Ehrich v. Ehrich

122 Misc. 216

• Court: New York Supreme Court
• Decided: December 15, 1923
• Status: Published

Opinion

Callaghan, J.

When the mortgage, which was the subject of the foreclosure action, was subrogated to the mortgage described in the terms of sale the later became the first mortgage and the former the second mortgage on the premises which, were foreclosed. Had this situation existed at the time the action was begun there would have been no necessity for making the holder of the first mortgage a party to the foreclosure action, and the judgment of foreclosure and sale could very properly ignore any reference to the first mortgage. The purchaser at the sale would have taken any interest which the owner of the equity had subject to the first mortgage. The same result was reached by the acts of the parties. The purchaser knew from the terms of sale that he was purchasing the premises subject to the mortgage. The title to the premises was in no way affected by the fact that the judgment did not recite or refer to the first mortgage. The purchaser can get what he bought. The general rule that the terms of sale must conform to the judgment does not obtain in this situation. Motion to compel purchaser to take title is granted and the referee’s report is confirmed.

Ordered accordingly.