Birdseye, J.
This is one of the first of a class of actions which will probably be very numerous in this, and perhaps other counties of the State, owing to the decision mad^ by the general term of this district in the case of Hall v. Eelson.
The subject is one well worthy of all the assistance which could be derived from the ablest efforts of opposing counsel upon a contested argument. From the manner in which this case comes before me, I am necessarily deprived, to a consider[19]*19able extent, of that assistance. And if due provision is not made for the rights and equities of all the parties in interest, in the present case, the effort so to do will at least point out the defects, and render it easier to avoid them in future.
In the decree submitted, there is contained the following recital :—No one of the defendants appearing or asking for a sale of said premises; and it appearing by the complaint herein that the foreclosure and sale of the said premises to plaintiff in the County Court, as stated in the complaint, were in good faith, and for all that the premises were fairly worth over prior encumbrances; that all parties have acquiesced in said sale to the plaintiff since August, 1854, and his possession thereof as absolute owner, and that he has expended, and caused to be expended, in good faith, since said sale and possession, in the necessary repairs upon said premises, a large amount of money, to wit, about three thousand dollars, which he would be entitled to have repaid to him, in case a sale of said premises should be now ordered:—
No proof of any of the matters covered by this recital was given or offered, when the judgment was applied for. It may be that the substance of the recital may be gathered from the complaint, if it is taken to be admitted to be true by all the defendants. But there is no direct averment of the matters referred to in the first portion which is italicized. And the other portion in italics is a mere conclusion of law upon one of the most delicate questions to arise in such suits as the present. Besides, it may be a serious question, whether the mere service of a summons, with a simple notice that the object of this action is to foreclose a mortgage, in the usual form in mortgage cases, would warrant the court in taking the failure to answer as an admission of such statements as these in the complaint.
Again, I do not see how any judgment for a strict foreclosure of this mortgage can be made without giving the defendants a day in court—an opportunity to satisfy the plaintiff’s claim, and comply with the condition on which he holds the estate. The leave to do that is the very equity of redemption now sought to be cut off. If that equity can be terminated without such a permission to redeem, this action, instead of being for the foreclosure of the equity of redemption, is merely to obtain a judgment that there is no such equitable right to redeem. But sup[20]*20pose the right to redeem from the mortgage within a limited time he given by the judgment, to whom shall it be given; and on what terms, as to the costs of the present suit or the former one, and the expenses of the former sale? Has the youngest encumbrancer the same right to acquire the equity of redemption as the mortgagor, or the oldest encumbrancer ? If a redemption is made by one defendant, can another redeem from him, and then another ? If so, to what extent, and on what terms, as to costs, and the payment of the liens of the several defendants? What provision should be made as to the costs of the action and for a sale, if the rights of encumbrancers cannot be otherwise settled ? What reference should be made to ascertain the amount due to the plaintiff for principal and interest on his mortgage, for advances in building, repairing, or improving the property, paying taxes, assessments, insurance, prior encumbrances, &c. ? For what improvements or expenses by the former purchaser, while in possession, shall he be allowed ? If a person, other than the mortgagee, has become the purchaser, what are his rights, and how are they to be secured ? Does the sale under the void judgment, and the payment by him to the mortgagee of the price bid upon the sale, operate as an equitable assignment of the mortgage to him ?
If the mortgagor has died, leaving infant heirs, can a strict foreclosure be decreed against them, without giving them a day to show cause against the decree, after coming of age ? If not, can' they then redeem ? or must they be confined to showing error in the decree ?
If no redemption is made, does the taking of the pledged property under the decree operate as a satisfaction of the debt ? Or may the mortgagee sue at law for any alleged deficiency ?
These questions, and many similar ones,' which might be put, suggest some of the difficulties which must be provided against by the judgment, in actions like the present. I shall proceed to consider and dispose of such as necessarily arise in this case, in the best manner I can devise : leaving, perhaps, many intricacies to be solved on future occasions, and as to the whole subject, merely opening the door and indicating the way in which the fixed principles of equity shall be applied to a state of facts so novel as the present. If, by the application of the tried rules and maxims of courts of equity, the conflicting rights and in[21]*21terests of parties, in circumstances like those now before the court, can be surely and safely ascertained and adjusted, it will be a new and beautiful illustration of the excellence of those eternal principles of justice on which equity jurisprudence is based, and of their superiority to the systems of jurisprudence founded merely on ¿odes, and statutes, and written constitutions.
