Mygatt v. Coe — 8 N.Y. St. Rep. 434

Majority

p. 434

Sarah M. Mygatt et al., Resp’ts, v. George S. Coe, App’lt.

(Supreme Court, General Term, First Department,

Filed March 31, 1887.)

Headnote

Mortgage — Foreclosure — What title vests under foreclosure deed.

The effect of a foreclosure deed is to vest the purchaser with the entire interest and estate of the mortgagor and mortgagee as it existed at the date of the mortgage. In other words, the same estate passes which the mortgagor could have conveyed at the time of giving the mortgage. Fol lowing Christ Church v. Mack, 93 N. Y., 488 .

Appeal from a judgment in favor of the plaintiffs.

In April, 1867, Almira S. Coe and the defendant George S. Coe, her husband, being in possession thereof, conveyed certain premises by deed with covenants of warranty to one Nancy Fisher, and delivered possession thereof to her.

In December, 1869, Nancy Fisher being in possession of the said premises, mortgaged the same to the plaintiffs to secure the payment of $15,000. .

Nancy Fisher subsequently conveyed said premises to one Fuller, and in 1874 said Fuller conveyed the same to one Leavitt.

In 1878 an action of ejectment was brought by the heirs of one Howell against said Leavitt, who was then in pos

p. 435

session, in which action judgment of possession was rendered for the plaintiffs upon the ground that the plaintiffs therein had a title paramount to that conveyed by the Coes to Nancy Fisher, and possession was given to said plaintiffs.

In December, 1878, the present plaintiffs commenced an action to foreclose the mortgage given to them by Nancy Fisher, and such proceedings were had therein that judgment of foreclosure and sale was entered on the 5th of June, 1879, and on the 14th day of August, 1879, the said premises were sold, and the plaintiffs became purchasers thereof and received the sheriff’s deed therefor.

Thereupon this action was commenced against the defendant, Almira S. Coe having died, to recover damages for breach of warranty contained in deed from the Coes to Nancy Fisher.

Judgment having been entered for plaintiffs, from that judgment, this appeal is taken.

Wm. S. Cogswell, for app’lt; Sidney S. Morris, for resp’ts.

The whole argument of the appellant seems to be based upon an erroneous view of the effect of the mortgage and foreclosure and sale thereunder to the plaintiffs.

His argument demonstrates that the plaintiffs by virtue of their mortgage alone could claim no title in the land, and that a mortgagee holds simply a chose in action secured by a lien upon the land, and that the mortgagor is for all practical purposes invested with the title.

But the change effected by a foreclosure and sale under the mortgage seems to have been entirely overlooked.

In the case of Christ Church v. Mack ( 93 N. Y., 488 ), the court of appeals decided that the effect of a foreclosure deed is to vest the purchaser with the entire interest and estate of mortgagor and mortgagee as it existed at the date of the mortgage.

In other words, the same estate" passes which the mortgagor could have conveyed by. deed at the time of giving the mortgage.

The case cited turned upon this question, and the point was distinctly and squarely presented and decided.

If this is the law, then the plaintiffs by the sheriff’s deed acquired the same rights as though Nancy Fisher had conveyed the premises in question to the plaintiffs at the time of the giving of the mortgage, and it is not disputed that if she had done this, the plaintiffs could have maintained this action.

The claim that the only damages which the plaintiffs

p. 436

.could recover would be the amount paid for the sheriff’s deed, is not tenable.

They succeeded to Nancy Fisher’s rights, and it might well be claimed that they had a right to recover the whole consideration mentioned in the deed to her.

The judgment appealed from must be affirmed, with costs.

Bartlett and Lawrence, JJ., concur.