. (11 Mete.) 550 (1874). 
 
 319(1846); Coffin V. Heath, 47 Mass. ■* Kendall v. Treadwell, 5 Abb. 
 
 (6 Mete.) 76 (1843) ; Chandler v. (N. Y.) Pr. 16 (1857) ; s. c. 14 How. 
 
 MeKinney, 6 Mich. 217 (1859) ; s. c. (N. Y.) Pr. 165 ; Waters v. Hub- 
 
 74 Am. Dec. 286 ; Dow v. Jewell, 21 bard, 44 Conn. 340 (1877) ; Farrell 
 
 N. H. 470, 487 (1850); Long v. v. Parlier, 50 111. 274(1869). See Sage 
 
 Mimford, 17 Ohio St. 506(1867). v. Iowa Cent. R Co., 99 U.S. fO 
 
 ' Mills V. Dennis, 3 Johns. Ch. Otto), 334 (1878) ; bk. 25 L. ed. 394. 
 
 (N. Y.) 367 (1881)-. 5 Bolles v. Duff, 43 N. Y. 469 
 
 ' Kendall v. Treadwell, 5 Abb. (1871). 
 
 (N. Y.)Pr. 16(1857)- s c. 14 How. « Bolles v. Duff. 43 N. Y. 469 
 
 (N. Y.) Pr. 165 (1871) ; Blanco v. Foole, 32 Barb.
 
 § 841.] SETTING ASIDE STEICT FOEECLOSUEE. 933 
 
 time, on application, and on satisfactory reasons being shown 
 therefor.* The time usually allowed for redemption is six 
 months.* 
 
 Courts are very liberal in strict foreclosures in extending 
 and enlarging, from time to time, the period allowed for 
 redemption ; but in actions to redeem, such leniency is not 
 indulged, and the party seeking redemption is required 
 to redeem within the time appointed.* 
 
 § 841. Setting aside and opening strict foreclosure. — 
 A decree of strict foreclosure may be opened and set aside 
 the same as a decree of foreclosure and sale in an equitable 
 action, and for many of the same causes.* After a decree 
 of foreclosure has been entered, the conduct of the parties 
 may be such as to waive, or open the decree ; as by 
 treating the debt as still due,* or by paying a part of 
 it,* or by agreeing that the foreclosure shall be null and 
 void.' 
 
 Usually, the opening of a decree of strict foreclosure 
 depends upon equitable considerations affecting the rights 
 of the parties, and not upon the regularity of the pro- 
 ceedings.* Where a mortgagee supposed that he had made 
 
 (N. T.) 535 (1860) ; Ferine v. Dunn, Monkhouse v. Corporation of Bed- 
 
 4 Johns. Ch. (N. Y.) 140 (1819) ; ford, 17 Ves. 380, 407 (1810). 
 
 McKinstry v, Mervin, 3 Johns. Ch. • Brinckerhoff v. Lansing, 4 Johns. 
 
 (N. Y.) 466 n (1818) ; Johnson v. Ch. (N. Y.) 65 (1819) ; Ferine v. 
 
 Donnell, 15 111. 97 (1853) ; Clark v. Dunn, 4 Johns. Ch. (N. Y.) 140 
 
 Reybum, 75 U. S. (8 Wall.) 318 (1819); Harkins v. Forsyth, 11 
 
 (1868)'; bk. 19 L. ed. 354. Leigh (Va.) 294 (1840) ; Chicago & 
 
 > Ferine v. Dunn, 4 Johns. Ch. V. Ft. Co. v. Fosdick, 106 U. S. 
 
 (N. Y.) 140 (1819) ; Downing v. Fal- ( 16 Otto ), 70 ( 1882 ) ; bk. 27 L. 
 
 mateer, 1 T. B. Mon. (Ky.) 64, 66 ed. 55. 
 
 (1824) ; Quarles v. Knight, 8 Price, * See ante chap. xxvi. 
 
 630 (1820) ; Monkhouse v. Cor- » Bissell v. Bosman, 2 Dev, (N. 
 
 poration of Bedford, 17 Ves. 380 C.) Eq. 154 (1881). 
 
 (1810). «Gilson v. AVhitney, 51 Vt. 553 
 
 'Ferine V. Dunn, 4 Johns. Ch. (1879); Smalley v. Hickok, 12 Vt. 153 
 
 (N. Y.) 140 (1819) ; McKinstry v. (1840) ; Converse v. Cook, 8 Vt. 164 
 
 Mervin, 3 Johns. Ch. (N. Y.) 466 n (1836). 
 
 (1818) ; Barnes v, Lee, 1 Bibb (Ky.) ' Griswold v. Mather, 5 Conn. 435 
 
 526 (1809); Harkins v. Forsyth, 11 (1825). 
 
 Leigh (Va.) 294 (1840); Edwards v. « Bridgeport Sav. Bank v. Eld- 
 
 Cunliffe, 1 Madd. Ch. 287 (1816) ; redge, 28 Conn. 556 (1859).
 
 934 OPENING STRICT FORECLOSURE. [§ 841. 
 
 a valid tender within the time limited, which was not good 
 by reason of some informality, the decree of strict foreclosure 
 will be opened ;* and if the failure to pay the amount directed 
 to be paid, within the time allowed, is due to overtures for 
 a settlement made by the plaintiff, the decree of foreclosure 
 will be opened.' Where a mortgagor who had paid part of 
 the mortgage debt, was prevented by an unavoidable calam- 
 ity, from paying the balance, until a short time after the day 
 designated for such payment, when he tendered the amount 
 due, the foreclosure was opened.* 
 
 Where proper service has not been made on the defen- 
 dants, a strict foreclosure may be set aside on application.* 
 In making an application, the party must tender the mort- 
 gage debt, or show his readiness to pay it, in order to secure 
 the relief desired.' 
 
 ' Crane v. Hanks, 1 Root (Conn.) « Fall v. Evans, 20 Ind. 910 (1S63); 
 468 (1792). Mitchell v. Gray, 18 Ind. 223 (1862). 
 
 » Pierson v.Clayes, 15 Vt. 93(1843). * Hatcli v. Garza, 7 Tex. CO UbSij. 
 
 » Crane v. Hanks, 1 Root (Conn.) 
 468 (1793).
 
 CHAPTER XXXVI. 
 
 FEES, COSTS AND DISBURSEMENTS. 
 
 FEES OF REFEREE SELLING— COSTS IN GENERAL— WHEN DISCRETION- 
 ARY—WHO MAY HAVE— PRIOR AND JUNIOR LIENORS-GUARDIAN 
 AD ilTBJir— STIPULATION FOR COUNSEL FEE — STATUTORY 
 FORECLOSURE-COSTS IN DISTRIBUTING SURPLUS. 
 
 ; 842. Fees of officer conducting 
 sale. 
 
 843. Fees of such officer statu- 
 
 tory. 
 
 844. Appral from ^r<ier fixing fees 
 
 of referee to sell. 
 
 845. Costs in general. 
 
 846. Costs in equitable actions to 
 
 foreclose. 
 
 847. Costs where guarantor of 
 
 mortgage deceased. 
 
 848. Costs of foreclosure in discre- 
 
 tion of court. 
 
 849. Costs under New York Code 
 
 of Civil Procedure. 
 
 850. Exceptions to discretion of 
 
 court in allowing costs. 
 
 851. Who may recover costs. 
 
 852. Prior mortgagee entitled to 
 
 costs. 
 
 853. Costs to subsequent incum- 
 
 brancers. 
 
 854. Costs on two foreclosures 
 
 against same property. 
 
 855. When costs not allowed to 
 
 mortgagee. 
 
 856. When costs not allowed to 
 
 defendants. 
 
 857. Notice of no personal 
 
 claim. 
 
 858. Effect of excessive demand 
 
 in the complaint. 
 
 859. Effect of tender after action 
 
 brought. 
 
 860. Costs on default. 
 
 861. Costs allowed guardian ad 
 
 Idem. 
 
 862. Costs on appointment of 
 
 receiver. 
 
 ! 863. Costs on resale. 
 
 864. Who personally liable for 
 
 costs. 
 
 865. Out of what fund costs pay- 
 
 able. 
 
 866. Counsel fee in foreclosing 
 
 a mortgage. 
 
 867. Couns^cl fee in Kentucky 
 
 and Michigan. 
 
 868. Stipulation for attorney's fee 
 
 — W-heu usurious. 
 
 869. Allowance of attorney's fee 
 
 — Discretion of court. 
 
 870. Allowance of attorney's fee a 
 
 matter of contract or .-itatute. 
 
 871. Enforcement of counsel fee 
 
 against purchaser. 
 
 872. Allegation as to counsel fee. 
 
 873. When attorney's fee not 
 
 allowed. 
 
 874. Costs on redeeming. 
 
 875. Foreclosure under power — 
 
 Mortgagee's compensation. 
 878. Expenses and disbursements 
 of trustee. 
 
 877. Taxing costs and disburse- 
 
 ments on foreclosure by 
 advertisement. 
 
 878. What disbursements allowed. 
 
 879. Who may require taxation 
 
 of costs and disbursements. 
 
 880. Costs in surplus proceed- 
 
 ings. 
 
 881. Who entitled to costs in sur- 
 
 plus proceedings. 
 88.?. Who chargeable with costs 
 
 in surplus proceedings. 
 883. Disbursements in surplus pro- 
 
 ceediugs. 
 
 935
 
 936 FEES OF EEFEREE SELLESTG. [§§ 842-843. 
 
 § 842. Fees of officer conducting sale. — The New York 
 Code of Civil Procedure provides,' that "the fees of a referee 
 appointed to sell real property pursuant to a judgment in an 
 action, are the same as those allowed to the sheriff ; and he 
 is also allowed the same disbursements as the sheriff.* 
 Where a referee is required to take security upon a sale, or 
 to distribute, or apply, or ascertain and report upon the dis- 
 tribution or application of, any of the proceeds of the sale, 
 he is also entitled to one-half of the commissions upon the 
 amount so secured, distributed, or applied, allowed by law to 
 an executor or administrator for receiving and paying out 
 money. But commissions shall not be allowed to him upon 
 a sum bidden by a party, and applied upon that party's 
 demand, as fixed by the judgment, without being paid to 
 the referee. And a referee's compensation, including com- 
 missions, can not, where the sale is under a judgment, in an 
 action to foreclose a mortgage, exceed fifty dollars, or in any 
 other case five hundred dollars."* 
 
 § 843. Fees of such officer statutory. — It has always 
 been the policy of the law to prescribe and fix the compen- 
 sation which may be demanded for the performance of legal 
 duties by public ofifiicers. And where no provision is made, 
 either directly or indirectly, no fees can be lawfully demanded. 
 Costs and fees are recoverable by virtue of statutory author- 
 ity only, and where no such authority exists, no claim for 
 their recovery can be maintained.* 
 
 ■^. . . 
 
 » N. T. Code Civ. Proc. § 3297. s. c. 1 Hun (N. T.) 818. The act 
 
 ' As to the fees allowed to a sheriff, (chap. 569, Laws 1869, as amended 
 
 see N. T. Code Civ. Proc. § 3307. by chap. 193, Laws 1874) in relation 
 
 « N. Y. Code Civ. Proc. § 3297. to the fees of sheriffs and referees, 
 
 Race v. Gilbert, 1C3 N. Y. 298 on foreclosure sales in the city and 
 
 (1886) ; Schermerhorn v. Prouty, 80 county of New York, was not 
 
 N. Y. 317 (1880) ; s. c. 21 Alb. L. repealed by the amendment of 1876 
 
 J. 275 ; Maher v. O'Conner, 61 How. to § 309 of the Code of Procedure, 
 
 (iSr. Y.) Pr. 103 (1881) ; Walbridge v. which limits the sum to be allowed 
 
 James, 16 Hun (N. Y.) 8 (1878). See as fees on such a sale. The amend- 
 
 Daby v. Jacot, 2 Abb. (N.Y.) N. C. ment simply modifies the act by fix- 
 
 97 (1877); Richards v. Richards, 2 ing the maximum of fees, leaving the 
 
 Abb. (N. Y.) N. C. 93 (1875) ; Innes scale of charges up to that limif as 
 
 V. Purcel],2T.«&C.(N.Y.)538(1874); fixed by saidW Schermerhorn v.
 
 §§ 844-845.] FEES OE keeeree statdtoet. 937 
 
 A referee is entitled to receive only the same fees for 
 selling real estate, as are allowed by law to a sheriff ;' he 
 can recover for such services no more than the fees pre- 
 scribed by statute, although there may be an express 
 agreement between the parties to pay a larger sum.' No 
 fees can be allowed to an auctioneer for services upon the 
 adjournment of a sale by a referee.* 
 
 It has been held, in the case of Lockwood v. Fox,* that 
 chapter 569, of the laws of 1869, as amended by chapter 192, 
 of the laws of 1874, not having been repealed, is by virtue 
 of section 3308 of the Code of Civil Procedure, still in force, 
 and that the fees of a referee to sell, on a foreclosure in the 
 city and county of New York, must be taxed thereunder. 
 
 § 844. Appeal from order fixing fees of referee to sell. 
 — Under section 1296 of the Code, a referee appointed 
 to sell real estate in pursuance of a judgment, may aj p al 
 from an order- fixing his fees and compensation.* An 
 order making an allowance to a referee appointed to con- 
 duct the sale under a decree of foreclosure, which charges 
 the owner of the equity of redemption with the payment of 
 a definite sum of money, which is greater than he or his 
 property can lawfully be charged with, affects a substantial 
 right, and is appealable when made in a summary applica- 
 tion for judgment/ 
 
 § 845. Costs in general. — In actions at law, the rule 
 seems to be well settled, both in England and in this 
 country, that the prevailing party is entitled to costs. 
 
 Prouty, 80 N. Y. 317 (1880) ; s. c. » Ward v. James, 8 Udn (N. T.) 
 
 21 Alb. L. J. 275. 526 (1876). 
 
 * Innes v. PurceU, 2 T. & C. (N. * 1 N. T. Civ. Proc. Rep. 407 
 
 T.) 538, 539 (1874) ; s. c. 1 Hun (N. (1881). 
 
 Y.) 318. See Downing v. Marshall, « Hobart v. Hobart, 23 Hun (N. 
 
 87 N. Y. 380 (1867). Y.) 484 (1881). 
 
 > Ward V. James, 8 Hun (N. Y.) « Innes v. Purcell, 2 T. & C. (N. 
 
 526 (1876) ; Innes v. Purcell, 2 T. & Y.) 538 (1874) ; s. c. 1 Hun (N. Y.) 
 
 C. (N. Y.) 538 (1874) ; s. c. 1 Hun 318. See People v. New York 
 
 (N. Y.) 318; K Y. Code Civ. Proc. Cent. R. Co., 29 N. Y. 418, 423 
 
 § 2397. (1864). 
 
 'Brady v. Kingsland, 5 N. Y. 
 Civ. Proc. Rep. 413 (1884).
 
 938 
 
 COSTS IN GEIOIRAL. 
 
 [§ 845. 
 
 although he may recover only a part of his demand ; this 
 rule has been established by statute in many states.' A 
 debtor may, however, by offering to confess judgment for a 
 certain amount, become entitled to costs accruing subse- 
 quently to his offer, provided his creditor fails to recover 
 more than the amount offered.* 
 
 In suits in equity, however, the allowance, or disallowance, 
 of costs depends largely on the circumstances of each 
 particular case, and rests entirely within the discretion of the 
 court, to be exercised upon equitable principles and with 
 reference to the general rules of practice. Prima facie, th.Q 
 successful party is entitled to costs, and it is incumbent 
 upon the defeated party, if there are just reasons why he 
 should not pay a bill of costs, to show such circumstances 
 as would overcome the presumptive right of the successful 
 party ; if it is shown that it would be unjust to compel 
 the defeated party to pay costs, the court may, in the 
 exercise of its sound discretion, refuse costs to either 
 party, or it may even impose them upon the successful 
 party.* 
 
 ' Wood V. Brown, 6 Daly (N. Y.) 
 428 (1876) ; St. Charles v. O'Mailey, 
 18 111. 407 (1857); Brandies v. 
 Stewart, 1 Met. (Ky.) 395 (1858); 
 Underwood v. Lacapere, 14 La. An. 
 274 (1859); Wall v. Covington, 76 
 N. C. 150 (1877) ; Little v. Lockman, 
 5 Jones (N. C.) L. 433 (1858); 
 McReynolds v. Gates, 7 Humph. 
 (Tenn.)29(1846). 
 
 » Bathgate v. Haskin, 63 N. T. 
 261 (1875) ; O'Conner v. Arnold, 53 
 Ind. 203 (1876) ; Rucker v. Howard, 
 2 Bibb (Ky. ) 166, 169 (1810); 
 Building Assoc, v. Crump, 42 Md. 
 192 (1874) ; Holden v. Kynaston, 2 
 Beav. 204, 206 (1840). 
 
 » Eldridge v. Strenz, 39 N. Y. 
 Supr. Ct. (7 J. & S.) 295 (1875); 
 Belmont v. Ponvert, 38 N. Y. Supr. 
 Ct. (6 J. & S.) 425 (1874) ; Robinson 
 V. Cropsey, 2 Edw. Ch. (IST. Y.) 138 
 (1833) ; Travis v. Waters, 12 Johns. 
 
 (N. Y.) 500 (1815) ; Glen v. Fisher, 
 6 Johns. Ch. (N. Y.) 33 (1823) ; s. c. 
 10 Am. Dec. 310 ; Methodist Church 
 V. Jaques, 1 Johns. Ch. (N. Y.) 65 
 (1814) ; Gray v. Gray, 15 Ala. 779 
 (1849) ; Temple v. Lawson, 19 Ark. 
 148 (1857); Cowles v. Whitman, 10 
 Conn. 121 (1834) ; s. c. 25 Am. Dec. 
 60; Pearce v. Chastain, 3 Ga. 226 
 (1847); s. 0. 46 Am. Dec. 423; 
 McArtee v. Engart, 13111. 242(1851); 
 Frisby v. Ballance, 5 111. (4 Scam.) 
 287 (1843) ; s. c. 39 Am. Dec. 409 ; 
 Stone V. Locke, 48 Me. 425 (1861) ; 
 Lee V. Pindle, 12 Gill. & J. 
 (Md.) 288 (1842) ; Clark v. Reed, 28 
 Mass. (11 Pick.) 449 (1831); Car- 
 penter V. Easton & A. R. R. Co., 28 
 N. J. Eq. (1 Stew.) 390 (1877); 
 Decker v. Caskey, 3 K J. Eq. (2 H. 
 W. Gr.) 446 (1836'); Hess v. Beates, 78 
 Pa. St. 429(1875); Massing v. Ames, 
 38 Wis. 285 (1875); Pennsylvania
 
 § 846.] COSTS IN GENERAL. 939 
 
 In Clark v. Reed,* Putman, J., in delivering the opinion 
 of the court, stated the general practice in equity, with his 
 usual accuracy, as follows : " We adopt the general rule, that 
 the prevailing party is to have costs, as applicable to suits in 
 equity as well as at law. It will be applied, unless the losing 
 party can show that equity requires a different judgment. If 
 it should appear that the plaintiff had good reason to think 
 the respondent was liable upon equitable principles to pay 
 money, to perform specific contracts, or to make discovery, 
 and it should, upon hearing of the answer, appear that no 
 such cause existed, as the plaintiff had reason to suppose 
 did exist, the court would not award costs against him, if it 
 appeared that the respondent was in such a situation as to 
 render it probable that he was amenable to the call of the 
 plaintiff upon equitable principles. On the other hand, if it 
 should appear that the plaintiff knew the whole ground and 
 made a claim in equity, which was successfully resisted by 
 the respondent, it would seem that costs should be allowed 
 as well in equity as at law. The mere change of the forum 
 should not in reason make any difference in the question of 
 costs." 
 
 § 846. Costs in equitable actions to foreclose. — ^The 
 mortgagee in a foreclosure, like the plaintiff in other actions, 
 is generally entitled to a bill of costs, if he prevails and obtains 
 a decree of sale.* But all costs and fees are, as a rule, statu- 
 tory ;' and where no statutory right to charge or allow them 
 exists, no legal or equitable right to do so can be presumed.* 
 
 Where the facts alleged and proved entitle the plaintiff to 
 costs, a judgment rendered for costs will not be reversed 
 
 V. Wheeling & Belmont Bridge (1859); s. 0. 73 Am. Dec. 393; 
 
 Company, 59 U. S. (18 How.) 421 Wetherell v. Collins, 3 Madd. 255 
 
 (1855) ; bk. 15 L. ed. 435 ; Brooks (1818) ; Bartle v. Wilkin, 8 Sim. 288 
 
 V. Byam, 2 Story C. C. 553 (1843); (1836); Loftus v. Swift, 2 Sch. & 
 
 Hunter v. Marlboro, 2 Woodb. & Lef. 642 (1806). 
 
 Min, C. C. 168 (1846) ; Vancouver v. ' Ward v. James, 8 Hun (N. Y.) 
 
 Bliss. 11 Ves. 463 (1805). 526 (1876). 
 
 ' 28 Mass. (11 Pick.) 449 (1831). * Ward v. James, 8 Hun (N. Y.) 
 
 ^ Benedict v. Gilman, 4 Paige Ch. 526 (1876). See Downing v. Mar- 
 
 (N. Y.) 58 (1833) ; Concklin v. shall, 37 N. Y. 380 (1867) ; s. c. 80 
 
 Coddington, 12N.J. Eq.(lBeas.)250 Am. Dec. 290; Innes v. Purcell, 2
 
 940 COSTS IN EQUITABLE ACTIONS. [§§ 847-848. 
 
 or set aside merely because the plaintiff did not ask for 
 costs in his complaint ;* the established practice, however, 
 requires the successful party to apply by motion for his 
 costs, or to demand them in some manner.* And where the 
 court of appeals reverses a judgment, " with costs to abide 
 the event," the party who finally succeeds can recover costs 
 for all the different steps in the action.' 
 
 In the case of Bockes v. Hathorn,* it was held that where 
 an action on a bond and to foreclose a mortgage collateral 
 thereto, is difficult and unusual, on account of a defence and 
 trial, an additional allowance, not exceeding five per centum 
 of the recovery, nor $2,000 in the aggregate, may be granted 
 to any party. 
 
 § 847. Costs where guarantor of mortgage deceased. 
 
 — In proceedings to sell the real estate of a deceased 
 guarantor of a mortgage, the costs of foreclosure can not be 
 considered as a part of the debt, yet as they are incidental 
 to the endeavor to collect the same out of the premises, the 
 amount to be credited on the debt is the proceeds realized 
 from the foreclosure, after deducting the costs.* A surety 
 has no equity to demand that so much money as is 
 necessary to pay the costs of collection, shall be withheld 
 from that object and applied exclusively to satisfy the prin- 
 cipal of the debt, for as the creditor is entitled to the 
 whole amount, the expenses of collection are properly 
 deductible from the sum realized from the principal debtor. 
 
 § 848. Costs of foreclosure in discretion of court. — 
 
 The allowance of costs in actions in equity is always in the 
 
 T. & C. (N. Y.) 538 (1874) ; 8. c. 1 Nat. Bank of New York, 84N. Y. 169 
 
 Hun (N. Y.) 318. (1881) ; Donovan v. Vandermark, 22 
 
 ' Hees V. Nellis, 1 T. & C. (N. Y.) Hun (N. Y.) 307 (1880) ; Saunders v. 
 
 118, 131 (1873). Townshend, 63 How. (N. Y.) Pr. 
 
 " Chase v. Miser, 67 Barb. (N. Y.) 343 (1883). 
 
 441, 443 (1875) ; Lanz v. Trout, 46 * 17 Hun (N. Y.) 87 (1879), distin- 
 
 How. (N.Y.)Pr. 94(1873). See Gray guishing Hunt v. Chapman, 63 N. 
 
 V. Hannah, 3 Abb. (N. Y.) Pr. N. Y. 333 (1875) ; N. Y. Code Civ. 
 
 S. 183 (1867). Proc. §§ 3353, 3353. 
 
 « Newcomb v. Hale, 4 N. Y. Civ. « Hurd v. Callahan, 9 Abb. (N. 
 
 Proc. Rep. 35, 37 (1883). ' See First Y.) N. C. 374 (1881). 
 Nat. Bank of MeadvilJe v. Fourth
 
 § 848.] 
 
 COSTS DISCRETIONARY. 
 
 941 
 
 discretion of the trial court,' but the discretion to be 
 exercised must be a reasonable and sound one.* Their 
 allowance, or disallowance, will always depend largely on the 
 facts and circumstances of each particular case, and the dis- 
 cretion of the court is to be exercised without reference to 
 the general rules of practice, but as equity may require.' 
 Such discretion will not be interfered with by an appellate 
 court, except in cases of open abuse or gross error, or 
 where it is exercised in disregard of recognized equitable 
 principles.* 
 
 The matter of costs, in the several states, depends very 
 much upon their statutes and practice, which are quite 
 dissimilar. But as foreclosures are equitable actions in most 
 
 > Garr v. Bright, 1 Barb. Ch. (N. 
 Y.) 157 (1845) ; Methodist Episcopal 
 Church V. Jaques, 1 Johns. Ch. (N. 
 Y.) 65 (1814) ; Lyman v. Lyman, 2 
 Paine C. C. 53 (1829). See Mackey 
 V. Cairns, 5 Cow. (N. Y.) 575, 586 
 (1825); 8. c. 15 Am. Dec. 477; 
 Demarest v. Wynkoop, 3 Johns, 
 Ch. (N. Y.) 129 (1817) ; 8. c. 8 Am. 
 Dec. 467; Pendelton v. Eaton, 3 
 Johns. Ch. (N. Y.) 69 (1817) ; Mur- 
 ray V. Ballou, 1 Johns. Ch. (N. Y.) 
 566 (1815); Traris v. Waters, 1 
 Johns. Ch. (N. Y.) 89 (1814) ; NicoU 
 V. Trustees of Huntington, 1 Johns. 
 Ch. (N. Y.) 166 (1814); Cunning- 
 ham V. Freeborn, 11 Wend. (N. Y.) 
 258 (1833) ; Pearce v. Chastain, 3 
 Ga. 226 (1847) ; a c. 46 Am. Dec. 
 423; The Martha, Blatchf. & How. 
 D. C. 169 (1830). 
 
 » Eastburn v. Kirk, 2 Johns. Ch. 
 (N. Y.) 317 (1817). See Law v. 
 McDonald, 9 Hun (K Y.) 23 (1876). 
 
 ' Prima facie, the prevailing party 
 is entitled to costs, and it devolves 
 upon the defeated party to overcome 
 such presumptive right. See Atkin- 
 son y. Manks, 1 Cow. (N. Y. ) 
 691 (1823); Canfleld v. Morgan, 
 1 Hopk. Ch. (N. Y.) 224 (1824); 
 
 Aymer v. Gault, 2 Paige Ch. (N. Y.) 
 284 (1830); Badeau v. Rogers, 3 
 Paige Ch. (N. Y.) 209 (1830) ; Gray 
 V. Gray, 15 Ala. 779 (1849) ; Temple 
 V. Lawson, 19 Ark. 148 (1857); 
 Cowles v. Whitman, 10 Conn. 121 
 (1834) ; 8. c. 25 Am. Dec. 60 ; 
 McArtee v. Engart, 13 El. 243 
 (1851) ; Frisby v. Ballance, 5 111. (4 
 Scam.) 287 (1843); 8. C. 34 Am. 
 Dec. 409 ; Clark v. Reed, 28 Mass. 
 (11 Pick.) 449 (1831) ; Saunders v. 
 Frost, 22 Mass. (5 Pick.) 259 (1827) ; 
 8. c. 16 Am. Dec. 395 ; Farley v. 
 Blood, 30 N. H. 354 (1854) ; Carpen- 
 ter v. Easton & A. R. Co., 28 N. J. 
 Eq. (1 Stew.) 392 (1877) ; Decker v. 
 Caskey, 3 N. J. Eq. (2 H. W. Gr.) 
 446 (1836) ; Hess v. Beates, 78 Pa. 
 St. 429 (1875) ; Manchester P. W. 
 V. Stimpson, 2 R. I. 415 (1853); 
 Pennsylvania v. Wheeling «& B. B. 
 Co., 59 U. S. (18 How.) 421 (1855) ; 
 bk. 15 L. ed. 435 ; Spring v. South 
 Carolina Ins. Co., 21 U. S. (8 
 Wheat.) 268 (1823); bk. 5 L. ed. 614; 
 Hunter v. Marlboro, 2 Woodb. «fc 
 Min. C. C. 168 (1846); Aldrich v 
 Thompson, 2 Bro. Ch. 149 (1787). 
 
 * Morris v. Wheeler, 45 N. Y. 708 
 (1871); Barker v. White, 1 Abb.
 
 942 COSTS IN NEW YORK. [§§ 849-S50. 
 
 states, the costs are generally within the discretion of the 
 court.' And, although there is no fixed rule for granting 
 costs, as in courts of law, courts of equity rarely, if ever, 
 refuse to allow them.' 
 
 § 849. Costs under New York Code of Civil Procedure. 
 
 — In New York, the allowance of costs in equity cases 
 stands on the same footing now that it did before the 
 enactment of the Code of Civil Procedure.' The rules 
 governing costs apply to actions for strict foreclosure, as 
 well as to equitable actions for a decree of foreclosure and 
 sale.* 
 
 Where the action is tried before a referee, the referee 
 takes the place of the court, and the question of costs is a 
 matter resting in his sound discretion.' If his discretion is 
 honestly exercised,* it can be interfered with only by an 
 appeal from the judgment.^ 
 
 § 850. Exceptions to discretion of court in allowing 
 costs. — Where a party to a foreclosure is dissatisfied with 
 the costs allowed by a trial court, his only method for 
 
 App. Dec. (N. y.) 95 (1867) ; House (1859) ; Church v. Kidd, 3 Hun (N". 
 
 V. Eisenlord, 30 Hun (N. Y.) 90, 93 Y.) 254 (1874). See N. Y. Code 
 
 (1883). Civ. Proc. §§ 3228, 3229, 3230. 
 
