Dime Savings Bank v. Crook

Headnote

JPoreclosure — in an action of foreclosure the mortgagor cannot set' up as a defense a defect in Ms title.

Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.

The court at General Term said : “ The defendant Frank Crook, with his father, executed and delivered to the plaintiff their bond for $30,000, and Frank Crook at the same time executed to the plaintiff a mortgage on real property to secure the payment of the bond. This action is brought to foreclose the mortgage, and Frank Crook defends on the ground that his title was defective at the time of its execution. The plaintiff is a Iona fide mortgagee and there is no allegation of fraud on the defendant. The only relief sought against the defendant is the foreclosure of his interest in the premises and the recovery for deficiency on his bond.

“ The action is inappropriate to the settlement of. a disputed title, and there is no reason why the court should entertain a question concerning the legal title to the mortgaged premises. The purchaser under the judgment will acquire what interest the appellant had in the premises whatever that was. Such title, which was before defeasible, will then become absolute; if there be dispute respecting its nature and extent, that must be adjudicated in some proceeding in which the pleadings and proceedings are adapted to that purpose.

“ Without examination or determination of the extent or sufficiency of the power vested in the father of the defendant, we affirm the judgment on the point already examined.”