The plaintiff has not proposed any reference, or other mode of ascertaining the amount due him for principal, interest, or advances and expenses upon the mortgaged premises. And yet, if any leave to redeem is given, there must be some way devised of ascertaining the sum required to be paid. It is said, in this instance, that none of the defendants desire to redeem, and therefore no reference will be required. That may be so here, and perhaps in a majority of the cases that will arise. But I see no evidence upon which the court can act, that none of the defendants will seek to redeem. And the very idea of cutting off their rights, unless they do redeem within a limited period, involves the necessity of judicially ascertaining, before that period commences, that sum the payment of which will constitute the redemption. Where no redemption is to be made, however, no such reference need be had. If, then, any of the defendants, desiring to redeem, shall be required to give notice of his election so to do, the reference can then be had; otherwise it will be dispensed with, and the foreclosure will be effectual as soon as the period for giving the notice has elapsed.
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Birdseye, J.
This is one of the first of a class of actions which will probably be very numerous in this, and perhaps other counties of the State, owing to the decision mad^ by the general term of this district in the case of Hall v. Eelson.
The subject is one well worthy of all the assistance which could be derived from the ablest efforts of opposing counsel upon a contested argument. From the manner in which this case comes before me, I am necessarily deprived, to a consider[19]*19able extent, of that assistance. And if due provision is not made for the rights and equities of all the parties in interest, in the present case, the effort so to do will at least point out the defects, and render it easier to avoid them in future.
In the decree submitted, there is contained the following recital :—No one of the defendants appearing or asking for a sale of said premises; and it appearing by the complaint herein that the foreclosure and sale of the said premises to plaintiff in the County Court, as stated in the complaint, were in good faith, and for all that the premises were fairly worth over prior encumbrances; that all parties have acquiesced in said sale to the plaintiff since August, 1854, and his possession thereof as absolute owner, and that he has expended, and caused to be expended, in good faith, since said sale and possession, in the necessary repairs upon said premises, a large amount of money, to wit, about three thousand dollars, which he would be entitled to have repaid to him, in case a sale of said premises should be now ordered:—
No proof of any of the matters covered by this recital was given or offered, when the judgment was applied for. It may be that the substance of the recital may be gathered from the complaint, if it is taken to be admitted to be true by all the defendants. But there is no direct averment of the matters referred to in the first portion which is italicized. And the other portion in italics is a mere conclusion of law upon one of the most delicate questions to arise in such suits as the present. Besides, it may be a serious question, whether the mere service of a summons, with a simple notice that the object of this action is to foreclose a mortgage, in the usual form in mortgage cases, would warrant the court in taking the failure to answer as an admission of such statements as these in the complaint.
Again, I do not see how any judgment for a strict foreclosure of this mortgage can be made without giving the defendants a day in court—an opportunity to satisfy the plaintiff’s claim, and comply with the condition on which he holds the estate. The leave to do that is the very equity of redemption now sought to be cut off. If that equity can be terminated without such a permission to redeem, this action, instead of being for the foreclosure of the equity of redemption, is merely to obtain a judgment that there is no such equitable right to redeem. But sup[20]*20pose the right to redeem from the mortgage within a limited time he given by the judgment, to whom shall it be given; and on what terms, as to the costs of the present suit or the former one, and the expenses of the former sale? Has the youngest encumbrancer the same right to acquire the equity of redemption as the mortgagor, or the oldest encumbrancer ? If a redemption is made by one defendant, can another redeem from him, and then another ? If so, to what extent, and on what terms, as to costs, and the payment of the liens of the several defendants? What provision should be made as to the costs of the action and for a sale, if the rights of encumbrancers cannot be otherwise settled ? What reference should be made to ascertain the amount due to the plaintiff for principal and interest on his mortgage, for advances in building, repairing, or improving the property, paying taxes, assessments, insurance, prior encumbrances, &c. ? For what improvements or expenses by the former purchaser, while in possession, shall he be allowed ? If a person, other than the mortgagee, has become the purchaser, what are his rights, and how are they to be secured ? Does the sale under the void judgment, and the payment by him to the mortgagee of the price bid upon the sale, operate as an equitable assignment of the mortgage to him ?
If the mortgagor has died, leaving infant heirs, can a strict foreclosure be decreed against them, without giving them a day to show cause against the decree, after coming of age ? If not, can' they then redeem ? or must they be confined to showing error in the decree ?
If no redemption is made, does the taking of the pledged property under the decree operate as a satisfaction of the debt ? Or may the mortgagee sue at law for any alleged deficiency ?
