
    Robinson v. Ryan et al.
    
    The purchaser at a mortgage sale under an attempted statutory foreclosure, void as against the mortgagor for want of notice, stands as an assignee of the mortgage.
    
      It seems that this is sufficient evidence of his title, in a foreclosure suit by such assignee to which the mortgagee is not a party, as against a grantee of the land, subject to the mortgage.
    The land was subject to re-entry for non-payment of rent due on a lease in fee. The mortgagee had covenanted with the mortgagor to pay such rent to the landlord; but the mortgagor, by a subsequent agreement with the mortgagee, assumed the payment of such rent: Held, that, as against a grantee with notice of the agreement, the assignee of the mortgage was entitled to pay the rent to protect his interest; to taclc the amount, to his mortgage, and to foreclose as for a sum immediately payable, though no part of the principal was due on the mortgage.
    Appeal from the Supreme Court. Action to foreclose a mortgage upon a farm in Berne, Albany county, made by Catharine D. Ryan and Peter D. Ryan to Horace Wyman and John D. Livingston, November 27, 1852, for $1,850, payable in five years, with interest annually, part of the purchase money of the mortgaged premises conveyed the same day by the mortgagees to Catharine D. Ryan, who was the wife of Peter D. Ryan.
    The complaint alleges an assignment of the mortgage by the mortgagees to one Hornblower, and - an assignment by Hornblower to the plaintiffs; that $94.50 for interest due 27th ¡November, 1853, was unpaid, and further alleges that the premises were conveyed to Catherine D. Ryan, subject to the rents, covenants and conditions of a lease in fee of the same from Stephen Van Rensselaer to John Oliver, Jr., the annual rent reserved in which lease was twenty-two and a half bushels wheat, four fowls and one day’s riding; that the lease contained a clause or condition giving- a right of re-entry for non payment of the rent; that on the 1st day of January, 1853, there was due to the successor of the lessor, for rents up to that day, and interest thereon, $359.49, which the plaintiff, for his own security, was compelled to pay, and did pay; which sum, in addition to the amount due on the mortgage, the plaintiff claimed should be paid out of the moneys arising from the sale of the mortgaged premises asked for.
    The joint and several answer of the defendants, by a general denial, first puts in issue the fact of the assignment of the mortgage to the plaintiff by Hornblower, and subsequently admits that there was due on the mortgage, when the action was commenced, $94.50, for interest, and avérs a tender of that amount to the plaintiff on the 6th ¡November, 1854, and an offer to pay the costs of the action up to that time. The answer also alleges that Wyman and Livingston expressly covenanted with Catharine D. Ryan to pay all rents due under the lease, and denies the right of the plaintiff to tack the rents alleged to have been paid by him upon “his aforesaid mortgage, and have a decree of foreclosure for the amount thereof.” The answer also alleges that the defendant ¡Nichols is the owner . of the premises in fee, and became the purchaser thereof on the 27th day of October, 1854, subject only to the mortgage mentioned in the complaint. The defendant Lawson disclaims any-interest in the premises, as subsequent incumbrancer or otherwise, and says he conveyed all his interest therein to the defendant Nichols, on the 2'7th day of October, 1854.
    At the trial, at the Albany Circuit, in March, 1856, before Mr. Justice Harris, the plaintiff produced the mortgage and proved its execution, and an assignment thereof by the mortgagees to Hornblower, dated December 14, 1853. The plaintiff proved no assignment, in writing, from Hornblower to hipa; but he proved certain proceedings by Hornblower, as assignee, to foreclose the mortgage by advertisement under the statute, regular in all respects, except that it appeared that the copy of the published notice of such foreclosure was served upon the mortgagor, Catharine D. Rjmn, by mail, directed to her at Berne, Albany county, when, at the time of such service, she resided in the city of New York, and that, under these proceedings, the premises were sold on the 15th day of March, 1854, and that the plaintiff became the purchaser. It was also shown that the amount due Van Rensselaer for back rents, January 1, 1853, was $359.49, and that this amount was paid by the plaintiff, May 10, 1854, and the original lease from Van Rensselaer was introduced in evidence, by which it appeared that it contained the usual clause or condition giving a right of re-entry for non-payment of the rent. It also appeared that the deed from Livingston and Wyman to Mrs. Ryan was recorded December 1,1852, and contained a covenant on the part of the grantors to pay all rents due to Van Rensselaer up to the 1st day of January, 1853. John D. Livingston testified that previous to the delivery of the papers the agreement was, that the grantors should pay the rent due on the farm, and- that they were drawn with that understanding, but that, when they were delivered, a different arrangement was made; Mrs. Ryan stipulating in writing to pay $260 of the rent, in consideration of the grantor’s assuming to pay the same amount in discharge of a mortgage upon certain city property which she was bound to pay; that he afterwards paid that mortgage; and that the defendant Nichols was present when, the papers were delivered, and this arrangement was made, acting as the attorney of Mrs. Ryan in the transaction of the business. It further appeared that on the 27th day of October, 1854, Mrs. Ryan conveyed the premises to the defendants, Nichols and Lawson, and' that subsequently, and on the same day, Lawson conveyed all his interest in the premises to Nichols. The defendants proved the tender averred in the answer. It was also shown on the part of the plaintiff that, after the sale of the premises to the plaintiff, he was called upon by the agent of Van Rensselaer for the rent paid by the plaintiff, and that, probably, a fifteen days’ notice of re-entry was issued.
    Upon the close of the evidence, the defendants moved that the complaint be dismissed, and judgment rendered for the defendants, upon the grounds,
    1. That the court had no jurisdiction of the case, as it appeared that the amount due on the mortgage was less than $100.
    2. It did not appear that the plaintiff had any right or title to the mortgage.
    3. That the plaintiff was not entitled to have the amount paid by him for rent tacked to the mortgage, and made a lien upon the premises.
    4. That if the rent or any part of it could be tacked to the mortgage, it could only be tacked to the principal, and no foreclosure for that amount could be had, until some part of the principal became due.
    5. That the plaintiff stood in no better position than Wyman and Livingston, who, by their covenant in the deed to Mrs. Ryan, are estopped from having the rent they agreed to pay tacked on the mortgage, or made a lien on the lands in their “favor as against the mortgagor or a subsequent grantee.
    6. That the payment of the rent by the plaintiff was voluntary, and there was nothing to show that the plaintiff was compelled to pay it to preserve the estate or save the lien of the mortgage.
    7. That by reason of the covenant of Wyman and Livingston, no assignee of theirs could, under any circumstances, pay the rent which they, by that covenant, were required to discharge, and tack it upon the mortgage, and enforce it as a ten upon the land.
    8. That the tender of the amount due with costs to that time, extinguished all right to proceed with the foreclosure of the mortgage.
    9. That the plaintiff was not entitled to any order or decree of foreclosure in the premises.
    The court refused to decide as requested by the defendants, upon any or either of the foregoing propositions, and the defendants excepted-. Judgment of foreclosure was rendered for the amount due on the mortgage, and for $260 of the amount paid by the plaintiff for rent. This judgment was affirmed a,t the general term, and the appeal to this Court was from this judgment of affirmance.
    
