$2,000 advanced by her. This mortgage was subsequently assigned to Susan C. Currie, and by her to plaintiff, who brought this action. The defendants answered separately, defendant Judson claiming that the assignment of the first mortgage gave him a prior lien. Defendant Emily A. Stratton alleged that Susan C. Currie was the real party in interest in this action to foreclose the second mortgage; that on April 10, 1865, one James T. Stratton mortgaged to defendant Emily A. Strattoú three acres of other land for $2,750; that in September, 1872, she assigned this mortgage to Hallett C. Hicks, covenanting that the mortgage was collectible, and that the proceeds thereof, $2,750, were loaned to Susan C. Currie; thattwo months thereafter Susan C. Currie purchased the land, and assumed the mortgage, but that she never paid it, and that Hicks-foreclosed, and also obtained a personal judgment for deficiency against defendant Emily A. Stratton. Defendant answered further that, when the James T. Stratton mortgage was assigned to Hicks, in September, 1872, this defendant Emily A. Stratton executed another mortgage to him on the land in controversy as security for the $2,750 paid by Hicks on the assignment of the James A. Stratton mortgage, and loaned to Susan C. Currie; that Hicks subsequently obtained a judgment of foreclosure of this mortgage; and that this judgment remains unpaid. There was no evidence, however, tending to show that Susan C. Currie was the real plaintiff in interest in this action, as alleged in the answer, or that she had anything to do with the loans made to Emily A. Stratton by her mother. The court found in favor of plaintiff as against defendant Stratton, and in favor of defendant Judson to this extent: that the assignment of the decree in foreclosure in the Fitch action was for the benefit of Emily Stratton as well.as defendant Judson; that plaintiff succeeded to her rights; and that on payment of $2,015.33, with interest from February 14, 1881, to defendant Judson, plaintiff would be subrogated to all his rights. Defendants appeal. For opinion on motion for new trial, see? 27. T. Supp. 786.
Argued before Barnard, P. J„ and Dykman and Pratt, JJ.Samuel W. Judson, for appellants. Frank A. O'Brien, (James D. Bell, of counsel,) for respondent.
The plaintiff is the assignee of a second mortgage. It was given by Emily A. Stratton to her mother, Emily Stratton, and assigned by her to one Susan C. Currie, and by her to the plaintiff. There is no question made as to this mortgage, nor as to the amount due upon it. There was a first mortgage for $2,500 on the property, and the complaint averred that this mortgage was to have been paid by the loan procured on the second mortgage, by agreement between Emily A. Stratton and her mother; that it was only paid in part, and that the defendant Judson had taken an assignment of the first mortgage in concert with Emily A. Stratton, and claiming that the plaintiff’s mortgage should be deemed the first lien on the premises. The proof failed to show that the first mortgage was subject and inferior to the plaintiff’s mortgage in respect to the amount paid by Judson for the first mortgage, which was the actual amount left unpaid on it. The proof did show that some of the money obtained by the second loan actually went to extinguish the first mortgage, and that the agreement between Emily A. Stratton and her mother was that the loan was all to be used to pay the first mortgage. So far the equities seem to be plain. Judson can hold his claim for all he paid to get it; but the mortgage he holds after he is paid in full should be held for the money, which went to extinguish it, derived from the second loan. That was the agreement between the owner of the land and the person who loaned the money, and no reason is perceived why Judson can object. He is paid in full. Mrs. Stratton cannot object that her property be held as if the portion of the new loan had been used to purchase the first mortgage pro tanto, (Gans v. Thieme, 93 N. Y. 225 . The evidence