These questions, and many similar ones,' which might be put, suggest some of the difficulties which must be provided against by the judgment, in actions like the present. I shall proceed to consider and dispose of such as necessarily arise in this case, in the best manner I can devise : leaving, perhaps, many intricacies to be solved on future occasions, and as to the whole subject, merely opening the door and indicating the way in which the fixed principles of equity shall be applied to a state of facts so novel as the present. If, by the application of the tried rules and maxims of courts of equity, the conflicting rights and in[21]*21terests of parties, in circumstances like those now before the court, can be surely and safely ascertained and adjusted, it will be a new and beautiful illustration of the excellence of those eternal principles of justice on which equity jurisprudence is based, and of their superiority to the systems of jurisprudence founded merely on ¿odes, and statutes, and written constitutions.
The plaintiff has not proposed any reference, or other mode of ascertaining the amount due him for principal, interest, or advances and expenses upon the mortgaged premises. And yet, if any leave to redeem is given, there must be some way devised of ascertaining the sum required to be paid. It is said, in this instance, that none of the defendants desire to redeem, and therefore no reference will be required. That may be so here, and perhaps in a majority of the cases that will arise. But I see no evidence upon which the court can act, that none of the defendants will seek to redeem. And the very idea of cutting off their rights, unless they do redeem within a limited period, involves the necessity of judicially ascertaining, before that period commences, that sum the payment of which will constitute the redemption. Where no redemption is to be made, however, no such reference need be had. If, then, any of the defendants, desiring to redeem, shall be required to give notice of his election so to do, the reference can then be had; otherwise it will be dispensed with, and the foreclosure will be effectual as soon as the period for giving the notice has elapsed. (See 4 Paige, 63.) The notice, if given, should include an agreement to complete the redemption; otherwise it might be in the power of any defendant to vex the plaintiff with an unnecessary and fruitless proceeding before the referee.
In case no such notice is given, and no redemption is had, my present opinion is, that the plaintiff should recover no costs from the defendants. It is from no fault or breach of contract or duty on their part, that the supposed valid title of the plaintiff has proved invalid. In such a case, the action will merely serve to remove the doubts and confirm the title, and the plaintiff may well bear the expense of that. But if the action is to be made to result in the transfer of the property from the plaintiff, after he in good faith supposed he had acquired a complete title to it, then the former foreclosure becomes wholly ineffectual; it passes for nothing, so far as the question of title is concerned. And [22]*22the plaintiff is then, in effect, merely enforcing his mortgage for the collection of the amount due him for his original debt, and such additions to it as, under the peculiar circumstances of the case, are equitable and just. The costs of such a suit the plaintiff ought to recover. (See 1 Paige, 617; 4 Ib., 62.) It is unnecessary now to inquire whether the plaintiff can recover any, or what part of the costs of the former foreclosure, which, without his fault, has proved inoperative.
In case the notice of an intention to redeem is given, a reference must then be had, to ascertain the amount due to the plaintiff for principal and interest on his mortgage; to which the costs of this suit, with the legal allowance, and the expenses of the reference and accounting, should be added. These costs may, I think, he properly adjusted by the referee; or an adjustment by the clerk may be had, though it would be less speedy and convenient. The referee must also take and state an account of the moneys which the plaintiff, since he acquired his supposed title under his former purchase, has actually and necessarily, and in good faith, expended upon the premises, in the erection or completion of permanent improvements, for necessary repairs, taxes, assessments, reasonable insurance, and moneys p§id upon prior encumbrances, subject to which the property was originally purchased and has since been held by the plaintiff. Against these must be set off the amount which the plaintiff has, or might with reasonable diligence have, received, and collected for the rents of the mortgaged premises.
The balance which may be due to the plaintiff, on this accounting, he ought clearly to recover in this action. He cannot be considered a volunteer within the case of Moore v. Cable (1 Johns. Ch. R., 385). He was in possession, claiming to be owner under a' title apparently good. He took his original title, and has made all his subsequent advances and payments upon the faith of the act of the legislative authority of the State, which committed jurisdiction of actions of foreclosure to the County Court. He has relied upon the validity of the action of the Legislature of the State, and of judicial tribunals established by the State. Ho objection was then made to the'jurisdiction of the court. The payments above directed to be credited to the plaintiff in the account, have all been for the permanent benefit of the inheritance; those for taxes and assessments, and upon prior encumbrances, [23]*23were made in discharge of liens which, unless paid, would have swept away the whole property from all the defendants; and as to which the plaintiff may well claim by subrogation a lien upon the premises. (And see 4 Paige, 62; 6 Beav., 246.)
