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If the determination of the appeal depended upon the question whether the defendants stand in legal privity with Walter S. Griffith and Lewis Selye, I should be of the opinion that the Supreme Court was right in its ruling, and that the judgment should be affirmed. By the foreclosure of the mortgage held by the Mechanics' bank and the purchase of the premises at the master's sale, the title which Griffith Selye had in the premises was destroyed. The purchasers took the title which the mortgagor had before he gave the mortgage. That title passed to the mortgagee by force of the mortgage, and it passed to the purchasers by the foreclosure and sale. The purchasers' chain of title consists, first, in the mortgage by Griffith Selye to Mumford; then the assignment by Mumford to the bank; the foreclosure sale and master's deed; the legal effect of which, taken together, is equivalent to a conveyance by Mumford to the purchasers and the extinguishment of the equity of redemption which remained in Griffith Selye The transactions of these mortgagors after the execution of the mortgage are aside from this deduction of title. The defendants are strangers to these transactions, and are not bound by them if adverse to their interest, and cannot take advantage of them if it would be for their interest to do so. The defendants' counsel have argued that their position is the same as though Griffith Selye had conveyed to them. This I think is not so. If the mortgage had been released and the defendants had received a conveyance from the mortgagors, or the parties holding the equity of redemption under them, then indeed they would have held under the mortgagors and would have been bound by any estoppel which affected them. But the effect of a foreclosure is quite different from this. Where legal title is concerned, a mortgage, which for many other purposes is a mere chose in action, is a conveyance of the land. The interest remaining in the mortgagor is an equity. The foreclosure cuts off and extinguishes that equity and leaves the title, conveyed by
the mortgage, absolute. Such is precisely the effect of a strict foreclosure. The present practice is not to decree a common law foreclosure, but to order the mortgaged premises to be sold to the highest bidder; but the statute declares that the master's deed upon such a sale "shall vest in the purchaser the same estate, and no other or greater, that would have vested in the mortgagee if the equity of redemption had been foreclosed." (2R.S. 192, § 158). It proceeds to say that "such deeds shall be as valid as if the same were executed by the mortgagor and mortgagee, and shall be an entire bar against each of them," c. The effect of this is not to override the former member of the sentence; but it should be construed in harmony with it. At common law no individual or public officer can by his own deed affect another man's land. The statute authorizes a master in chancery to do so, and for this purpose it affirms the validity of the master's deed. When the act says it shall have the same validity as if executed by the mortgagor, it is not to be taken that the purchaser is to be considered as holding under the mortgagor, by title subsequent to the mortgage, in a sense which would subject him to the effect of the mortgagor's acts intermediate the mortgage and the foreclosure. The master's deed may probably be considered, as against the mortgagor, as equivalent to a release of the equity of redemption. There is nothing opposed to this view in the two cases cited by the defendant's counsel from Paige's Reports (Vroom v. Ditmas, 4Paige, 526, Vanderkemp v. Shelton, 11 id., 28.) In this case therefore the equity of redemption was not conveyed, but it was foreclosed and extinguished.
But this foreclosure and extinguishment did not operate upon the interests conveyed by the mortgagors to Warham or Whitney and others by the instrument of August 12, 1836, because these persons were not parties to the foreclosure suit. If the money realised on the sale was sufficient to pay the mortgage debt, Whitney and the others, whom I
shall for convenience call the mill owners, hold an unincumbered title to the real estate thus conveyed to them. If there is a balance of that debt still unpaid, the mill owners have an estate in that property, subject to the lien of the mortgage for the unpaid balance, which estate is unforeclosed. To apply this state of things to the question of estoppel: both the instrument of August, 1836, and the decree of the Court of Chancery of August 31st, 1842, constituted estoppels operating reciprocally upon the immediate parties. They also ran with the title to the land to which they related, and the grantees of the respective parties were liable to have the estoppel, which the instrument created, set up against them, and were also entitled to take advantage of it. In other words the respective grantees of these parties, immediate or remote, stood in regard to the question of estoppel in the places of the original parties whom they represented by way of privity of estate. But as the purchasers at the master's sale did not hold under the title which Griffith Selye, or Peck Griffith, had at the execution of the instrument, or at the time of the decree of 1842, but by title paramount, namely, under the title which Griffith Selye conveyed by the execution of the mortgage of May, 1836, they are not within the influence of the estoppel.
