Smack v. Duncan — 4 Sarat. Ch. Sent. 621

Majority

p. 621

Smack v. Duncan, Ely, and others. Bowden v. The Same. Van Amlen v. The Same.

June 12th, 1847.

Headnote

It is proper for a junior mortgagee, made a defendant in a foreclosure suit, to appear in the suit, so as to protect his rights.

Where a junior mortgagee, appeared in three suits brought to foreclose three separate prior mortgages on distinct parts of the . lands mortgaged to him, and after a sale there was a surplus in each suit, and in one of them the surplus was sufficient to pay the junior mortgagee’s debt, and his cost in that suit; held, that he could not be compelled to take up with the costs in that suit alone, but was entitled to his costs of appearing in each of the suits, to be paid out of the surplus therein.

These were separate foreclosure suits, the complainant’s mortgage in each, being upon a single house and lot. The defendant, N. C. Ely, had a single junior mortgage, embracing all three houses and lots. He entered his appearance in each suit, and his solicitor attended the references and sales in each. The reference, and the sale in each case, were conducted by different masters;. The decrees were in the usual form, not mentioning any of the junior liens. There was a surplus in each suit, after paying the complainant’s debt and costs. The surplus in Van Amlen’s suit had been paid into court, and it was more than sufficient to pay Ely’s debt and his costs in that suit. The surplus in the other cases, had not been paid in. There were liens on all the lots, junior to Ely. In Van Amlen’s suit, Ely claimed the surplus, and entered the usual order of reference. The reports of the sales were ready to be filed in the other two cases. In this stage of the matter, Duncan, the mortgagor, offered to pay to Ely, his debt and such costs as he was entitled to; insisting, that he was entitled to costs in Van Amlen’s suit only. The question was, by consent, brought before the court for direction, as upon a special motion.

H. L. Riker, for Ely.

p. 622

B. F. Sherman, for Duncan.

said it was proper for the junior mortgagee to appear, so as to watch the proceedings and protect his rights. This is established by The Merchants Insurance Co. v. Marvin, 1 Paige, 557. Having appeared properly, the suits could not be discontinued, without paying him his taxable costs. In The Mutual Safety Ins Co. v. St. Peter's Church, (14th April, 1845,) the defendants, paid the interest and costs, due the complainants, after which the latter moved for leave to dismiss the suit; but the late vice-chancellor would not permit it, except upon payment of the costs of all the defendants who had appeared.

In this case, Duncan’s tender is equivalent to an attempt to dismiss the two suits as to Ely, the second mortgagee; and that can be done only on payment of his costs. He is entitled to re*quire the surplus to be paid into court, and to have a reference in each suit, in order to protect himself in respect of his debt and costs ; and he can be deprived of that right only by full payment of both. The justice of the matter is with him, and I think the law also. He must be paid his necessary taxable costs in each suit.