In future cases, a question may arise whether the plaintiff, whose care and attention or enterprise has, since his former purchase, given an additional value to the mortgaged property, can have the benefit of that appreciation; and if so, to what extent, and in what manner it shall be secured to him. But no appreciation is shown to exist in this case, and no opinion need be expressed on this point. Upon the report of the referee being made, showing the whole amount due to the plaintiff for principal, interest, and costs, and upon the accounting, the defendant, who gave notice of his election to redeem, must, within a period to be fixed, complete the redemption by paying to the plaintiff the amount so reported to be due to him, with interest from the date of the report; or, in default thereof, must be barred and foreclosed of all right to redeem. In case of failure to redeem, the defendant, who has caused the expense of the reference and accounting, should be charged with the costs of it. And if the reference has been required for the purpose of vexation or annoyance, as it might perhaps be in some cases, further penalties may be imposed by the court.
If more than one of the defendants has given notice of his election to redeem, the leave to do so should, I think, be first given to the mortgagor or his grantee, and then in succession to the holders of the oldest encumbrances, according to the priority of their liens.
If there be but one defendant, the mortgagor, the next step in an action like the present is a simple one. The lien of the mortgage is satisfied and discharged by the redemption. The plaintiff has received his debt, and the defendant holds the lands free from the lien. But in the present case there are, besides the mortgagor’s, thirty-eight defendants who have or claim an interest in, or lien upon, the premises. Each defendant must be foreclosed, and each must have his day in court. Suppose the youngest encumbrancer gives the notice and makes the redemption, and suppose the value of the property to be double the amount paid on the redemption; who is to have the benefit of this-additional value ? The oldest encumbrancer on the premises is. [24]*24clearly first entitled to it, in equity, to the extent of his debt; and afterwards the others, in the order of their priority. But no distribution can he made; no provision can be made for the equities of the various parties, without a sale. A sale must, therefore, be directed, in the manner usual in common actions of foreclosure. After the payment of the costs and expenses of the sale, the defendant, who has made the redemption, must receive back the amount he has paid to the plaintiff, together with interest. The residue of the proceeds of the sale must be brought into court. Then the several parties in interest can apply in the usual manner, to ascertain the rights and interests of those having claims, and the priorities of the several liens. And the encumbrancers will obtain satisfaction of their claim, in the same manner as if the sale had been had in the first place for the purpose of raising the amount due to the plaintiff. If a remote encumbrancer shall have redeemed from the plaintiff, instead of acquiring priority over the intermediate encumbrancers, from the mere fact of having so redeemed, he will receive such share of the proceeds as will remain to him, after satisfying the prior liens.
As the plaintiff has been in possession, claiming to be owner*, and is clearly to be looked upon as the mortgagee in possession, I think it proper that, upon receiving the whole amount reported due to him, he should release and quit-claim the premises, either to the referee or the purchaser under the judgment, and a provision to that effect must be included in the judgment.
In this case, the plaintiff offers in his complaint to take the mortgaged premises as a full payment and satisfaction of the debt secured by the mortgage, and a provision to that effect will be included in the judgment.
The form of the judgment to he entered in this action, will be, after the proper recitals, substantially as follows:—
“That, unless the defendants, or some or one of them, shall within — days after the entry of judgment in this action, give notice in writing to the attorneys for the plaintiff herein of their election to pay the amount which may be due to the plaintiff for principal, interest, and costs of this action, and for his necessary advances and expenses in and about the completion and repairing of the building which is now erected upon said premises, to be ascertained by .a reference, in the manner hereinafter provided: Then, that the said defendants, and each of them, or [25]*25in case of the giving of such notice by any of the defendants, then that all the other defendants, and all persons claiming or to claim under them, or either of them, after the filing of the notice of the pendency of this action, to wit, the tenth day of March, 1857, do stand, and they are hereby absolutely debarred and foreclosed of and from all right, interest, and equity of redemption of, in, and to the mortgaged premises, hereinafter described; and that the said plaintiff do have and hold the said premises in full payment and satisfaction of the amount due upon and secured by the bond and mortgage mentioned and set forth in the said complaint. And that, in that case, the said plaintiff shall not recover any costs of this cause against any of the defendants therein.
“ And in case the said notice and agreement shall, within the time above specified, be given to the plaintiff’s attorneys by any of the said defendants, it is further adjudged and directed that it be referred to--, who is hereby duly appointed referee for that purpose, to compute and ascertain the amount due to the said plaintiff for principal and interest upon the bond and mortgage mentioned'in the said complaint; and that said referee also adjust the costs of the said plaintiff in this action, including the' additional allowance given by law, and the costs and expenses of the reference and accounting herein directed, and add the amount thereof to the sum which shall be found due to the plaintiff on the said bond and mortgage.