But there is another aspect to this question, altogether independent of the notion of estoppel, which appears to me to show that the instrument of 1836 ought to have been received in evidence. The wrong attributed to the defendants in this action was the shutting up the waste-weir which had been originally left in the north wall of Brown's race where it crossed the branch or old channel of the river. It was originally built only four feet high at that place, the walls on each side of it being much higher. This enabled the plaintiffs and the other mill owners, by shutting the guard gates just below, to discharge the surplus water into the old channel on the lower side of the race, and thus avoid inconvenience and danger from high water. The
right of the mill owners to have the sluice kept open depends upon the terms and proper construction of the instrument of 1836. Their former right, to waste the surplus water over the dam at that place, must be taken to have been a legal right arising by grant or prescription. But it was only the water running in the branch that could thus be wasted. The instrument of 1836 contemplated that the water should be shut out of the branch, and that it should be made dry land. Griffith Selye were authorized to run a wall quite across the head where the water ran into it from the Genesee river. Brown's race was to be extended across the branch to the river, and the water was to be taken from the main channel to supply the mills situated on the race. It would not have been positively inconsistent with this arrangement to have provided that a waste-weir should exist in the north wall, to discharge the surplus water; but there is no such express provision in the instrument, and the question is whether one is to be implied. I do not see any ground upon which such an implication can rest.
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If the determination of the appeal depended upon the question whether the defendants stand in legal privity with Walter S. Griffith and Lewis Selye, I should be of the opinion that the Supreme Court was right in its ruling, and that the judgment should be affirmed. By the foreclosure of the mortgage held by the Mechanics' bank and the purchase of the premises at the master's sale, the title which Griffith Selye had in the premises was destroyed. The purchasers took the title which the mortgagor had before he gave the mortgage. That title passed to the mortgagee by force of the mortgage, and it passed to the purchasers by the foreclosure and sale. The purchasers' chain of title consists, first, in the mortgage by Griffith Selye to Mumford; then the assignment by Mumford to the bank; the foreclosure sale and master's deed; the legal effect of which, taken together, is equivalent to a conveyance by Mumford to the purchasers and the extinguishment of the equity of redemption which remained in Griffith Selye The transactions of these mortgagors after the execution of the mortgage are aside from this deduction of title. The defendants are strangers to these transactions, and are not bound by them if adverse to their interest, and cannot take advantage of them if it would be for their interest to do so. The defendants' counsel have argued that their position is the same as though Griffith Selye had conveyed to them. This I think is not so. If the mortgage had been released and the defendants had received a conveyance from the mortgagors, or the parties holding the equity of redemption under them, then indeed they would have held under the mortgagors and would have been bound by any estoppel which affected them. But the effect of a foreclosure is quite different from this. Where legal title is concerned, a mortgage, which for many other purposes is a mere chose in action, is a conveyance of the land. The interest remaining in the mortgagor is an equity. The foreclosure cuts off and extinguishes that equity and leaves the title, conveyed by
the mortgage, absolute. Such is precisely the effect of a strict foreclosure. The present practice is not to decree a common law foreclosure, but to order the mortgaged premises to be sold to the highest bidder; but the statute declares that the master's deed upon such a sale "shall vest in the purchaser the same estate, and no other or greater, that would have vested in the mortgagee if the equity of redemption had been foreclosed." (2R.S. 192, § 158). It proceeds to say that "such deeds shall be as valid as if the same were executed by the mortgagor and mortgagee, and shall be an entire bar against each of them," c. The effect of this is not to override the former member of the sentence; but it should be construed in harmony with it. At common law no individual or public officer can by his own deed affect another man's land. The statute authorizes a master in chancery to do so, and for this purpose it affirms the validity of the master's deed. When the act says it shall have the same validity as if executed by the mortgagor, it is not to be taken that the purchaser is to be considered as holding under the mortgagor, by title subsequent to the mortgage, in a sense which would subject him to the effect of the mortgagor's acts intermediate the mortgage and the foreclosure. The master's deed may probably be considered, as against the mortgagor, as equivalent to a release of the equity of redemption. There is nothing opposed to this view in the two cases cited by the defendant's counsel from Paige's Reports (Vroom v. Ditmas, 4Paige, 526, Vanderkemp v. Shelton, 11 id., 28.) In this case therefore the equity of redemption was not conveyed, but it was foreclosed and extinguished.