      M. C. G. Nichols, for the appellants.
    
      Lyman Tremain, for the respondents.
   Sutherland, J.

There is no doubt that, as to the mortgagors and their grantees, or the grantees of Mrs. Ryan, the statutory foreclosure was utterly void, and did not and could not affect their title or estate, or operate so as to convey a legal title to the premises to the plaintiff. (Bloom v. Burdick, 1 Hill, 130; Van Slyke v. Shelden, 9 Barb., 278.)

The act of 1844, amending the provisions of the Revised Statutes as to foreclosing mortgages by advertisement, requires a copy of the published notice of foreclosure to be served on the mortgagor, either personally or by leaving the same at the dwelling house of the mortgagor, or by mail directed to the place of residence of the mortgagor. Mrs. Ryan, the mortgagor, was not served with notice in either manner. The notice was attempted to be served by mail, but it was directed to her at Berne, Albany county, when, at the time, she resided in the city of New York.

The plaintiff, by bringing this action to foreclose the mortgage, concedes that the attempted foreclosure by Hornblower was void as to the mortgagors and their grantees, and that he did not get an absolute title to the premises by his purchase under the same, but he insists that those proceedings, and his purchase under the same, operated as an assignment of the mortgage to him by Hornblower, and that he thereby got all the rights and interest of Hornblower as assignee of the mortgage.

In Jackson v. Bowen (7 Cow., 13), it was held that a conveyance by a mortgagee as upon a statute foreclosure, if the proceedings to foreclose were irregular, operated as a good assignment of the mortgage, and the purchaser might claim as assignee of the mortgage. This case would appear to be controlling on this question. Besides, the mortgage has been delivered by Hornblower to the plaintiff. The plaintiff produced it on the trial.

Hornblower is not a party to this action, but it is presumed that he could not set up the irregularity of his own statutory foreclosure proceeding as against the plaintiff; and if so, why should not Nichols, the present owner of the premises, pay the mortgage to the plaintiff as assignee ? It would have been safe for him to have done so:

I think, then, assuming that the answer puts in issue the plaintiff’s right and title to the mortgage as assignee of Hornblower, that the foreclosure proceeding, and the plaintiff’s purchase under it, could and did operate as an assignment of the mortgage to the plaintiff.