 » Garr v. Bright, 1 Barb. Ch. (N. * O'Hara v. Brophy, 42 How. (N. 
 
 Y.) 157 (1845) ; O'Hara v. Brophy, Y.) Pr. 379 (1863). See Bartow v. 
 
 24 How. (N. Y.) Pr. 379 (1863) ; Cleveland, 7 Abb. (N. Y.) Pr. 339 
 
 Bartow v. Cleveland, 16 How. (N. (1858); s. c. 16 How. (X. Y.) Pr. 
 
 Y.) Pr. 364 (1858) ; 8. c. 7 Abb. (N. 364. 
 
 Y.) Pr. 339 ; Pratt v. Ramsdell, 16 * Graves v. Blanchard, 3 N. 
 
 How. (N. Y.) Pr. 59 (1858) ; s. c. 7 Y. Code Rep. 25 (1850) ; 6. c. 4 
 
 Abb. (N. Y.) Pr. 340 n ; Lessee v. How. (N. Y.) Pr. 300 ; Pratt v. 
 
 EUifl, 13 Hun (N. Y.) 655 (1878); Styles, 9 Abb. (N. Y.) Pr. 150 
 
 Gallagher v. Eg.an, 2 Sandf. (N. Y.) (1859) ; s. c. 17 How. (N. Y.) Pr. 
 
 742 (1850). 211 ; Ludington v. Taft, 10 Barb. 
 
 « Garr v. Bright, 1 Barb. Ch. (N. (N. Y.) 447 (1857); Couch v. Millard, 
 
 Y.) 157 (1845) ; Eastburn v. Kirk, 3 3 How. (N. Y.) Pr. N. S. 22 (1885) ; 
 
 Johns. Ch. (N. Y.) 317 (1817) ; Lossee v. Ellis, 13 Hun (N. Y.) 655 
 
 Stevens v. Veriaue, 2 Lans. (N. Y.) (1878) ; Law v. McDonald, 9 Hun 
 
 90 (1870). (N. Y.) 23 (1876). 
 
 3 Law v. McDonald, 9 Hun (N.Y.) « Taylor v. Root, 48 N. Y. 687 
 
 23 (1876). See Phelps v. Woods, (1872). 
 
 46 How. (N. Y.) Pr. 1 (1873) ; Pratt ' Lossee v. Ellis, 13 Hun (N. Y.) 
 
 v. Stiles, 17 How. (N. Y.) Pr. 211 655 (1878).
 
 § 851.] WHO MAY EECOVEE COSTS. 943 
 
 obtaining relief is to challenge the finding as to costs by an 
 exception and an appeal from the judgment/ Where a 
 trial court allows costs under a mistaken idea of the law, it 
 is the duty of the appellate court to correct the error." 
 
 In New York, the discretion of the trial judge in an action 
 to foreclose a mortgage will not be interfered with on 
 appeal to the general term, except in cases of abuse or 
 gross error, in which recognized equities and rights were 
 disregarded.* 
 
 § 851. Who may recover costs. — A judgment for costs 
 may be entered in favor of any party to the action,* As a 
 general rule, the mortgagee is entitled to his costs of the suit, 
 whether he is plaintiff or defendant.* If, however, he has 
 been guilty of improper conduct, the court may not only 
 refuse him costs, but may compel him to pay the costs of 
 the action." Thus, if the action was occasioned by the 
 unreasonable or fraudulent conduct of the mortgagee, he will 
 be liable for its costs.^ 
 
 All defendants, who properly appear and answer, are 
 entitled to their costs, as a rule. But where several 
 defendants have the same solicitor, they will not be allowed 
 to swell the costs by filing separate answers.* This rule is 
 different in New York, where the plaintiff alone can tax a 
 bill of costs against the mortgaged premises. 
 
 > Rosa V. Jenkins, 31 Hun (N. Y.) Young, 17 N. J. Eq. (2 C. E. Gr.) 
 
 384 (1884) ; Woodford v. Bucklin, 161 (1864). 
 
 14 Hun (K Y.) 444 (1878). « Pratt v. Stiles, 9 Abb. (N 
 
 « Morris v. Wheeler, 45 N. Y. 708 Y.) Pr. 150 (1858) ; s. c. 17 How. 
 
 (1871). (N. Y.) Pr. 211; Large v. Van 
 
 » House V. Eisenlord, 30 Hun (N. Doren, 14 N. J. Eq. (1 McCart.) 208 
 
 Y.) 90 (1883). See ante % 848. (1862) ; Concklin v. Coddington, 13 
 
 « Garr v. Bright, 1 Bfjb. Ch. N. J. Eq. (1 Beas.) 250 (1857) ; s. c. 
 
 (N. Y.) 257 (1845). 72 Am. Dec. 893 ; DetiUin v. Gale, 
 
 » Concklin v. Coddington, 12 N. 7 Ves. 583 (1802). Compare, Bath- 
 
 J. Eq. (1 Beas.) 250 (1857) ; 8. gate v. Haskin, 63 N. Y. 261 (1875). 
 
 c. 72 Am. Dec. 393. See Hurd ' Saunders v. Frost, 22 Mass. (5 
 
 V. Callahan, 9 Abb. (K Y. ) N. Pick.) 259 (1827) ; s. c. 16 Am. Dec. 
 
 C. 374 (1881) ; Berlin Building & 394. 
 
 L. Assoc. V. Clifford, 30 N. J. Eq. * Danbury v. Robinson, 14 N. J. 
 
 (3 Stew.) 482.(1879); Young v. Eq. (1 McCart.) 324 (1862).
 
 944 COSTS TO JUNIOR LIENORS. [S§ 852-853. 
 
 §852. Prior mortgagee entitled to costs.— A prior 
 mortgagee, who has been properly made a defendant for the 
 purpose of having the amount of his claim ascertained, is 
 entitled to a bill of costs/ and the same is true where such 
 mortgagee has been improperly joined as a party to the 
 action. In the first case, he is entitled to have his costs 
 paid out of the property, and in the latter, to have them 
 taxed against the plaintiff personally.' 
 
 Where a prior mortgagee is made a party to an action for 
 foreclosure, brought by a second mortgagee, he is entitled 
 to have his taxable costs first paid out of the proceeds of 
 the sale, and if the second mortgagee wishes to save such 
 costs, he must tender the prior mortgagee the amount due 
 on his mortgage.* Such a prior mortgagee will not forfeit 
 his right to costs by setting up in his answer, in addition 
 to his mortgage, an interest in the premises acquired under 
 a tax sale, even if such claim is decided against him.* 
 
 But it is thought, that if such prior mortgagee puts in an 
 answer and compels the plaintiff to prove his case, and 
 thereby unnecessarily increases the costs, where the right 
 of such mortgagee might have been properly protected by 
 an appearance on the reference to compute the amount 
 due, he will not only be denied his costs, but may properly 
 be called upon to pay the costs consequent upon such 
 conduct.* 
 
 § 853. Costs to subsequent incumbrancers. — A subse- 
 quent incumbrancer was formerly entitled to a bill of costs in 
 a mortgage foreclosure.* But, if subsequent incumbrancers 
 
 * Boyd V. Dodge, 10 Paige Ch. * Concklin v. Coddington, 12 N. 
 
 (N. Y.) 42 (1843); Vroom v. J. Eq. (1 Beas.) 250 (1859) ; s. c. 72 
 
 Ditmas, 4 Paige Ch. (N. Y.) 526 Am. Dec. 393. 
 
 (1834); Slee v. Manhattan Ins. Co., * Concklin v. Coddington, 12 N. 
 
 1 Paige Ch. (N. Y.) 48 (1828); Berlin J. Eq. (1 Beas.) 250 (1859) ; s. c. 72 
 
 Building & Loan Assoc, v. Clifford, Am. Dec. 393. 
 
 30 N. J. Eq. (3 Stew.) 482 (1879) ; « Barnard v. Bruce, 21 How. (N. 
 
 Lithauer v. Royle, 17 N. J. Eq. (2 Y.) Pr. 360 (1860). 
 
 C. E. Gr.) 40 (1864). « Young v. Young, 17 N. J. Eq. 
 
 « Millandon v. Brugiere, 11 Paige (2 C. E. Gr.) 161 (1364). 
 Ch. (K Y.) 163 (1844); Boyd v. 
 Dodge, 10 Paige Ch. (N.Y.) 42 (1843).
 
 § 854.] COSTS IN DOUBLE FOKECLOSUliE. 945 
 
 unnecessarily appeared and answered, they were not entitled 
 to costs until the plaintiff's debt and costs had been paid.' 
 Now, however, a junior lienor is rarely allowed a bill of costs. 
 
 If the claims of subsequent incumbrancers are correctly 
 set forth in the complaint for the foreclosure of a prior 
 mortgage, it will not be necessary for them to appear, 
 because their rights will be fully protected under the decree ; 
 and it has been said, that where the appearance of such 
 an incumbrancer, though proper, is not necessary, the 
 plaintiff, upon receiving the amount due him, may dis- 
 continue as against subsequent incumbrancers who have 
 appeared, without costs to them.' 
 
 By the rules and the course of practice of the court 
 of chancery of New York, a subsequent incumbrancer was 
 not entitled to costs until the debts and costs of all prior 
 incumbrancers had been satisfied.* 
 
 § 854. Costs on two foreclosures against same prop- 
 erty. — In Wendell v. Wendell,' where there were two 
 separate mortgages on the same property, belonging to 
 different mortgagees, and the holder of the first mortgage 
 filed a bill of foreclosure against the second mortgagee and 
 the owners of the mortgaged premises, and the same solicitor 
 filed another bill in behalf of the second mortgagee, 
 against the first mortgagee and the owners of the premises, 
 to foreclose the second mortgage, the court held, that only 
 one bill of foreclosure was necessary, and that the owners of 
 the equity of redemption could be charged with the costs of 
 one suit only. This decision is based upon the principle, 
 that where an action is unnecessarily brought, or where the 
 relief asked for, might have been obtained by an application 
 to the court on a motion in a case already pending, the 
 party commencing such action can not recover costs.* 
 
 » Barnard v. Bruce, 21 How. (N. (N.Y.) 42(1843) ; Litliauer v. Royle, 
 
 Y.) Pr. 360 (1860) ; Merchants' Ins. 17 K J. Eq. (2 C. E.Gr.)40, 44 (1864). 
 
 Co. V. Marvin, 1 Paige Ch. (N. Y.) See Smack v. Duncan, 4 Sandf. Ch. 
 
 557 (1829). (K Y.) 621 (1847). 
 
 2 Gallagher v. Egan, 2 Sandf. (N. * 3 Paige Ch. (N. Y.) 509 (1832). 
 Y.) 742 (1850). " Roosevelt v. Ellithorp, 10 Paige 
 
 3 Boyd V. Dodge, 10 Paige Ch. Ch. ( N. Y. ) 415 ( 1843 ) ; De
 
 946 WHEN COSTS NOT ALLOWED. [§§ 855-856. 
 
 But, where a subsequent incumbrancer can not secure the 
 relief desired, by an appHcation in a suit alteady pending, 
 the above rule does not apply. Thus, where a second 
 mortgagee is unable to secure the relief prayed for, — that is 
 to obtain a satisfaction of his mortgage, — in a suit already 
 pending for the foreclosure of a prior mortgage, because 
 of an injunction staying the sale in such suit, he will be 
 entitled to his costs in an independent action to foreclose.' 
 
 § 855. When costs not allowed to mortgagee. — While 
 a mortgagee plaintiff is generally entitled to costs, yet 
 he will not be allowed costs if the foreclosure is defective, on 
 account of his errors in the conduct of the proceedings, 
 whereby a new foreclosure is rendered necessary.' 
 
 Where a mortgagee, by his refusal to accept the mortgage 
 debt when tendered, or by interposing groundless objections 
 to a redemption, compels the mortgagor or his assignee 
 to resort to an action, he will not be allowed, but on the 
 contrary, may sometimes be compelled to pay costs.* 
 Where the plaintiff in a mortgage foreclosure, unnecessarily 
 sets out the rights of the several defendants at length, the 
 extra costs occasioned thereby will not be allowed on taxa- 
 tion.* 
 
 § 856. When costs not allowed to defendants. — Costs 
 will not be allowed to a defendant who unnecessarily 
 answers;* and where an action has been unreasonably, unjus- 
 tifiably or improperly defended, so that unnecessary expenses 
 have been incurred, it is thought that the court may, in 
 its discretion, order the costs, or such part of them as may 
 be proper, to be paid personally by the contesting party ; 
 otherwise the costs of the prevailing party should be paid 
 from the fund.' 
 
 LaVergne v. Evertson, 1 Paige Ch, * Slee v. Manhattan Co. , 1 Paige 
 
 (N. Y.) 181 (1828) ; s. c. 19 Am. Ch. (N. Y.) 48 (1828). See Vroom v. 
 
 Dec. 411. Ditmas, 4 Paige Ch. (N.Y.) 535(1834). 
 
 ' Bache v. Purcell, 6 Hun (N. Y.) * Union Ins. Co. v. Van Rensselaer, 
 
 518 (1876) ; aff'd 51 How. (N. Y.) 4 Paige Ch. (N. Y.) 85 (1833). 
 
 Pr. 270. 6 Rood v. Winslow, 2 Doug. 
 
 * Clark V. Stilson, 36 Mich. 482 (Mich.) 68 (1845). 
 
 Vl877). 6 Millandon v. Brugiere, 11 Paige
 
 §§ 857-858.] NOTICE of no personal claim. 947 
 
 § 857. Notice of no personal claim.— It has been seen,' 
 that the plaintiff in a mortgage foreclosure may relieve him- 
 self of the expense of unnecessary disclaimers, by defen,dants 
 who are made parties to the action solely for the purpose 
 of extinguishing their claims and of perfecting the title, by 
 serving upon them a notice that no personal claim is made 
 against them ; if any defendant, served with such a notice, 
 unnecessarily defends, he will be personally liable for costs 
 to the plaintiff.' A notice of no personal claim is required, 
 although a copy of the complaint may have been served.' 
 
 But it is thought that the neglect of the plaintiff to serve 
 a notice of no personal claim, will not deprive the court 
 of power to award costs against a defendant who unneces- 
 sarily or unreasonably defends.* 
 
 § 858. Effect of excessive demand in the complaint. 
 
 — The fact, that a mortgagee demands a larger sum in his 
 complaint than the court finally decides he is entitled to 
 receive, is no ground for refusing him a bill of costs.* The 
 court held, in Loftus v. Swift,' that " a mortgagee is always 
 considered as entitled to costs, unless there be something of 
 positive misconduct. Merely extending his claim beyond 
 what the court finally decides he is entitled to, is no 
 ground for refusing him his costs." If, however, he has 
 acted oppressively in demanding a larger sum than was due 
 on his mortgage, and the mortgagor has been diligent 
 in endeavoring to ascertain from him the amount of the 
 
 Ch. (N. Y.) 163 (1844) ; Boyd v. ^ O'Hara v. Brophy, 24 How. (N. 
 
 Dodge, 10 Paige Ch. (N. Y.) 42 Y.) Pr. 379 (1863). 
 
 (1843) ; Bank of Plattsburg v. Piatt, ■♦ Gallagher v. Egan, 2 Sandf. 
 
 1 Paige Ch. (N. Y.) 464 (1829) ; In (N. Y.) 742 (1850). 
 
 re Wright, 16 Fed. Rep. 482, 485 * Concklin v. Coddington, 12 K 
 
 (1883). J. Eq. (1 Beas.) 250 (1859) ; s. c. 73 
 
 » See ante § 241 ; N. Y. Code Civ. Am. Dec. 393 ; Loftus v. Swift, 2 
 
 Proc. § 423. Sch. & L. 642 (1806). 
 
 " Barker v. Burton, 67 Barb. « 2 Sch. & L. 657 (1806), and thif? 
 
 (N. Y.) 458 (1877) ; O'Hara v. Bro- language is approved in the case of 
 
 phy, 24 How. (N. Y.) Pr. 379 (1863); Concklin v. Coddington. 12 N. J. 
 
 Benedict v. Warriner, 14 How. (K Eq. (1 Beas.) 250 (1859) ; s. c. 73 
 
 Y.) Pr. 570 (1857) ; Gallagher v. Am. Dec. 393. 
 Egan, 2 Sandf. (N. Y.) 742 (1850) ; 
 Adams v. Myers, 61 Wis. 385 (1884).
 
 948 COSTS AS AFFECTED BY TENDER. [§859. 
 
 incumbrance, in order to pay it, costs will be denied to him, 
 and possibly, in some cases, awarded against him.* 
 
 § 859. Effect of tender after action brought. — Usually 
 a tender of the payment of a debt, at its maturity, releases 
 the party making such tender from liability for interest and 
 costs thereafter; but it seems that in New York,* a mort- 
 gagor can not make and plead a tender in a mortgage 
 foreclosure, for the reason that a tender to be good, must be 
 complete, and include not only the money due on the 
 demand, but also all costs, and the costs in a mortgage 
 foreclosure, resting in the discretion of the court, are uncer- 
 tain.* 
 
 The New York Code of Civil Procedure provides,* that 
 where a complaint demands judgment for a sum of money 
 only, which sum is certain or may be reduced to certainty by 
 calculation, the defendant or his attorney may, at any 
 time before the trial, tender to the plaintiff, or his attorney, 
 such a sum of money as he conceives will be sufficient to pay 
 the plaintiff's demand, together with the costs of the 
 action to that time. But it is said that this rule is confined 
 to actions at law, and for that reason does not affect actions 
 brought for the foreclosure of mortgages.' 
 
 Yet, it is thought that a mortgagor, or the owner of the 
 equity of redemption, may relieve himself from all liability 
 for the payment of interest and costs, by tendering to the 
 
 ' Van Buren v. Olmstead, 5 Paige But these cases were overruled in 
 
 Ch. (N. Y.) 9 (1834) ; Vrooni v. Dit- Bathgate v. Haskin, 63 N. Y. 261 
 
 mas, 4 Paige Ch. (N. Y.) 536 (1834) ; (1875). 
 
 Large V. VanDoieu, 14 N. J. Eq. (1 * Bartow v. Cleveland, 7 Abb. 
 
 LlcCart.) 308 (1863); Detillin v. Gale, (N. Y.) Pr. 339 (1858) ; s. c. 16 How. 
 
 7 Ves. 583 (1802). (N. Y.) Pr. 364 ; Thurston v. Marsh, 
 
 " la New York it was formerly 5 Abb. (N. Y.) Pr. 389 (1857) ; s. c. 
 
 held, that a tender made no differ- 14 How. (N. Y.) Pr. 572 ; Pratt v. 
 
 ence in the amount of the costs. Ramsdell, 16 How. (N. Y.) Pr. 59 
 
 Bartow v. Cleveland, 16 How. (N. (1858). 
 
 T.) Pr. 364 (1858); s. c. 7 Abb. (N. * N. T. Code Civ. Proc. § 7C1, 
 
 Y.) Pr. 339 ; Pratt v. Eamsdell, 16 See also §^ 1634. 1635. 
 
 How. (N. Y.) Pr. 59, 62 (1858) ; s. c. ^ New Y'ork Fire Ins, Co. v. 
 
 7 Abb. (N. Y.) Pr. 310 a ; Stesensv. Burrell, 9 How. (N. Y.) Pr. 398 
 
 Veriuue, 2 Lans. (N.Y.) 90 (1870). (1854).
 
 §§ 860-861.] COSTS TO guaedian ad litem. 949 
 
 plaintiff the amount due upon the mortgage, together with 
 such costs as he thinks sufficient ; upon refusal of the plaintiff 
 to accept the amount, the mortgagor may apply to the court 
 for leave to pay the amount due, and such costs as the 
 court in its discretion may allow, into court, and upon such 
 payment the court will either order the action discontinued 
 or stay all proceedings therein.* Where a tender is made 
 before judgment, and the parties themselves do not mutually 
 arrange the costs, either party may apply to the court for 
 the taxation thereof.* 
 
 § 860. Costs on default. — Where judgment is taken by 
 default in a mortgage foreclosure, costs will be allowed 
 as provided in section 3251, of the Code of Civil Procedure; 
 and it has been held, that the fact, that a tender of the 
 amount due was made, will not make any difference as 
 to the amount> to be allowed.* 
 
 § 861. Costs allowed guardian ad litem. — In New 
 York the compensation allowed to a guardian ad litem in 
 an equitable action, is hot dependent upon any provision 
 of the Code. It was the practice of the court of chancery to 
 compensate such guardian, for the services actually per- 
 formed by him in the protection of the infant's interests, by 
 allowing him to recover costs out of the proceeds of the 
 sale, not exceeding the taxable items prescribed for such 
 services.* 
 
 It is a general rule, that the guardian ad litem of an 
 infant defendant can be allowed only taxable costs as 
 
 1 Bartow v. Cleveland, 7 Abb. 7 Abb. (N. Y.) Pr. 339 ; Pratt v. 
 (N. Y.)Pr. 339 (1858) ; s. c. 16 How. Ramsdell, 16 How. (N. Y.) Pr. 59 
 (N. Y.) Pr. 364. See N. Y. Code (1858); s. c. 7 Abb. (N. Y.) Pr. 
 Civ. Proc. §§ 1634, 1635. 340 n ; Stevens v. Veriane, 2 Lans. 
 
 "Bartow v. Cleveland, 7 Abb. (N. Y.) 90 (1870). But see Adams v. 
 
 (N. Y.) Pr. 339 (1858) ; s. c. Myers. 61 Wis. 385 (1884;. 
 
 16 How. (N. Y.) Pr. 364 ; Stevens v. ^ Weed v. Paine, 31 Hun (N. Y.) 
 
 Veriane, 2 Lans. (N. Y.) 90 (1870) ; 10 (1883) ; s. c. 13 Abb. (N. Y.) 
 
 Pratt V. Ramsdell. 16 How. (N. Y.) N. C. 200 ; Gott v. Cook, 7 Paige 
 
 Pr. 59(1858). See Morris v. Wheeler, Ch. (N. Y.) 521, 544 (1839) ; Union 
 
 45 N. Y. 708 (1871). Ins. Co. v. Rensselaer, 4 Paige Cli. 
 
 2 Bartow v. Cleveland. 16 How. (N. Y.) 85 (lb:.3). 
 (N. Y.) Pr. 364 (1858); s. c.
 
 950 COSTS ON APPOLNTINa RECEIVER. [§§ 862-863. 
 
 against a fund belonging to the other parties to the action.' 
 Where an extra allowance is made to the guardian ad litem of 
 infant defendants, in a mortgage foreclosure, it must be paid 
 out of their share, since only the taxable costs can be 
 charged upon that portion of the fund which belongs to 
 other parties.' But only very special circumstances will 
 authorize a court to allow anything beyond the taxable 
 costs of the guardian ad litem, to be charged upon a fund 
 belonging to an infant.' 
 
 § 862. Costs on appointment of receiver. — Where it is 
 found necessary to appoint a receiver to take charge of the 
 mortgaged premises or to collect the rents and profits 
 thereof during the pendency of the action, the costs of the 
 motion for the appointment of such receiver are sometimes 
 reserved until the hearing,* even where the application 
 therefor is refused ;' but the court may, in its discretion, 
 deal with the costs of a motion for a receiver at the time of 
 the application ;* or the costs of the application may be 
 ordered to be taxed with the costs.of the action.* 
 
 § 863. Costs on resale. — Where a sale is reported by the 
 officer conducting it, and the purchaser refuses to comply 
 with its terms, the court may, upon representations by the 
 plaintiff, or other parties in interest, order that cause be 
 shown why the terms of the sale should not be complied 
 with ; if sufficient cause is not shown, it may, considering all 
 the circumstances of the case, either ratify the sale or set it 
 aside, as will best subserve the interests of the parties con- 
 cerned.* And in such a case, if the sale is set aside, the court 
 
 ' Union Ins. Co. v. Rensselaer, 4 ' Goodman v. Whitcome, 1 Jac. 
 
 Paige Ch. (N. Y) 85 (1833), «& W. 593 (1820) ; Wilson v. Wilson, 
 
 » Downing v. Marshall, 37 N. Y. 18 Jur. 581 (1854) ; Skinner's Com- 
 
 391 (1867) ; Union Ins. Co. v. Kens- pany v. Irisli Society, 1 M. & C. 
 
 selaer, 4 Paige Ch. (N. Y.) 85 (1833). 169 (1835) ; Fall v. Elkins, 9 W. R. 
 
 » Union Ins. Co. v. Rensselaer, 4 861 (1861). 
 Paige Ch. (N. Y.) 85 (1833). •" Bowker v. Henry, 6 L. T., N. 
 
 " Chaplin v. Young, 6 L. T., K S. 43 (1862) ; Topping v. Searson, 6 
 
 S. 97 (1802). L. T., N. S. 449 (18G2) ; Full v. 
 
 » Baxter v. West, 28 L. J. Ch. 169 Elkins. 9 W. R. 861 (18(31). 
 (1859) ; Coope v. Creswell, 12 W. « Schaefer v. O'Brien, 49 Md. 2G3 
 
 R. 299 (1864). (1878).
 
 § 864.] PEESOJJTAL LIABILITY FOE COSTS. 951 
 
 may properly impose upon the party reported as purchaser, 
 all the costs and expenses attending the sale, as the condition 
 of releasing him from his bid and the consequences of his 
 default.* 
 
 § 864. Who personally liable for costs. — It was said by 
 Lord Eldon, in the case of Detillen v. Gale"' that "it is 
 admitted that there is no instance in which a mortgagee has 
 been called upon to pay costs ;" ' but it is thought that the 
 mortgagee may be required to pay costs, if he has rejected 
 a tender of the full amount due him, together with his 
 costs, or if the litigation has in any way been occasioned oy 
 his fraud or mistake.* Where the plaintiff in a mortgage 
 foreclosure so misstates the rights of a defendant as to render 
 it necessary for him to put in an answer to protect his 
 rights, the plaintiff may be personally charged with the extra 
 costs occasioned thereby.* 
 
 The mortgagor, or any other party to the action, who 
 unnecessarily defends it, may be charged personally with the 
 costs, for the benefit of those entitled to the surplus.* 
 Thus, costs are properly imposed against a subsequent 
 incumbrancer who defends against a bill of review filed by a 
 principal defendant, and maintains the supplemental liti- 
 gation in opposition to the terms of a mortgage binding his 
 lands.* 
 
 It has been held, that a purchaser of a portion of the 
 mortgaged premises from the mortgagor, should pay his 
 p^ortion of all legitimate costs incurred in the foreclosure of 
 a mortgage upon such lands ;* and it is certain that a sub- 
 sequent purchaser of: mortgaged premises may make himself 
 personally liable for costs, although he may not be liable for 
 
 » Schaefer v. O'Brien, 49 Md. 253 « Jones v. Phelps, 2 Barb. Ch. 
 
 (1878). (K Y.) 440 (1847); Barnard v. 
 
 « 7 Ves. 584 (1802). Bruce, 21 How. (N. Y.) Pr. 360 
 
 3 House V. Eisenlord, 30 Hun (I860) ; O'Hara v. Brophy, 24 How. 
 
 (N. Y.) 90 (1883). (N. Y.) Pr, 379 (1863). See ante 
 
 * Pratt V. Stiles, 9 Abb. (N. Y.) §241. 
 
 Pr. 150 (1859) ; s. c. 17 How. (N. ' ' Mickle v. Maxfield, 42 Mich. 304 
 
 Y.)Pr. 211. (1879). 
 
 * Union Ins. Co. v. Rensselaer, 4 * Bates v. Ruddick, 2 Iowa, 425 
 Paige Ch. (N. Y.) 85 (1833). (1856) ; s. c. 65 Am. Dec. 774.
 
 952 COSTS FKOM PROCEEDS OF SALE. [§§ 865-866. 
 
 the payment of the mortgage debt, if he makes an unreason- 
 able and unfounded defence to the suit, and the property is 
 not of sufficient value to pay the incumbrance.* 
 
 § 865. Out of what fund costs payable. — The costs of a 
 mortgage foreclosure are usually payable from the proceeds 
 of the sale of the mortgaged premises." It is thought that 
 where the circumstances of the case require it, the court 
 may direct the costs to be paid out of any moneys in its 
 custody, belonging to any of the parties litigant, and 
 subject to the lien of the mortgage.' Thus, where a prior 
 mortgagee is properly made a party to a foreclosure, for 
 the purpose of ascertaining the amount of his claim, such 
 mortgagee is entitled to his costs, to be paid out of the 
 property, or by the plaintiff personally, in the discretion of 
 the court.* 
 
 But where a party is improperly made a defendant, his 
 costs must be paid by the plaintiff personally,' and not 
 out of the general fund.' Where a complaint is dismissed 
 as to some of the defendants, the costs are to be paid by the 
 plaintiff, and not out of the funds raised by the sale of 
 the mortgaged premises.^ 
 
 §866. Counsel fees in foreclosing mortgages.— It is 
 the general rule, that a reasonable attorney's fee for foreclos- 
 ing a mortgage, beyond the costs allowed by law, may be 
 contracted for in a mortgage, and the court will consider the 
 amount stipulated for by the parties to be reasonable, 
 unless it is extravagantly large and extortionate, so as ,to 
 show that it was intended as a penalty to be held in terrorem 
 over the mortgagor.* A percentage may be allowed instead 
 
 •Daclniry v. Robinson, 14 N. J. Dodge, 10 Paige Ch. (N. Y.) 42 
 
 Eq. (1 McCart.) 324 (1862). (1843). 
 
 ■■^ Botsford V. Botsford, 49 Mich. * JMillandon v. Brugiere, 11 Paige 
 
 29 (1882). Ch. (N. Y.) 163 (1844). 
 
 2 Falkner v. Priuling Co., 74 * Nelson v. Montgomery, 1 Edw. 
 
 Ala. 359 (1883). Ch. (N. Y.) 657 (1833). 
 
 •• Chamberlain v. Dempsey, 36 ■■ Rosa v. Jenkins, 81 Hun (N. Y.) 
 
