Bache v. Purcell

51 How. Pr. 270

• Court: New York Supreme Court
• Decided: February 15, 1874
• Status: Published

Opinion

Van Brunt, J.

— It is claimed in this action that the fact that a decree of foreclosure and sale had been entered in an action brought to foreclose a mortgage prior to the one for the foreclosure of which this action is brought, and in which the present plaintiffs were made defendants, is a bar to this action. There seems to be no doubt that if a sale had taken place that it would be such a bar; but no case holds that anything short of a sale is a bar. The case of Rankin agt. Dutch Church (1 Edw. Ch., 20) only intimates that such a question might possibly be raised, but does not attempt to pass upon its validity. It is the sale under the decree which cuts off the equity of redemption and not the decree itself, because the mortgagor has, until a sale has actually taken place, the right to redeem.

It cannot be that a junior mortgagee must wait to enforce his lien, about which there may be no question and the security for which is abundant, until the termination of appeals and a long litigation affecting the prior mortgage only. -This must be the case if he cannot foreclose his mortgage merely because a decree has been entered in the prior action.

Judgment for plaintiffs.