“And it is further ordered and adjudged, that the said referee do take and state an account of the sum and sums of money which have been necessarily and in good faith advanced and expended by the said plaintiff in the erection and completion of the building which, at the time of the purchase of said premises, by said plaintiff, .under the judgment of the County Court of Kings county, had been in part erected upon the said mortgaged premises; and that in stating such account, the said plaintiff be credited with all the moneys so advanced and expended by him, and also with all such moneys as he may, since his said purchase, have paid for taxes and assessments imposed upon the said premises, and for reasonable insurances thereon, and for the necessary repairs, and for improvements thereon, and for interest or principal upon any encumbrance upon the said mortgaged premises which existed [26]*26prior to the said purchase of said premises by said plaintiff under said judgment of the County Court, and subject to which the same were so sold to him. And the said referee shall, in stating the said account, charge the said plaintiff with the rents, issues, and profits of the mortgaged premises received by the said plaintiff, or by any person or persons by his order or for his use or benefit, or which the. said plaintiff might, with due and reasonable diligence, have received from the said premises; and that said referee deduct or set off'the amount of the said rents, issues, and profits from the amounts so as aforesaid directed to be credited to said plaintiff, and ascertain the balance due to or from the said plaintiff upon the said accounting; and that, if a balance shall, on the said account, be found due from the said plaintiff, then that the same be deducted from the amount found due to the plaintiff for principal, interest, and costs. And that the said referee do then report to this court the amount due to the plaintiff for the balance, if any, due upon said account, and also for the principal and interest due upon the said bond and mortgage, and for the costs of this action, or so much thereof as may remain unpaid, after deducting such sum, if any, -as shall be deducted therefrom, pursuant to the foregoing provisions of this judgment.
“ And it is further ordered and adjudged, that unless the defendant who may have given such notice as aforesaid shall, within--from and after the making of the report of said referee, pay to said plaintiff the amount so reported to be due to the said plaintiff, together with interest thereon from the date of said report, at such time an.d place as the said referee shall appoint in and by his said report; then that the said defendant who may have given such notice as aforesaid, do stand absolutely debarred and foreclosed of and from all right, title, interest, and equity of redemption of, in, and to the said mortgaged premises; and that said plaintiff recover against such defendant the costs and expenses of such reference and accounting.
“ And it is further directed and adjudged that no notice of an election to redeem, pursuant to the provisions of this judgment, shall be valid and effectual, unless the defendant giving such notice shall bind himself to complete the redemption of the mortgaged premises, and to pay to the plaintiff the amount which the said plaintiff shall be found entitled to receive on [27]*27such redemption, together with such costs as the court may-direct. In case more than one notice shall be given of an election to redeem, the said premises, then the mortgagor, or his grantee of the mortgaged premises, or his representatives, shall be first entitled to redeem, and afterwards the other defendants, giving such notice, in the order of the priority of their respective interests in, or liens upon, the said premises.
“ And it is further ordered and adjudged that in case the said defendant so giving the said notice, shall, within the time above limited for that purpose, pay to said plaintiff the amount that may be so as aforesaid reported due to said plaintiff by said referee, then that all and singular the said mortgaged premises mentioned in the complaint in this action, and hereinafter particularly described, be sold at public auction, by or under the direction of the said referee.”
(Here should follow the usual directions for the sale; for retaining, out of the proceeds, the fees and expenses of the sale ; for the payment to the defendant who- may have given the notice and made the payment to the plaintiff, of the sum so paid by the defendant, with interest, from the date of the payment to the plaintiff; for taMng the usual receipts, and bringing the surplus moneys into court, to abide the further order of the court, and for foreclosing the defendants; and for letting the purchaser into possession.
The judgment must also contain a provision that the plaintiff " shall, on being tendered the amount which may be reported due to him, with interest, release and quit-claim the mortgaged premises, either to the referee, or to such person or persons as shall finally become the purchaser or purchasers at such sale, by a suitable and proper instrument for that purpose, to be approved by the referee, in case the parties cannot agree upon the form thereof, free and clear of all encumbrance made or created by him, or by any person claiming by, from, or under him.)
This case will be reported, we presume, in 23 Barb. The point decided was, that under the Constitution of 1846, the Legislature have not power to confer on the County Courts jurisdiction of actions for the foreclosure of mortgages, as they assumed to do in the Code.