 N. Y. 144, 147 (1867); Jones v. 384(1884). 
 
 Phelps, 2 Barb. Ch. (N. Y.) 440 « Munter v. Linn, 61 Ala. 493 
 
 (1847) ; Mayer v. Salisbury, 1 Barb. (1878) ; Alden v. Pryal, 60 Cal. 215 
 
 Ch. (N. Y.) 546 (184G); Boyd v. (1882); Clawson v. Munson, 55 111.
 
 § 866.] COUNSEL FEE ON EOEEOLOSUEE. 953 
 
 of a fixed sum as a fee, or the fee may be stipulated for 
 in blank.' 
 
 A provision in a mortgage, that the mortgagor shall, in 
 case of foreclosure, pay the costs and " fifty dollars as liqui- 
 dated damages for the foreclosure of the mortgage," has 
 been held to be void, because so indefinite that the court 
 could not tell whether the amount was for something legal 
 or illegal, and a judgment rendered on such a stipulation for 
 fifty dollars as an attorney's fee, was declared erroneous.' 
 But a stipulation that the mortgagee shall be entitled on 
 foreclosure, " to a judgment for the possession of said 
 premises, and costs, expenses and an attorney's fee of ten 
 per centum of the amount due for foreclosing said mortgage," 
 is valid ; and on a mortgage debt of $4,000, or less, such a 
 percentage has been held not to be so excessive that a court 
 of equity would refuse to enforce it.* 
 
 A stipulation in a mortgage, for the payment of an attor- 
 ney's fee, is regarded as a compensation to the mortgagee for 
 expenses incurred by the default of the mortgagor, and will 
 not be relieved against in equity, if fairly entered into, 
 unless it is evidently a penalty, or made the cloak for an 
 usurious contract.* 
 
 394 (1870) ; McLane v. Abrams, 2 * Thus, where the mortgage fore- 
 
 Nev. 207, 208(1866); Cox v. Smith, closed provided for "counsel fees 
 
 1 Nev. 161 (1865) ; s. c. 90 Am. Dec. and charges of attorneys and coun- 
 
 476 ; Daly v. Maitland, 88 Pa. St. sel employed in such foreclosure 
 
 884 (1878) ; Hitchcock v. Merrick, suit, not exceeding ," it was 
 
 15 Wis. 522 (1862) ; Rice v. Cribb, held that counsel fees were properly 
 
 12 Wis. 179 (1860). Compare, allowed. Alden v. Pryal, 60 Cal. 
 
 Ogborn v. Eliason, 77 Ind. 393 215(1882). 
 
 (1881) ; Alexandrie v. Saloy, 14 La. * Foote v. Sprague, 13 Kan. 155 
 
 An 327 (1859). In McLane v. (1874) ; Stover v. Johnnycake, 9 
 
 Abrams, 2 Nev. 199 (1866), a stipu- Kan. 367 (1872) ; Tholen v. Duffy, 
 
 lation for ten per centum on the 7 Kan. 405 (1871) ; Kurtz v. Spon- 
 
 amount of the mortgage, $6,000, able, 6 Kan. 395 (1878). 
 
 was not regarded as unreasonable. ^ Sharp v. Barker, 11 Kan. 381 
 
 In Daly v. Maitland, 88 Pa. St. 384 (1873). 
 
 (1878) ; 8. c. 13 West. Jur. 204, a * Daly v. Maitland, 88 Pa. St. 384 
 
 stipulation for a commission of five (1878). Compare, Myer v. Hart, 40 
 
 per centum on a mortgage of Mich. 517 (1879) ; s. c. 25 Am. Rep. 
 
 $14,000 was considered to be unrea- 558. See Alden v. Pryal, GO Cal. 
 
 louable. 215 (1882).
 
 954: attorney's fee. [§§ 867-8G8. 
 
 § 867. Counsel fees in Kentucky and Michigan. — It 
 seems that a different doctrine prevails in Kentucky' and 
 Michigan.* It was held by the supreme court of Michigan, 
 in the case of Vosburgh v. Lay,' that a stipulation in 
 a mortgage fixing in advance a gross allowance, is against 
 public policy and can not be enforced ; and that this is 
 specially true, where the allowance for an attorney's fee 
 differs from that authorized by statute.* 
 
 § 868. Stipulation for attorney's fee — When usurious. 
 
 — A stipulation in a mortgage, that the mortgagor, in 
 addition to legal interest, shall pay to the mortgagee an 
 attorney's fee for collecting the debt, such fee to be taxed in 
 the judgment, will not render the agreement usurious, 
 and may be enforced,* because the debtor, by neglecting 
 or refusing to pay. the debt, imposes upon the mortgagee 
 the expense of resorting to law to enforce his rights, and it 
 is only just that all the expenses of foreclosure should 
 be borne by the party whose wrong has made it necessary to 
 incur them.' But such a stipulation will not embrace the 
 unnecessary and useless services of a solicitor, however exten- 
 sive or laborious.'' Where such a stipulation is intended as 
 
 » Rilling V. Thompson, 12 Bush (1878) ; McGill v. Griffin, 32 Iowa, 
 
 (Ky.) 310 (1876) ; Thomasson v. 445 (1871) ; Weatherby v. Smith, 30 
 
 Townsend, 10 Bush (Ky.) 114 Iowa, 131 (1870) ; s. c. 6 Am. Rep. 
 
 (1873). 663 ; Nelson v. Everett, 29 Iowa, 184 
 
 2 Millard v. Truax, 50 Mich. 343 (1870) ; Conrad v. Gibbon, 29 Iowa, 
 
 (1883) ; Botsford v. Botsford, 49 120 (1870) ; Gilmore v. Ferguson, 28 
 
 Mich. 29 (1882) ; Vosburgh v. Lay, Iowa, 220 (1869) ; Gower v. Carter, 
 
 45 Mich. 455 (1881) ; Parks v. Allen, 3 Clarke (Iowa), 244 (1856). In Wil- 
 
 42 Mich. 482 (1880) ; Myer v. Hart, liams v. Meeker, 29 Iowa, 292 (1870), 
 
 40 Mich. 517 (1879); s. c. 29 Am. an attorney's fee of $75 was allowed. 
 Rep. 553. Contra, Rilling v. Thompson, 13 
 
 8 45 Mich. 455 (1881). Bush (Ky.) 310 (1876) ; Thomasson 
 
 * The court held in this case, that v. Townsend, 10 Bush (Ky.) 114 
 " in respect to all proceedings of this (1873). 
 
 nature, and which are exceptional • Hitchcock v. Merrick, 15 "Wis. 
 
 and peculiar, all allowances which 522 (1862); Rice v. Cribb, 12 Wis. 
 
 partake of the character of fees are 179 (1800) ; Boyd v. Summer, 10 
 
 dependent on legislation," citing Wis. 41 (1859) ; Tallman v. Trues- 
 
 Booth V. McQueen, 1 Doug. (Mich.) dell, 3 Wis. 443, 454 (1854). 
 
 41 (1843). ' Soles v. Sheppard, 99 111. 620 
 
 * Munter v. Linn, 61 Ala. 492 (I88I).
 
 § 869.] DISCEETIONAEY ALLOWANCE OF FEE. 955 
 
 a gratuity, or is without consideration, or is inserted as 
 a cover for usury, which is prohibited by statute, it will be 
 void.' 
 
 § 869. Allowance of attorney's fee — Discretion of 
 court. — It has been said, that the allowance of an attorney's 
 fee for the collection of a mortgage, is in the nature of 
 a penalty, rather than of liquidated damages ;' and that it is 
 within the sound discretion of the court in which the mort- 
 gage is being foreclosed, to determine whether the whole, or 
 any part of the sum stipulated for in the mortgage as 
 a counsel fee, shall be included in the judgment.* The 
 allowance of the stipulated fee, being a matter of discretion 
 with the court, can not be reviewed on appeal, unless it 
 appears that such discretion has been abused.* 
 
 The supreme court of Alabama held, in Munter v. Linn,* 
 that in case of such a stipulation, a reasonable sum only can 
 be collected as an attorney's fee, although a larger sum 
 or per centum may have been agreed upon by the parties. 
 And the supreme court of Mississippi held, in the case 
 of Voechting v. Grau," that where a mortgage contains a 
 stipulation, that in case of foreclosure, the mortgagor will 
 pay " in addition to the taxable costs a reasonable and 
 customary sum for an attorney's or solicitor's fee," the amount 
 to be paid for such fee must be ascertained by evidence, 
 
 ' Soles V. Sheppard, 99 HI. 616 ing such a fee in the decree. Mc- 
 
 (1881). Intire v. Yates, 104 lU. 491 (1882). 
 
 » Daly V. Maitland, 88 Pa. St. 384 A mortgage provided for the 
 
 (1878). allowance of a counsel fee, " at the 
 
 * Daly V. Maitland, 88 Pa. St. 384 rate of — per centum, upon the 
 
 (1878) ; Reed v. Catlin, 49 Wis. 686 amount which may be found to be 
 
 (1880). See Carriere v. Minturn, 5 due on principal and interest." The 
 
 Cal. 485 (1855) ; Insurance Co. v. court allowed one hundred and 
 
 Shields, 12 Phila. (Pa.) 407 (1882). fourteen dollars, bemg 25 per centum 
 
 *Reed v. Catlin, 49 Wis. 686 of the amount found due ; it was held 
 
 (1880). Where a mortgage contains that such an allowance was author- 
 
 a provision, that in case of fore- ized by the terms of the mortgage, 
 
 closure, two per centum on the Rickards v. Hutchinson, 18 Nev. 
 
 amount found due on the mortgage 815 (1883). 
 
 indebtedness, shall be allowed and * 61 Ala. 497 (1878). 
 
 included in the decree as a solicitor's * 55 Wis. 312 (1882). 
 fee, there will be no error in includ-
 
 956 ALLOWANCE OF FEE. [§§ 870-871. 
 
 as the Judge has no authority to fix the amount thereof on 
 a mere inspection of the record, or from his personal knowl- 
 edge of the services rendered.* 
 
 Where a mortgage contains a stipulation for the payment 
 of a specified sum as an attorney's fee, in case the mortgage 
 is foreclosed, it seems that the allowance of a greater sum will 
 be erroneous.* In the early case of Remington v. Willard,* 
 however, where the mortgage contained a stipulation for the 
 payment of a fee of seventy-five dollars, the court allowed, 
 under the Code, five per centum on the amount due. 
 
 § 870. Allowance of attorney's fee a matter of contract 
 or statute. — A judgment of foreclosure can not include a sum 
 as an attorney's fee in addition to statutory costs, unless 
 such sum is stipulated for in the mortgage,* or expressly 
 authorized by statute, as in some of the states.' It is 
 thought, however, that courts of equity may allow the 
 counsel fees incurred by the mortgagee in defending his 
 title, without an express contract in the mortgage, or 
 a statutory enactment providing therefor." 
 
 In an action for the foreclosure of a mortgage executed 
 by a corporation, the plaintiff is not entitled to recover 
 a counsel fee for such foreclosure, where the resolutions of 
 the corporation, authorizing the loan and the execution of 
 the mortgage, did not provide for the payment of a counsel 
 fee, or that such fee should be secured by the mortgage.* 
 
 § 871. Enforcement of counsel fee against purchaser. — 
 
 A covenant in a mortgage, that in case of foreclosure the 
 
 • As to the necessity for proof of 54 Wis. 591 (1 882) ; Hitchcock ▼. 
 the value of an attorney's services, Merrick, 15 Wis. 522 (1862). 
 
 see Wyant v. Pottorff, 37 Ind. 512 » Hunt v. Chapman, 62 N. Y. 
 
 (1871) ; Samstag v. Conley, 64 Mo. 333 (1875) ; Bocks v. Hathorn, 17 
 
 476 (1877) ; First Nat. Bank of Tren- Hun (N. Y.) 87 (1879). See Stover v. 
 
 ton v. Gay, 63 Mo. 33 (1876) ; Woods Johnnycake, 9 Kan. 367 (1872) ; In 
 
 V. North, 84 Pa. St. 407 (1877). re Carroll's Will, 53 Wis. 228 (1881); 
 
 « Palmeter v. Carey, 63 Wis. 426 B. c. 10 N. W. Kep. 375. 
 
 (1885). « Lomax v. Hide, 2 Vern, 185 
 
 » 15 Wis. 583 (1862). (1690) ; Hunt v. Fownes, 9 Ves. 70 
 
 * Sichel v. Carrillo, 42 Cal. 493 (1803). 
 
 (1871) ; Stover v. Johnnycake, 9 ' Schallard v. Eel River Steam 
 
 Kan. 3G7 (1873) ; Wylie v. Karner, Nav. Co., 70 Col. 144 (1886).
 
 § 872.] COUNSEL FEE ON FORECLOSURE. 957 
 
 mortgagor shall pay to the mortgagee a solicitor's fee, in 
 addition to taxable costs in the suit, is enforceable not only 
 against the mortgagor but also against a subsequent pur- 
 chaser of the mortgaged premises.' 
 
 In the case of Pierce v. Kneeland,* the court say: " It is 
 objected that the covenant could not be enforced against 
 subsequent purchasers. But we fail to see any good reason 
 why it could not. In case of foreclosure, the property was 
 bound for the payment of the one hundred dollars solicitor's 
 fee as much as it was for the taxable costs. The defendants 
 purchased the property subject to the incumbrances, and it 
 is certainly strange that they can relieve themselves from 
 conditions in the mortgage which were binding upon their 
 immediate grantors." 
 
 § 872. Allegation as to counsel fee. — The fee stipu- 
 lated to be paid in a foreclosure, is additional to the costs 
 recoverable by statute.* It is not essential that there should 
 be an averment that the amount of the fee stipulated for in 
 the mortgage is reasonable, as it is a mere incident to the 
 cause of action and may be fixed by the court in its discretion.* 
 
 It has been said, that where a mortgage contains a stipu- 
 lation that the mortgagee shall be entitled to an attorney's 
 fee in any action that he may be compelled to bring on the 
 mortgage, he may claim such fee when, as a defendant in 
 the foreclosure of a prior mortgage, he sets up his cause of 
 action, because this is, in effect, bringing an action on the 
 mortgage.' But the supreme court of Illinois held, in 
 the case of Soles v. Sheppard,* that such a stipulation does 
 not apply to the filing of an answer or a cross bill by a 
 mortgagee to a complaint to foreclose a prior mortgage. 
 
 A stipulation in a mortgage allowing a counsel fee in a 
 foreclosure does not entitle the plaintiff to such counsel 
 
 ' Pierce v. Kneeland, 16 Wis. 673 (1855) ; Carriere v. Minturn, 5 Cal. 
 
 (1863) ; s. c. 84 Am. Dec. 720. 435 (1855). 
 
 « 16 Wis. 672 (1863) ; B. c. 84 Am. * Carriere v. Mintum, 5 Cal. 435 
 
 Dec. 726. See Weatherby v. Smith, (1855). 
 
 30 Iowa, 131 (1870) ; s. c. 6 Am. « Lanoue v. MoKinnon, 19 Kan. 
 
 Rep. 663. 408 (1877). 
 
 » Gronfier v. Mintum, 5 Cal. 492 « 99 111. 616 (1881).
 
 958 WHEN attorney's fee not allowed. [§ 873. 
 
 fee until he has paid it or become liable therefor.' The 
 mortgagee can not recover such fee for personally prosecut- 
 ing his own foreclosure;* consequently, an attorney who is 
 the mortgagee, can not recover such a fee in his own 
 foreclosure.* 
 
 § 873. When attorney's fee not allowed. — A counsel 
 fee for foreclosing a mortgage will be allowed in no case, 
 unless stipulated in the mortgage,* or expressly authorized 
 by statute ;* and even where it is so stipulated or authorized, 
 such fee will not be allowed in the decree unless it is 
 demanded in the bill or complaint.' 
 
 A provision in a mortgage for an attorney's fee is not 
 enforceable unless a sale is actually made.' Thus, it was 
 held in Jennings v. McKay,* that astipulation in a mortgage 
 providing that "an attorney's fee of fifty dollars for fore- 
 closure, with costs of suit and accruing costs," shall be 
 taxed against the mortgagor, does not authorize such a fee 
 unless a decree for foreclosure is entered ; if the mortgagor 
 pays the debt after the action is commenced, but before a 
 decree of sale is entered, the fee can not be collected. It 
 has been held, that under a provision in a power of sale for 
 an attorney's fee in case of foreclosure, no allowance can be 
 made if the mortgage is foreclosed in chancery instead." 
 
 The supreme court of Maryland held, in the case of Maus 
 V. McKellip,'" that fees paid to counsel for resisting an 
 
 ■ Bank of Woodland v. Treadland, • Augustine v. Doud, 1 111. App. 
 
 55 Cal. 379 (1880); Patterson v. 588(1878). 
 
 Donner, 48 Cal. 369 (1874) ; Soles v. ^ Myer v. Hart, 40 Mich. 517 
 
 Sheppard, 99 111. 616 (1881) ; Reed (1879) ; s. c. 25 Am. Rep. 553. 
 
 V. Catlin, 49 Wis. 686 (1880). « 19 Kan. 120(1 8 r6), distinguishing 
 
 * Patterson v. Donner, 48 Cal. 369 Life Association v. Dale, 17 Kan. 
 
 (1874) ; Reed v. Catlin, 49 Wis. 686 185 (1877). See Schmidt v. Potter, 
 
 (1880). 35 Iowa, 426 ( 1873 ) ; Collar v. Har- 
 
 '3 Patterson v. Donner, 48 Cal. rison, 30 Mich. 66 (1874). 
 
 369 (1874) ; Sclater v. Cottam, 3 » Van Marter v. McMillan, 39 
 
 Jur. K S. 630 (1857). Mich. 304 (1878) ; Hardwick v. Bas- 
 
 *Sichelv.Carrillo,42 Cal. 493(1871); sett, 29 Mich. 17 (1874); Sage v. 
 
 Wylie V. Karner, 54 Wis. 591 (1882). Riggs, 12 Mich. 313 (1864). 
 
 » Bockes V. Hathorn, 17 Hun (N. '« 38 Md. 231 (1873). 
 Y.) 87 (1879); Stover v. Johnny- 
 cake, 9 Kan. 367 (1872).
 
 §§ 874-875.] COSTS on eedeeming. 959 
 
 application by the assignee in bankruptcy of the mortgagor 
 to enjoin a sale under a power contained in the mortgage, do 
 not constitute a payment in defence of the mortgage title. 
 A defendant in a foreclosure who does not seek to redeem, 
 but who claims the land by a superior title, is not in a 
 position to object to the amount of an attorney's fee allowed 
 by the court.* 
 
 § 874. Costs on redeeming.— It is said in the case 
 of Benedict v. Gilman," that upon the redemption of mort- 
 gaged premises by a judgment creditor, after a statutory 
 foreclosure, he is not bound to pay the costs of such fore- 
 closure; but the general rule is that a party who is permitted 
 to redeem mortgaged premises, whether he is a plaintiff or 
 a defendant in the suit, must pay the costs of the suit in 
 addition to the amount due on the mortgage. 
 
 Where the purchaser under a statutory foreclosure makes 
 valuable and permanent improvements upon the premises, 
 under the belief that he has a good title, and without notice 
 of the existence of a judgment which is a lien upon the 
 equity of redemption, the judgment creditor applying to 
 redeem, must, in addition to the amount due upon the 
 mortgage, pay the enhanced value of the premises arising 
 from such improvements.* 
 
 § 875. Foreclosure under power — Mortgagee's com- 
 pensation.^Under a power of sale contained in a mortgage, 
 reasonable and proper expenses incurred in advertising a sale 
 under such power will always be allowed, whether or not an 
 express provision therefor is made in the mortgage ;* and 
 this, it is thought, will always include a reasonable sum for 
 legal advice regarding the sale and an attorney's fee for pre- 
 paring the notice of sale.* 
 
 1 Winnebago Countj v. Brones, Y.) Pr, 493 (1852) ; Allen v. "Rob- 
 
 68 Iowa. 682 (1886). bins, 7 R. I. 33 (1861) ; Fearus v. 
 
 « 4 Paige Ch. (N. T.) 58 (1883). Young, 10 Ves. 184 (1804) ; Worrall 
 
 3 Benedict v. Oilman, 4 Paige Ch. v. Harford, 8 Ves. 4 (1802). 
 (N. Y.) 58 (1833). See Bradley v. ' Marsh v. Morton, 75 PI. 621 
 
 Snyder, 14 PI. 265 (1853); s. c. 58 (1874); Varnum v. Meserve, 90 
 
 Am. Dec. 504. Mass. (8 Allen), 158 (1864). 
 
 ^ Collins V. Standish, 6 How. (N.
 
 960 BISBURSEJUENTS OF TRUSTEE. [§§ 876-877. 
 
 Where, however, the sale is not completed, and the adver- 
 tisement, being imperfect, is withdrawn after a single publi- 
 cation, no costs or attorney's fees can be collected.* Where 
 a sale is enjoined, after it is advertised, and the mortgagee 
 or trustee, in anticipation of the action of the court, 
 incurs expenses in advertising an adjournment of the 
 sale, he will not be entitled to have such expenses allowed, 
 on the dissolution of the injunction.' 
 
 § 876. Expenses and disbursements of trustee. — 
 The holder of a mortgage, containing a power of sale, 
 on foreclosing under such power, is regarded as a trustee, 
 and under the general rule applicable to trustees, that 
 they shall not be permitted to profit by their trust, he 
 will not be entitled to recover compensation for his services, 
 in the absence of a special agreement providing therefor.* 
 
 Provision may be made in the mortgage or trust deed for 
 compensation to the mortgagee or trustee, and in such 
 a case the agreement of the parties will govern. Where a 
 provision is inserted, securing to the mortgagee or trustee 
 a commission for his services in selling the property, such 
 compensation will be allowed, in addition to his ordinary 
 expenses and counsel fees.* The mere fact, however, that a 
 party is named as trustee in a deed of trust raises no implied 
 promise on the part of the beneficiary to pay him for his 
 services.' 
 
 § 877. Taxing costs and disbursements on foreclosure 
 by advertisement. — The New York Code of Civil Pro- 
 cedure provides,* that costs, in addition to necessary expenses 
 provided for, shall be allowed as follows, in a statutory 
 
 » See Collar v. Harrison, 30 Mich. Appeal, 65 Pa. St. 233 (1870) ; SIoo 
 
 «6 (1874). V. Law, 3 Blatchf. C. C. 459 (1856). 
 
 * Marsh v. Morton, 75 HI. 621 * Lime Rock Bank v. Phetteplace, 
 
 (1874). See Collins v. Standish, 6 8 R. I. 56 (1864), See Varnum v. 
 
 How. (N. Y.) Pr. 493 (1852). Meserve, 90 Mass. (8 Allen), 158 
 
 » Allen V. Robbins, 7 R. L 33 (1864). 
 
 (1861). See Lime Rock Bank v. * Catlin v. Glover, 4 Tex. 151 
 
 Phetteplace. 8 R. I. 56 (1864); Catlin (1843). 
 
 V. Glover, 4 Tex. 151 (1843) ; Sug- • N. T. Code Civ. Proc. § 2401. 
 den on Vendors, 55 ; also Parshall's
 
 § 878.] TAXING COSTS STATUTORY FORECLOSURE. 9G1 
 
 foreclosure; "(i) For drawing a notice of sale, a notice 
 of the postponement of a sale, or an affidavit, made as 
 prescribed in this title, for each folio, twenty-five cents ; for 
 making each necessary copy thereof, for each folio, thirteen 
 cents. (2) For serving each copy of the notice of sale, 
 required or expressly permitted to be served by this title, 
 and for affixing each copy thereof, required to be affixed 
 upon the court house, as prescribed in this title, one dollar. 
 (3) For superintending the sale, and attending to the execu- 
 tion of the necessary papers, ten dollars."* 
 
 A charge for drawing the notice, for making an office copy 
 to keep, and for a copy for the printer, is proper f and it is 
 proper to charge for thirteen weeks' publication.' But a 
 charge can not be made for a copy of the notice served on the 
 auctioneer, when he is also the counsel of the mortgagee.* 
 
 Where the mortgagee neglected to serve the notice of sale 
 on the necessary parties, and the sale had to be postponed 
 for that reason, the court held that such mortgagee could 
 not tax the costs of the sale first attempted.' In taxing costs 
 in such a foreclosure, matter inserted in the notice which is 
 not required by statute, should be excluded in determining 
 the number of folios to be allowed ; and no charge should 
 be allowed for serving the notice on parties not required by 
 statute to be served.' 
 
 § 878. What disbursements allowed. — The Code pro- 
 vides,^ that there shall be an allowance for disbursements, not 
 exceeding the fees allowed by law for those services, as fol- 
 lows: "(l) For publishing the notice of sale, and the notice 
 or notices of postponement, if any, for a period not exceeding 
 twenty-four weeks. (2) For the services specified in section 
 2390 of this act. (3) For recording the affidavits ; and also. 
 
 * Collins V. Standish, 6 How. (N. * Hornby v. Cramer, 13 How. 
 Y.) Pr. 493, 495 (1835). (K Y.) Pr. 490 (1855) ; Ferguson v. 
 
 ' Ferguson v. Wooley, 9 N. Y. Wooley, 9 N. Y. Civ. Proc. Kep. 
 
 Civ. Proc. Rep. 236 (1880). 236 (1886). 
 
 * Ferguson v. Wooley, 9 N. Y. * Ferguson v. Wooley, 9 N. Y. 
 Civ. Proc. Rep. 236 (1886). Civ. Proc. Rep. 236 (1886). 
 
 * Ferguson v. Wooley, 9 N. Y. ■" N. Y. Code Civ. Proc. § 2403. 
 €iv. I'roc. Rep. 236 (1886). 
 
 (6n
 
 962 WHO MAY REQUIRE TAXATION. [§§ 879-880. 
 
 where the property sold is situated in two or more counties, 
 for making and recording the necessary certified copies 
 thereof. (4) For necessary postage and searches."* 
 
 § 879. Who may require taxation of costs and dis- 
 bursements. — Any party, who is liable for the costs of the 
 foreclosure, may require such costs to be taxed. Thus, it 
 has been held, that a party who claims the surplus, as an heir 
 at law of the mortgagor, and who has been recognized as a 
 claimant, by being made defendant in an action of inter- 
 pleader to determine the ownership of the surplus, is a party 
 liable to pay the costs, and, as such, entitled to require their 
 taxation.' 
 
 The Code provides,* that "the costs and expenses must 
 be taxed, upon notice, by the clerk of the county where the 
 sale took place, upon the request and at the expense of any 
 person interested in the payment thereof. Each provision 
 of this act relating to the taxation of costs in the supreme 
 court, and the review thereof, applies to such a taxation."* 
 
 It is said in Ferguson v. Wooley,* that devisees, under the 
 recorded will of a deceased mortgagor, and a lessee, under 
 a recorded lease, may be deemed grantees who should be 
 served with the notice of sale ; where such devisees are 
 minors under fourteen years of age, a notice should also be 
 served on their guardian, and such service may be charged 
 for. 
 
 § 880. Costs in surplus proceedings. — In proceedings 
 for the distribution of surplus moneys, motion fees, fees of the 
 referee, and disbursements, are all the costs that can be 
 granted to the successful party.* The hearing before the 
 
 » Collins V. Standish, 6 How. (K » 9 N. T. Civ. Proc. Rep. 236 
 
 T.) Pr. 493 (1852). (1886). 
 
 « In re Moss, 6 How. (N. T.) Pr. « Borland v. Alleond,8 Daly (N. Y.) 
 
 263 (1851). 126 (1878) ; New York Life Ins. & 
 
 • N. Y. Code Civ. Proc. § 2403. Trust Co. v. Vanderbilt, 12 Abb. 
 
 * The statute clearly contemplates (N. Y.) Pr. 458 (1861) ; In re Gibbs, 
 a taxation in such manner that the 58 How. (N. Y.) Pr. 502 (1880) ; 
 parties can be heard, and not an ex Elwell v. Robbins, 43 How. (N. Y.) 
 pa/rte taxation. In re Moss, 6 How. Pr. 108 (1872) ; German Sav. B»ink 
 (N. Y.) Pr. 263 (1851). v. Sharer, 25 Hvp (N. Y ) 409 (18«1).
 
 § 880.] COSTS m surplus pkoceedings. 9G3 
 
 referee is not a trial, and no extra allowance can be made 
 therefor,' The reason for this, is thought to be, that 
 proceedings for the distribution of surplus moneys arising 
 in a foreclosure by action, are not special proceedings, 
 but are proceedings in the action and a part of it.' 
 
 In Elwell V. Robbins,' Balcom, J., said : " It was held in 
 New York Life Insurance & Trust Company v. Vanderbilt,* 
 that in disposing of surplus funds arising on the foreclosure 
 of a mortgage, the court has authority to allow to the parties 
 a suitable compensation for costs and disbursements, to be 
 paid out of the funds, in addition to the taxable costs. This 
 is a special proceeding. It is provided by statute that in special 
 proceedings, costs may be allowed in the discretion of the 
 court, and when allowed, shall be at the rate allowed for simi- 
 lar services in civil actions.' The claimants to the surplus 
 moneys are entitled to the fees of the referee and the fees of 
 the clerk in the proceeding. The only costs, aside from dis- 
 bursements, that can be allowed the claimants, at the rate 
 allowed for similar services in civil actions, are such as are 
 prescribed by the Code. The attorney of the claimants has 
 made two motions in this proceeding, one for the appointment 
 of the referee, and the other for the confirmation of his report. 
 And by section 315 of the Code, not exceeding $10 for each 
 motion can be allowed the claimants, or their attorney, in 
 the discretion of the court. I will not say but there may 
 
 McDermott v. Hennesy, 9 Hun (N. 502 (1880) ; Elwell v. Robbins, 43 
 
 Y.) 59 (1876) ; Hebrank v. Colell, 2 How. (N. Y.) Pr. 108 (1872) ; Ger- 
 
 N. Y. Month. L. Bui. 39 (1880) ; man Sav. Bank v. Sharer, 25 Hun 
 
 Dudgeon v. Smith, 23 N. Y. Week. (N. Y.) 409 (1881) ; McDermott v. 
 