But this foreclosure and extinguishment did not operate upon the interests conveyed by the mortgagors to Warham or Whitney and others by the instrument of August 12, 1836, because these persons were not parties to the foreclosure suit. If the money realised on the sale was sufficient to pay the mortgage debt, Whitney and the others, whom I
shall for convenience call the mill owners, hold an unincumbered title to the real estate thus conveyed to them. If there is a balance of that debt still unpaid, the mill owners have an estate in that property, subject to the lien of the mortgage for the unpaid balance, which estate is unforeclosed. To apply this state of things to the question of estoppel: both the instrument of August, 1836, and the decree of the Court of Chancery of August 31st, 1842, constituted estoppels operating reciprocally upon the immediate parties. They also ran with the title to the land to which they related, and the grantees of the respective parties were liable to have the estoppel, which the instrument created, set up against them, and were also entitled to take advantage of it. In other words the respective grantees of these parties, immediate or remote, stood in regard to the question of estoppel in the places of the original parties whom they represented by way of privity of estate. But as the purchasers at the master's sale did not hold under the title which Griffith Selye, or Peck Griffith, had at the execution of the instrument, or at the time of the decree of 1842, but by title paramount, namely, under the title which Griffith Selye conveyed by the execution of the mortgage of May, 1836, they are not within the influence of the estoppel.
But there is another aspect to this question, altogether independent of the notion of estoppel, which appears to me to show that the instrument of 1836 ought to have been received in evidence. The wrong attributed to the defendants in this action was the shutting up the waste-weir which had been originally left in the north wall of Brown's race where it crossed the branch or old channel of the river. It was originally built only four feet high at that place, the walls on each side of it being much higher. This enabled the plaintiffs and the other mill owners, by shutting the guard gates just below, to discharge the surplus water into the old channel on the lower side of the race, and thus avoid inconvenience and danger from high water. The
right of the mill owners to have the sluice kept open depends upon the terms and proper construction of the instrument of 1836. Their former right, to waste the surplus water over the dam at that place, must be taken to have been a legal right arising by grant or prescription. But it was only the water running in the branch that could thus be wasted. The instrument of 1836 contemplated that the water should be shut out of the branch, and that it should be made dry land. Griffith Selye were authorized to run a wall quite across the head where the water ran into it from the Genesee river. Brown's race was to be extended across the branch to the river, and the water was to be taken from the main channel to supply the mills situated on the race. It would not have been positively inconsistent with this arrangement to have provided that a waste-weir should exist in the north wall, to discharge the surplus water; but there is no such express provision in the instrument, and the question is whether one is to be implied. I do not see any ground upon which such an implication can rest. It is true the wall was at first constructed so as to leave a space for the water to be wasted, and this would be some evidence of the understanding of the parties at that time, if their understanding of the matter was at all material; but it did not remain in that condition long enough to establish a prescription. In 1841, only seven years after the date of the instrument, Griffith Peck, (Peck having acquired the estate of Selye) sued the mill owners in chancery to compel them to build it up and a decree adjudging that they were bound to do so was obtained and acquiesced in. Then the Mechanic's Bank foreclosed the mortgage and became the purchaser of the land upon which the waste-weir stood, and of the ground immediately below through which the channel of the old branch ran; and afterwards, in 1846, the defendants, having purchased these premises of the Bank, built up the wall and destroyed the waste-weir. Without attributing the effect of an estoppel to the decree in chancery, it at
least put an end to any acquiescence on the part of Griffith
Peck in the continuance of the waste-wier. The former right of wasting the water over the dam was put an end to by the new arrangement. The instrument by which that arrangement was made did not provide for any waste-weir. If, therefore, the present litigation were between Griffith Peck on one side and the mill owners on the other, the latter could not claim the right to continue the waste-weir except through the instrument referred to, and as that instrument contains nothing on that subject, either in express terms or by any fair implication, they cannot insist upon such a right.
