Jacobie v. Mickle — 53 N.Y. St. Rep. 620

Majority

p. 620

Clara M. Jacobie, App’lt, v. Henry Mickle, Impl’d, Resp’t.

(Supreme Court, General Term, Third Department,

Filed July 8, 1893.)

Headnote

1. Foreclosure — Action on first mortgage unnecessary where'.

HOLDER WAS MADE A PARTY AND HIS RIGHTS PROTECTED ON FORECLOSURE OF SECOND MORTGAGE.

Plaintiff held a fifst mortgage on certain premises. She was made a. party to the foreclosure of the second mortgage, in which a sale was> directed and her mortgage directed to he first paid out of the proceeds. Pending said action she commenced this action to foreclose her mortgage. Held, that she was hound hy the judgment in the other action, and that her complaint was properly dismissed.

2. Appeal—Court bound by the facts appearing in the case.

The appellate court is compelled to decide the questions submitted to it. on the facts appearing in the printed case.

Appeal from judgment dismissing the complaint on the-merits.

This action was brought in September, 1891, to foreclose a> mortgage upon real estate in Warren county.

The defendant, Guilford, has a second mortgage upon the same-premises, and he brought an action in this court in July, 1891,. prior to the commencement of this action, to foreclose his mortgage, making the plaintiff in this action a party defendant. The complaint contained an allegation that the defendant, Jacobie, was the owner and holder of a prior mortgage to that of plaintiff therein upon the premises, which was past due, giving in detail date, record, etc.

A decree was asked for the sale of the mortgaged premises free-from the lien of plaintiff’s and defendant Jacobie’s mortgage, and that defendant Jacobie’s mortgage be first paid out of the proceeds of the sale of the mortgaged premises.

Tlie defendant, Jacobie, did not answer or demur to the complaint, and as to said defendant the bill was taken as confessed. After the issues joined by the answer of the defendant, Crandallr had been tried, an order of reference was duly made by Mr. Justice Stover upon the application of the plaintiff (Guilford) in said action to ascertain and report the amount due upon the defendant, Jacobie’s, mortgage (being the mortgage in suit in this action.)

Evidence was given upon said reference by said Jacobie, and also by Guilford, the .plaintiff therein, and a report was duly made, from which it appeared that there was due thereon $1,203.85, July 7, 1892.

Upon said report and the report upon the trial of the issues, and upon plaintiff’s application in said action, judgment was duly granted for the sale of the premises in question and for the payment first of the mortgage of Jacobie, and then of Guilford’s mortgage, and the usual provision in said decree which forever barred and foreclosed the rights and interests of all the parties to said action. This decree was granted by Mr. Justice Stover at his special term, in July, 1892.

The defense in this action is, first, the pendency of the former

p. 621

action; and second, the decree granted therein in July, 1892) which is pleaded by a supplemental answer as res adjudícala.

The amount due is conceded to be $1,203.85.

King & Ashley (H. Prior King, of counsel), for app’lt; J. H. Bain, for resp’t.

We think the court below reached a correct conclusion. In the foreclosure action brought by Samuel T. Guilford .against the plaintiff and others on the second bond and mortgage, plaintiff was made a party defendant, and did not answer or demur, and judgment in the action was regularly and properly entered for the sale of the mortgaged premises and for the payment of plaintiff’s bond and mortgage out of the first proceeds.

We think, under the circumstances, plaintiff being a party to that action, and not having answered or demurred, is bound by the judgment. See Guilford v. Jacobie, 52 St. Rep., 837 -838.

It would seem almost absurd to allow the plaintiff to obtain another judgment for the sale of the mortgaged premises.

It is suggested that the “ Guilford ” j udgment has been reversed. But we are compelled to decide the question submitted to us on this appeal on the facts appearing in the printed case. The fact of the reversal of said judgment does not appear in the case, and did not appear on the trial in the court below.

The proper remedy for the plaintiff, under the circumstances, is probably by motion in the court below. Parkhurst v. Berdell, 110 N. Y., 392 ; 18 St. Rep., 193 .

The judgment should be affirmed, with costs.

Mayham, P. J., Putnam and Herrick, JJ., concur.