 Dig. 400(1886) ; Wellington v. Ulster Hennesy, 9 Hun (N. Y.) 59 (1876) ; 
 
 County Ice Co., 5 N. Y. Week. Dig. Dudgeon v. Smitli, 23 N. Y. Week. 
 
 104 (1877). In Elwell v. Robbins, 43 Dig. 400 (1880); Wellington v. Ulster 
 
 How. (N. Y.) Pr. 108 (1872), it was County Ice Co., 5 N. Y. Week. Dig. 
 
 held, that two motion fees might be 104 (1877). 
 
 allowed in such proceedings, one on ^ Mutual Life Ins. Co. v. Eowen, 
 
 the appointment of a referee and the 47 Barb. (N. Y.) 618 (18CG) ; In re 
 
 other on the confirmation of his Gibbs, 58 How. (2\. Y.) Pr. 502, 504 
 
 report. (1880). 
 
 > See Borland v. Alleond, 8 * 43 How. (N. Y.) Pr. 108 (1872), 
 
 Daly (N. Y.) 126 (1878); In M2 Abb. (N. Y.) Pr. 458 (1861). * 
 
 re Gibbs, 58 How. (N. Y.) Pr. » Laws of 1854, chap. 270, §3.
 
 964 WHO CHARGEABLE WITH COSTS. [§§ 881-882. 
 
 be made cases where the proceedings before the referee 
 should be regarded in the nature of a trial, and a trial fee 
 allowed to the claimant of the surplus money in the discre- 
 tion of the court." 
 
 § 88i. Who entitled to costs in surplus proceedings. 
 
 — The successful applicant for surplus moneys is entitled to 
 have his costs taxed to the extent set forth in the preceding 
 section ; and where on a complaint to foreclose a mortgage, 
 the widow of the mortgagor is made a party and answers 
 and submits to the decree of the court, she is entitled to 
 one-third of the surplus proceeds of the sale of the mort- 
 gaged premises remaining in court, after satisfying the 
 mortgage debt, as her equitable dower, and to have her 
 costs paid out of the other two-thirds.' 
 
 § 882. Who chargeable with costs in surplus proceed- 
 ings. — Generally the costs and expenses of the proceedings 
 for the distribution of surplus moneys are properly charge- 
 able against the proceeds of the mortgage sale ;' but where 
 the facts are such as to make another rule more equitable, 
 they may be charged against a party individually.* 
 
 Where the surplus is small, and unsuccessful claimants 
 have caused unnecessary expenses, they may be charged 
 personally with the costs ;* parties litigating in good faith, 
 however, will not usually be so charged." Thus, it has been 
 
 ' Tabele v. Tabele, 1 Johns. Ch. the surplus moneys upon a sale of 
 
 (N. Y.) 45 (1814). See Hawley v. mortgaged premises, who should 
 
 Bradford, 9 Paige Ch. 200 (1841). fail to establish his claim on the 
 
 * Oppenheimer v. Walker, 3 Hun reference before the master, might 
 (N. Y.) 31 (1874) ; s. c. 5 T. ife C. be charged with such costs as the 
 (N. Y.) 325. other parties were subjected to by 
 
 ^ Lawton v. Sager, 11 Barb. (N. reason of such claim. And the 
 
 Y.) 349 (1851) ; Bevier v. Schoon- parties succeeding in the reference 
 
 maker, 29 How. (N. Y.) Pr. 411 might be allowed such costs as the 
 
 (1864). court should deem reasonable ; but 
 
 * Lawton v. Sager, 11 Barb. (N. no costs, unnecessarily incurred on 
 Y.) 349 (1851) ; Bevier v. Schoon- such reference, or previous there- 
 maker, 29 How. (N. Y.) Pr. 411 to, by any of the parties, could be 
 (1864). allowed on taxation or paid out of 
 
 Chancery rule 136 also provided, such surplus, 
 
 in respect to costs on the reference, * Farmers' Loan & Trust Co. v. 
 
 that any person making a claim to Millard, 9 Paige Ch. (N. Y) 620
 
 § 883.] DISBURSEMENTS IN SURPLUS PROCEEDINGS. 9G5 
 
 held that a claimant who litigates a prior lien unsuccessfully 
 and in good faith, is not chargeable with costs; but if he 
 files exceptions which are overruled, he will be required to 
 pay the costs of the appeal.' And if a creditor makes claim 
 to a larger amount than is found upon the reference to be 
 owing to him, or if he adopts an unusual and expensive 
 method of procedure, he may be charged with the costs. 
 
 Where a junior incumbrancer, who has sufficient reason 
 to believe th^t the prior lien will exhaust the surplus, files 
 his claim and subjects the prior incumbrancer to unnecessary 
 costs, he will be required to pay such costs. The rule is 
 different, however, where he acts in good faith and has 
 sufficient reason to believe that the prior lien will not 
 exhaust the surplus.' It has been held that a creditor who 
 was not made a party to the suit, and who files a claim 
 to the surplus, will be required to pay the costs of proving 
 his claim.* 
 
 § 883. Disbursements in surplus proceedings. — Although 
 disbursements, in an action to foreclose a mortgage, are not 
 costs in the strict sense of the word, yet they may be 
 regarded as discretionary, and the courts usually allow 
 disbursements not legally chargeable as costs, if they are for 
 services actually rendered and are reasonable in amount.* 
 
 Disbursements usually include advancements necessary 
 to remove prior incumbrances and to protect the rights and 
 interests of the mortgagee;* also taxes, assessments and 
 
 (1841) ; Norton v. Whiting, 1 Paige gher v. Egan, 2 Sandf. (N. T.) 742 
 
 Ch. (N. Y.) 578 (1829). (1850). 
 
 ' De LaVergne v. Evertson, 1 * Hill v. Eldred, 49 Cal. 398 
 
 Paige Ch. (N. Y.) 181 (1828). (1874). See Marshall v. Davies, 78 
 
 » Farmers' Loan & Trust Co. v. N. Y. 414 (1879) ; Williams v. 
 
 Millard, 9 Paige Ch. (N. Y.) 620 Townsend, 31 N. Y. 411 (1865); 
 
 (1842). Robinson v. Ryan, 25 N. Y. 320 
 
 » Abell V. Screech, 10 Ves. 355 (1862) ; Eagle Fire Ins. Co. v. Pell, 
 
 (1805). See Lawton v. Sager, 11 2 Edw. Ch. (N. Y.) 631 (1836); 
 
 Barb. (N. Y.) 349 (1851) ; Bevier v. Brevoort v. Randolf, 7 How. 
 
 Schoonmaker, 29 How. (N. Y.) Pr. (N. Y.) Pr. 398 (1853) ; Burr v. 
 
 411, ^2 (1864). Veeder, 3 Wend. (N. Y.) 412 (1829); 
 
 * Benedict v. Warriner, 14 How. Hughes v. Johnson, 38 Ark. 296 
 
 (N. Y.) Pr. 568 (1857); Galla- (1881).
 
 966 DISBUKSEMENTS IN SURPLUS PROCEEDIN-GS. [§ 883. 
 
 insurance paid by the mortgagee.' This rule is applicable 
 although the mortgage may not contain a tax clause ;* and 
 a mortgagee has a right to pay insurance premiums for the 
 protection of the estate mortgaged, and to add the amount 
 paid to the mortgage debt, independently of an express 
 agreement authorizing such payment.* 
 
 » Sidenberg v. Ely, 90 N. T. 257 
 (1882) ; s. c. 43 Am. Rep. 163 ; Wil- 
 liams V. Townsend, 31 N. Y. 411 
 (1865); Kortright v. Cady, 5 Abb. 
 (N. Y.) Pr. 358 (1857); 8. C. 23 
 Barb. (N. Y.) 490 ; Mix v. Hotch- 
 kiss, 14 Conn. 33 (1840) ; Wright v. 
 Langley, 36 111. 381 (1865). 
 
 » Sidenberg v. Ely, 90 N. Y. 
 257 (1883) ; 3. c. 43 Am. Rep. 163. 
 
 In re Bogart, 28 Hun (N. Y.) 466 
 (1883) ; Cook v. Kraft, 3 Laus. (X. 
 Y.) 512 (1871). Compare, Faure v. 
 Wynans, Hop. Ch. (N.Y.) 283 (1824); 
 Barthell v, Syverson, 54 loAva, 160 
 (1880) ; Savage v. Scott, 45 Iowa, 
 130 (1876) ; Manning v. Tuthill, 30 
 N. J. Eq. (3 Stew.) 29 (1878). 
 
 » In re Bogart, 28 Him (N. Y.) 466, 
 469 (1882).
 
 APPENDIX OF FORMS. 
 
 No. I. 
 General Complaint in Foreclosure by Action. 
 
 \_Title of action contaiiiino^ ) 
 
 tia fries of all ike parties], ) 
 
 The complaint of the plaintiff in the above entitled action 
 respectfully shows to this court (upon information and belief) : 
 
 That the defendant, C. D., for the purpose of securing the 
 payment to E. F., his certain attorney, executors, administrators 
 or assigns, of the sum of dollars, with interest thereon, on or 
 
 about the day of , i8 , executed and delivered to the 
 
 said E. F. a bond bearing date on that day, sealed with his seal, 
 whereby the said C. D. did bind himself, his heirs, executors and 
 administrators, in the penal sum of dollars, upon condition 
 
 that the same should be void, if the said C. D., his heirs, executors 
 or administrators should pay to the said E. F., his certain attor- 
 ney, executors, administrators or assigns, the sum of money first 
 above mentioned, as follows : \_Insert conditions of the bond 
 verbatim, if possible']. 
 
 That it was therein expressly agreed,^ that should any default 
 be made in the payment of the principal or interest, or of 
 any part of the said principal or interest, when the same should 
 become due and payable, according to the conditions of said 
 bond, as above expressed, and should the same remain unpaid for 
 the space of days after the same had become due and payable, 
 then the said moneys, principal and interest, at the option of the 
 said obligee, his executors, administrators or assigns, should 
 become and be due and payable immediately thereupon, any 
 other provision in said bond to the contrary notwithstanding. 
 
 That the said obligor,^ in and by said bond, did covenant for 
 himself, his heirs, executors and administrators, that the build- 
 ings erected and to be erected on the mortgaged premises, 
 described in the mortgage given as collateral to said bond and 
 bearing even date therewith, should be kept insured against loss or 
 damage by fire, in a sum not less than dollars, and that the 
 
 policy therefor should be assigned to said obligee, his executors, 
 administrators or assigns, and that upon any default thereof, 
 the said obligee, his executors, administrators or assigns, were 
 
 ' Insert in case bond and mortgage contain an interest clause. 
 
 ' Insert in case the action is to recover money paid for insurance premiums.
 
 968 APPENDIX OF FOR:\rs. 
 
 thereby authorized to insure the same, and to add the sums 
 paid therefor to the moneys then due, or first to become due, upon 
 said bond, and that they should be payable on demand, with interest 
 from the time of such payment, and should also be a lien on 
 said premises secured by said mortgage, and added to the sums 
 otherwise secured thereby ; and also that in case the taxes,^ 
 which might thereafter be assessed, taxed or levied against said 
 mortgaged premises, were at any time allowed to remain unpaid 
 for days after the said taxes had become due and payable, then 
 the said obligee, his executors, administrators or assigns, might 
 pay the same, and the sum so paid should also be a lien on 
 said mortgaged premises and be added to the sums thereby 
 secured and payable on demand, with interest. 
 
 That, as a collateral security for the payment of said indebted- 
 ness, the said defendants, C. D., and M. D., his wife, on the 
 same day executed, duly acknowledged and delivered to the 
 said E. F., a mortgage, whereby they granted, bargained and 
 sold to the said E. F., his heirs and assigns, the following 
 described premises, with the appurtenances, that is to say : 
 \_Here insert descriptioji of premises from 7nortgage\, \i\i\Q\\ mort- 
 gage was duly recorded in the office of the clerk of the county 
 of , on the day of , in the year i8 , at o'clock m., 
 
 in book No. of mortgages, at page 
 
 That said mortgage contained the same conditions as said 
 bond, and the further condition, that if the mortgagor, his heirs 
 or assigns, should not pay the moneys thereby secured, according 
 to the terms thereof, then the said E. F., his executors, administra- 
 tors or assigns, were empowered to sell the said mortgaged prem- 
 ises in due form of law, and out of the moneys arising from such 
 sale to retain the amount due for principal, interest, taxes, assess- 
 ments and insurance, in and by said bond and mortgage secured 
 to be paid, with the costs and expenses of the proceedings 
 thereon, the surplus, if any there should be, to be returned to 
 the said mortgagor, C. D., his heirs or assigns. 
 
 That thereafter, the said defendant, E. F., by an instru- 
 ment in writing,^ given under his hand and seal, dated the day 
 of i8 , and recorded in the office of the clerk of the 
 county of , on the day of i8 , for a valuable 
 consideration therein expressed, duly assigned said bond and 
 mortgage to this plaintiff, H. O., who now is and has since been the 
 owner and holder thereof, and also guaranteed to the plaintiff 
 that the sum secured thereby would be paid when due, with 
 interest ; \or which said assignment also contain^ a covenant in 
 the following words, to wit : Set forth the covenant verbatitn']. 
 
 \If the bond and mortgage -ji'ere assigned as collateral security 
 only, such fact and the actual interest and claim of the plaititiff should 
 be fully alleged here\ 
 
 ' Insert in case money has been paid for taxes. 
 ' Insert in case the mortgage has been assigned.
 
 APPENDIX OF FORMS. 969 
 
 That thereafter,^ the said C D., and M. D., his wife, by their 
 deed of conveyance, executed under their hands and seals, 
 dated the day of , i8 , and recorded in the ofifire of the 
 
 clerk of the county of , in book No. of deeds, at 
 
 page , duly conveyed the said mortgaged premises to the 
 
 defendant, J. H., subject to said mortgage; that the said defendant, 
 J. H., in and by said deed of conveyance, and by accepting the 
 same, assumed said mortgage and covenanted and agreed to pav 
 off and discharge the same as part of the consideration in said deed 
 of conveyance expressed. \_0r set forth the covenant vei l)dtiin\. 
 
 And the plaintiff further shows, that the sum of 
 dollars became due and payable by the terms of said bond and 
 mortgage, on the day of i8 , that the same has 
 
 remained unpaid for more than days thereafter, that the said 
 plaintiff has elected and does elect that the whole sum owing 
 upon said bond and mortgage be due and payable, and that 
 thereby, by the provisions of said bond and mortgage, the same 
 became due and payable before the commencement of this action. 
 
 And the plaintiff further shows, that the said defendants, 
 C. D., and J. H., have failed to comply with the conditions 
 of the said bond and mortgage, by omitting to pay the sum 
 of dollars, which by the terms and conditions of said 
 
 bond and mortgage became due and payable on the day 
 of i8 ; and also, by omitting to pay the sum of dollars 
 
 for insurance, as required by said bond and mortgage, which sum 
 of dollars was advanced and paid for such insurance by 
 
 this plaintiff" on the day of i8 , for the payment 
 
 whereof due demand was made before the commencement of this 
 action, the same being also a lien added to the other claims 
 by said mortgage secured to be paid ; and also, by omitting to 
 pay the sum of dollars, for taxes or assessments, taxed or 
 
 assessed against the said mortgaged premises, and left unpaid 
 for days after the same became due and payable, which said 
 sum for taxes and assessments was thereafter advanced and paid 
 by this plaintiff on the day of , i8 ; and that the same 
 
 is justly due and unpaid with interest thereon from the day 
 of i8 , and is also a lien added to the other claims by 
 
 said mortgage secured to be paid ; and that there is now justly 
 due to the plaintiff upon said bond and mortgage the sum 
 of dollars, with interest thereon from the day of , i8 , 
 and the further sura of dollars paid for insurance as 
 
 aforesaid, with interest thereon from the day of i8 , and 
 
 the further sum of dollars paid for taxes and assessments 
 
 as aforesaid, with interest thereon from the day of i8 , 
 
 amounting in the aggregate to the sum of dollars ; and that 
 
 there is to become due thereon the further sum of dollars 
 
 with interest thereon from the day of i8 . 
 
 ' Insert in case premises have been conveyed with assumption of payment 
 ' mortpatre. 
 
 of mortgage
 
 970 APPENDIX OF FORMS. 
 
 And the plaintiff further shows, that the defendants, R. P. and 
 D. O., are infants, under the age of fourteen years and reside 
 with their parents {or guardiati) at , ; that the 
 
 defendant, D, P., is an infant above the age of fourteen years, 
 residing with at ; and that the defendant, O. S., does 
 
 not reside within the state of New York, but at in 
 
 \^State residence if knouni]. 
 
 And the plaintiff further shows, that no proceedings have 
 been had at law or otherwise, and that no other action has been 
 brought, to his knowledge or belief, for the recovery of said sum 
 secured by said bond and mortgage, or for the recovery of the 
 said mortgage debt or any part thereof. [// this is not true, state 
 what proceedings have been taketi]. 
 
 And the plaintiff further shows, upon information and belief, 
 that the defendants, C. D., M. D., J. H., R. P., X. Y. and D. P., 
 have, or claim to have, some interest in, or lien upon, the said 
 mortgaged premises or some part thereof, which interest or 
 lien, if any, has accrued subsequently to the lien of said mort- 
 gage. 
 
 [If parties with paramount liens are made defendants for the 
 purpose of having them ascertained, such liens should be fully 
 stated here\ 
 
 Wherefore, the plaintiff demands judgment, that the defendants 
 and all persons claiming under them, or either or any of them, 
 subsequently to the commencement of this action, and every 
 person, whose conveyance is subsequent or subsequently recorded, 
 may be barred and foreclosed of all right, title, claim, lien and 
 equity of redemption in said mortgaged premises ; that the 
 said mortgaged premises, or so much thereof as may be sufficient 
 to raise the amount due to the plaintiff for all sums paid for 
 insurance, taxes, or assessments, and also for principal, interest 
 and costs, and which may be sold in parcels without material 
 injury to the parties, may be decreed to be sold according to law; 
 that out of all the moneys arising from the sale thereof, the 
 plaintiff may be paid the amount due on said bond and mortgage 
 with interest to the time of such payment, and the costs and 
 expenses of this action, so far as the amount of such moneys 
 properly applicable thereto will pay the same ; that the officer 
 making such sale be directed to pay from the proceeds thereof, 
 all taxes, assessments and water rates, which are liens on the 
 property sold ; that the defendants, C. D., E. F. and J. H., may 
 be adjudged to pay any deficiency which may remain after 
 applying all of said moneys so applicable thereto; and that the 
 plaintiff may have such other or further relief, or both in the 
 premises, as shall be just and equitable. 
 
 T. R., 
 
 Plaintiff's Attorney, 
 \^Add verification in the usual for m\
 
 APPENDIX OF FORMS. 971 
 
 No. 2. 
 
 Complaint to Foreclose Mortgage Executed by Infants 
 Pursuant to Order of Court. 
 
 \_Title of action containing \ . , 
 names of all the parties], ) 
 
 The complaint of the plaintiff in the above entitled action 
 respectfully shows to this court (upon information and belief) : 
 
 That a petition was heretofore presented to this court by the 
 defendant, D. P., an infant over fourteen years of age, and by 
 the defendants, O. P., R. P. and T. P., infants under the age 
 of fourteen years, by the defendant, C. M. P., their mother and 
 next friend, praying for the mortgaging of all the right, title and 
 interest of said infants in and to the real estate hereinafter 
 mentioned and described ; and that such proceedings were 
 afterwards had in said court upon the said petition, that an 
 order of this court was made on the day of , i8 , 
 
 whereby M. C. was appointed the special guardian of said infants 
 for the purposes of such application, upon his giving the proper 
 security therein required; and that such security, duly executed, 
 justified and approved, was subsequently filed by said guardian 
 in the proper office. 
 
 That by an order of said court in said proceedings, made on 
 the day of , i8 , the said M. C. was authorized and 
 
 empowered to contract for the mortgaging of all the right, title 
 and interest of the said infants in the said real estate, for an 
 amount not exceeding that specified in the referee's report, 
 referred to in said order, and upon the terms and conditions 
 therein mentioned, to wit : for dollars, payable in years 
 
 at least, or in a longer time, at the rate of interest per annum. 
 
 That in pursuance of the last mentioned order, the said special 
 guardian afterwards made his report to the said court, which 
 report was dated the day of , 18 , whereby he reported 
 
 that he had entered into an agreement with this plaintiff, subject 
 to the approval of said court, for the mortgaging to said plaintiff 
 of all the right, title and interest of said infants in and to the 
 said real estate, upon the terms and conditions therein mentioned, 
 to wit : providing for the execution by said guardian of a mortgage, 
 in the name of said infants, to said plaintiff, for the amount and 
 time and upon the terms and conditions upon which said mortgage 
 was to be executed, as hereinafter set forth. 
 ( That by another order of said court, made in said proceedings 
 on the day of , 18 , it was ordered, that the said report 
 
 of said special guardian and the agreement therein mentioned, 
 be, and the same were thereby, ratified and confirmed ; and that 
 the said special guardian, in the names of said infants, execute, 
 acknowledge and deliver to the said plaintiff, a good and sufficient 
 mortgage, upon the terms and conditions provided by said 
 agreement, of all the estate, right, title and interest of said infants
 
 972 APPENDIX OF FOKMS. 
 
 in and to the said premises, being the fee simple thereof, subject 
 to their mother's dower interest therein, as hereinafter mentioned, 
 upon the said plaintiff's complying with the said terms and 
 conditions of the said agreement by which such mortgage was to 
 be delivered, to wit : the payment to said special guardian by 
 him of the sum of dollars. 
 
 That the said plaintiff thereafter complied with the said terms 
 and conditions of said agreement on his part to be performed, and 
 paid the said special guardian the sum of dollars. 
 
 That the said infants, by their said special guardian, pursuant to 
 the several orders aforesaid, and in pursuance of the statute in 
 such case made and provided, and in consideration of the sum 
 of dollars, paid to their said special guardian as aforesaid, 
 
 and the said C. M. P., the mother of said infants, who had d 
 vested dower right in said premises as the widow of L. P , 
 deceased, the father of said infants, in consideration of the sum 
 paid to said special guardian and of one dollar to her in hand 
 paid, as a consideration for releasing her said dower interest in 
 said premises to said plaintiff, (the said C. M. P. thereby agreeing, 
 in consideration aforesaid, that she would not assert or set up her 
 dower interest in said premises as against said mortgage and 
 against the said plaintiff, the mortgagee therein named, his 
 executors, administrators or assigns), on the day of , i8 , 
 as security for the payment of said principal sum of dollars, 
 
 with interest thereon, as hereinafter mentioned, did execute, duly 
 acknowledge and deliver to the said plaintiff a mortgage, whereby 
 they granted, bargained and sold to the said plaintiff the following 
 described premises, with the appurtenances, that is to say : \Here 
 insert description of premises from mortgage\, upon the express 
 condition, that if the said parties of the first part should well and 
 truly pay unto the said party of the second part, his executors, 
 administrators, or assigns, the sum of dollars in years 
 
 from the date of said mortgage, with interest thereon at the rate 
 of per centum per annum, payable semi-annually from the 
 
 date thereof, and should keep the buildings erected, or thereafter 
 to be erected upon said premises, insured in some solvent 
 incorporated fire insurance company of this state, against loss or 
 damage by fire, in the sum of at least dollars, and should 
 
 assign and deliver the policy or policies of such insurance, and 
 the receipts or certificates of renewal thereof, to the said party of 
 the second part, his executors, administrators, or assigns, so and 
 in such manner and form that they should at all time and times, 
 until the full payment of the said money, have and hold said 
 policies as a collateral and full security for the payment of all 
 money due or to become due upon said mortgage, and should, 
 during all the time, until the said moneys secured by said mortgage 
 should be fully paid and satisfied, pay and discharge, immediately 
 after they should become due or payable, all taxes, water rates, 
 assessments, or other charges which might be levied, laid, or 
 assessed upon the above described premises or any part thereof;
 
 APPENDLX OF FOEMS. 973 
 
 then the said mortgage and the estate tliereby granted, should 
 cease, determine and become null and void. 
 
 And the plaintif¥ further shows, that the said mortgage was duly 
 recorded in the office of the clerk of the county of , on 
 
 the day of , i8 , at o'clock m., in book 
 
 No. of mortgages, at page 
 
 [Adapt the remainder of this form from Form No. i]. 
 
 No. 3. 
 
 Complaint to Foreclose Savings and Loan Association 
 
 Mortgage. 
 
 \_Title of action containing ) 
 names of all the parties\ \ 
 
 The plaintiff in the above entitled action complains of the 
 defendants therein, and states to the court (upon information 
 and belief) : 
 
 That the plaintiff is a domestic corporation, located at , 
 
 and duly constituted, organized and incorporated in pursu- 
 ance of an act entitled, " An Act for the Incorporation of 
 Building, Mutual Loan and Accumulating Fund Associations," 
 passed April loth, 1851, and of the act or acts supplementary 
 thereto, and amendatory thereof ; that the defendant, C. D., on or 
 about the day of ,18 , executed under his hand and seal, 
 
 and delivered to this plaintiff, a bond, dated on that day, in the 
 penal sum of dollars, with the conditions therein written 
 
 in substance, that if the said obligor in said bond named, would 
 pay or caused to be paid to the association or to its suc- 
 
 cessor or assigns, the sum of dollars in manner following, 
 
 that is to say: the sum of dollars and cents contribution 
 
 or principal, and dollars and cents interest on shares 
 
 of the capital stock of said association, each and every week from 
 the date thereof, until the dues and dividends accrued on said 
 shares should equal the said principal sum of dollars, including 
 premiums paid for any loan, by the consent of such holder; and 
 also all dues, fines and penalties that might be imposed upon the 
 said obligor, as a member of said association, pursuant to the 
 articles, rules and regulations thereof, to be paid into the treasury 
 of said association on each and every {^day) thereafter, until the 
 said sum of dollars has been fully paid as aforesaid, then 
 
 the said bond to be void, else to remain in full force and virtue ; 
 and with the agreement also therein written, in substance, that in 
 case any of said installments of principal or interest, or any part 
 thereof, or any fines or penalties imposed as aforesaid, should 
 remain unpaid for months after the same should become due, 
 then the whole of said principal sum, together with the unpaid 
 interest, dues, penalties, fines and assessments thereon, should 
 become due and payable forthwith.
 
 974 APPENDIX OF FOKMS. 
 
 And to secure the payment of the principal, interest, dues, fines 
 and premiums mentioned in the conditions of said bond, the said 
 C. D. and M. D., his wife, did at the same time execute under 
 their hands and seals, duly acknowledge and deliver to this 
 plaintiff a mortgage, bearing even date with said bond, whereby 
 they granted, bargained and sold to this plaintiff, its successors and 
 assigns, the following described premises, with the appurtenances, 
 that is to say : {Here insert description of premises from mort- 
 
 That said mortgage contained the same conditions, as the said 
 bond, and the further condition, that if said mortgagors should 
 not pay the moneys thereby secured, according to the terms 
 thereof, then the said plaintiff, or its successors, or assigns, were 
 empowered to sell the mortgaged premises in due form of law, 
 and out of the moneys arising from such sale to retain the amount 
 then due upon said bond and mortgage, secured to be paid, 
 together with the costs and charges of the proceedings thereon, 
 the surplus, if any there should be, to be returned to the said C. D., 
 his heirs and assigns, which said mortgage was duly recorded in 
 the office of the clerk of the county of , on the day of , 
 1 8 , at o'clock M., in book No. of mortgages, at 
 
 page 
 
 That at the time of the execution and delivery of said bond 
 and mortgage, as aforesaid, the said C. D. was, and still is, a 
 member of said association, and is the owner of shares of 
 
 the capital stock thereof ; that said bond and mortgage were 
 given, as aforesaid, to secure the indebtedness of dollars 
 
 upon of such shares loaned to the said C. D. 
 
 That the capital stock of said association consists of shares 
 of dollars each ; that by the rules and regulations of said 
 
 association it was provided, among other things, that the said 
 capital stock should be payable in weekly installments of cents 
 per share, from and including the first day of membership ; and 
 that after being awarded a loan, every member should pay to the 
 said association, weekly, the full sum of cents interest 
 
 per share on each and every share of said loan ; and that 
 every member, neglecting to pay said installments regularly, 
 should forfeit and pay to said association cents per week as 
 
 a fine for each and every share of such stock held by him, and 
 for neglecting to pay said weekly interest, should forfeit and pay 
 as a fine the full sum of cents per share of the loan to him, 
 for each and every week he should be in default of such weekly 
 payments. 
 
 That the said C. D. failed to comply with the conditions of 
 said bond and mortgage by omitting to pay the sum of dollars 
 contribution or principal, and dollars interest, which 
 
 became due on the day of , i8 ; that more than 
 
 three months have elapsed since the same became due ; that 
 the same and all installments of principal and interest which have 
 become due since that time, still remain unpaid ; and thit there
 
 APPENDIX OF FOEMS. 975 
 
 remains unpaid on said bond and mortgage the sum of dollars 
 principal, together with dollars interest, and dollars 
 
 dues and dollars fines, amounting in the aggregate to the 
 
 sum of dollars, with interest thereon from the day 
 
 of , i8 . 
 
 And the plaintiff further states (upon information and belief) 
 that the defendants, C. D., M. D. and J. H., have, or claim to have, 
 some interest in or lien upon said mortgaged premises, or some part 
 thereof, which interest or lien, if any, has accrued subsequently 
 to the lien of said mortgage. 
 
 And the plaintiff further shows, that no proceedings have been 
 had at law or otherwise, and no action has been brought to the 
 knowledge or belief of said plaintiff, for the recovery of said sum 
 secured by said bond and mortgage, or for the recovery of said 
 mortgage debt, or any part thereof. \If not true, state what 
 proceedings have been taken]. 
 
