De Forest v. Peck — 32 N.Y.S. 413

Majority

p. 413

(84 Hun, 299.)

DE FOREST v. PECK et al.

(Supreme Court, General Term, Second Department.

February 11, 1895.)

Headnote

Subrogation—Mortgage—Judgment Creditor.

In an action to foreclose a mortgage on land as to which an action for partition was pending, an order allowing a junior mortgagee, who also had an interest in the land, to pay off the mortgage and subrogate him to the lien thereof, in order that he might prevent a sale under foreclosure, and await the judgment in the partition suit, does not prejudice a judgment creditor of one of the co-owners, who desired subrogation to the lien of the mortgage in order to force a present sale, because he could collect his judgment more readily than by sale on execution, though the judgment was prior to the junior mortgage.

Appeal from special term, Rockland county.

Action by Julia M. De Forest against Theodore G-. Peck and others to foreclose a mortgage. From an order subrogating J. Harsen Halsted, a junior mortgagee, to the lien of plaintiff’s mortgage, defendants Theodore G. Peck and Gordon H. Peck appeal.

Affirmed.

Argued before DYKMAN, PRATT, and CULLEN, JJ.

Alonzo Wheeler (William W. Green, of counsel), for appellants.

Irving Brown, for respondent.

This action was commenced to foreclose a mortgage, and the defendant J. Harsen Halsted was made a party, as the holder of a mortgage subsequent to the one in suit, covering the interest of one of the common owners of the premises. After the entry of judgment in the action, the defendant Halsted made a motion at special term for leave to pay off the mortgage in suit, and to compel an assignment thereof to him. The motion was granted, and two of the other defendants in the action have appealed from the order. The appeal by the defendants is quite indicative of ulterior designs, because it is quite difficult to see how the appealing defendants can be injuriously affected by the order. Aside from that view, however, the order is plainly just and beneficial, and based upon right, reason, and sound principle. The doctrine of subrogation has its best illustration and most frequent application where a person sustaining the relation of a surety, or who is secondarily liable for the payment of a debt, advances money for its payment. But the doctrine is also applicable where a person is compelled to pay a debt or discharge an obligation to protect his own rights.

The defendant Halsted falls under the latter rule, and his motion was properly granted. Twombly v. Cassidy, 82 N. Y. 155 , and cases there cited. The order should be affirmed, with $10 costs and disbursements.

CULLEN, J., concurs.

CULLEN, J. This is an appeal by Theodore G. Peck and others, defendants, from an order made by the special term directing the plaintiff to assign to J. Harsen Halsted, álso a defendant, the bond

p. 414

and mortgage the subject of the judgment of foreclosure made in this action. The appellants have.no standing to object to the order, so far as it directed an assignment of the bond and mortgage and the judgment thereon. The plaintiff does not appeal. As she could have assigned the mortgage and judgment without the order of the court, and without the' consent and against the wishes of the appellants, the appellants cannot assert her rights on this appeal. The appellants can have but one cause of complaint, and that is that the court did not order them to be subrogated to the rights of the plaintiff instead of the defendant Halsted. The question as to which of the parties should obtain the subrogation depended, not only on the situation of the parties, but also on their respective intents or purposes in acquiring the judgment. The appellants are part owners of the mortgaged premises, and judgment creditors of another part owner, John Peck. Halsted is the holder of a mortgage on John Peck’s interest subsequent to the lien of the appellants’ judgment, and is the husband of another part owner. The mortgaged. premises are a part of a large tract of land owned by the defendants as tenants in common, for the partition of which an action is now pending. Halsted asked for the subrogation, that he might prevent a sale under foreclosure, and it was awarded him on condition that he should "not sell, but await the judgment in the partition suit. The appellants sought subrogation, that they might force a present sale. The claim is made on their part that they are prepared to bid on the property, and that by a sale under foreclosure they can collect their judgment out of the share of John Peck in the surplus moneys more readily and advantageously than by sale on execution. We are at a loss to discover any equity in this claim. Judgments of foreclosure are granted to enforce payment of the mortgages foreclosed. They are solely for the benefit of the plaintiff, not for that of the defendant. The statute prescribes the rights and remedies of judgment creditors, and such creditors have no claim to other or more desirable remedies than the statute and the law give. The right of tenants in common is to have their shares set off, or the land sold in a partition suit; that of judgment creditors is to an execution sale. Neither have any right or equity to have a prior general mortgage foreclosed because it may be deemed more convenient to deal with the surplus moneys arising on the sale than with the land itself. The order appealed from should be affirmed, with $10 costs and disbursements.

DYKMAN and PEATT, JJ., concur.

Cases cited

Twombly v. Cassidy 82 N. Y. 155 N.Y. 1880-09-28 p. 413