Mygatt v. Somerville — 54 N.Y. St. Rep. 269

Majority

p. 269

Sarah Mygatt et al., Trustees, Pl’ffs, v. Lowry Somerville et al., Defts.

(Supreme Court, Special Term, Kings County,

Filed February 20, 1893.)

Headnote

Foreclosure—Judgment not more favorable than the relief demanded IN THE COMPLAINT.

Where the complaint in an action of foreclosure prays that the premises be sold according to law and the mortgagor and his wife, and all persons claiming under them subsequent to the commencement of the action, be barred and foreclosed, and the owner of the equity of redemption is made a party but does not appear or answer, a decree against all the defendants is not more favorable to plaintiff than the relief demanded, as the owner of the equity of redemption is clearly baned under the provisions of 3 R. S., 6th ed., 199, § 102, and § 1632 of the Code.

Motion to compel purchaser at foreclosure sale to complete purchase.

The purchaser objected to the title tendered by the sheriff upon the ground that two judgments of foreclosure rendered in 1873 and 1876, through which the title to the property was derived, were in each case as against the owner of the equity of redemption more favorable to the plaintiffs than the relief demanded in the complaint, inasmuch as the complaints in those actions both prayed that the mortgagor and wife, and all persons claiming under them or either of them subsequent to the commencement of the action, might be' barred and foreclosed; and should properly have demanded that all the defendants, and those claiming under them, be barred- and foreclosed. The mortgagor, with his wife, had conveyed the premises prior to the commencement of the foreclosure, and the owners of the equity failed to appear or answer.

The owners of the equity of redemption were in each case parties. Objection based on Old Code, § 275.

Edward E. Sprague, for pl’ffs ; Wm. H. E. Jay, for purchaser.

I think the title in this case is good. The foreclosure suit was certainly effectual so far as the sale was concerned. The complaint prayed that the premises might be decreed to be sold according to law. The owner of the equity of redemption was a party to the suit, and hence it seems to me was clearly barred under the provisions of the Revised Statutes (now substantially reproduced in § 1632 of the Code), which declared that “ such deeds shall be as valid as if the same were executed by the mortgagor and mortgagee, and shall be an entire bar against each of them and against all parties to the suit in which the decree for such sale was made, and against their heirs respectively, and all claiming under such heirs.” 3 R. S. (6th ed.), 199, § 102.

This provision and its effect seem to have been overlooked in the case of Bradley v. Murray, upon which the defendants chiefly rely.

Motion granted, without costs.

p. 270

The opinion in Bradley v. Murray, referred to above, is as follows:

the action was for the foreclosure of a mortgage, and the prayer of the complaint was that the defendant, Ellen Murray, and all persons claiming under her subsequent to the commencement of this action, may be barred and foreclosed, etc. The case went by default, and in the judgment it was provided “ that the defendants, and all persons claiming under them, or any or either of them, after the filing of such notice of pendency of this action, be forever barred and foreclosed,” etc. The purchaser objects to take title because, as the complaint did not ask or demand that any one other than Ellen Murray, and those claiming under her, should be barred, etc., the judgment was more favorable to the plaintiff than that demanded in the complaint. In this contention I think that counsel for the purchaser is right. See Code, § 1207. In Simonson v. Blake, 12 Abb. Pr., 331 , the action was for the foreclosure of a mortgage. Ho answer was put in, and, although there was no demand to that effect in the complaint, a judgment was granted for a deficiency. It was held by the court that such judgment was not merely irregular, but was void or voidable, and unauthorized. To the same effect is the decision of the general term of the second department in Andrews v. Monilaws, 8 Hun, 65 . See, also, Grant v. Van Dercook, 8 Abb., N. S., 455.

Motion granted, with costs.