 Wherefore, the plaintiff demands that the defendants, and all 
 parties claiming under them, or either or any of them, subsequently 
 to the commencement of this action, and every person whose 
 conveyance is subsequent or subsequently recorded, may be barred 
 and foreclosed of all right, title, claim, lien and equity of 
 redemption in said mortgaged premises and every part thereof ; 
 that the said mortgaged premises, or so much thereof as may be 
 sufficient to raise the amount due to the plaintiff for all sums paid 
 for taxes, assessments, or insurance, and also for principal, interest, 
 fines and costs, and which maybe sold in parcels, without material 
 injury to the parties, may be decreed to be sold according to law ; 
 that out of all the moneys arising from the sale thereof, the 
 plaintiff may be paid the amount due on said bond and mortgage, 
 and the said interest and fines, with the interest thereon to the 
 time of such payment, together with the costs and expenses of 
 this action, so far as the amount of such moneys properly appli- 
 cable thereto will pay the same ; that the officer making such sale 
 be directed to pay from the proceeds thereof all taxes, assessments 
 and water rates, which are liens upon the property sold ; that 
 the defendant, C. D., may be adjudged to pay any deficiency 
 which may remain after applying all of said moneys so applicable 
 thereto ; and that the plaintiff may have such other or further 
 relief, or both in the premises, as shall be just and equitable. 
 
 T. R., 
 
 Flaintiff's Attorney. 
 
 County of , ss. : 
 
 H. F. being duly sworn, says that he is the of the 
 
 plaintiff, in the above entitled action ; that the foregoing complaint 
 is true to his own knowledge, except as to the matters therein 
 stated to be alleged upon information and belief, and that as to 
 those matters he believes it to be true ; that the reason why this 
 affidavit is not made by the plaintiff is, that the plaintiff is a 
 corporation ; that deponent is an officer of said corporation, to
 
 976 APPENDIX OF roiiMS. 
 
 ■^rJt : the thereof ; that deponent's knowledge of the 
 
 facts stated in said complaint is derived from the books and papers 
 of said association, which are kept under the immediate super- 
 vision of deponent, and from the records of the county clerk's 
 office. 
 
 l/ura/]. H. F. 
 
 No. 4. 
 
 General Form of Answer. 
 
 \^Ttile of the actio n\ 
 
 The defendant, C. D., for his answer to the complaint of the 
 plaintiff herein, denies each and every allegation therein con- 
 tained, and further denies that the plaintiff is the lawful owner of 
 the bond and mortgage mentioned in said complaint, or of either 
 of them, or that he has any interest whatever in said bond and 
 mortgage, or in the moneys thereby secured, or pretended to be 
 thereby secured. 
 
 [And for a further answer and defence, this defendant alleges 
 and states to the court, that she is, and at the time of the execu- 
 tion of the bond and mortgage mentioned in said complaint, was a 
 married woman ; that the said bond and mortgage wer^ not exe- 
 cuted for any debt or liabihty of this defendant, nor for any 
 advance or loan to her, nor for any benefit or advantage to her 
 or to her estate whatever, but were given solely as collateral security 
 for an antecedent pretended indebtedness of her husband ; that 
 the said mortgage was given upon, and covers the sole and sep- 
 arate real estate of this defendant, in which her husband has no 
 interest, and had none when said mortgage was given ; that 
 this mortgage was executed by this defendant under and by the 
 direction, coercion, duress and threats of the plaintiff and her 
 said husband, and was not her free and voluntary act ; and this 
 defendant, therefore, insists that the said bond and mortgage are 
 void and of no effect, and no lien or charge upon her said real 
 estate]. 
 
 And this defendant further answering, shows, that the loan 
 alleged in the complaint, was made to the defendant by the 
 plaintiff on the corrupt and unlawful agreement between them, 
 that the plaintiff should reserve and secure to himself, and the 
 defendant would pay to him, for the use of said sum, a greater 
 sum than the rate of per centum per annum ; to wit : the 
 
 rate of per centum per annum (besides a commission of per 
 centum on the face of said bond and mortgage). 
 
 That said sum was deducted and reserved from the amount of 
 said bond and mortgage by said plaintiff, and the balance only 
 paid to said defendant ; that is to say, that this defendant agreed 
 to pay, and the plaintiff agreed to receive, dollars for said 
 
 loan, the plaintiff reserving and securing to himself for the loan 
 of money on said bond and mortgage, until the maturity
 
 APPENDIX OF FOEMS. 977 
 
 thereof, dollars.* [Or, state any other interest or compensation 
 
 agreed on; and the payment of it, if it has been paid]. 
 
 Wherefore, this defendant demands that the complaint in this 
 action be dismissed with costs. 
 
 J. Z., 
 Attorney for Defetidant C. D. 
 [Office and post-office address\, 
 [Add verification in the usual form\. 
 
 No. 5. 
 Infant Defendant's Answer. 
 
 [Title of the action]. 
 
 The defendants R. P. and D. P., by M. N., their guardian 
 ad litem, answering the complaint of the plaintiff above named, 
 say, that they are strangers to all and singular the matters and 
 things in said complaint contained ; that these defendants are 
 infants under the age of twenty-one years, and claim such an 
 interest in the premises described in said complaint as they are 
 entitled to, and submit their rights to the court for protection. 
 Dated, the day of , 18 . 
 
 V. O., 
 
 Attorney for Guardian ad litem. 
 [Office and post-office address]'. 
 
 No. 6.- 
 
 Notice of Object of Action, with Notice of No Per- 
 sonal Claim. 
 
 [Title of the action]. 
 
 To the above named defendant, [name] : 
 
 Take notice, that the summons herewith served upon you in 
 this action, is issued upon a complaint praying for the tore- 
 closure of a mortgage executed by C. D., and wife, to E. F., 
 dated the day of , 18 , and recorded in the office 
 
 of the clerk of the county of , in book No. of mortgages, at 
 
 page , on the day of , 18 , at o'clock m., to 
 
 secure the payment of the sum of dollars, with interest 
 
 thereon from the day of , 18 , (and which mortgage 
 
 has been duly assigned to this plaintiff). 
 
 That there is now due and owing to this plaintiff, on said 
 bond and rnortgage, the sum of dollars, with interest 
 
 thereon from the day of . 18 ; that the following is a 
 
 description of the mortgaged premises : [Insert description from 
 mortgage]. 
 
 » See MaoDing v. Tyler, 21 N. Y. 5G7 (18G0).
 
 978 APPENDIX OF FORMS. 
 
 That no personal claim is made against you, nor against any 
 defendant, except against the defendants, C. D. and J. H. 
 Dated the day of , i8 . 
 
 T. R., Plaintiff's Attorney. 
 
 \Office and post-office addresi\. 
 
 No. 7. 
 Notice of Pendency of Action. 
 
 \Title of the action\ 
 
 Notice is hereby given, that an action has been commenced 
 and is now pending in this court, upon the complaint of the 
 above named plaintiff, against the above named defendants, for 
 the foreclosure of a mortgage, bearing date the day of ,18 , 
 executed by C. D., and M. D., his wife, to E. F., and recorded in 
 the ofhce of the clerk of the county of , at , on 
 
 the day of ,18 , in book No. of mortgages, at page , 
 at o'clock in the noon (which said mortgage has been 
 
 duly assigned by said E. F., to the above named H. O., who is 
 the plaintiff herein). 
 
 That the mortgaged premises affected by this foreclosure were, 
 at the time of the commencement of this action, and at the time 
 of filing this notice are, situated in the county of , and that 
 
 they are described in the said mortgage as follows, to wit : 
 \IIere insert description of prefuises from 7nortgage\ 
 
 The clerk of the county of will please index this notice 
 
 against the names of the defe,ndants, C. D., J. H. and R. P. 
 
 Dated the day of , 18 . 
 
 T. R., Plaintiffs Attorney. 
 
 \Office and post-office address\. 
 
 No. 8. 
 County Clerk's Certificate of Filing Lis Pendens. 
 
 County of , ss. : 
 
 I, clerk of the county of , and of the court 
 
 thereof, being a court of record and having a seal, do hereby 
 certify, that I have compared the copy of the notice of pendency 
 of action in the above entitled action hereto annexed, with the 
 original thereof, now on file and record in my office, and that 
 the same is a transcript thereof and of the whole of said original. 
 
 And I do hereby further certify that the said notice of pen- 
 dency of action was filed and recorded in my said office, on 
 the day of , 18 . 
 
 In witness whereof, I have hereunto set my hand and affixed 
 the seal of my said office, this day of , 18 , 
 
 \,Seal\ {County Clerk\.
 
 APPENDIX OF FOKMS. 979 
 
 No. 9. 
 
 Affidavit of Filing Notice of Pendency of Action 
 Preliminary to Judgment. 
 
 [7VV/f of the actio?i\. 
 County of , ss. : 
 
 O. J., being duly sworn, says that he resides in the of , 
 
 in the county of , and that he is (managing clerk for T. R.), 
 
 the attorney for the plaintiff in the above entitled action ; that 
 this action was brought to foreclose a mortgage upon real property 
 situated in the county of 
 
 That the whole sum secured by said mortgage is now due and 
 payable, {or, that an installment of dollars of the principal 
 
 of said mortgage, and interest thereon from the day 
 
 of , 18 , is now due and payable, and that the residue 
 
 thereof, being the sum of dollars, and interest thereon from 
 
 the day of , 18 , will become due and payable on the 
 
 day of , 18 ). 
 
 That the complaint herein was filed in the office of the clerk of 
 the county of , on the day of , 18 , and that a notice 
 
 of the pendency of this action, containing the names of all the 
 parties thereto, the object of the action, the date of the said 
 mortgage, the names of the parties thereto, the time and place of 
 recording the same, and a description of the mortgaged premises, 
 and containing correctly and truly all the particulars required by 
 law to be stated in such notice, was more than twenty days since, 
 viz.: on the day of , 18 , filed and recorded in the 
 
 office of the clerk of the county of , that being the county 
 
 in which the mortgaged premises are situated, which filing was at 
 or immediately after the time of filing said complaint therein as 
 required by law, and more than twenty days since ; and that since 
 the filing of said notice the complaint in this action has not been 
 amended by making new parties to the action, nor so as to 
 affect other property not described in the original complaint, nor 
 so as to extend the claims of the plaintiff as against the mortgaged 
 premises. 
 
 That all of the defendants haA-e been duly served with the 
 summons, or have duly appeared herein by their respective 
 attorneys, as will more fully appear by the affidavits of service 
 and notices of appearance which are hereto annexed. 
 
 That none of the defendants are infants or absentees {or, that 
 none of the defendants are infants, except the defendant, R. P., 
 who has appeared by his guardian ad litem, and that none of the 
 defendants are absentees, except the defendant, O. S., who has 
 been duly served with the summons by publication thereof, under 
 an order of this court, proof of which service is hereto annexed). 
 
 That the time to answer has expired as to all of the defendants, 
 and that no answer or demurrer has been received from any 
 defendant (except the usual general answer of the infant
 
 y80 APPENDIX OF FOEMS. 
 
 defendant, D. P., who answers by his gnavrlian, and who does not 
 controvert aTiy of the allegations of the complaint; and except 
 al?o, the answer of the defendant, C. D., the issues raised by 
 which have been duly tried and decided in favor of this plaintiff 
 by Hon, L. Q., a justice of this court, whose findings are hereunto 
 annexed). 
 
 l/ura/]. \_Signature]. 
 
 No. lo. 
 
 Notice of Application for Order of Reference and 
 
 Judgment. 
 [Title of the action]. 
 
 Take notice, that on all of the papers and proceedings in this 
 action and on the affidavits hereto annexed, copies of which 
 are herewith served upon you, the plaintiff will apply to this 
 court at a term thereof, to be held at the court house, in the 
 city of , on the day of , i8 , at o'clock in 
 
 the noon of that day, or as soon thereafter as counsel can be 
 heard, for the relief demanded in the complaint ; and also for an 
 order referring this action to some suitable person to compute the 
 amount due to the plaintiff for principal and interest on the bond 
 and mortgage set forth in the complaint, (and also to ascertain 
 and compute the amount due to such of the defendants as aie 
 prior incumbrancers of the mortgaged premises), [if the whole 
 amount secured by the mortgage has not become due, or if any of the 
 defendants are infatits or absentees, the notice of motion should 
 folloxv the language of the order in Form No. ii], and for such 
 other and further relief as may be just.^ 
 Dated the day , i8 . 
 
 T. R., 
 
 Flaifitiff's Attorney. 
 [Office and tosi-office addressX. 
 To J. Z., 
 
 Attorney for Defendant^ \fiame\. 
 
 No. II. 
 Order of Reference, Preliminary to Judgment. 
 
 At a term, etc. 
 
 Present : Hon. , Judge. 
 
 [Title of the action]. 
 
 On reading the complaint on file in this action, and on reading 
 and filing the affidavit of T. R., the attorney for the plaintiff, and 
 the affidavits of service and the notices of appearance, from v/hich 
 
 ' See ante §§ 4G0, 4G1.
 
 APPENDIX OF FORMS. 981 
 
 it appears that this action was brought to foreclose a mortgage, 
 and that the whole amount secured thereby is (not) due ; and it 
 further appearing that the summons was duly served on all of the 
 defendants herein, more than twenty days since ; that the 
 time to answer has expired as to all of the defendants, and 
 that no answer or demurrer has been received from any of them, 
 and that none of the defendants are infants or absentees, {or, 
 that no answer has been served by any defendant, except the 
 usual general answer of the infant defendants, R. P. and D. P., 
 who have appeared and answered by their guardian ad litem, and 
 that the defendant O. S., is an absentee) ; and it further appear- 
 ing that a notice of the pendency of this action was filed more 
 than twenty days since ; and on filing due notice of this motion, 
 with due proof of the service thereof on the attorneys for all of 
 the defendants who have appeared herein : 
 
 Now, on motion of T. R., attorney for the plaintiff, and after 
 hearing J. Z., of counsel for the defendant C. D., it is 
 
 Ordered, that it be referred to X. Y., Esq., a counselor at 
 law, of , to ascertain and compute the amount due to the 
 
 plaintiff for principal and interest on the bond and mortgage set 
 forth in the complaint, (and also to compute the amount due to 
 such of the defendants as are prior incumbrancers of the mort- 
 gaged premises). 
 
 [ Where the whole amount secured by the mortgage has not become 
 due, the order should be\: to ascertain and compute the amount 
 due and yet to become due on the bond and mortgage set forth 
 in the complaint, including interest thereon to the date of his 
 report, and also to ascertain and report the situation of the mort- 
 gaged premises, and whether, in his opinion, the same can be sold 
 in parcels, without prejudice to the interests of the parties ; and if 
 he shall be of the opinion that a sale of the whole of said prem- 
 ises in one parcel will be most beneficial to the parties, then that 
 he report the same with his reasons for such opinion. 
 
 \If one of the defendants is an infant, and has put in a general 
 answer by his guardian ad litem, or if any of the defendants are 
 absentees, the order should read in addition'\ : to take proof of the 
 facts and circumstances stated in the complaint, and to examine 
 the plaintiff or his agent on oath, as to any payments which have 
 been made, and to ascertain and compute the amount due to the 
 plaintiff for principal and interest on the bond and mortgage set 
 forth in the complaint 
 
 No. 12. 
 Subpcena to Attend Before Referee. 
 
 [Title of the actioji\. 
 
 By virtue of an order made and entered in the above entitled 
 action, on the day of , i8 , to ascertain and compute 
 
 the amount due to the plaintiff for principal and interest on the
 
 982 APPENDIX OF FORMS. 
 
 bond and mortgage set forth in the complaint [Or, insert the sub- 
 stance of the order of refere^ice, follo7ving its langiiage\ I, X. Y., 
 the referee appointed herein, do hereby summon you to appear 
 before me, at my office, No. street, in the city of , on 
 
 rhe day of , i8 , at o'clock in the noon, to 
 
 attend a hearing of the matters in said action, in reference before 
 me, as such referee, pursuant to said order. And hereof, fail not 
 at your peril. 
 
 Dated the day of , i8 . 
 
 X.Y., 
 
 Referee, 
 
 No. 13. 
 
 Oath of Referee. 
 
 \Title of the actio n\ 
 County of , ss. : 
 
 I, X. Y., the referee named in the order of this court, made in 
 the above entitled action, at a term thereof held on 
 
 the day of , 18 , hy which it was referred to the under- 
 
 signed referee, to ascertain and compute the amount due to the 
 plaintiff for principal and interes-t on the bond and mortgage set 
 forth in the complaint, [folloiving the language of the order\ being 
 duly sworn, do depose and say : 
 
 That I will faithfully and fairly try and determine the questions 
 referred to me, as the case requires, and that I will make a just 
 and true report, according to the best of my understanding. 
 
 [J'urat'l \_Signaiure\ 
 
 No. 14. 
 Report of Referee, Preliminary to Judgrnent. 
 
 Whole Amount Due. No Infants or Absentees. 
 
 [Title of the actio fi]. 
 
 To the court of : 
 
 In pursuance of an order of this court, made in the above 
 entitled action, on the day of , 18 , by which it was 
 
 referred to the undersigned referee, to ascertain and compute 
 the amount due to the plaintiff on the bond and mortgage set 
 forth in the complaint in this action, [folloiving the language of 
 the order\ 
 
 I, X. Y., the referee in said order named, do report, that, having 
 first taken the referee's oath herein as required by law, I have 
 computed and ascertained the amount due to the plaintiff, upon 
 and by virtue of the said bond and mortgage, and that I find and 
 accordingly report, that there is due to the plaintiff for principal 
 and interest on the said bond and mortgage at the date of this, 
 my report, the sum of dollars.
 
 Ai'l'JflNDLK OF rOKMS. 
 
 9So 
 
 t> 
 
 Schedule "A," hereunto annexed, shows a statement of the 
 
 amounts due for principal and interest respectively, the periods ot 
 
 the computation of interest, and its rate. 
 
 Dated the day of , i8 . ^ „ ^ i 
 
 [Stgnafure of Referee\. 
 
 Schedule "A." 
 Exhibit No. i. Bond executed by C. D. to E. F., dated 
 the day of , i8 , to secure the payment of the sum 
 
 of dollars and interest. 
 
 Exhibit No. 2. Mortgage executed by C. D. and M. D., his 
 wife to E F., to secure the payment of said bond ; same date as 
 bond ; recorded the day of ,18, in the office of the clerk 
 of the county of , in book No. , of mortgages, at page . 
 
 Exhibit No 3. \^Insert in case of assignmeni\. Assignment 
 of said bond and mortgage from E. F. to H. O., dated the day 
 of 18 , and recorded in the office of the clerk of the 
 
 county of' , in book No. , of assignments of mortgages, at 
 
 page 
 
 Exhibit No. 4. Policy of insurance for _ dollars in 
 
 the fire insurance company. Premium paid, dollars. 
 
 Exhibit No. 5. Tax receipts for taxes paid by plaintiff for 
 
 the year 18 , to the county {or city) treasurer, amounting 
 
 to dollars. 
 
 Principal sum on bond •, ^ 
 
 Interest thereon from to , being years, 
 
 months and days, at per centum per 
 
 annum 
 
 Amount paid by plaintiff for taxes 
 
 Interest thereon from to this date, at per centum 
 
 per annum 
 
 Amount paid by plaintiff for insurance 
 
 Interest thereon from to this date, at per centum 
 
 per annum 
 
 Total amount due 
 
 Dated the day of ,18 
 
 {^Signature of Referee\. 
 
 No. 15. 
 Report of Referee Preliminary to Judgment. 
 
 Whole Amount Not Due. No Infants or Absentees. 
 
 [ Title of the actio?i\ 
 
 To the court of : ^ • .u 1 « ,^ 
 
 In pursuance of an order of this court, made in the above 
 
 entitled action, on the day of .18 . ^y which it was 
 
 referred to the undersigned referee, to ascertain and compute the
 
 984 APPENDIX OF FORMS. 
 
 amount due, and yet to become due, to the plaintiff on the bond 
 and mortgage set forth in the complaint, which is filed in this 
 action, including interest thereon to the date of this report; and 
 also to ascertain and report the situation of the mortgaged 
 premises, and whether, in his opinion, the same could be sold in 
 parcels, without injury to the interests of the parties, and if he 
 should be of the opinion that a sale of said premises in one parcel 
 would be most beneficial to the parties, to report his reasons for 
 such opinion, 
 
 I, X. Y., the referee in said order named, after having first 
 taken the referee's oath herein as required by law, do report : 
 
 That I have ascertained and computed the amount due to the 
 plaintiff upon and by virtue of the said bond and mortgage, and 
 that the amount so due, with interest to the date of this report, 
 is the sum of dollars. 
 
 That I have also ascertained and computed the amount yet to 
 become due to the plaintiff upon said bond and mortgage, and 
 that the amount which is not yet due, but which will hereafter 
 become due thereon, including interest to the date of this report, 
 is the sum of dollars. 
 
 That the whole amount secured by the said bond and mortgage 
 and still remaining unpaid, including interest thereon to the date 
 of this report, is the sum of dollars. 
 
 Schedule "A," hereunto annexed, shows a statement of the 
 amounts of principal due, and yet to become due, respectively; the 
 amounts of interest thereon, the periods of computation of 
 interest, and its rate. 
 
 I do further certify and report that I have ascertained the 
 situation of the mortgaged premises, and am of the opinion that 
 the same can not, (or can) be sold in parcels, without injury to 
 the interests of the parties ; that my reasons for such opinion are 
 as follows : \Here state the reasons for such opinion\. 
 
 The testimony upon which I have formed said opinion is hereto 
 annexed, and forms a part of this report. 
 
 Dated the day of , i8 . 
 
 {^Signature of Referee\. 
 
 Schedule " A." 
 
 \Setout the bond and mortgage and the other papers used as exhibits 
 on the reference, as in the preceding form, and continue as follows^ : 
 
 Principal sum now due ^ 
 
 Interest thereon from to , being years, 
 
 months and days, at per centum per annum. 
 
 Amount due $ 
 
 Principal sum secured by said bond and mortgage, but 
 
 not yet due $ 
 
 Interest thereon from to , being years, 
 
 months and days, at per centum per annum. 
 
 Amount to become due <ft
 
 APPENDIX OF FORMS. 985 
 
 Amount due, as above 
 
 Amount to become due, as above 
 
 Total amount of, plaintiff's claim at this date. . .$ 
 Dated the day of , i8 . 
 
 [^Signature of Refer ee\. 
 
 No. 1 6 
 Report of Referee Preliminary to Judgment. 
 
 Whole Amount Due. Infants or Absentees. 
 
 [Tttie of the actton\ 
 
 To the court of : 
 
 In pursuance of an order of this court, made in the above 
 entitled action, on the day of , 18 , by which it was 
 
 referred to the undersigned referee, to take proof of the facts and 
 circumstances stated in the complaint, and to examine the 
 plaintiff or his agent on oath, as to any payments which have 
 been made, and to ascertain and compute the amount due to the 
 plaintiff for principal and interest on the bond and mortgage set 
 forth in the complaint, 
 
 I, X. Y., the referee in said order named, do certify and report, 
 that after having first taken the referee's oath herein, as required 
 by law, I took proof of the facts and circumstances stated in the 
 complaint, and examined the plaintiff {or U. R., his agent), on 
 oath as to any payments which have been made, and that I am of 
 the opinion, and accordingly do report, that the facts and circum- 
 stances stated in said complaint are true, and that no payments 
 have been made on said bond and mortgage, except such as are 
 duly credited in the said complaint. 
 
 The said examination of the plaintiff, {or of U. R., the said 
 agent of the plaintiff), and the proofs taken by me of the facts 
 and circumstances stated in the complaint, except such of said 
 proofs as were documentary, are annexed to this report. 
 
 And I do further certify and report, that I have ascertained 
 and computed the amount due to the plaintiff for principal 
 and interest on the bond and mortgage set forth in the complaint, 
 and that I find and accordingly do report, that there is due to 
 the plaintiff for principal and interest on the said bond and 
 mortgage, at the date of this my report, the sum of dollars. 
 
 Schedule " A," hereto annexed, shows a statement of the 
 amounts due for principal and interest respectively, the periods of 
 the computation of the interest, and its rate. 
 
 Dated the day of , 18 . 
 
 {^Signature of Referee\. 
 
 Schedule "A." 
 [Insert Schedule "A," as in the preceding for}ti\.
 
 986 APPENDIX OF FOEMS. 
 
 No. 17. 
 Judgment of Foreclosure and Sale. 
 
 Whole Amount Due. 
 
 At a term, etc. 
 
 Present : Hon. , Judge. 
 
 [Title of the action\. 
 
 On reading and filing the affidavits of service of the summons 
 herein, and the notices of appearance, showing the due service of 
 the summons on all of the defendants in this action, and the affi- 
 davit of T. R., attorney for the plaintiff, showing that none of the 
 defendants are infants or absentees {or, that none of the defend- 
 ants are infants excepting the defendant R. P., and that none of 
 the defendants are absentees excepting the defendant O. S., who 
 has been duly served with the summons by the publication 
 thereof pursuant to an order of this court), and that the time to 
 answer has expired as to all of the defendants, and that no answer 
 or demurrer has been put in by any of the defendants (excepting 
 the general answer of the defendant R. P., who is an infant, and 
 whose answer by his guardian ad litetn does not controvert any of 
 the allegations of the complaint, and excepting also the answer of 
 the defendant C. D., the issues raised by which have been 
 duly tried at a term of this court, before Hon. , 
 
 one of the Justices thereof, and a decision therein rendered 
 for the plaintiff and duly filed ) [ //" computation is by the 
 cou7-t on the trial of the issues\, (and the court on such trial 
 having ascertained and computed the amount due to the plaintiff 
 for principal and interest on the bond and mortgage set forth in 
 the complaint to be the sum of dollars, and interest thereon 
 
 from the day of , 18 , the date when said computation was 
 
 made) ; and on reading and filing the report of X. Y., Esq., to 
 whom it was referred, to ascertain and compute the amount due 
 to the plaintiff, for principal and interest on the bond and mort- 
 gage set forth in the complaint (and to such of the defendants, 
 as are prior incumbrancers of the mortgaged premises), \^If any of 
 the defendatits are infants or absentees^ continue in the language of 
 the order of reference ; and to take proof of the facts and cir- 
 cumstances stated in the complaint, and to examine the plaintiff, 
 or his agent, on oath, as to any payments which have been made], 
 by which report, bearing date the day of , 18 , it 
 
 appears \in the case of infants or absentees], that the facts and cir- 
 cumstances stated in said complaint, are true, and that no pay- 
 ments have been made, except such as are duly credited in the 
 said complaint, and that the sum of dollars was due thereon, 
 
 at the date of said report ; and on reading and filing due proof 
 that notice of the pendency of this action was filed in the office 
 of the clerk of the county of , on the day of , 18 . 
 
 Now, on motion of T. R., attorney for the plaintiff, no one 
 appearing in opposition {or, after hearing J. Z., attorney for 
 the defendant C. D., in opposition thereto), it is
 
 APPEia)IX OF FORMS. 987 
 
 Ordered, that the said report be, and the same hereby is, in 
 all things confirmed ; and, on like motion as af Jresaid, it is 
 adjudged, that the mortgaged premises, described in the com- 
 plaint in this action, as hereinafter set forth, or so much thereof 
 as may be sufficient to raise the amount due to the plaintiff for 
 principal, interest and costs, and which may be sold separately, 
 without material injury to the parties interested, be sold at pub- 
 lic auction, in the county of , by and under the direction 
 of J. R., Esq., of the city of , counselor at law, who is 
 hereby appointed a referee for that purpose, [or by, and under, the 
 direction of the sheriff of said county) ; that the said referee 
 give public notice of the time and place of such sale, according 
 to law and the practice of this court ; that either, or any, of the 
 parties to this action, may purchase at such sale ; that the said 
 referee execute to the purchaser, or purchasers, a deed, or deeds, 
 of the premises sold ; that out of the moneys arising from such 
 sale, after deducting the amount of the fees and expenses on such 
 sale, and any lien, or liens, upon said premises so sold for taxes, 
 assessments or water rates, at the time of such sale, and the 
 amount necessary to redeem the property sold, from any liens 
 for unpaid taxes, assessments or water rates, which have not appar- 
 ently become absolute, the said referee pay to the plaintiff, or to 
 his attorney, the sum of dollars, adjudged to the plaintiff for 
 costs and disbursements in this action, with interest thereon, 
 from the date hereof ; that he pay to M. N., guardian ad /item for 
 said infant defendant, R. P., the sum of dollars, as an 
 allowance of costs, and that he also pay to the plaintiff, or to his 
 attorney, the amount so reported due to him, as aforesaid, together 
 with the legal interest thereon, from the date of said report, or so 
 much thereof, as the purchase money of the mortgaged premises 
 will pay of the same, and that he take a receipt therefor, and file 
 it with his report of sale ; that he pay over the surplus money, if 
 any there should be, arising from the said sale, to the treasurer 
 of said county of , {or, if the property is situated in the city of 
 New York, to the chamberlain), within five days after the 
 same is received and ascertainable, subject to the order 
 of this court ; that he make a report of such sale, and file 
 it with the clerk of this court, with all convenient speed ; that 
 if the proceeds of such sale are insufficient to pay the amount so 
 reported due to the plaintiff, with the interest and costs, as afore- 
 said, then that the said referee specify the amount of such defi- 
 ciency in his report of sale, and that the defendants, C. D., J. . 
 H. and H. O., pay to the plaintiff the residue of the debt remain- 
 ing unsatisfied, after a sale of the mortgaged property, and the 
 application of the proceeds thereof, pursuant to the directions 
 contained herein, and that the plaintiff have execution therefor, 
 and that the purchaser, or purchasers, at such sale, be let into 
 possession on production of the referee's deed. 
 
 And it is further adjudged, that the defendants, and all 
 persons claiming under them, or any or either of them, after the
 
 988 APPENDIX OF FORMS. 
 
 filing of the said notice of the pendency of this action, be forever 
 barred and foreclosed of all right, title, interest and equity of 
 redemption, in the said mortgaged premises, so sold, and in 
 every part thereof. 
 
