New York Shot & Lead Co. v. Cary

—McCullough, while the owner of the lease of the premises in controversy, executed a mortgage thereon to Cary, in October, 1855, which mortgage Cary has foreclosed, *45and now has a judgment directing the sale of the premises to pay the same.

Under a prior judgment against McCullough, the right and title of McCullough has been sold, and the same has, by assignment from the purchaser at such sale, been vested in the plaintiff. The time for redeeming the premises from the sale on execution has not yet expired.

The plaintiffs also hold by conveyance, subject to Cary’s mortgage, the title to the premises, and are in possession.

They commenced this action, asking to have an injunction restraining the sale under the mortgage foreclosed, for the purpose of having a separation made between the property subject to the mortgage, and the property of the plaintiffs which they have placed upon the premises; and also claiming that, inasmuch as they will obtain, in February, a full title to the premises, that the sale under the mortgage should be stayed.

It is apparent that if this application is granted, the lien of the mortgage ceases, and becomes of no value.

The sale under the judgment becomes perfect by the lapse of fifteen months thereafter, if not redeemed, and such sale then becomes a title paramount to the mortgage. If there is any interest not included in such sale, justice requires that the same should be applied to the payment of the mortgage debt.

The interest which the plaintiffs hold in this property by conveyance from McCullough, is undoubtedly subject to the mortgage lien, and should be sold to pay that claim. The subsequently acquired interest by the purchase of the sheriff’s certificate of sale, does not alter the rights of the parties in the other estate; until that sale becomes perfect, it gives the plaintiffs no title to the possession, and takes away from the mortgagee no rights which he otherwise possessed.

That estate or interest which the plaintiffs hold as grantees of McCullough, should not be relieved from the" lien of the mortgage. Whatever it is, whether greater or less, the mortgagee has a right to require that it should be sold for the purpose of discharging his lien. The consequences of such sale to the plaintiffs, in divesting them of possession until their title under the judgment becomes perfect, should have no weight in the decision of this motion.

It is the same in the case of all judicial proceedings, where the *46debtor suffers from the attempts of the creditor to enforce payment of his claim. The company are nothing but such debtors or holders of the estate, subject to such claim under the mortgage, and having a prior lien as purchasers of the sheriff’s certificate, not entitled to the possession under the purchase until that estate becomes absolute,-and not liable to be defeated by any judgment-creditor who sees fit to redeem and take the rights which they hold.

It was urged that the mortgagee was concluded so far as to have no remedy since the sale, and the expiration of the time of redemption, by the owner of the fee, except to redeem as a mortgage creditor. I do not concur in that position. Whatever estate remained intermediate, the judgment of foreclosure, and the time when the purchase under the judgment becomes perfect, belongs to the mortgagor or his assignees, and is subject to the mortgage.

The fact that it is small and fast expiring, is the strongest reason why the sale should not be delayed.

I find nothing in the authorities cited which will justify me in depriving the mortgagee of the small remnant of security which he has for redress.

There are other reasons also why this sale should not be stayed. The rights of the parties should be considered, as they existed at the time of commencing the action, and the subsequent purchase of claims ought not to be considered sufficient to warrant the course asked for by the plaintiffs.

Besides the sale of this interest, whatever it may be, seems to be necessary as well to protect the plaintiff in the foreclosure, as to his claim for deficiency and his claims upon the appeal.

I think the motion should be denied, and the temporary injunction dissolved.