Casserly v. Witherbee

permanent receiver of that company; that he duly qualified and was then acting as such; that the defendants were co-partners in business, and during the year 1886 the iron company became indebted to them in the sum of $17,086.84; that on the 10th day of August in that year it executed to them chattel mortgages-on “all buildings, machinery, erections, tools, fixtures and appliances, hoisting engine and all machinery and apparatus connected therewith, placed by it upon the premises known as the Cedar Point Furnace, and land adjacent, together with all scraps of iron owned by it, and in its possession at Port Henry, New York; ” that, the mortgages by their terms and conditions became due and payable on or before the 1st day of January, 1887 ; and the amount-secured by them not having been paid, on the 10th day of January, 1887, the defendants took actual possession of the property described in them, and thereafter caused a sale to be made thereof at auction at which they bid in the same for the sum of $1,000; that-the sale was irregularly made and unfairly conducted, and no portion of the property was visible, in sight or in view of the person or persons attending the sale; that all the property was put up for sale in a lump and sold together at the request of the defendants, although they well knew that the property could be sold separately and greater sums realized therefor if sold in parcels; that none of the officers of the corporation were present at the sale; that ever since the property was taken by defendants they have claimed to' be the legal owners thereof, and still hold and retain the same, except that since the sale they have sold some portion thereof, realizing from such sale between the sum of ten and fifteen thousand dollars; that at the time the property was taken by defendants- and sold the value of the same was about $60,000, and the indebtedness due to the defendants from the corporation on the mortgages did not exceed the sum of $20,000; that the defendants claim to be creditors of the company for the balance of the indebtedness secured by the mortgages after deducting the sum of $1,000, amounting to $18,281.59, with interest from August 10, 1886. And the prayer for judgment is as follows: “ Wherefore, by reason of the premises, the plaintiff demands the judgment and decree of this court, that said defendants account to the plaintiff herein for the true and full value of the- property so taken and sold by them at the time the same was so taken, retained and sold as hereinbefore stated, and that the value thereof so to be ascertained be applied in payment and extinguishment of the debt secured by said mortgages referred to, and that plaintiff herein have judgment against said defendants for the balance, together with such other and further relief in the premises as may be just and equitable, with the costs and disbursements of this action.”

The defendants demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The judge at special term sustained the demurrer on the ground, as appears from his opinion, that the plaintiff should have alleged in the complaint a tender of the amount confessedly due and unpaid upon the mortgages; and the judgment of the special term was sustained by the general term, as appears from its opinion, because the

plaintiff omitted to show “ either a tender of the amount conceded to be due to the defendants, or an offer to pay that amount upon its being ascertained and established at the trial.”

The plaintiff, as receiver of the iron company, occupies its place in this action, and has the same right to maintain the action that it'would have had if no receiver had been appointed. After default in the payment of the mortgages, at law, the title of the defendants became absolute, and they were the general owners of the property mortgaged. Thereafter the mortgagor could maintain no action whatever at law against them. All that remained to it was a right of redemption, which could only be enforced in an equitable action. Charter v. Stevens, 3 Denio, 33 ; Stoddard v. Denison, 38 How. Pr., 296 ; Bragelman v. Daue, 69 N. Y., 69 . The fact that upon the sale by the defendants under the mortgages they became the purchasers, does not of itself render the sale void. Olcott v. Tioga R. R. Co., 27 N. Y., 546 ; Edmiston v. Brucker, 40 Hun, 256 ; King v. Walbridge, 48 id., 470 ; 16 N. Y. State Rep., 314; Elliott v. Wood, 45 N. Y., 71 ; Hall v. Ditson, 5 Abb. N. C., 198 . But the other facts alleged in the complaint show that the sale was void, or if not void that it was certainly voidable; and it could be vacated and set aside, if necessary, as part of the relief in this action. A sale in bulk for $1,000 of property worth $60,000, consisting of a large number of articles, when the property was hot present or visible to the persons attending the sale, in the absence of any of the officers of the mortgagor, could not stand either in a court of law or of equity for one moment. Therefore, after that sale the defendants still remained in possession of the property as before, and the mortgagor’s right of redemption was not cut off thereby. The defendants subsequently sold between $10,000 and $15,000 of the property, as we must infer, at private sale. That sale was valid, if fairly made. Chamberlain v. Martin, 43 Barb., 607 ; Ballou v. Cunningham, 60 id., 425 ; Coe v. Cassidy, 72 N. Y., 133 . The amount received upon the sale of such property was applicable, and must be deemed to have been applied upon the mortgages, and the balanc,e of the property remained in their hands as security for the balance due upon the mortgages. The defendants, upon any facts alleged in the complaint, could not be compelled to take that at a valuation, and the only right of the plaintiff in reference thereto was a right of redemption upon paying the balance due upon the mortgages. Bragelman v. Daye, supra.