 The following is a description of the mortgaged premises, here- 
 inbefore mentioned : {^Insert description of the premises as contained 
 in the mortgage and the co7nplaini\. 
 
 No. 1 8. 
 Judgment of Foreclosure and Sale. 
 
 Part only Due— Premises Sold in One Parcel. CAs in Preceding Form No. 17, 
 to * and Continue). 
 
 To ascertain and compute the amount due, and yet to become 
 due, to the plaintiff, on the bond and mortgage set forth in the com- 
 plaint, including the interest thereon, to the date of his report, 
 and also, to ascertain the situation of the mortgaged premises, and 
 whether the same can be sold without prejudice to the interests 
 of the parties, by which report, bearing date the day 
 
 of , 18 , it appears that the amount due to the plaintiff, 
 
 with interest, to the date of said report, is the sum of dol- 
 
 lars, and that the amount which is not yet due to the plaintiff, but 
 which will hereafter become due to him, on said bond and 
 mortgage, including interest thereon, to the date of said report, 
 is the sum of dollars, and, that the whole amount secured 
 
 by said bond and mortgage, and still remaining unpaid, including 
 interest thereon, to the date of said report, is the sum of dol- 
 
 lars, and that the said mortgaged premises can not be sold in 
 separate parcels, without injury to the interests of the parties, 
 for the reason that \insert reason as conlaitied in the rejeree's 
 repori\. 
 
 Now on motion of T. R., attorney for the plaintiff, and after 
 hearing J. Z., attorney for the defendant, C. D., in opposition 
 thereto, it is 
 
 Ordered, [Continue as in preceding Form No. 17, except that 
 the direction to pay the ^^ amount due," should be changed to a 
 similar direction^ pay to the plaintiff, or his attorney, the whole 
 amount so reported to be secured by the said bond and niort- 
 gage, and still remaining unpaid, together with the legal interest. 
 
 And it is further adjudged, that in case the amount reported asj 
 actually due to the plaintiff, with interest, and the costs of thib 
 action, shall be paid before such sale, the plaintiff shall be at liberty 
 at any time hereafter, when any of the principal sum or interest, 
 secured by said bond and mortgage, shall become due, to apply to 
 the aforesaid referee, who is hereby continued a referee for that 
 purpose, under, and in pursuance of, this judgment, and obtain a 
 report of the amount which shall then be due ; to the end, that 
 upon the coming in and confirmation of such report, a judgment
 
 APPENDIX OF FORMS. 989 
 
 maybe made for a sale of the said premises, to satisfy the amount 
 which shall then be due, with interest, and the costs of such 
 report and sale. 
 
 And it is further adjudged, that, in case the said premises 
 shall be sold under this judgment, and shall not produce suffi- 
 cient to satisfy the amount so reported as being secured by the 
 said bond and mortgage, and still remaining unpaid, with 
 interest, and the costs of this action and of such sale, the 
 plaintiff may, at any time thereafter, when any future installment 
 of principal or interest on said bond and mortgage shall become 
 due, apply to this court, for an execution against the said defend- 
 ant C. D., who is personally liable for the payment of the debt 
 secured by the said mortgage, for the amount which shall thea 
 be due, with interest and the costs of such application. 
 
 The following is a description of the mortgaged premises here- 
 inbefore mentioned : [Insert description\. 
 
 No. 19. 
 Judgment of Foreclosure and Sale. 
 
 Part Only Due — Premises to be Sold in Separate Parcels. 
 
 \As in preceding For?n No. 1 8, except that the opinion of the 
 referee to the effect., that the premises can be sold in parcels without 
 injury to the interests of the parties, should be stated according to 
 the facts. The addition to Form No. 17, imtnediately before the 
 description should be as follows\ : 
 
 And it is further adjudged, that the plaintiff be at liberty, at 
 any time hereafter, as any installment of principal or interest, 
 secured by said bond and mortgage, shall become due, to apply 
 to the aforesaid referee, who is hereby continued a referee for 
 that purpose, under, and in pursuance of this judgment, and 
 to obtain a report as to the amount which shall then be due to the 
 plaintiff, to the end that, upon the coming in and confirmation of 
 such report, an order may be made for a sale of the residue of 
 said premises, not sold under this judgment, to satisfy the amount 
 which shall then be due, with interest, and the costs of such 
 report and sale. 
 
 And it is further adjudged, that in case the said premises shall 
 be sold under this judgment, and shall not produce sufficient 
 to satisfy the amount so reported as secured by the said bond 
 and mortgage, and still remaining unpaid, with interest, and the 
 costs of this action, and of such sale, the plaintiff may, at any 
 time thereafter, when any future installment of principal or 
 interest, on said bond and mortgage, shall become due, apply to 
 this court for an execution against the said defendants, C. D., 
 J. H. and H. 0.,who are personally liable for the payment of the 
 debt secured by the said bond and mortgage, for the amount 
 which shall then be due, with interest, and the costs of such 
 application.
 
 990 APPENDIX OF iOiiMS. 
 
 The following is a description of the mortgaged premises, here- 
 inbefore mentioned and specified, and the order in which the 
 said several parcels thereof are to be sold separately, to wit : 
 
 I. The lot or parcel, to be sold first, is bounded as follows : 
 [Inseri description]. 
 
 II, The lot or parcel, to be sold next or second, is bounded 
 as follows : [Insert description]. 
 
 No. 20. 
 Judgment of Foreclosure and Sale. 
 
 Direction to be Inserted in Judgment for a Sale «f Separate Parcels in the 
 Inverse Order of Alienation. 
 
 [Insert at the end of the judgment, immediately before the descrip- 
 tion] : 
 
 And it is further adjudged, that the said referee summon 
 before him all of the parties who have appeared in this action, 
 and that he take proof of the order and manner of alienation of 
 the mortgaged premises, and that if it shall appear to the said 
 referee, that separate parcels of the said mortgaged premises 
 have been conveyed or incumbered by the said mortgagor, or by 
 those claiming under him, subsequently to the lien of the plaintiff's 
 mortgage, the said referee shall sell the mortgaged premises in 
 parcels, in the inverse order of their alienation, according to the 
 equitable rights of the parties who are subsequent grantees or 
 incumbrancers, as such rights shall be made to appear to said 
 referee. 
 
 No. 21. 
 Judgment of Foreclosure and Sale. 
 
 Provision to be Inserted in Judgment for Sale, When One of the Defendants is 
 Merely a Surety. 
 
 And it is further adjudged, that if the plaintiff is not able to 
 collect the amount of such deficiency out of the estate of the said 
 [naming mortgagor], upon the issuing of an execution against his 
 property, to the sheriff of the county in which he resides, or of 
 the county where he last resided in this state, the defendants, 
 [fiamifig the sureties], upon the return of such execution unsatis- 
 fied, pay so much of such deficiency, as the proceeds of the sale 
 hereinbefore directed, and the amount, if any, which shall have 
 been collected of the said [naming mortgagor], personally, (sub- 
 sequent to the assignment by said sureties to the plaintiff), 
 exclusive of the costs and expenses of the foreclosure and snle, 
 shall be less than the principal [or other limit of sureties' liability), 
 and the interest thereon, from the time of the commencement of this 
 action, to the time of such sale, with the interest on that part of
 
 ' APPENDIX OF FUKMS. 991 
 
 the deficiency, from the time of the said sale, until it shall be so 
 paid by them. 
 
 And it is further adjudged, that if they pay the amount thus 
 decreed against them personally, or if the same is collected out of 
 their property, they shall have the benefit of this judgment, 
 against the said \^naming mortgagor-], for the purpose of enabling 
 them to obtain remuneration from him, to the same extent with 
 interest, but no further, either by a new execution against his 
 property, or by bringing an action thereon, as they may think 
 proper. 
 
 No. 22. 
 
 Notice of Sale Under Judgment. 
 
 l^Tt'fle of the action]. 
 
 In pursuance of a judgment of foreclosure and sale, made and 
 entered in the above entitled action, bearing date the day 
 of , i8 , and entered in the county clerk's office, on 
 
 the day of , iS , I, the undersigned referee, in said 
 
 judgment named, {or the sheriff of the county of ), will sell 
 
 at public auction, at the , in the city of , county 
 
 of , and state of , on the day of > i8 , 
 
 at o'clock in the noon of that day, the following described 
 premises : [^Insert description]. 
 
 Dated the day of , i8 . 
 
 J.R., 
 
 T. R., Referee {or Sheriff). 
 
 Plaintiff's Attorney. 
 
 No. 23. 
 Terms of Sale. 
 
 [ Title of the action]. 
 
 The premises described in the annexed notice of sale, will be 
 sold under the direction of J. R., referee {or sheriflf of the 
 county of ), upon the following terms : 
 
 I. Ten per centum of the purchase money of the said prem- 
 ises will be required to be paid to the said referee {or sheriff), at 
 the time and place of sale, for which the referee's {or sheriff's) 
 receipt will be given. 
 
 II. The balance of said purchase money will be required to 
 be paid to said referee {or sheriff), at his office, No. , in the 
 city of , on the day of , 18 , at which time the 
 said referee's {or sheriff's) deed, will be ready for delivery. 
 
 III. The referee {or sheriff), is not required to send any 
 notice to the purchaser; and if he neglects to call at the time and
 
 992 APPENDIX OF FORMS. 
 
 place above specified, to receive his deed, he will be charged with 
 interest thereafter, on the whole amount of his purchase, unless 
 the referee {or sheriff), shall deem it proper to extend the time 
 for the completion of said purchase. 
 
 IV. All taxes, assessments and water rates upon said premises, 
 will be allowed by the referee (or sheriff), out of the purchase 
 money, provided the purchaser shall, previously to the delivery of 
 the deed, produce to the referee {or sheriff), proof of such liens 
 and duplicate receipts of the payment thereof. 
 
 v. The purchaser of said premises, or of any portion thereof, 
 will, at the time and place of the sale, sign a memorandum of his 
 purchase, and pay, in addition to the purchase money, the auc- 
 tioneer's fee of ten dollars, for each parcel separately sold. 
 
 VI. The biddings will be kept open, after the property is 
 struck off, and, in case any purchaser shall fail to comply with any 
 of the above conditions of sale, the premises so struck down to 
 him, will be again put up for sale under the direction of said 
 referee {or sheriff) under these same terms of sale, without appli- 
 cation to the court, unless the plaintiff's attorney shall elect to 
 make such appHcation ; and such purchaser will be held liable 
 for any deficiency that may exist between the sum for which said 
 premises were struck off upon the sale, and that for which they 
 may be sold on the resale, and also, for all costs and expenses 
 occurring on such resale. 
 
 VII. \If there is a prior incumbrance\. The said premises 
 will be sold subject, however, to a mortgage for dollars, 
 and interest thereon, from the day of > i8 , and subject to 
 {describing any other incumbrances^ 
 
 J- R., 
 
 Referee {or Sheriff). 
 
 Memorandum of Sale. 
 
 I, M. N., have this day of » i8 , purchased the prem- 
 
 ises described in the annexed printed notice of sale, for the sum 
 of dollars, and I hereby promise and agree to comply with 
 
 the terms and conditions of sale of said premises, as above 
 mentioned and set forth. 
 
 Dated i8 . M. N., 
 
 Purchaser, 
 Receipt. 
 $ 
 
 Received from M. N,, the sum of dollars, being ten per 
 
 centum of the amount bid by him, for the property sold by me, 
 under the judgment in the above entitled action, and pursuant to 
 the foregoing terms of sale. 
 
 Dated i8 . 
 
 J. R., 
 
 Referee {or Sheriff).
 
 APPENDIX OF FOKMS. 993 
 
 No. 24. 
 
 Affidavit of Posting Notice of Sale. 
 \^Title of the actioti\. 
 County of , ss. : 
 
 , being duly sworn, says that he is more than 21 years of 
 age, and resides at ; that on the day of ,18 , he 
 
 posted, and conspicuously fastened up, a printed notice of sale, 
 of which the prefixed notice is a copy, in three public places, in 
 the city of , in said county of , as follows : one notice on 
 
 the outer door of the court house in said city ; one notice on the 
 bulletin board at ; one notice in the post-office at ; that 
 
 said city of , is the place where said sale is to take place, 
 
 as mentioned in said notice ; and that the day of , 18 , 
 
 is at least forty-two days before the day of sale, mentioned in 
 said notice. 
 
 Deponent further says, that on the said day of , 18 , 
 
 he also posted, and conspicuously fastened up, said printed 
 notice of sale in three public places, in the town of , in 
 
 said county of , as follows : one notice of sale in the store 
 
 of ; one notice in the post-office of said town ; one notice 
 
 in the hotel; that said town of , is the town where 
 
 the property described in said notice, is situated ; and that 
 said day of , 18 , is at least forty-two days before the 
 
 day of sale mentioned in said notice. 
 
 [furat.] 
 
 No. 25. 
 
 Referee's Report of Sale. 
 
 [Title of the actioti\. 
 
 To the court of : 
 
 In pursuance and by virtue of a judgment of this court, granted 
 in the above entitled action, at a term thereof, held at , 
 
 on the day of , 18 , and heretofore duly entered, by 
 
 which it was, among other things, ordered and adjudged, that all 
 and singular the mortgaged premises mentioned in the complaint 
 in this action, and hereinafter described, or so much thereof as 
 might be sufficient to discharge the mortgage debt, the expenses 
 of the sale and the costs of the action, and which might be sold 
 separately without material injury to the parties interested, be 
 sold at public auction, in the county of , by or under the 
 
 direction of the undersigned referee (<?r sheriff) ; that the referee 
 {or sheriff) give public notice of the time and place of such sale, 
 according to law and the rules and practice of this court ; that 
 the plaintiff, or any of the parties to this action, might become a 
 purchaser on such sale ; that the referee execute a deed to 
 the purchaser of the mortgaged premises so sold ; that said 
 referee pay all taxes, assessments and water rates, which are liens 
 
 (63J
 
 994 APPENDIX OF FOliMS. 
 
 Upon the property sold, and the amount necessary to redeem the 
 property sold from any sales for unpaid taxes, assessments or 
 water rates which have not apparently become absolute ; that said 
 referee pay to the said plaintiff, or his attorney, out of the 
 proceeds of the sale, dollars, his costs and charges in this action 
 
 as adjusted, with interest from the date of said judgment, and also 
 the amount reported due to the plaintiff, together with the legal 
 interest thereon from the date of the referee's report, or so much 
 thereof as the purchase money of the mortgaged premises would 
 pay ; that the referee take the plaintiff's receipt therefor and file 
 the same with his report ; that he pay the surplus moneys arising from 
 said sale, if any there should be, into court, to the treasurer of 
 the county of , [or, to the chamberlain Of the city of New 
 
 York), within five days after the same should be received and 
 ascertainable, for the use of the person or persons entitled thereto, 
 subject to the further order of this court ; and that if the moneys 
 arising from said sale should be insufficient to pay the amount so 
 reported due to the plaintiff, Avith the interest, costs, taxes and 
 expenses aforesaid, the said referee {or sheriff), specify the 
 amount of such deficiency in his report of sale, 
 
 I, the undersigned, J. R., the referee {or sheriff) named in said 
 judgment, do respectfully certify and report such sale and pro- 
 ceedings as follows : 
 
 That, having been charged by the attorney for the plaintiff 
 with the execution of said judgment, I advertised said premises 
 to be sold by me, at public auction, at , in the town (^rcity) 
 
 of , in the county of , on the day of , i8 , 
 
 at o'clock in the noon ; that previous to said sale, I caused 
 notice thereof to be publicly advertised for weeks successively, 
 as follows, to wit: by causing a printed notice thereof to be fastened 
 up in three public and conspicuous places in the , where 
 
 the said premises were to be sold, and also in three public and 
 conspicuous places in the , where the said mortgaged 
 
 premises are situated, at least days before the sale, and also 
 by causing a copy of such notice to be published once in each 
 week during the weeks immediately preceding such sale, in 
 
 a public newspaper printed in said county of , to wit : 
 
 the , published at , in said county, which notice 
 
 contained the same description of said mortgaged premises as did 
 said judgment. 
 
 And I do further report, that on the day of » i8 , 
 
 the day on which said premises were so advertised to be sold as 
 aforesaid, I personally attended, at the time and place fixed for 
 said sale, and exposed said premises for sale at public auction to 
 the highest bidder, and that the said premises were then and 
 there fairly struck off to , for the sum of dollars, he 
 
 being the highest bidder therefor and that being the highest sum 
 bidden for the same. 
 
 And I do further report that I have executed, acknowledged 
 and delivered to the said purchaser, the usual referee's {or sheriff's)
 
 APPENDIX OF FORMS. 995 
 
 deed for said premises, and have paid over or disposed of the 
 purchase money, or the proceeds of said sale, as follows, to wit : I 
 have paid to the attorney for the plaintiff the sum of dollars, 
 
 being the amount of his costs of this suit, as adjusted, with interest, 
 and have taken his receipt therefor, v/hich is hereto annexed. 
 
 I have also retained in my hands the sum of dollars, being 
 
 the amount of my fees and disbursements on said sale, including 
 the expense for publishing the notice of sale. 
 
 I have paid to the plaintiff {or his attorney) the sum of 
 dollars, adjudged to him, and have taken his receipt therefor, 
 which is hereto annexed. 
 
 I have paid to the county treasurer of county, for the use 
 
 of the person or persons entitled thereto, the sum of dollars, 
 
 the surplus herein, and have taken his receipt therefor, which is 
 hereto annexed. 
 
 I have paid for city taxes $ 
 
 For county taxes 
 
 For printing and posting the notice of sale , . 
 
 For all of which receipts are hereto annexed. 
 I have retained for my fees and commissions 
 
 Total $ 
 
 [In case of deficiency^ instead of the clause for the surplus, inseri\: 
 And I do further report that after such sale herein, and the dis- 
 posal of the proceeds thereof, as above provided, the amount of 
 the deficiency is the sum of dollars, with interest thereon 
 
 from the date of this report. 
 
 And I do further report that the premises so sold and conveyed 
 by me, as aforesaid, were described in said judgment and in the 
 deed executed by me, as aforesaid, as follows : 
 
 [^Insert same description of premises as in judgment\ 
 All of which is respectfully submitted to this court. 
 Dated the day of , i8 . 
 
 J. R., 
 
 Referee {or Sheriff). 
 
 Receipt for Amount Due Plaintiff. 
 [Title of the action\ 
 
 Received, i8 , of J. R., the referee {or sheriff), who 
 
 made the sale of the premises under and by virtue of the judg- 
 ment in the above entitled action, the sum of dollars, which 
 sum, being part of the proceeds of the sale of said premises, is 
 received by me under and by virtue of the provisions of said 
 judgment, being {or on account of) the amount adjudged to be 
 paid to said plaintiff, with interest thereon, as mentioned in said 
 judgment. 
 
 T. R., 
 
 Attorney for Plaintiff.
 
 996 APPENDIX OF FORMS. 
 
 Receipt for Costs. 
 \_Title of the action]. 
 
 Received, i8 , of J. R., the referee {or sheriff), who 
 
 made the sale of the premises under and by virtue of the judg- 
 nient in the above entitled action, the sum of dollars, being 
 
 the amount of the costs and disbursements of the plaintiff in said 
 action, as taxed, with the interest, which costs are paid by said 
 referee {or sheriff) under and by virtue of the provisions of 
 said judgment. 
 
 T. R., 
 
 Attorney for Plaintiff. 
 
 Receipt for Surplus Moneys. 
 
 [Title of the action]. 
 
 Received, , i8 , of J. R., referee {or sheriff) herein, 
 
 pursuant to the judgment in this action, the sum of dollars, 
 
 being surplus moneys received on the sale of the premises in the 
 above entitled action. 
 
 N. v., '^''■" 
 
 Treasurer of County. 
 
 No. 26. 
 
 Order Confirming Report of Sale. 
 
 At a term, etc. 
 
 Present : Hon. , Judge. 
 
 [Title of the action]. 
 
 The report of J. R.. Esq., the referee appointed by the judg- 
 ment in this action, to sell the mortgaged premises described in 
 the complaint herein, having been duly filed in the office of the 
 clerk of the county of , on the day of , 18 , and on 
 
 reading and filing due notice of the filing of said report, with due 
 proof of the service thereof on all of the parties who have appeared 
 in this action, and eight days having elapsed since said notice 
 of filing said report was served, and no exceptions having been 
 filed thereto ; now on motion of T. R., attorney for the plaintiff, 
 it is 
 
 Ordered, that the said report and the sale therein mentioned, be 
 absolute and binding forever, and that they stand as in all things 
 ratified and confirmed.
 
 APPENDIX OF FORMS. 997 
 
 No. 27. 
 
 Petition to Sell Balance of Mortgaged Premises. 
 
 \_Titie of the action\. 
 
 To the court of : 
 
 The petition of E. F., the above named plaintiff, respectfully 
 shows that a judgment of foreclosure and sale was entered in 
 this action in the office of the clerk of county, on the day 
 
 of , 18 , on the report of the referee herein, whereby it 
 
 appears that the sum of dollars was due on the bond and 
 
 mortgage mentioned in the complaint, on the day of , 18 , 
 and that the amount secured, and not then due, was the sum 
 of dollars. 
 
 That such proceedings were thereupon had upon such judg- 
 ment, that, under and by virtue thereof, a portion of the prem- 
 ises described in said judgment, and in the complaint herein, 
 sufficient for the payment of the amount reported due on said 
 bond and mortgage, and the interest thereon, together with the 
 costs and disbursements, as settled by the clerk of the county 
 of , and entered in said judgment, was sold, and brought 
 
 the sum of dollars, which said sum paid the costs and 
 
 expenses on said foreclosure, and a portion of the principal 
 secured by the said mortgage, leaving unpaid on said mortgage, 
 the sum of dollars, with interest thereon from the day 
 
 of , 18 . 
 
 That the premises so sold, comprised the lot first described in 
 the said judgment and complaint, and was the whole of the prem- 
 ises described therein, except the lot last described therein, which 
 said lot so remaining unsold, is bounded and described as fol- 
 lows : \^Insert description from Judgment]. 
 
 That under and by virtue of the terms of said bond and mort- 
 gage, the interest thereon was payable [^state terms of bond and 
 mortgage] ; that the interest on the amount unpaid on said mort- 
 gage, became due on the day of , 18 , and 
 remains unpaid ; that no party has appeared in said action, 
 except the defendants C. D. and M. D., who have appeared by 
 J. Z., as their attorney, and that none of the defendants herein are 
 infants or absentees. 
 
 Wherefore, your petitioner prays, that an order may be granted 
 in this action, founded on said judgment, and directing a sale of 
 said unsold lot, hereinbefore described, under and pursuant to 
 the said judgment, to satisfy the amount due the said plaintiff, 
 with the costs of this proceeding ; and as said lot is not capable 
 of division, your petitioner prays that the whole of the premises 
 may be sold, and that the proceeds may be applied to the pay- 
 ment of such costs and interest, and that the balance may be 
 applied to the payment of the amount due on the mortgage of 
 this plaintiff. 
 
 Dated the day of , 18 . E. F., Petitioner. 
 
 [Add verification in the usual form].
 
 993 APPENDIX Ob' FORMS. 
 
 No. 28. 
 
 Order Directing Sale of Balance of Mortgaged 
 Premises. 
 
 At a term, efc. 
 
 Present : Hon. , Judge. 
 
 \_TitIe of the action]. 
 
 On reading and filing the petition of E. F., the above named 
 plaintiff, by which it appears, among other things, that the sum 
 of dollars remains unpaid on the judgment of foreclosure in 
 
 the above entitled action, with interest thereon, from ,18 , 
 
 after the application of all the proceeds of the sale of the prem- 
 ises sold under said judgment, on 18 ; that the interest on 
 said sum of dollars, from 18 , became due and pay- 
 able on the day of , i2> , and still remains unpaid ; and 
 that all the premises described in said complaint and judgment, 
 have been sold, except a single lot, which said lot can be sold 
 more advantageously by being sold in one parcel; and on reading 
 and filing due proof of the service of this petition and notice of 
 this motion on C. D. and M. D., the only defendants who have 
 appeared herein ; now, on motion of T. R., plaintiff's attorney, 
 it is 
 
 Ordered, that the residue of the said mortgaged premises, 
 described in the said complaint and judgment in this action, and 
 remaining unsold, be sold under the direction of the referee here- 
 tofore appointed herein, for the payment of the amount remaining 
 unpaid on said mortgage, to wit : the sum of dollars, and 
 
 interest thereon from 18 , together with the costs of this 
 
 proceeding, under and pursuant in all respects and according to 
 the termsand the directions for sale contained in said judgment. 
 
 And it is further ordered, that the said defendants, and all per- 
 sons claiming under them, or either of them, after the filing of the 
 notice of the pendency of this action, be forever barred and fore- 
 closed of all right, title, interest and equity of redemption o: or 
 in the said mortgaged premises so sold, or any part thereof. 
 
 \^Add clause from preceding forms directing judgment for deficiency 
 against certain defendants, if desired\ 
 
 No. 29. 
 Request to Docket Judgment for Deficiency. 
 
 [Title of the action]. 
 
 Sir : — Please docket a judgment in your office, in favor of E. F., 
 the above named plaintiff, against the defendants C. D. and 
 J. H., for the sum of dollars, and interest thereon from 
 
 the day of , 18 , for deficiency. 
 
 Judgment of foreclosure and sale, and the judgment roll, filed 
 in your office, on the day of , 18 .
 
 APPJiNDIX OF i'OEMS. 999 
 
 Report of J. R., Esq., the referee {or sheriff) to sell, named 
 in said judgment, filed in your office on the day of , i8 
 showing a deficiency of dollars. 
 
 Dated the day of , i8 . 
 
 T. R., 
 
 Plaintiff's Attorney. 
 To R. S., Esq., [Office and post-office address\. 
 
 Clerk of the county of , 
 
 No. 30. 
 Judgment for Deficiency on Foreclosure. 
 
 At a term, etc. 
 
 Present : Hon. , fudge. 
 
 [Title of the action\. 
 
 The report of J. R., the referee {or sheriff) appointed to sell 
 the premises described in the judgment in the above entitled 
 action, having been filed on the day of , 18 , by 
 
 which it appears that the proceeds of said sale were insufficient 
 to pay the amount directed to be paid in and by said judgment, 
 and that there remains due from the defendants C. D. and J. H., 
 to the plaintiff for such deficiency, the sum of dollars, with 
 
 interest thereon from the day of , 18 , and the said report 
 
 of sale having been duly confirmed by an 'order of said court 
 entered on the day of , 18 ; now, on motion of T. R., 
 
 attorney for the plaintiff, it is 
 
 Adjudged, that the plaintiff recover from said defendants 
 C. D. and J. H., the said sum of dollars, with interest 
 
 thereon from the day of , 18 , amounting in all, 
 
 to the sum of dollars. R. S., 
 
 Clerk. 
 
 No. 31. 
 
 Execution for Deficiency. 
 
 The People of the State of , to the Sheriff of the County 
 
 of , Greeting : 
 
 Whereas, by a certain judgment made in the court and 
 
 entered in the ofiice of the clerk of the county of , on 
 
 the day of , 18 , in a certain action, wherein E. F. is 
 
 plaintiff and C. D., J. H. and others, are defendants, it was, among 
 other things, ordered and adjudged, that the mortgaged premises 
 described in said judgment should be sold by and under the 
 direction of J. R., Esq., as referee {or sheriff) ; that the said 
 referee {or sheriff) should, out of the proceeds of said sale, 
 retain the costs and expenses of said sale and pay the costs and 
 allowances of the plaintilf and the amount reported due to the
 
 1000 APPENDIX OF FOEMS. 
 
 plaintiff for principal and interest, or so much thereof as the 
 purchase money of the mortgaged premises would pay of 
 the same ; that if the moneys received from said sale should 
 be insufficient to pay the amount so reported due to the 
 plaintiff, with the interest and costs as aforesaid, then that the said 
 referee (or sheriff) specify the amount of such deficiency in his 
 report of sale ; and that the defendants C. D. and J. H., should 
 pay the same to the plaintiff. 
 
 And whereas, the said referee has duly filed his report of sale 
 in the office of the clerk of the county of , from which it 
 
 appears that the money received from said sale was insufficient to 
 pay the amount so reported due to the plaintiff, with interest and 
 costs as aforesaid, and that the amount of such deficiency is the 
 sum of dollars, and interest theredn from the day 
 
 of i8 , and the report of said referee has been duly 
 
 confirmed. 
 
 And whereas, said judgment for said deficiency, in favor of 
 E. F., the said plaintiff, and against the said defendants C. D. and 
 J. H., for the sum of dollars, and interest thereon from 
 
 the day of i8 , was on the day of i8 , duly 
 
 docketed in the office of the clerk of the county of , and 
 
 the said sum of dollars, and interest thereon from the day 
 
 of i8 , is now actually due on said judgment. 
 
 You ARE, THEREFORE, required to satisfy the said judgment out 
 of the personal property of said judgment debtors, or either of them, 
 within your county ; and if sufficient personal property can not be 
 found, then out of the real property in your county belonging to 
 said judgment debtors, or either of them, on the day of , 
 
 1 8 , when said judgment was so docketed in your county, or at 
 any time thereafter, and to return this execution within sixty 
 days after its receipt by you to the clerk of the county of , 
 
 where said judgment roll is filed as aforesaid. 
 
 Witness, Hon. , one of the Justices of said court, 
 
 this day of , i8 . 
 
 T. R., 
 
 Plaintiff *s Attorney. 
 
 No 32. 
 Sheriff's or Referee's Deed on Foreclosure. 
 
 This Indenture, made this day of ,18 , between 
 
 J. R., the sheriff of the county of , {or the referee, in the action 
 hereinafter mentioned), of the city of , county of , and 
 
 state of , of the first part, and of the second part. 
 