But, upon the whole answer, it is difficult to say that the defendants intended to put in issue the plaintiff’s right or title to the mortgage. They first, by a general denial, deny every allegation in the complaint, “ except as hereinafter admitted by the said defendants.” They afterwards aver the tender to the plaintiff, and deny hi§ right to. “ tack the rents alleged to have been paid by him, upon his aforesaid mortgage.”

The next question is, whether the plaintiff, as assignee of the mortgage, could or did enlarge his mortgage to the amount of $260, by paying the rent to Van Bensselaer; whether he could tack $260 of the amount paid Van Bensselaer on or to Ms mortgage.

Most clearly he could not, as against a bona fide grantee of Mrs. Ryan, without notice of her agreement or stipulation to pay $260 of the rent due Van Rensselaer. As against such a grantee, Livingston and Wyman, the mortgagees, would not only have been estopped from thus enlarging the mortgage, by their covenant in the deed to Mrs. Ryan—for it would be presumed that such grantee bought with notice of,such covenant, even independent of the registry acts and of the fact that the deed was recorded—'but such an enlargement by them as against a subsequent bona fide grantee without notice would have been against the policy of the registry acts, and would not have been permitted without reference to the covenant in their deed. (St. Andrew's Church v. Tompkins, 7 John. Ch., 13; Frost v. Beekman, 1 John. Ch., 288.) It is very clear, then, that the plaintiff could not tack to his mortgage the $260, as against Nichols, the present owner of the premises, if Nichols were a bona fide grantee without notice of Mrs. Ryan’s agreement or stipulation to pay $260 of the rent; for the plaintiff can have no better or other right to do so than the mortgagees would have had, had they paid the rent as mortgagees.

But Nichols is not a bona fide grantee without notice. Livingston testified that he was present when the deed was delivered, and Mrs. Ryan agreed to pay $260 of the rent; that he was acting as the attorney of Mrs. Ryan in the transaction of the business. He then took his conveyance with full knowledge of Mrs. Ryan’s agreement to pay $260 of the rent; and if so, the mortgagees could have enlarged the mortgage by paying the $260 as against him, if they could have done so against Mrs. Ryan or the mortgagors; and it is very clear that the plaintiff, as assignee of the mortgage, could enlarge the mortgage as against Nichols, if the mortgagees could have done so.

The question then is, whether the mortgagees could have enlarged the mortgage, as against Mrs. Ryan or the mortgagors, by paying the rent to Van Rensselaer. Mrs. Ryan’s stipulation was, that she would pay $260 of the rent to Van Rensselaer. Her agreement was not to pay the $260 to the mortgagees. This is the fair inference from Livingston’s testimony. • If the agreement had been to pay the $260 to the mortgagees, I should much doubt whether they could have enlarged the mortgage even as against Mrs. Ryan, by paying the rent to Van Rensselaer, because, under all the circumstances, perhaps, the inference would have been that "the parties intended that the mortgagees should rely upon her.personal security or undertaking for the payment of the money, and, if the parties so intended, to have permitted the mortgagees thus to enlarge their mortgage, would have been doing violence to the understanding or agreement between the parties. But as the agreement of Mrs. Ryan was to pay $260 of the rent to Van Rensselaer,- and as the rent, considering the reentry clause in the lease, must be deemed to have been a prior lien or incumbrance on the farm, I do not see why the .mortgagees could not have enlarged their mortgage by paying the rent to Van Rensselaer.

I think the principle upon which they would have had this right is illustrated and has been enforced in the cases cited by the plaintiff’s counsel, holding that taxes, &c., necessarily paid by the mortgagee to preserve his security, may be added to his mortgage. (Silver Lake Bank v. North, 4 John. Ch., 370; Faure v. Winans, 1 Hopk. Ch., 283; Burr v. Veeder, 3 Wend., 412; Rapelye v. Prince, 4 Hill, 119.)

If the mortgagees had paid the rent to "Van Rensselaer, it' would have been considered, I think, as having been necessarily paid, because it would appear from the reentry clause in the lease, that "Van Rensselaer could at any time have reentered for the non-payment of the rent, and thus have destroyed their mortgage security. The mortgage in the plaintiff’s hands as assignee was subject to the same peril: the rent was demanded of him, and probably notice of reentry served upon him. If the plaintiff could add $260 of the amount of rent paid by him to his mortgage, it must be deemed to have been added to the principal, and to have been forthwith, due and payable.

If the foregoing views are correct, it is not necessary to examine the question of jurisdiction, or as to the effect of the tender, or any other question attempted to be raised' by the appellants. Indeed, if the foregoing views are correct, there is no question of jurisdiction, or as to the force and effect of the tender.

I think the judgment of the Supreme Court should be affirmed, with costs.

All the judges concurring,

Judgment affirmed.  