Greene v. Mussey

78 N.Y.S. 434

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 12, 1902
• Status: Published

Opinion

SMITH, J.

I am unable to find any answer to the appellant’s contention that the sale in 1895 devested the plaintiff of all his interest in this mortgage. By section 1632 of the Code of Civil Procedure it is provided that a conveyance made upon a sale in foreclosure “is as valid as if it were executed by the mortgagor and mortgagee, and is an entire bar against each of them, and against each party to the action who was duly summoned.” In Townshend v. Thomson, 139 N. Y. 161, 34 N. E. 891, Judge Earl, writing for the court,' says:

“A purchaser at a mortgage foreclosure sale, defective and void as against the owner of the equity of redemption because he was not made a party to the foreclosure action, becomes an assignee of the mortgage, and if he lawfully enters into possession of the real estate purchased he becomes a mortgagee in possession.”

In Thomas, Mortg. (2d Ed.) § 1027, in speaking of a sale after an irregular foreclosure, it is said:

“The effect of the foreclosure sale is to transfer to the purchaser the rights of the mortgagee in the lands and so much of the equity of redemption as is owned by parties to the action.”

In Railroad Co. v. Walker, 61 Miss. 481, the headnote reads:

“The rights of the holder of the equity of redemption in the mortgaged premises, acquired before the filing of the bill to foreclose the mortgage and to which he is not a party, are not affected by the decree of foreclosure. The purchaser at a sale under foreclosure proceedings acquires all the rights of the mortgagee in the land including the legal title, and may bring ejectment for the land or proceed anew to foreclose the mortgage.”

It is hardly necessary to cite further authority to a proposition which I have nowhere found questioned. The sale then in 1895 to Mussey, although ineffective as against the rights of Carnduff, operated to transfer to Mussey the 'plaintiffs interest in the mortgage. Within the case of Railroad Co. v. Walker, he can now bring an action to foreclose this mortgage. He has not even been made a party to this motion. Plaintiff no longer retains any interest which can authorize him to proceed in foreclosure.

It is claimed by the respondent that the order setting aside the judgment as to Carnduff operated to set aside the sale as well. But this cannot be so. Abram Mussey, the purchaser upon that sale, has paid $100 for some interest in the mortgaged premises. The sale could not be set aside without reimbursing him; nor has the court assumed to set the sale aside as to any interest save that of John Carnduff. The sale then stands as if John Carnduff had never been made a party to the action. The purchaser upon that sale alone can proceed.

The order must be reversed, with $10 costs and. disbursements. All concur.