 Whereas, at a term of the court of , held at , on 
 
 the day of , 18 , it was, among other things, ordered, 
 
 adjudged and decreed, by the said court in a certain action then 
 pending in said court between E. F. plaintiff, and {name all the 
 defendants^ defendants, that all and singular, the premises
 
 APPENDIX OF FOEMS. 1001 
 
 described in a mortgage executed by C. D. and M. D., his wife, to 
 E. F., and recorded in the county clerk's ofifice in liber of 
 
 mortgages, at page , and being the same premises men- 
 tioned in the complaint in said action, and described in 
 said judgment, or such part thereof, as might be sufficient 
 to discharge the mortgage debt, the expenses of the 
 sale, and the costs of said action, and which might be 
 sold separately, without material injury to the parties inter- 
 ested, be sold at public auction, according to law and the 
 course and practice of said court, by and under the direction 
 of said sheriff, of said county, {or of said J. R.), who was 
 appointed a referee in said action, and to whom it was referred 
 by said judgment, among other things, to make such sale ; 
 that the said sale be made in the county where the said mort- 
 gaged premises, or the greater part thereof, are situated ; that 
 the said referee, {or sheriff), give due public notice of the time 
 and place of such sale, according to law and the course and 
 practice of said court ; that the plaintiff, or any of the parties to 
 said action, might become a purchaser or purchasers, on such sale; 
 and that the said referee execute to the purchaser or purchasers 
 of said mortgaged premises, or of such part or parts thereof, as 
 should be sold, a good and sufficient deed or deeds of conveyance 
 for the same, and pay all taxes, assessments or water rates, which 
 were liens upon the property sold. 
 
 And whereas, the said referee {or sheriff), in pursuance of the 
 order and judgment of said court, did, on the day of > i8 , 
 sell at public auction, at [state the time and place of sale\, the 
 premises described in the said judgment, due notice of the time 
 and place of such sale being first given, pursuant to the said judg- 
 ment, at which sale, the premises hereinafter described were 
 fairly struck off to the said party of the second part, for the sum 
 of dollars, that being the highest sum bidden for the same. 
 
 Now This Indenture Witnesseth, that the said referee, {or 
 sheriff), the party of the first part to these presents, in order to 
 carry into effect the sale so made by him as aforesaid, in pursu- 
 ance of the order and judgment of said court, and in conformity 
 to the statute in such case made and provided, and also in con- 
 sideration of the premises, and of the said sum of money so 
 bidden, as aforesaid, having been first duly paid by the said party 
 of the second part, the receipt whereof is hereby acknowledged, 
 hath bargained and sold, and by these presents doth grant, and 
 convey unto the said party of the second part, all the right, title and 
 interest which the said C. D. and M. D., his wife, the mortgagors 
 aforesaid, had at the time of the execution or recording of said 
 mortgage, it being their interest in said premises so sold and 
 hereby conveyed, in and to \insert from the judgment the descrip- 
 tion of the parcel intended to be convey ed\ to have and to 
 hold, all and singular, the premises above mentioned and 
 described, and hereby conveyed, unto the said party of the 
 second part, his heirs and assigns forever.
 
 1002 APPENDIX OF FORMS. 
 
 In Witness Whereof, the said party of the first part, referee {or 
 sheriff) as aforesaid, hath hereunto set his hand and seal the day 
 and year first above written. J. R., 
 
 [Acknowledgment in the usual forni\. ^ 
 
 No. zz. 
 
 Affidavit on Application for Order of Possession. 
 
 [Title of the actiori\. 
 County of , ss. : 
 
 M. N., being duly sworn, says that this action was brought for 
 the foreclosure of a mortgage on certain real estate situated in the 
 said county of , and state of ; that judgment of foreclos- 
 
 ure and sale was entered herein in the office of the clerk of tlie 
 county of , on the day of , 18 , J. R., Esq., of 
 
 the city of , being therein duly appointed the referee to 
 
 sell ; that said judgment contained the usual provision that the pur- 
 chaser be let into possession on the production of the referee's 
 deed, to which said judgment, reference is hereby had as part 
 hereof; that due notice of said sale was given by said referee, 
 and that on the day of 18 , the mortgaged premises 
 
 described in said judgment were duly sold at public auction by 
 said referee to this deponent for the sum of dollars, that 
 
 being the highest sum bidden for the same ; that this deponent 
 has duly paid the said purchase money, and that the said referee 
 has also executed, acknowledged and delivered to deponent 
 a deed of conveyance of said mortgaged premises ; that the 
 report of sale of said referee was duly filed in the office of 
 the clerk of this court on the day of , 18 , to which 
 
 reference is hereby had as a part hereof, and that said report has 
 been duly confirmed ; that on the day of , 18 , deponent 
 
 went to the said mortgaged premises and found C. D., who is one 
 of the defendants in this action, in possession thereof ; that he 
 then produced and shewed to said C. D. the said deed of said 
 referee and demanded to be let into possession by virtue thereof, 
 but the said C. D. refused and still refuses to surrender the said 
 premises, or any part thereof, and still forcibly holds possession 
 thereof from deponent. 
 
 [Jurat\ M. N. 
 
 No. 34. 
 Order for Possession. 
 
 At a term, etc. 
 
 Present : Hon. , Judge. 
 
 [Title of the action\. 
 
 On reading and filing the affidavit of M. N., the purchaser at the 
 sale of the mortgaged premises in this action, verified 18 ,
 
 APPETTOIX OF rOPwMS. 1003 
 
 and on all of the papers and proceedings herein, including the 
 judgment of foreclosure and sale, entered herein in the office of 
 the clerk of the county of , on the day of , i8 , 
 
 and on the report of the sale by J. R., Esq., the referee appointed 
 to sell, filed in said office, on the day of , i8 , and on 
 
 the order confirming said report entered herein on the day 
 
 of , i8 , and on the deed from the said referee to 
 
 said M. N., which said deed bears date the day of , i8 , 
 
 and on the notice of this motion, with due proof of the service 
 thereof on the defendant, C. D., who is now in possession of the 
 said premises ; and after hearing X. Y., Esq., attorney for the 
 said M. N., the purchaser, and J. Z., Esq., attorney for the said 
 C. D., in possession thereof, it is 
 
 Ordered, that the sheriff of the county of , be, and he is 
 
 hereby required, forthwith to put the said M. N. into possession 
 of the said premises, and that this order be executed as if it were 
 an execution for the delivery of the possession of said premises. 
 
 The said premises are described as follows : [Insert descrip- 
 iion\. 
 
 No. 35. 
 
 Affidavit on Which to Apply for a Receiver of Rents. 
 
 [Title of the action]. 
 County of , ss.: 
 
 E. F., being duly sworn, says that he is the plaintiff in this action; 
 that this action is brought to foreclose a mortgage given to secure 
 the payment of the sum of dollars, and interest thereon, 
 
 from the day of , 18 , on the following described 
 
 premises : [Ifisert description]. 
 
 That said mortgage is a second mortgage, and is inferior as a 
 lien to a mortgage for dollars upon the same premises, 
 
 held by , upon which there is now unpaid and owing inter- 
 
 est from the day of , 18 . 
 
 That there are unpaid taxes and assessments on said premises, 
 amounting at this date, to the sum of dollars, as nearly as 
 
 can be ascertained by deponent, being as follows : the gen- 
 eral tax for the year 18 , for dollars, and interest 
 thereon, and an assessment for dollars, for paving street, 
 and interest thereon. 
 
 That the whole amount of the incumbrances on said property, 
 including the plaintiff's claim, and the said prior mortgage, and 
 the costs and expenses of this action, and of a sale, will amount 
 at least to the sum of dollars. 
 
 That the said mortgaged premises are an inadequate and insuf- 
 ficient security for the plaintiff's demand, and that they are not 
 worth more than the sum of dollars, as deponent verily 
 
 believes ; that the grounds of deponent's belief are [State fully 
 the reasons for fixing the value of the property at the sum named].
 
 1004 APPENDIX OF FORMS. 
 
 That the defendant, C. D., is the only person who is person- 
 ally obligated for the payment to the plaintiff of the said mort- 
 gage debt, and that the said defendant is entirely irresponsible 
 and insolvent. [S^afg reasons for believing this to be so\ 
 
 That there are judgments against said defendant, which are 
 unsatisfied of record, and that the defendants O. H. and G. K., 
 are holders of said judgments, and are made parties to this action 
 for that reason. 
 
 That said mortgaged premises are rented to the defendant C. L., 
 at the price, as deponent is informed and believes, of the sum 
 of dollars per year {or month), and that the said defendant 
 {mortgagor), is collecting and receiving the rents therefor. 
 
 \J^urat\ E. F. 
 
 No. 36. 
 Order Appointing Receiver of Rents. 
 
 At a term, etc. 
 
 Present : Hon. , Judge. 
 
 \Title of the action\. 
 
 On reading and filing the affidavit of E. F., verified ,18 , 
 and the notice of this motion, with proof of the due service 
 thereof, and on the complaint which has been filed herein ; and 
 it appearing that the mortgaged premises are an inadequate secu- 
 rity for the mortgage debt, and that no one, except the defendant 
 C. D., is personally liable therefor, and that he is insolvent, 
 and that said defendant is about to collect the rents ; and after 
 hearing T. R., attorney for the plaintiff, in support of the motion, 
 and J. Z., attorney for the defendant C. D., in opposition thereto, 
 it is 
 
 Ordered, that J. B., of the city of , counselor at law, 
 
 be, and he hereby is appointed, with the usual powers and direc- 
 tions, receiver of all the rents and profits now due and unpaid, or 
 to become due, pending this action, and issuing from the mort- 
 gaged premises mentioned in the complaint, and described as 
 follows : [^Insert description^ 
 
 That before entering upon the duties of his trust, the said 
 receiver execute to the people of this state, and file with the clerk 
 of this court, his bond with two sureties, to be approved by a 
 judge of this court, in the penal sum of dollars, conditioned 
 
 for the faithful performance of his duties as such receiver. 
 
 That said receiver be, and he hereby is directed to demand, 
 collect and receive from the tenant or tenants in possession of 
 said premises, or other persons liable therefor, all the rents there- 
 of, now due and unpaid, or hereafter to become due. 
 
 That the tenants in possession of such premises, and such other 
 person or persons as may be in possession thereof, do, and they
 
 APPEKDIX OF FORMS. 1005 
 
 are hereby directed to attorn as such tenant or tenants, to said 
 receiver, and until the further order of this court, to pay over to 
 such receiver all rents of such premises, now due and unpaid, or 
 that may hereafter become due. 
 
 That all tenants of the premises, and other persons liable for 
 such rents, are hereby enjoined and restrained from paying any 
 rent for such premises, to the defendant, his agents, servants or 
 attorneys. 
 
 That all persons now, or hereafter in possession of said prem- 
 ises, or any part thereof, and not holding such possession under 
 valid and existing leases, do forthwith surrender such possession 
 to said receiver. 
 
 That the said receiver be, and he hereby is authorized to insti- 
 tute and carry on all legal proceedings necessary for the protec- 
 tion of all premises described in the complaint or referred to in 
 this order, including such proceedings as may be necessary to 
 recover possession of the whole, or any part of said premises, and 
 to institute and prosecute suits for the collection of rents now 
 due, or hereafter to become due on the aforesaid premises, or 
 any part thereof; and to institute and prosecute summary pro- 
 ceedings for the removal of any tenant or tenants, or other 
 persons therefrom. 
 
 And said receiver is hereby authorized, from time to time, to 
 rent or lease, as may be necessary, for terms not exceeding one 
 year, any of said premises ; to keep the property insured against 
 loss or damage by fire, and in repair, and to pay the taxes, assess- 
 ments and water rates upon said premises. 
 
 That said receiver is hereby authorized to employ an agent, if 
 he shall deem proper, to rent and manage said premises, to collect 
 the rents, and to keep the premises insured and in repair, and to 
 pay the reasonable value of his services, out of the rent received. 
 
 That during the pendency of this action, the defendant and his 
 agents and attorneys, be enjoined and restrained from collecting 
 the rents of said premises, and from interfering, in any manner, 
 with the property or its possession. 
 
 That the said receiver retain the moneys which may come into 
 his hands, by virtue of his said appointment, until the sale of the 
 premises mentioned in the complaint under the judgment to be 
 entered in this action; and that he then, after deducting his 
 proper fees and disbursements therefrom, apply the said moneys 
 to the payment of any deficiency there may be, of the said amount 
 directed to be paid to the plaintiff, in and by the said judgment; 
 and in case there is no such deficiency, that he retain the said 
 moneys in his hands, until the further order of this court in the 
 premises. 
 
 That the said receiver, or any party hereto, may at any time, 
 on proper notice to all parties who may have appeared in this 
 action, apply to this court for further or other instructions and 
 power, necessary to enable said receiver properly to fulfill his 
 duties.
 
 1006 APPENDLX OF iUKMS. 
 
 No. 37. 
 Bond of Receiver. 
 
 \^Title of the action]. 
 
 Know all Men by these Presents, that we, J. B., of the 
 of , county of , and state of , as principal, 
 
 and O. P. and R. S., of the same place, as sureties, are held and 
 firmly bound unto the people of the state of , in the sum 
 
 of dollars, to be paid unto the said people of the state 
 
 of ; for which payment well and truly to be made, we bind 
 
 ourselves, our heirs, executors and administraLors, jointly and 
 severally, firmly, by these presents. 
 
 Sealed with our seals, and dated the day of , 18 . 
 
 Whereas, by an order of this court, entered in the above 
 entitled action, on the day of , 18 , the above boundeii 
 
 J. B. was appointed receiver of the rents and profits of the mort- 
 gaged premises described in the complaint herein. 
 
 Now, the condition of this obligation is such, that if the above 
 bounden J. B. shall, according to the rules and practice of ihib 
 court, duly file his inventory, and annually or oftener, if thereunto 
 required, duly account for what he shall receive or have in 
 charge, as receiver in the said action, and apply what he shall 
 receive or have in charge, as he may from time to time be 
 directed by the court ; and if he shall faithfully perform his duties 
 as such receiver, in all things, according to the true intent and 
 meaning of the aforesaid order, then this obligation to be void ; 
 otherwise to remain in full force and virtue. 
 
 [^Signatures and seals\. 
 
 County of , ss. : 
 
 O. P. and R. S., being severally duly sworn, say, each foi 
 himself, that he is a householder {or freeholder) in this state, and 
 is worth the sum of dollars \double the atnoiint of the penalty 
 
 of the bond\ over and above all his debts and liabilities, and 
 exclusive of property exempt by law from levy and sale under an 
 execution. 
 
 [Jurat\ [^Signatures]. 
 
 County of , ss. : 
 
 On this day of ' , 18 , before me, the subscriber, 
 
 personally appeared J. B., O. P. and R. S.,.to me known to be 
 the individuals described in, and who executed the within instru- 
 ment, and they severally acknowledged to me that they executed 
 the same. 
 
 [Signature of Officer]. 
 
 [Indorsed], Approved the day of , 18 , 
 
 [Signature of Judge],
 
 I APPENDIX OF FORMS. 1007 
 
 No. 38. 
 
 Notice of Claim to Surplus Moneys. 
 
 [Title of the action]. 
 
 To R. S., Esq., clerk of the county of : 
 
 Sir : — Take notice that D. B., who resides at , in the 
 
 of , is entitled to the surplus moneys, or some part thereof, 
 arising from the sale of the mortgaged premises, under the judg- 
 ment of foreclosure and sale entered in the above entitled action ; 
 that the nature and the extent of the claim of the said D. B. is as 
 follows : \^State nature of claim, as\ : 
 
 That the said D. B. is the owner of a judgment for dollars, 
 and interest from the day of , 18 , obtained by him 
 
 in the court, against the defendant C. D., on the day 
 
 of , 18 , and docketed in the county clerk's office 
 
 on the day of , 18 , and while the said defendant was 
 
 the owner of the equity of redemption in the said mortgaged 
 premises, and before the sale thereof under foreclosure ; that 
 there is now due upon said judgment the sum of dollars, 
 
 with interest from the day of , 18 , and that the said 
 
 D. B. claims that the said judgment is a lien upon said mortgaged 
 premises next in priority after the mortgage of the plaintiff in this 
 action, and is the first lien upon said surplus moneys. 
 
 Dated the day of ,18. 
 
 D. B., Claimant, 
 
 by R. A., His Attorney. 
 [Office and post-office address\ 
 
 No. 39. 
 
 Affidavit on Motion for Reference to Distribute Surplus 
 
 Moneys. 
 [Title of the action\. 
 
 County of , ss. : 
 
 R. A., being duly sworn, says that he is attorney for D. B., one 
 of the defendants in the above entitled action {or, who had a lien 
 on the mortgaged premises at the time of the sale in this action). 
 
 That this action was brought for the foreclosure of a mortgage 
 upon certain premises therein described, situated in the county 
 of 
 
 That on the day of , 18 , a final judgment was 
 
 entered therein, in the county clerk's office, for the fore- 
 
 closure of said mortgage and a sale of said premises, and that said 
 premises were sold pursuant to said judgment, by J. R., referee 
 \or sheriff of the county of ), on the day of , 18 . 
 
 That the report of said referee {or sheriff), dated ,18 , 
 
 has been filed with the clerk of the county of , by which 
 
 report it appears that, after paying the amounts directed in and by
 
 1008 APPENDIX OF FORMS. 
 
 said judgment to be paid out of the proceeds of said sale, there 
 remained a surplus of dollars, which amount has been paid 
 
 by said referee {or sheriff) into court, and deposited with the 
 treasurer of county {or. in the city of New York, with 
 
 the chamberlain of the city of New York), to the credit of this 
 action, and for the use of the persons entitled thereto. 
 
 That said D. B. is entitled to said surplus moneys, or some 
 part thereof, and that the nature and extent of his claim thereto 
 are set forth in the notice hereinafter mentioned, a copy of which 
 is hereto annexed. 
 
 That from all the searches for conveyances and incumbrances 
 made in this action and filed with the judgment roll herein, the 
 following and no other unsatisfied liens upon said surplus moneys 
 appear, to wit : [specify liens], and that no other unsatisfied liens 
 thereon are known to this deponent to exist. 
 
 That the notice of the claim of said D. B. to such surplus moneys 
 has been filed by him with the clerk of the county of , a copy 
 of which notice is hereto annexed and marked ** Exhibit A." 
 
 [Jurat]. R. A. 
 
 No. 40. 
 
 Notice of Motion for Reference to Distribute Surplus 
 
 Moneys. 
 
 [ Title of the action] . 
 
 Sirs : — Take notice that on the annexed affidavit of R. A., and 
 upon the pleadings and all the proceedings and papers in this 
 action, the claimant, D. B., will apply to this court, at a term 
 
 thereof, to be held at , on the day of , 18 , 
 
 at the opening of court on that day, or as soon thereafter as 
 counsel can be heard, for an order of reference to a suitable 
 referee to be selected by the court, to ascertain and report the 
 amount due to D. B., or to any other person, which is a lien 
 upon the surplus moneys received upon the sale of the mortgaged 
 premises in this action, and to ascertain the priorities of the 
 several liens thereon, to the end that on the coming in and 
 confirmation of the report on said reference, such further order 
 may be made for the distribution of such surplus moneys, as may 
 be just, and for such other or further relief as the court may 
 deem proper. 
 
 Dated the day of , 18 . 
 
 R. A., 
 
 Attorney for Claimant, D. B. 
 [Office and post-office address]. 
 To T. R., Esq., 
 
 Attorney for Plaintiff, 
 
 [Name the parties or their attorneys who have appeared in the 
 action or filed a notice of claim with the clerk, previous to the 
 granting of the order of reference].
 
 APPENDIX OF FORMS. 1009 
 
 No. 41. 
 Order of Reference as to Claims to Surplus Moneys. 
 
 K . At a term, eU, 
 
 Present : Hon. , Judge. ^ t. 
 
 \_Title of the action\. 
 
 On reading and filing the affidavit of R. A., and notice of this 
 motion, with due proof of the service thereof on all of the parties 
 who have appeared herein, or who have filed with the clerk of 
 this court, a notice of claim to the surplus moneys, or some part 
 thereof ; and on motion of R, A., attorney for the claimant D. B., 
 and after hearing C. R., counsel for P, S., in opposition thereto, 
 {jor, no one appearing in opposition thereto), it is 
 
 Ordered, that it be referred to O. N., Esq., counselor at law, 
 of , as referee, to ascertain and report the amount due to D. B., 
 and to every other person, who has a lien upon the surplus moneys 
 in this action, and to ascertain the priorities of the several liens 
 thereon, to the intent that on the coming in and confirmation of the 
 report of said referee, such further order may be made for the distri- 
 bution of such surplus moneys, as may be just, and that the said 
 referee make his report thereon with all convenient speed. \_If 
 unsatisfied liens appear from the searches on file, or are known to 
 exist, the court should designate the manner of serving the notice upon 
 the holders of such liens, for example ] .• 
 
 And it is further ordered, that in addition to the other notices 
 required by the rules of this court, notice of the proceedings on 
 such reference, be given to G. H. and L. M., either by service 
 on them personally, or by leaving the same at their respective 
 places of residence, not less than days prior to the hearing. 
 
 No. 42. 
 Subpoena to Attend Reference. 
 
 [^Title of the action]. 
 
 Sirs : — I, O. N., the referee appointed by an order of this court, 
 granted at a term thereof, held at the of , on 
 
 the day of , 18 , to ascertain and report the amount 
 
 due to the defendant D. B., and to any other person who has a 
 lien upon the surplus moneys, arising upon the sale of the preni- 
 ises described in the complaint in this action, and to ascertain 
 the priorities of the several liens thereon, do hereby appoint 
 the day of , 18 , at o'clock in the noon, for the 
 
 hearing of the matters so referred to me, at which time and place 
 all parties concerned are to attend. 
 
 Dated the day of , 18 . O.'^., Referee. 
 
 To . [JVame all the parties who appeared in the action, or who 
 filed a notice of claim with the clerk previous to the entry _ of the 
 order of reference, also the owner of the equity of redemption^ and 
 all persons who are known to have unsatisfied liens\. 
 
 (64)
 
 1010 APPENDIX OF FORMS. 
 
 No. 43. 
 
 Certificate of Clerk as to Who Have Appeared and 
 Filed Claims Against the Surplus Moneys. 
 
 [Tty/e of the action]. 
 
 I, R. S., the undersigned, clerk of the county of , and of 
 
 the above named court, do hereby certify, that the following 
 named defendants, and no others, have entered appearances in this 
 action, to wit : C. D., by his attorney, J. Z,, and D. B,, by his 
 attorney, R. A. 
 
 I further certify, that the following notices of claim to the 
 surplus moneys in the above entitled action, and no others, were 
 filed in my office, previous to the entry of the order of reference 
 as to such surplus moneys, to wit : one claim on the part of 
 C. D., another on the part of D. B., {name other claims in like 
 manner]; and that no notice of claim to such surplus was annexed 
 to the referee's report of sale, filed in my office on the day 
 of , 18 . 
 
 Dated the day of , 18 , R. S., 
 
 [Seal]. Clerk. 
 
 No. 44. 
 Claim of Creditor Before Referee, to Surplus Moneys. 
 
 [Title of the action]. 
 To O. N., Referee : 
 
 The claim of G. D.,{a judgment) creditor of C. D,, the defend- 
 ant in this action, to the surplus moneys arising from the sale of 
 the mortgaged premises under the decree herein, respect- 
 fully states that he resides at , in the county of , and 
 state of ; that he has a lien upon the said surplus moneys, 
 by virtue of a judgment recovered in the supreme court, against 
 the mortgagor C. D., for the sum of dollars, on the day 
 of » 18 , and docketed in county clerk's office, on 
 the day of 18 , while he, the said C. D., was the 
 owner of the equity of redemption in said mortgaged premises, 
 and before the commencement of this action, which lien is next 
 in priority after the mortgage of the plaintiff, the whole of which 
 judgment is still due and unpaid. 
 
 Wherefore, he claims the whole of said surplus moneys from 
 said sale, which only amount to the sum of dollars^ 
 
 Dated the day of , 18 . 
 
 G. D., 
 
 Claimant. 
 
 County of , ss. : 
 
 G. D., the above named claimant, being duly sworn, says that 
 the facts set forth in the above claim are true ; that the amount 
 therein claimed as being due to him upon the judgment therein
 
 APPEJJ^DIX OF iOKMS. 1011 
 
 mentioned, is justly due ; that neither he, nor any person by his 
 order, to his knowledge or belief, or for his use, has received the 
 amount that is claimed, or any part thereof, or any security or 
 satisfaction whatever for the same, or any part thereof. 
 
 [furat]. G. D. 
 
 No. 45. 
 Referee's Report on Surplus Moneys. 
 
 \TitIe of the actio ii\. 
 
 To the court of : 
 
 I, the undersigned, referee appointed by an order of this court, 
 granted on the day of , i8 , to ascertain and report the 
 
 amount due to D. B., and to any other person who has a lien upon 
 the surplus moneys in this action, and to ascertain and report the 
 priorities of the several liens thereon, do respectfully report : 
 
 That I caused all parties who have appeared in this action, and 
 all persons who have filed notices of claim upon the surplus 
 moneys, and all persons who were known to have liens thereon, 
 as appears by the certificate of the clerk, which is hereto annexed, 
 showing who have appeared in the action and filed notices of 
 claim, and by the affidavit of R. A., attorney for the claimaint 
 D. B., showing what liens appear upon the searches on file, to 
 be summoned to appear before me, as appears from the proof of 
 service of the subpcena herein, which is also hereunto annexed. 
 
 That on said hearing I was attended by R. A., attorney for the- 
 claimant, D. B., and by [^sjich other persons as appeared^ j that the 
 testimony of the witnesses upon such hearing was read and 
 signed by them ; and that such testimony and all the evidence, 
 except such of it as was documentary, is annexed to this report. 
 
 That from such testimony and evidence, I make the following 
 
 Findings of Fact : 
 
 I. That the amount of the surplus moneys in this action, 
 is the sum of dollars, as appears by the certificate of the 
 county treasurer of the county of . which is hereto annexed. 
 
 II. \^Set forth the full findings of fact of the referee as in 
 the trial of issues in an actiori\. 
 
 And from the foregoing findings of fact, I further find the 
 following 
 
 ,,^.i~ Conclusions of Law: ' 
 
 I. That there is due and owing to the said claimant D. B., the 
 sum of dollars, and interest thereon, from , i8 , 
 
 amounting at the date of this report, to the sum of dollars, 
 
 upon and by virtue of said judgment recovered by him against 
 the said C. D., as aforesaid, and that the said amount is the first 
 lien on the said surplus moneys in this action.
 
 1012 APPENDIX OF FORMS. 
 
 II. {Continue in the order in which the Hem are found until the 
 whole fund is disposed of}. 
 
 Dated the day of , i8 . 
 
 O. N., 
 Referee, 
 
 No. 46. 
 
 Notice of Motion to Confirm Report and to 
 Distribute Surplus. 
 \Title of the action}. 
 
 Sirs : — Take notice, that the report of O. N., Esq., the referee 
 appointed herein to ascertain and report the amount due to 
 D. B., and to any other person, who has a lien on the surplus 
 moneys in this action, and to ascertain the priorities of the 
 several liens thereon, was this day duly filed in the office of 
 the clerk of the county of 
 
 Also that upon said referee's report, and upon the testimony 
 and papers annexed thereto, the claimant D. B., will apply to this 
 court, at a term thereof, to be held at , on 
 
 the day of , 18 , at the opening of court on that day, 
 
 or as soon thereafter as counsel can be heard, for an order con- 
 firming said report, and directing the treasurer of county to 
 pay to the claimant D. B., or to his attorney, the sum of dol- 
 lars, with interest thereon, from the day of » 18 , the 
 date of said report, out of said surplus moneys, together with an 
 allowance by way of costs in this proceeding, and for such other 
 and further relief as may be just. 
 
 Dated the day of , 18 . 
 
 R. A., 
 Attorney for said Claimant^ D, B, 
 To 
 
 \^Names of all parties to whom the subpoena in Form No. 42 wcu 
 addressed}. 
 
 No. 47. 
 
 Order Confirming Report of Referee and Directing 
 Distribution of Surplus Moneys. 
 
 At a term, etc. 
 
 Present : Hon. , Judge. 
 
 \_Title of the action}. 
 
 On the report of O. N., Esq., the referee appointed herein to 
 ascertain and report the amount due to D. B., and to any other 
 person, which amount is a lien on the surplus moneys in this 
 action, and to ascertain the priorities of the several liens thereon, 
 which report was dated the day of , 18 , and filed in 
 
 the office of the clerk of this court, on the day of , 18 ,
 
 APPENDIX OF JOEMS. 1013 
 
 and on all of the testimony and papers annexed to said report 
 and filed therewith ; and it appearing that due notice of the 
 filing of said report and of this motion has been given to the attor- 
 neys for the parties who have appeared in this proceeding and 
 who filed notices of claim to such surplus moneys previous to the 
 entry of said order of reference, and after hearing R. A., attorney 
 for the claimant D. B., in support of this motion, and P. S., 
 attorney for the claimant G. D., in opposition thereto, it is 
 
 Ordered, that the said report be, and the same hereby is, in all 
 things confirmed, and that the treasurer of county pay out and 
 distribute the moneys in his hands to the credit of this action, 
 after deducting therefrom the fees and commissions allowed to 
 him by law, as follows and in the following order of priority : 
 
 I. That he pay to O. N., Esq., referee in this proceeding, the 
 sum of dollars, for his fees as such referee. 
 
 II. That he pay to R. A., attorney for the claimant D. B., the 
 sum of dollars, as an allowance by way of costs in this pro- 
 ceeding. 
 
 III. That he pay to the claimant D. B., or to his attorney R. 
 A., the sum of dollars, and interest thereon from the day 
 of » i8 , the date of said referee's report. 
 
 IV. That he pay to the claimant C. R., or to his attorney P. S., 
 the sum of dollars, and interest thereon from the day 
 of > i8 , the date of said referee's report. 
 
