
    Georgianna Bigelow, Resp’t v. William H. Davol et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 8, 1893.)
    
    1. Foreclosure—Provision of decree upon second mortgage whose
    HOLDER WAS NOT MADE A PARTY TO FORECLOSURE OF FIRST MORTGAGE.
    In an action to foreclose a mortgage upon an undivided portion of land, the holder of which was not made a party to the foreclosure of a prior mortgage on all the land, a provision in the decree allowing the plaintiff to pay the grantee of the purchaser on the former sale a proportionate part of the first mortgage, and providing that on such payment she take the portion covered by her mortgage free, is improper. The decree should provide for a sale subject to whatever rights such grantee has.
    3. Mortgage—Validity—Services of executor as attorney.
    The mortgage in question was given by two of the four heirs of a decedent to plaintiff’s assignor, who was the executor of their father’s estate, for services rendered by him as attorney in defense of the estate. The mortgage failed as to one of the makers. Held, that there was no validity to the mortgage as against the mortgagor.
    Appeal by William H. Davol and Jennie B. Davol, his wife, from judgment entered in action of foreclosure.
    On the 1st of August, 1884, Richard B. Duyckinck and Alexander T. Arthur mortgaged a large piece of property at the corner of Adams and Water streets, in the City of Brooklyn, for the sum of twenty thousand dollars, to Henry J. Smith and John E. Smith. At the time such mortgage was made Alexander T. Arthur was the owner of 36j- sixty-fourth parts of the mortgaged premises, and Richard B. Duyckinck was the owner of 27i-sixty-fourth parts thereof. This mortgage was recorded in Liber 1692 of Mortgages, page 101, on the 1st of August, 1884.
    Shortly after the execution of the said mortgage, the said Alexander T. Arthur conveyed 6$ sixty-fourth parts of the said premises to Cecilia Y. Arthur. At or about the same time the said Alexander T. Arthur also conveyed 6-g- sixty-fourth parts of said premises to William Arthur.
    On the 10th day of December, 1886, the said Alexander T. Arthur executed and delivered two mortgages of 18J- sixty-fourth parts of the said premises to the Brooklyn Bank, which mortgages were recorded in Liber 1867, pages 318 and 322, December 13, 1886.
    On or about the 1st day of September, 1887, Cecilia Y. Arthur and Archibald Arthur made an instrument by which they undertook to mortgage the undivided 18J sixty-fourth parts of the premises to Joseph M. Pray. This mortgage was recorded in Liber 1941, page 193, October 8, 1887.
    On the 8tli of October, 1887, Joseph M. Pray assigned the last mentioned mortgage to Georgianna Bigelow. This assignment was recorded on the 21st of ¡November, 1887, Liber 1953, page 137.
    At the time of the execution of the mortgage to Mr. Pray, noreconveyance had been made by Alexander T. Arthur to Archibald Arthur, so that only the interest of Cecilia Y. Arthur could be bound by this instrument.'
    The §20,000 mortgage to the Smiths was assigned to Henry E. Hutchinson March 17, 1889, and the assignment was recorded March 29, 1889.
    A suit to foreclose this mortgage was thereupon brought; summons, complaint arid lis pendens were filed April 8, 1889. The defendants in this suit were William Arthur, Eliza Arthur, Archibald Arthur, Sarah Arthur. Cecilia Y. Arthur, Alexander T. Arthur, and Joseph M. Pray, individually and as executor o£ William Arthur, deceased, and others. Georgianna Bigelow was not made a party defendant.
    At the foreclosure sale the property was bought by Henry E. Hutchinson. Henry E. Hutchinson sold the premises in question to William H. Davol, the present owner thereof and the defendant and appellant in this litigation.
    This action was brought by Georgianna Bigelow to foreclose the mortgage made by Cecilia Y. Arthur and Archibald Arthur to Joseph M. Pray, and assigned to her.
    . The complaint, in addition to the usual allegations in bills to foreclose mortgages, alleges the making of the twenty thousand dollar mortgage to Henry J. Smith and John E. Smith, in August, 1884, an assignment of that mortgage to Henry E. Hutchinson, the foreclosure thereof, the omission of Georgianna Bigelow as party defendant to such foreclosure, and the sale of the property under the decree to Henry E. Hutchinson. The complaint also contains the allegation that the title to the said premises was, at the time of the foreclosure, in the defendant William H. Davol. The complaint prays that all the defendants, including William H. Davol, be barred of all rights whatever in the mortgaged premises, that the premises be sold and that the plaintiff be paid the amount due on the bond and mortgage.
    This judgment does not merely decree a foreclosure of the mortgaged premises, and that the subsequent equities of the defendants be foreclosed; but it decrees, without reservation, that all the rights of the defendants, William' H. Davol and Jennie B. Davol, his wife, shall be forever barred and foreclosed, and contains a provision that the sum of $3,460.35 out of the proceeds of the sale be paid to the defendant, William H. Davol, as representing that part of the twenty thousand dollar mortgage and of the interest thereon, taxes and expenses of sale paid by the referee out of the purchase money received from Henry E. Hutchinson upon the sale and foreclosure under that mortgage, proportionate to the fractional share of the property now foreclosed.
    