Assuming that the mill owners acquired no right by the agreement, to have a waste-weir at that place, how can they prosecute the defendants — the owners of the land immediately below, and upon which the water would fall, and over which it would run, if suffered to run out of the race at that place — from stopping up the space and preventing it from running at all? The mill owners should have built it up themselves, and having omitted to do so, the defendants had a right to do it. As strangers to the title of Griffith Peck, they would have had this right. If I am the owner of land bounded on one side by the walls of an artificial watercourse, lawfully constructed by the owner of the adjoining premises, the proprietors of the wall must of course confine the water within the channel which they have constructed, and cannot claim a right to waste it over my land. This is exceedingly plain. But it may be said, and it is true, that Griffith Selye, and afterwards Griffith Peck, were the owners of an equity of redemption in the premises, which the defendants now own, below the waste-weir; and that although they could grant no rights which would not be subject to the lien of the mortgage, whatever rights they did assume to grant can now be asserted, inasmuch as the grantees were not parties to the foreclosure. Griffith Peck were seized as to all the world except the
mortgagees and parties claiming under them. They could grant interests in the land which would be indefeasible, except by the foreclosure of the mortgage, not only against the mortgagor but against them. This is all perfectly correct, but if they have not granted a right to waste this water upon the land now owned by the defendants, the principle has no application. If I am right in the construction of the instrument, no foreclosure of the mill owners was necessary.
The only suggestion opposed to this view which I can think of is this: when the mortgage was executed, under the foreclosure of which the defendants obtained their title, the water of the old channel lawfully ran over the dam and on to the land below the present mill, and the then mill owners had a right, by the use of the guard gates or otherwise, to waste it over that dam at their pleasure. Such were the rights of the mill owners when the mortgage was executed, and the defendants' title from Peck
Griffith relates to that date. By the foreclosure the equity of redemption is cut off, and the defendants, as purchasers at the foreclosure sale, cannot avail themselves of any advantages arising under the contract that Peck and Griffith, when the owners of the equity of redemption, made with the mill owners. How, it may be said, can the defendants claim to take advantage of the arrangement which Peck Griffith made with the mill owners, seeing that the equity of redemption which was the only title which Peck Griffith had, when they made it, has been cut off by the foreclosure? This would be unanswerable if the mill owners had been made parties and had been foreclosed. But the holder of the mortgage, by omitting to claim a foreclosure against the mill owners, has left them in the enjoyment of all the rights which they acquired by the arrangement with Peck
Griffith. That arrangement, it must be remembered, granted reciprocal rights to Peck Griffith and to the mill owners, which grants were the consideration of each other. Peck
Griffith acquired, as against the mill owners, the right to
close up the old branch channel. The mill owners got the right to extend the race across that channel to the main channel of the river, and to conduct the water through the race as thus extended. This modification of the former water right totally subverted the old dam. It contemplated that the branch of the river, both above and below where the race crossed it, should cease to be a water course. The river was to be confined within the principal channel. The plaintiff claims, in effect, not only that he should not be disturbed in the rights which he in common with the other mill owners acquired under the agreement (which claim is thus far well founded); but that he and they should retain the rights which they parted with on that occasion, so far at least as concerns the part of the old channel situated below the point where the race crosses that channel. This latter claim is unwarranted. Retaining the enjoyment of all which they acquired by the new arrangement, they have no right to claim that which they relinquished.
These considerations, if warranted, require the reversal of the judgment of the Supreme Court.