The facts alleged in the complaint are sufficient to show in the plaintiff a right of redemption from the mortgages, and this action should be treated as one to redeem; and in it the plaintiff may have such incidental relief as is necessary to accomplish the redemption. He may have an accounting so as to determine the amount due upon the mortgages and judgment (giving him the right to redeem upon payment of that amount.

As a condition to his right to maintain this action it was not necessary for the plaintiff, before the commencement thereof, to tender or offer to pay the balance due upon the mortgages. Nor was it necessary for him to offer in his complaint to pay the

amount which should be found due. There are, undoubtedly, authorities laying down the rule, in general terms, that before an action to redeem from a mortgage can be maintained, the mortgagor must either tender the amount due upon the mortgage, or offer to pay the amount due in his complaint. But it has never been so decided in this court, and we think it is now the settled law in this state, under our present system of pleadings, that the-allegation of such a tender or offer is unnecessary. It certainly is not necessary to allege that a tender or offer to pay the amount due upon the mortgage was made before the commencement of the action, and an offer in the complaint is, at most, a technical matter, serving no substantial purpose ; because in the judgment-given in such' action the court always provides that redemption can only be had upon payment of the amount found due. The tender and offer are import ant only as they have bearing upon the question of costs. The mortgagor’s right of redemption is not dependent upon his offer or tender of payment. It exists independently thereof, and antecedently thereto. The tender or offer is not needed to put the mortgagee in default, and if made no-relief can be based thereon, as the rights of the parties are not changed thereby, and independently thereof are always taken care of and regulated in the judgment. Payment upon redemption and as a condition of redemption, can be enforced in the action, and a dismissal of the complaint in such an action, on default of payment under the judgment, as a condition of redemption, operates as a foreclosure. Bishop of Winchester v. Paine, 11 Vesey, 194.

In Quin v. Brittain, Hoffman’s Ch., 358, it was held that it was not essential in a bill to redeem to offer to pay the amount due upon the mortgages; that in such a suit there is no decree for payment, but the bill is dismissed in default of payment, and then the decree becomes equivalent to a foreclosure. The learned vice chancellor in that case said: “Itis objected that there is not-in the bill an offer to pay the amount due. I do not find in the precedents that such an offer is distinctly made. The form is,, that upon payment of what, if anything, shall be found due in respect to principal and interest, the mortgagee may be decreed to deliver possession. Neither can it be essential, because no decree is ever made upon such a bill for the payment of the amount personally. If the amount found due is not paid, there is a decree of dismission with costs, which is equivalent, to a decree for foreclosure.” In Beach v. Cooke, 28 N. Y., 508 , it was held that in an action to redeem from a mortgage it was not necessary that the complaint should contain an express general offer to pay any balance which might be found due. Sel den, J., writing the opinion of the court said: “ There is no express general offer to pay any balance which might be found due, but it was held under’ the former system of pleading that such an offer in a bill to redeem was not necessary, and it is certainly not indispensable now. * * The case, therefore, was in form one in which it was proper to allow the plaintiff to redeem, and I can discover nothing in his position to render such redemption unjust or inequitable. * * * If he'fails to redeem within the time appointed

the dismissal of his complaint as the consequence of such failure operates as a foreclosure of the mortgage.” See, also, Miner v. Beekman, 11 Abb., N. S., 147, 160.

We -are, therefore, of opinion that this complaint, with its prayer for general and specific relief, was sufficient for an action to redeem from the mortgages, and that, therefore, the judgments of the special term and of the general term were wrong, and should be reversed, and the plaintiff should have judgment upon the demurrer, with costs in all the courts, unless the defendant shall within thirty days from the filing of the remittitur in the court below pay the costs subsequent to the service of the demurrer, -and interpose an answer to the complaint.

All concur.