 V. That he pay to the claimant C. D., or to his attorney J. Z., 
 the balance of said surplus moneys. 
 
 No. 48. 
 Complaint in Action for Strict Foreclosure. 
 
 [^Title of the action]. 
 
 \Commence as in complaint in action to foreclose by a sale, folloiv- 
 ing Form No. i to atid including paragraph VI., so far as that 
 form may apply\. 
 
 That thereafter the said E. F. commenced an action in the 
 court, in the county of , against C. D., M. D. and 
 
 J. H., for the foreclosure of the said mortgage and for a sale of 
 said mortgaged premises, to satisfy and discharge said indebted- 
 ness ; that such proceedings were had in said action that, on 
 the day of , 18 , it was duly ordered and adjudged 
 
 by the said court, that the said mortgaged premises, or so much 
 thereof as might be necessary to raise the amount then due to the 
 said E. F., for principal, interest and costs, and which might be 
 sold separately without material injury to the parties interested, 
 be sold at public auction, in the county of , by and under the 
 
 direction of J. R., Esq., counselor at law, who was duly appointed
 
 1014 APPEJJfDIX OF FOllMS. 
 
 referee; that subsequently to the entry of said judgment, and in pur- 
 suance thereof, the said referee duly sold said mortgaged premises 
 at public auction to this plaintiff, and this plaintiff duly paid to 
 him the purchase money therefor and received from him a deed of 
 conveyance thereof, all of which will more fully appear by said deed 
 of conveyance, which was, on the day of , 1 8 , duly recorded 
 
 in the office of the clerk of county, in book No. of deeds, 
 
 at page , by the report of sale of said referee, which was duly 
 filed in the office of said clerk, on the day of , i8 , and 
 
 by the order of said court confirming said report of sale, which 
 was duly entered in said action, on the day of , i8 . 
 
 That under said foreclosure and sale and the said deed of 
 conveyance of said referee, executed in pursuance of said judg- 
 ment, the plaintiff entered into possession of said mortgaged 
 premises and the receipt of the rents and profits thereof, and 
 has since continued and still is in possession thereof ; that he then 
 believed he had acquired, under said foreclosure, a perfect title 
 to the said mortgaged premises, free from all liens and incum- 
 brances, but that he has since been informed, and believes, 
 that the defendant , has, or claims to have, an interest in or 
 
 a lien upon the said premises by virtue of a certain mortgage 
 [describe tt\ the lien of which mortgage was and is inferior and 
 subsequent to the lien of the mortgage under which said fore- 
 closure sale was made. 
 
 That this plaintiff is advised that he has acquired by said fore- 
 closure the title to the said mortgage under which said sale was 
 had, and also the right which C. D. and M. D., his wife, who 
 were defendants in said action, had to redeem from the mortgage 
 held or claimed by the plaintiff, the said C. D. being, at the time 
 of the commencement of said foreclosure, the owner in fee of the 
 title and equity of redemption of said premises ; that the amount 
 which was due and owing to the plaintiff in said action on the 
 said mortgage, at the time of the entry of said decree of fore- 
 closure and sale, exclusive of the costs and expenses of said 
 action, and of said sale, was the sum of dollars, and interest 
 
 thereon from the day of , i8 , no part of which has 
 
 been paid, except as it was paid by the proceeds of said sale, 
 under which this plaintiff claims. 
 
 That this plaintiff has laid out and expended large sums for 
 permanent improvements and repairs upon said premises, to wit : 
 [Describe the iinprovements and state their cost and value\. 
 
 That the rents and profits received by this plaintiff from said 
 premises, have not been so great in amount as the annual interest 
 on said mortgage, under which said foreclosure was had, and have 
 not amounted to more than the sum of dollars ; that the 
 
 plaintiff claims that the amounts paid by him for taxes, assess- 
 ments and repairs, and the value of the permanent improvements 
 made by him as aforesaid, should be allowed to him and added 
 to the amount of said mortgage and interest thereon, and that 
 there is now due and owing to him thereon, the sum of dollars.
 
 APPENDIX OF rOEMS. 1013 
 
 That the plaintiff has applied to said defendant , and 
 
 requested him to pay the plaintiff the said sums so due on the said 
 mortgage held by theplaintiff, or to come to an accounting with him 
 thereon, and after the proper charges and credits, to pay to the said 
 plaintiff what should appear to be due him on the said mortgage ; 
 or, in default thereof, to release his right and equity of redemp- 
 tion in the said mortgaged premises; but that the said defendant 
 has hitherto refused, and still refuses so to do, or to comply with 
 any part of said plaintiff's request. 
 
 Wherefore, the plaintiff demands judgment, that an account 
 may be taken of what is due and owing to the plaintiff for princi- 
 pal and interest on said mortgage, and that an account may also 
 be taken of the rents and profits of the said mortgaged premises 
 which have been received by the plaintiff, and also of the expendi- 
 tures of the plaintiff for permanent improvements and repairs, 
 and for taxes and assessments. 
 
 That the said defendant pay to the plaintiff what may be due 
 him on taking the said account, with the costs of this action, 
 within a time to be appointed by the court for that purpose ; or, 
 in default thereof, that the said defendant and all persons claim- 
 ing under him be absolutely barred and foreclosed of and from 
 all right, title and equity of redemption in and to the said mort- 
 gaged premises, and each and every part thereof, and that the 
 plaintiff have such other or further relief, or both, in the premises 
 as may be just and equitable. 
 
 T. R., 
 
 Plaintiff's Attorney. 
 
 \Add verification in the usual form\. 
 
 No. 49. 
 Judgment for Strict Foreclosure. 
 
 At a term, etc. 
 
 Present : Hon. , Judge. 
 
 [ Title of the action\ 
 
 \C0m7nence by reciting the proceedings in the action, which wilt, 
 be similar to Form No. 17. In all cases, an affidavit of filing the 
 notice of pendency of action, similar to Form No. 9, must be fur - 
 fiished when applying for judgment, and should be recited. The 
 following will be the essential parts of the Judgment^ : 
 
 It is adjudged that, upon the defendant's paying unto the said 
 plaintiff the amount which is so found and reported due to him, 
 as aforesaid, with interest thereon, from the date of said report, 
 together with the further sum of dollars, and interest, from 
 
 this date, which is hereby adjudged to the plaintiff for his costs 
 and charges in this action, within six months after the entry of 
 this judgment, and service of notice thereof upon the attorney for
 
 1016 APPENDIX OF FOEMS. 
 
 the defendant, said payment to be made at the office of T. R., 
 Esq., attorney for the plaintiff, No. street, in the 
 
 of , between the hours of lo a. m. and 3 p. m. of any busi- 
 
 ness day, on or before the expiration of the said six months, and 
 Avhich said day shall have been named by the said defendant in a 
 notice in writing, to be served by him on said attorney for the 
 plaintiff, not less than five days prior to said date; the said plaintiff 
 do then convey the said mortgaged premises to the said defen- 
 dant, by a suitable and proper deed of conveyance, to be 
 approved by this court, in case the parties can not agree upon the 
 form thereof, free and clear of all incumbrances suffered by him, 
 or by any person claiming by, from or under him, (and with the 
 usual covenants against his and their acts) ; and that he deliver up 
 all deeds and writings in his custody relating thereto, upon oath, 
 to the said defendant, or to whomsoever he may appoint to 
 receive the same ; and further, that the said plaintiff execute and 
 acknowledge a certificate to cancel and discharge said mortgage 
 of record. But in default of the said defendant's paying unto 
 the plaintiff such principal, interest and costs, as aforesaid, by 
 the time limited for that purpose, then it is adjudged that the 
 said defendant, and all persons claiming by, from or under him, 
 after the filing of the aforesaid notice of pendency of this 
 action, do stand and be forever barred and foreclosed of and 
 from all right, title, interest and equity of redemption in and to 
 the said mortgaged premises, and every part thereof. 
 
 The following is a description of the said mortgaged premises 
 herein mentioned : \_Insert descriptio7i ]. 
 
 No. 50. 
 Order Extending Time for Redemption. 
 
 At a term, etc. 
 
 Present : Hon. , Judge. 
 
 [ Title of the action\. 
 
 On reading and filing the affidavit of the defendant, and notice 
 of this motion, with proof of the due service thereof, and on all of 
 the papers and proceedings herein ; and, after hearing M. N., 
 attorney for said defendant, on his motion, and T. R., attorney for 
 the plaintiff, in opposition thereto, it is 
 
 Ordered, that the time granted to the said defendant , in 
 
 and by the judgment entered in this action, on the day 
 
 of , i8 , and within which time he was required to 
 
 redeem the mortgaged premises by paying the amount due to the 
 plaintiff for principal, interest and costs or stand foreclosed, be, 
 and the same is hereby extended and enlarged for months, 
 upon condition that the said defendant shall, within ten days 
 after the entry of this order, pay to the plaintiff the sum 
 of dollars, costs of this motion.
 
 APPENDIX OF rOKMS. 1017 
 
 No. 51. "'* 
 Final Order in Strict Foreclosure. 
 
 At a term, etc. 
 
 Present : Hon. , Judge. 
 
 [ Title of the action]. 
 
 Upon the judgment entered in this action, on the day 
 
 of > 18 , and on reading and filing the notice of the entry 
 
 of said judgment, with due proof of the service thereof on the 
 defendant, and upon the affidavit of the plaintiff showing that 
 the defendant has not paid the amount due to the plaintiff for 
 principal, interest and costs, or any part thereof, though more 
 than six months have expired since the said service of the notice 
 of the entry of said judgment as aforesaid ; and on due notice of 
 this motion, with due proof of the service thereof ; and after 
 hearing T. R,, attorney for the plaintiff, in support of this motion, 
 and M. N., counsel for the defendant, in opposition thereto, it is 
 
 Ordered, that the said defendant , and all persons claim- 
 
 ing under him, after the filing of the notice of the pendency of 
 this action, stand and be forever absolutely barred and fore- 
 closed of and from all right, title, interest and equity of redemp- 
 tion in the mortgaged premises described in said judgment, and 
 in each and every part thereof. 
 
 No. 52. 
 Notice of Sale on Foreclosure by Advertisement. 
 
 Whereas, default has been made in the payment of the money 
 secured by a mortgage dated the day of , 18 , executed 
 
 by C. D. and M. D., his wife, of , to E. F., of the same 
 
 place, which mortgage was recorded in the office of the clerk 
 of the county of , on the day of ,18 , at o'clock 
 
 M., in book No. of mortgages, at page , (and which 
 
 said mortgage was assigned by the said E. F. to H. O., by an 
 assignment of mortgage dated the day of , 18 , and 
 
 recorded in the county clerk's office, in book No. of 
 
 assignments of mortgages, at page , on the day of , 
 
 18 , and the said H, O. is now the owner and holder thereof). 
 
 And whereas, the amount claimed to be due on said mortgage 
 at the time of the first publication of this notice, is the sum 
 of dollars, as follows : the sum of dollars principal, 
 
 and the sum of dollars interest, which said sum of dollars 
 is the whole amount claimed to be unpaid upon said mortgage. 
 
 Now, therefore, notice is hereby given that, by virtue 01 the 
 power of sale contained in said mortgage, and duly recorded, as 
 aforesaid, and in pursuance of the statute in such case made 
 and provided, the said mortgage will be foreclosed by a sale of
 
 1018 APPENDIX OF FORMS. 
 
 the premises therein described, at public auction, at , in 
 
 the city of , in the county of , on the day of , 
 
 i8 , at o'clock in the noon of that day. 
 
 The said premises are described in said mortgage as follows : 
 [Insert description\, 
 
 E. F., Mortgas^ee, 
 {or Assignee of Mortgage^. 
 T. R., Attorney for Mortgagee, 
 
 {or Assignee^. 
 
 No. 53. 
 Notice of Sale on Foreclosure by Advertisement. 
 
 Short Form. 
 
 Mortgage Sale. — Mortgagors C. D. and M. D., his wife ; 
 mortgagee E. F. ; assignee H. O. ; second assignee and 
 present owner and holder of the mortgage, G. H. Mortgage 
 dated ,18 , and recorded in the office of the clerk of 
 
 county, on the day of , 18 , in book No. of 
 
 mortgages, at page . The amount claimed to be due upon 
 said mortgage at the date of the first publication of this notice, is 
 the sum of dollars. 
 
 Default having been made in the payment of the moneys 
 secured by said mortgage, and no suit or proceedings at law or 
 otherwise, having been commenced to recover said mortgage 
 debt, or any part thereof ; now, therefore, notice is hereby given, 
 according to the statute in such case made and provided, that by 
 virtue of the power of sale contained in said mortgage, and duly 
 recorded therewith as aforesaid, the said mortgage will be fore- 
 closed by a sale of the premises therein described, by the sub- 
 scriber, at public auction, at , on the day of » 18 , 
 at o'clock in noon of that day. 
 
 The said premises are described in said mortgage as follows : 
 \Insert description]. 
 
 Dated the day of , 18 . 
 
 G. H., 
 
 T. R., Assignee of Mortgage. 
 
 Attorney. 
 
 No. 54. 
 Affidavit of Affixing Notice by County Clerk. 
 
 County of , ss. : 
 
 R. S., being duly sworn, says that he is clerk of the county 
 of ^ , that being the county in which the mortgaged premises 
 described in the annexed printed notice of foreclosure and sale 
 are situated ; that on the day of , 18 , he received a 
 
 printed copy of the annexed notice of sale, and that immediately,
 
 APPENDIX OF FOKMS. lUl9 
 
 to wit : on the same day, he affixed the same in a book prepared 
 and kept by him for that purpose, and also immediately entered 
 in said book a minute at the bottom of such notice, of the time 
 of receiving and affixing the same, duly subscribed by deponent 
 as clerk of said county; and that he also immediately indexed 
 the same against the name of the mortgagor, in said notice named. 
 
 Deponent further says, that the time when he did and per- 
 formed said acts, was at least eighty-four days before the day of 
 sale in said notice specified for the sale of the mortgaged prem- 
 ises therein described. 
 
 \Jurat\. R. S. 
 
 No. 55. 
 
 Affidavit of Affixing Notice of Sale to Outer Door of 
 
 Court House. 
 
 County of , ss. : 
 
 , being duly sworn, says that he resides at , and 
 
 is more than twenty-one years of age ; that on the day 
 
 of , 18 , and at least eighty-four days prior to the time 
 
 specified in the annexed printed notice of foreclosure for the sale 
 of the mortgaged premises therein described, he fastened up a 
 printed copy of said notice in a conspicuous place and in a proper 
 and substantial manner, at or near the entrance of the court house 
 or building, in the county of , where the county courts are 
 
 directed to be held in and for said county of , which is the 
 
 county in which said mortgaged premises are situated, that 
 being the building in which the courts in said county are directed 
 to be held, nearest to the mortgaged premises. 
 
 No. 56. 
 
 Affidavit of Publishing Notice of Sale. 
 
 County of , ss.: 
 
 , being duly sworn, says that he resides in the city 
 of , in the county of , and is more than twenty-one 
 
 years of age ; that during the time of the publication of the 
 notice hereinafter mentioned, he was (the foreman of) the printer 
 of the , a newspaper, printed and published at , in 
 
 said county of , that being the county in which the premises 
 
 described in the annexed printed notice of sale, or a part thereof, 
 are situated. 
 
 Deponent further says that the notice of the mortgage sale, a 
 printed copy of which is hereto annexed, was published in said 
 newspaper at least once in each of the twelve weeks immediately 
 preceding the day of sale in said notice mentioned, said publica- 
 tion having been commenced on the day of , 18 , and 
 ended on the day of ,18 . \^If there have been adjournments,
 
 1020 APPENDIX OF 10 RMS. 
 
 add'\: And deponent further says that the notice of postpone- 
 ment annexed to said notice of sale was also published in said 
 newspaper, on the day of , i8 , and on the day 
 
 of , i8 , in the form shown in said annexed printed copy 
 
 thereof. 
 
 U^rai\. 
 
 No. 57. 
 Affidavit of Serving Notice of Sale. 
 
 County of , ss. : 
 
 , being duly sworn, says that he resides at , and 
 
 is over twenty-one years of age ; that on the day of , 
 
 18 , at , he served the annexed notice of sale on ,by 
 
 delivering to and leaving with him, personally, a true copy thereof. 
 
 That deponent served the annexed notice of sale on , by 
 
 leaving a true copy thereof, which was legibly addressed to him, 
 at his dwelling house, at > in the city of , in charge 
 
 of a person of full age, who received the same for him. 
 
 That on the day of , 18 , he served the said annexed 
 
 notice of sale upon each of the following named persons by depos- 
 iting true copies thereof in the post-office at the city of , duly 
 enclosed and sealed in a post-paid wrapper and directed to each 
 of said persons at their respective places of residence, as follows: 
 to , at ; to , at ; to , at ; 
 
 that the postage on each of said notices was prepaid, and that the 
 said persons were known to deponent to reside at the several 
 places to which the notices to them were respectively directed. 
 
 [Jurai\. 
 
 No. 58. 
 Affidavit of Fact of Sale. 
 County of , ss. : 
 
 , being duly sworn, says that he resides at , in 
 
 the city of , in the county of , and is over twenty- 
 
 one years of age ; that at , in the city of , in the county 
 
 of , on the day of , 18 , at o'clock in 
 
 the noon of that day, he officiated as auctioneer at the mortgage 
 foreclosure sale of the premises described in the notice of sale, a 
 printed copy of which is hereto annexed, pursuant to such 
 notice, and by virtue of the power of sale contained in the mort- 
 gage, which is therein mentioned ; that said sale took place at 
 said time and place and that the whole of said premises were then 
 and there sold in one parcel to S. R., for the sum of dollars, 
 
 he being the highest bidder therefor, and that being the highest 
 sum bidden for the same. 
 
 Deponent further says that such sale was at public auction, in 
 the day time, and in all respects honestly, fairly and legally
 
 APPENDIX OF FORMS. 1021 
 
 conducted, according to deponent's best knowledge and belief ; 
 that the premises, so far as the same consist of separate tracts,. 
 farms or lots, were sold separately, and no more tracts, farms or 
 lots were sold than were necessary to satisfy the amount claimed 
 to be due on said mortgage at the time of such sale, together with 
 the costs and expenses allowed by law ; that the following is a 
 description of the premises sold : {Insert description\. 
 [Jurai\. 
 
 No. 59. 
 
 Petition by Purchaser Under Foreclosure by Adver- 
 tisement, to Obtain Possession. 
 
 To the county judge of the county of : 
 
 The petition of G. R., of , in the county of , respect- 
 
 fully shows : 
 
 That heretofore C. D., being the owner of the premises herein- 
 after described, and being indebted to E. F., in sum of dol- 
 lars, upon his bond for that sum, dated the day of » 18 , 
 and payable in one year after that date, with interest thereon, 
 payable semi-annually, executed, with M. D., his wife, duly 
 acknowledged and delivered to the said E. F., a mortgage, to 
 secure the payment of said bond, bearing even date therewith, and 
 recorded in the office of the clerk of the county of , in book 
 No. of mortgages, at page , on the day of , 18 , 
 whereby they granted and conveyed unto the said E. F., the 
 following described premises, to wit : {Insert description^ 
 
 That said mortgage contained a like condition as the said bond, 
 and that it also contained a power of sale, whereby in case of 
 default in the payment of the said sum of money, the interest that 
 might grow due thereon, or any part thereof, the said E. F., 
 or his assigns, were duly empowered to sell said mortgaged prem- 
 ises in due form of law, and out of the moneys arising from 
 the said sale, to pay the said sum of money and interest, with the 
 costs and expenses of the proceedings thereupon, the surplus, if 
 any, to be returned to the said mortgagor ; (that thereafter the 
 said E. F. duly assigned said bond and mortgage to H. O.); that 
 thereafter default was made in the payment of the money secured 
 by the said mortgage, whereupon the said E. F. commenced 
 proceedings by virtue of said power of sale contained in said 
 mortgage, and in pursuance of the statute in such case made and 
 provided, to foreclose the said mortgage, by a sale of the premises 
 therein described, at public auction ; that due notice of the time 
 and place of such sale was given, in the manner required by 
 law ; and that thereafter, to wit : on the day of , 18 , 
 
 the said premises were, under the said power of sale, duly sold to 
 and purchased by your petitioner, for the sum of dollars, 
 
 that being the highest sum bidden for the same ; that the 
 affidavits of publication and of affixing the notice of sale, and of
 
 1022 APPENDIX OF FORMS. 
 
 the service of such notice, and of the circumstances of the sale, 
 showing such foreclosure and the proceedings thereupon, and 
 which affidavits are required by law to be made, were duly made, 
 and that they were on the day of > i8 , duly filed in 
 
 the office of the clerk of the county of , that being tlie 
 
 county where the said mortgaged premises were and are situated, 
 and where said sale took place ; and that they were also on that 
 day duly recorded at length by such clerk, in a book kept by him 
 in said office for the record of mortgages, in book No. of mort- 
 gages, commencing at page ; that after the title to said 
 mortgaged premises had been duly perfected in this petitioner, 
 by the filing and recording of said affidavits, as aforesaid, this 
 petitioner demanded possession of the said premises from the said 
 C. D., who was then and is now in possession thereof, {or from 
 J. H., who was then and is now in possession thereof, claiming to 
 hold the same by some right or title derived from the said C. D., 
 the said mortgagor, subsequently to the execution and delivery of 
 said mortgage, by virtue of said title under said foreclosure); and 
 that the said C. D. {or J. H.) refused, and still refuses to sur- 
 render said possession, and that he holds over and continues in 
 possession of the said premises after the perfection of said title 
 in said foreclosure proceedings and after such demand aforesaid, 
 without permission of this petitioner, who is entitled to the 
 possession thereof. 
 
 Your petitioner therefore prays for a final order to remove the 
 said C. D. {or J. H.), and all persons holding under him from the 
 possession of said premises, and for such other or further relief 
 as may be just, together with the costs of this proceeding. 
 
 Dated the day of - , 18 . ... ' ■ -.^^ 
 
 O. R., Attorney for Petitioner, 
 
 [Add verification in the usual form]. 
 
 No. 60. 
 Precept to be Issued on Foregoing Petition. 
 
 Before the County Judge of county. 
 
 G. R., 
 
 ^ Petitioner, 
 
 against 
 C. D. {or J. H.), 
 
 In Possession. 
 
 The People of the State of New York : 
 
 To C. D, {or J. H.), above named, and each and every person 
 in possession of the premises hereinafter described : 
 
 You, and each of you, are hereby required forthwith to remove 
 from the premises described as follows : [^Insert description] ; or
 
 APPENDIX OF FORMS. 1023 
 
 to show cause before me, the county judge of the county 
 of , at the court house, in the of , in the county of 
 
 , aforesaid, on the day of , i8 , at o'clock, 
 
 in the noon of that day, why the possession of said premises 
 should not be delivered to said petitioner/ 
 Dated the day of , i8 . 
 
 \_Signature of County Judge\. 
 
 No. 6i. 
 Final Order in Summary Proceedings. 
 
 \Title as in precept\ 
 
 The petitioner, G. R., having appeared on the day of , 
 
 i8 , and the precept issued herein having then been returned 
 with due proof of the service thereof, and the petitioner having 
 then demanded possession of the premises described in his 
 petition, which petition was dated and verified on the day 
 
 of , i8 . 
 
 And the respondent, C. D., in possession, having then also 
 appeared by his attorney and filed his verified answer to said 
 petition, and the issue thus made having been duly tried before 
 the said county judge without a jury, who, after hearing the 
 allegations and proofs of the parties, rendered his decision in 
 favor of the petitioner. 
 
 Now, therefore, on motion of O. R., attorney for the petitioner, 
 final order is hereby made in favor of said petitioner, award- 
 ing to said petitioner the delivery of the premises described in 
 said petition, by reason of the facts therein alleged and set forth, 
 together with the sum of dollars costs. 
 
 Dated the day of , i8 . 
 
 \Signatiire of County Judge]. 
 
 No. 62, 
 
 Warrant to Obtain Possession in Summary 
 Proceedings. 
 
 To the sheriff of the county of , or to any constable of said 
 
 county of , Greeting : 
 
 Whereas, G. R. has heretofore presented to me his verified 
 petition, alleging that heretofore C. D., being the owner of the 
 premises hereinafter described, and being indebted to E. F. in 
 the sum of dollars, upon his bond for that sum, dated on 
 
 the day of , 18 , and payable in one year after said 
 
 date with interest thereon payable semi-annually, executed. 
 
 ' In New York, if the precept is served otherwise than personally, 
 § 2241 of the Code of Civil Procedure, must be indorsed thereon.
 
 1024 APPENDIX OF FORMS. 
 
 with M. D., his wife, acknowledged and delivered to said E. F. 
 a mortgage, to secure the payment of said bond. ^Follow sub- 
 stantially the language of the petition in Form No. 59]. 
 
 Whereupon I issued a precept requiring the said C. D. {or 
 J, H.), and each and every person in possession of said premises, 
 forthwith to remove from the said premises, or to show cause 
 before me, at a certain time now past, why the possession 
 of said premises should not be delivered to the said G. R. ; 
 \If an answer has been interposed and a trial had, recite the 
 proceedings as in Form No. 61], and no good cause having 
 been shown, or in any way appearing to the contrary, and due 
 proof of the service of such precept having been made to me, and 
 I having made a final order awarding the possession of said 
 premises to said petitioner, with the sum of dollars costs. 
 
 Now, therefore, in the name of the People of the state of New 
 York, you are hereby commanded to remove all persons from 
 said premises, and to put the said G. R. into the full possession 
 thereof. 
 
 In witness whereof, I have subscribed these presents this 
 day of , 18 . 
 
 \Signature of County Judge"]. 
 
 No. 6^. 
 Sheriff's or Constable's Return Upon the Warrant. 
 
 Pursuant to the command of the within warrant, I have this 
 day put the said G. R. into the full possession of the premises 
 therein mentioned. 
 
 Dated the day of , 18 . 
 
 [Signature of Sheriff fr Constable]. 
 
 \To be indorsed on the preceding warrant].
 
 ■■^■9 
 
 ^■^ 
 
 LAW tTBRWrt 
 
 .^-^ ->.«»&
 
 >i^ V/CXJAlMniUN. 
 
 •^n-iHvMVti'iY'' 
 
 >'f/-*«V«>lll**T' 
 
 % 
 
 "% 
 
 
 
 
 ^•OF-CA11FO% 
 
 jj9.JMVUfln.lN!^'' 
 
 
 
 
 v>:lOVANGtl% 
 
 o 
 
 
 vvlOSANCFlfx^ 
 
 o , 
 
 CO 
 
 V/C)(3AIMnm\ 
 
 
 2 V 
 
 ^.OFCAllFOff^ ^.« 
 
 =w =- 
 
 
 
 ^tUB^ARYO/i:. 
 
 v/sajAiNn3WV^ ^.tfOjnvDjo"^ ■^^ojiivd-jo^*' 
 
 
 
 
 * 
 
 5 =(0 Q - § 
 
 r-4 
 
 .^.OFCAIIFO/?^ 
 
 "^/JiHvxjjnaV^ 
 
 ^.OF-CAtlF0% 
 
 A\\FyNIVER% 
 
 
 o 
 
 -On 
 
 OF S 
 
 AWtUNIVtK% 
 
 ^iOSANtill^X^ 
 o 
 
 %«lAINfl-3UV 
 
 ^Vli8kAHY(>/^ ^.v^t 
 
 , i( 
 
 ft^ ^OFCAllFOff^ 
 
 
 
 
 ^•lOSANCElfj-, 
 
 
 
 % ^^^ANLtl% ^tUBRAftVQc. ^^tllBRARYQ^. 
 
 \'^ ■v/SiJ3AINn-3WV* 
 
 
 ^•lOSANCFl^j"^ 
 
 % 
 
 
 \'<S\\m\^ ^OJITVDJO^ 
 
 ^OFCAllFOff^ AOFCAllFOi?^ 
 
 
 c « 
 
 ,^WE•UHIVERS•/4 >^1
 
 Ub suumtni^ ntuiui^HL LionHni thi^ili 
 
 .\WMJNIVERy/A 
 
 o 
 
 '^r^mNv^m^^ "v/^^iMNnjwv* %0Jiiv3jc\'^ ^.!/ojiiv3jo>' 
 
 .\WEUNIVEW/A 
 
 o 
 
 ^•lOSANCElfx^ 
 
 O 
 
 ^.OFCAIIFOI?;^ 
 
 o 
 
 .^OFCAIIFO/?^ 
 
 CD 
 
 ^/CXqMkjnittV^ '^>'/9aHVHfllH>i^ "^/^AHVHflinV^ 
 
 ^ 1 ir^ ^ 
 
 
 ^^OJITVDJO^ 
 
 \ojiiv>jo'^ 
 
 ^OFCAIIFO/?^ ^OfCAllFOff^ 
 
 ■'''^tHVJIflni^J^ ^^•^NVMflll-^'^ 
 
 <: 
 
 o 
 
 isa 
 
 ^TiijONVSOl^ %il3AINn3WV 
 
 
 o 
 
 
 
 •I I ^1 lift.' 
 
 vVKi>ANl.l.lZ-j>^ -5^lllBKAkV6//. -^jsi'iiHKAHV^// 
 
 ^f'^nnww'^ ■^/vHiAiNa luv^ '^^o^nvij^x^ '%o^iiv3J<n'^ 
 
 
 -^rjunuvcm?^ 
 
 ^V^OSANGElfj^ 
 
 > 
 
 V/CHlMNil.mV 
 
 ^OFCAIIFOI?^ ^.OFCAllFO)?^ 
 
 50 ~- 
 
 '^n\mmw^ '^n\mym^ 
 
 
 =3 
 
 
 ^OJITVDJO^ ^<!/0JllV3JO^ 
 
 
 o 
 
 o 
 
 =: C 
 
 %a3AIN[13WV 
 
 ^.OF-CAUFO/?^ 
 
 ^;OFCAllFO/?/fe. 
 
 AVlEUNIVERSy/i 
 
 ^lOS-ANGElfj^ 
 
 i\©l l\©i t!^i 1(^1 
 
 ^