
    Lewis A. Dumond, Appellant, v. Henrietta Church and Others, Respondents, Impleaded with Charles L. Baker.
    
      Foreclosure—prior adverse claimants cannot he made-parlies defendant thereto — a sheriff’s deed relates back to the date of the sale — mortgage recorded ten years after a sheriff’s sale and before the sheriff’s deed is executed or recorded, how far protected by the Recording Act. ■
    
    In an action brought to. foreclose a mortgage one who claims adversely to the mortgagor and mortgagee, "and whose claim arose prior to the mortgage,, cannot properly be made a party defendant for the purpose of trying the validity of such adverse claim or title.
    A conveyance by a sheriff of real estate sold under execution, no matter how long it may have been executed after the time to redeem therefrom, relates back to the sheriff’s sale.
    In an action brought to foreclose a bond and mortgage executed in 1874 by Ferdinanda Baker to Merritte A. Baker and assigned to the plaintiff, ¡Henrietta Church and the defendants. Spotholds,. who were .tenants of Henrietta Church, were made parties defendant. They answered, admitting that they claimed ■ an interest, but denied that it accrued after the execution of the mortgage, and upon, the trial it appeared that Henrietta Church claimed title under a judgment recovered in 1855 by Stephen Van Bensselaer against David Baker, ■ ’ the party under whom the mortgagor claimed, under which judgment the" sheriff- sold the premises in question in 1865 "to James Itidd and Peter Cagger, , the .certificate of sale being recorded February 6, 1865, and subsequently . passing to ■ Walter S. Church, who in 1885, received a sheriff’s deed, executed in pursuance of' such sale. Under his will Henrietta Church claimed title to ■the premises., •
    
      Held, that the complaint was properly dismissed as to the defendant Henrietta" Church and her tenants, the Spotholds;
    
      That the sheriff’s deed to Walter S. Church related back to the sheriff’s sale had in 1865, which was nine years before the mortgage in question was given;
    That the. plaintiff could not make Henrietta Church and the Spotholds parties ' defendant in this action for the foreclosure of- his mortgage, and compel them to try in this action the validity of their adverse claims;
    That the question whether the fact that the plaintiff’s mortgage was executed . over ten years after the recording of the sheriff’s certificate of sale, and long prior to the execution of the sheriff’s deed to Walter S. Church, made that deed void under the Recording Act as to the mortgagee, could not be tried in this action.
    Appeal by the plaintiff, Lewis A. Dmnond, from a judgment of the Supreme Court in favor of,the defendants, Henrietta Church and others, entered in the office of the clerk of the county of Albany on the 12th day of December, 1894, upon the report of a referee.
    
      W. & G. W. Youmans, for the appellant.
    
      Marcus T. Hun, for the respondents.
   Putnam, J.:

The plaintiff brought this action for the foreclosure of a bond and .mortgage executed on the 6th day of August, 1874, by one Ferdinanda Baker to Merritte A. Baker, assigned to him on January 3, 1876, making the defendants Charles Spotholds, Mrs. Charles Spotholds and Henrietta Church defendants, as parties who had or claimed to have some interest in the mortgaged premises, which accrued subsequently to the lien of the mortgage. The defendants in their answer admitted that they claimed an interest in the premises in question, but denied that it accrued subsequently to the execution of the said mortgage.

Among his conclusions of fact the referee found “ That the evidence fails to establish that prior to or at the time of the commencement of this action either the defendant Charles Spotholds, or Mrs. Charles Spotholds, or Henrietta Church had or claimed to have any interest in or lien upon said mortgaged premises, or any part thereof, which had accrued subsequently to the lien of said mortgage,” and he directed a judgment in favor of said defendants dismissing the complaint, from which the plaintiff has appealed.

If the above finding of the referee was supported by the evidence, the judgment directed in favor of the defendants cannot be disturbed. (Eagle Fire Co. v. Lent, 6 Paige, 635; Corning v. Smith, 6 N. Y. 82, and cases cited; Holcomb v. Holcomb, 2 Barb. 20; Fifth Avenue Bank of Brooklyn v. Cudlipp et al., 1 App. Div. 524, and cases there cited.)

