Vandercook v. Cohoes Savings Institution

Headnote

Sale under decrree of foreclosure — when action cam, he lyrought to set aside- — when set aside on motion — right of subsequent• mortgagee to dema/nd an assignment of a prior mortgage.

An action may be brougnt to set aside a sale made under a decree of foreclosure, when tbe sale has been fraudulently conducted to the prejudice of a party interested in the property, even though such party may have a concurrent remedy by motion. But where the proceedings are entirely regular and free from fraud, and the party is entitled to relief on some mere equity, his remedy is by motion in the action in which the proceedings were had, and not by action. (MaOotter v. Jag, 30 ÍT. Y., 80; Gould v. Mortimer, 26 How., 167 ; Smith v. The Am. Life Ins. Go., Clarke’s Ch. Cas., 307.)

A party to an action brought to foreclose a mortgage, who desires to have the mortgaged premises sold in a particular order, should have a clause to that effect inserted in the decree; or, after the entry thereof, he should move for an order directing the referee as to the order in which the premises are to be sold; or he may, after the sale, move to set the same aside, in case the referee shall have disregarded any proper request made to him at the time thereof.

To enable a subsequent mortgagee to compel the assignment to himself of a prior mortgage, there must be some equitable reason for it, and the mere fact that he is a subsequent mortgagee does not constitute such equitable reason. (Blls-worth v. Loalawood, 42 ÍT. Y., 89.)

Appeal from an order denying a motion to dissolve a temporary injunction granted in this action, which was brought to set aside a sale of certain premises, under a decree of foreclosure, and to restrain all proceedings thereunder.