      A. P. & W. Man (E. Ellery Anderson, of counsel), for app’lts; Joseph M. Pray, for resp’t.
   Barnard, P. J.

The plaintiff is the owner of a mortgage executed on the 1st of September, 1887, conveying eighteen one-fourth sixty-fourth parts of certain premises in Brooklyn to Joseph M. Pray. She acquired her title thereto in October, 1887, and her assignment was recorded in November, 1887. The premises were subject to a previous mortgage given in 1884. In 1889 this prior mortgage was assigne'd to one Hutchinson, who foreclosed it, but did not make the plaintiff a party defendant in the foreclosure action. The property was bought in by Hutchinson at the foreclosure sale, who soon after his purchase sold the land to defendant, Davol. Davol went into possession, and expended large sums of money in improving the property. Hpon the former appeal in the case it was held that this Hutchinson foreclosure did not bind the plaintiff, and that she could foreclose her mortgage as if the Hutchinson foreclosure had not been had. We do not think that the complaint in this action puts in issue the prior mortgage which was foreclosed. There is an averment that Davol be bound; but this is in the usual form of averment incidental to a foreclosure action. It does not in the present case mean that the second mortgage should be put before the first, and by a general prayer that the purchaser at the foreclosure sale of the first mortgage should be subject to the second mortgage, which was not brought in the first foreclosure action. If a sale be had in this action, it will be subject to the first mortgage, and to any equities which Davol has by virtue'of his purchase,as against the plaintiff. The plaintiff’s mortgage only covers a part of the premises covered by the first, and does not cover all which is described in her mortgage, and the decree in this case provides that the plaintiff may pay six and seven-eighths sixty-fourth parts of the amount due on the first mortgage, and take the proportions covered by her mortgage free upon such payment. There is proof tending to assail the plaintiff’s mortgage, ancl this appeal involves these two questions, whether the provision providing that the plaintiff may pay the proportions of the first mortgage, and take the land free, and whether the mortgage of plaintiff is good. We think that the provision for the payment of a portion of the first mortgage only is improper. The first mortgage covered all, and all of the property covered by it is to be held for its payment. 2 Hoff. Oh. Practice, 157.

The portion of the decree which provides for the payment of a portion of the first mortgage should be modified, and the sale be directed subject to whatever rights Davol has in the premises sold. This modification will carry out the spirit of the former decision, that the sale under the second mortgage is as if there had been no foreclosure of the first mortgage. Is the mortgage good ? It was given by Cecilia Arthur to Joseph M. Pray. Although her brother joined in it, the mortgage failed as to him.

The mortgage debt was, if any existed, one for services rendered by Joseph M. Pray in behalf of the estate of their father, in which he was one of the executors to the father’s will. The mortgage was given for services rendered as an attorney or for the children, heirs. The debt, if any, was from the four children. William Arthur and Alexander Arthur did not or could not sign and the whole debt is thus put on Cecilia. The mortgage should not be held good without further proof for over one-ftiurth of the amount of it, in any event. As between Pray and Cecilia there is no proof of a debt for any amount. Mr. Pray paid nothing and Miss Arthur got nothing, except a claim had been shown to her brother Alexander, and Mr. Pray supposed that he had told his sister Cecilia. She denies all knowledge of it The claim was received as collateral to a claim, and this claim was for services as executor in defending the estate. There is no proof sufficient to uphold the mortgage as against Cecilia. (Collier v. Munn, 41 N. Y., 143.

And it is a very significant fact that the mortgage was deemed of no force because Cecilia obtained the surplus upon the first sale with the knowledge of Mr. Pray, who was Mrs. Bigelow’s attorney ; and neither Pray or plaintiff asserted any right to such surplus. As the case now stands there is no validity to the mortgage as against Cecilia Arthur. The plaintiff only took what Mr. Pray had to sell. Trustees v. Wheeler, 61 N. Y., 88.

The judgment should be reversed and anew trial granted, costs to abide event.

Dykman and Pratt, JJ., concur.  