These authorities hold that in an action to foreclose a mortgage, one who claims adversely to the mortgagor and mortgagee and prior to the mortgage, cannot properly, be made a party defendant for the purpose of trying the validity of such adverse claim or title.

In Ruyter v. Reid (121 N. Y. 498) it was shown that the title under which the defendant claimed was under conveyances subsequent to the execution of the mortgage.

In this case it appeared that the bond and mortgage set out in the complaint were executed on the 6th day of August, 1874. Thé defendants Spotholds were tenants of Henrietta Church. Her claim of title was. under a judgment obtained on the 1st day of February, 1855, in favor of one Stephen Van Rensselaer, against David Baker, then the owner, of the premises in question, and under whom the party who executed the mortgage sought to be foreclosed claimed title. Under the judgment aforesaid the said premises were sold by the sheriff of Albany county on January 30, 1865, to JamesIiidd and Peter Cagger, the certificate of sale being recorded in the clerk’s office of Albany county on February 6, 1865. A deed was-thereafter, in December, 1885, executed to Walter S. Church, deceased, who had succeeded to the rights of said Kidd and Cagger in said premises, by Lemuel M. Rodgers as' under sheriff of said county.. The defendant Henrietta Church claimed an interest in said premises under said judgment, sheriff’s certificate of sale, deed' from the under sheriff and a devise in the will of said Walter S. Church.

The referee found That at the time, of the Commencement of this action the defendants Charles Spotholds, Mrs. Charles Spot-holds and Henrietta Church claimed an. interest in said premises under and by virtue of 'saidx judgment, the sale and conveyance thereunder, and the devise contained in, the will of said Walter S. Church.” ' .

It is an established principle that a conveyance by a sheriff of real estate sold under exécution, no matter how long it is executed after the time to redeem, relates back to that period. (Reynolds v. Darl ing, 42 Barb. 418; Cook v. Travis, 20 N. Y. 400-402; Holman v. Holman, 66 Barb. 215-220; Wright v. Douglass, 2 N. Y. 373.)

As the sheriff’s deed to Walter S. Church executed in December, 1885, under which the defendant Church claimed related back to the sheriff’s sale, and was under the statute valid and effectual to convey all the right, title and interest which was sold by him on the 30th day of January, 1865, we are of the opinion that the findings of fact by the referee above set out were not erroneous. The defendants’ claim was under a title which accrued in 1865 on the execution and filing of the sheriff’s certificate of sale, about nine years before the execution of the mortgage in question.

But the plaintiff insists that a§ his mortgage was executed in 1874, over ten years after the recording of said certificate of sale, and long prior to the execution of the sheriff’s deed to Walter S. Church, such deed was void as to the mortgagee (Reynolds v. Darling; Cook v. Travis, supra), and he insists that in this action "brought to foreclose said bond and mortgage, the question of the validity of the defendants’ claim of title under the aforesaid deed and certificate of sale could be adjudicated and passed upon.

We think this contention of the plaintiff cannot be sustained. As held in the authorities above cited, and as said by Habéis, J., in Holcomb v. Holcomb (supra, 23), The mortgagee in filing a bill of foreclosure has no right to make one who claims adversely to the title of the mortgagee and. prior to the mortgage, a defendant in the suit for the purpose of contesting the validity of such adverse claim of title.” The question of the validity of the defendants’ claim was not before the referee and cannot be passed upon by this court. The only matter to be determined in the action was, whether the interest which the defendants had or claimed to have in the mortgaged premises accrued before or subsequent to the lien of the mortgage.

Under doctrines laid down in Reynolds v. Darling and Cook v. Travis (supra), if the bond and mortgage in question were taken by the mortgagee in good faith, for value, and without notice of the previous sheriff’s sale of the mortgaged premises to Kidd and Cagger, it may be that the title of the plaintiff under the mortgage to the premises in question is superior to that of the defendants therein under the sheriff’s deed and certificate -of sale, but, as above suggested, and as-held by the authorities above referred to., the referee was not authorized in. the action to try and pass- upon the question of the validity of the defendant Church’s adverse claim of title..

The judgment should be affirmed, with costs.

All concurred.

Judgment affirmed, with' costs.  