
    Thomas J. Clute, App’lt, v. The Emigrant Industrial Savings Bank, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 8, 1890.)
    
    Restitution—Foreclosure—Subrogation.
    In 1867 certain premises were purchased by plaintiff’s wife, since deceased, on sale on an execution against-one Thomas Hall. One Thomas A. Hall had previously owned the property and had conveyed it subject to a mortgage given by him for the purchase price and which the grantee paid with the proceeds of a new mortgage, which was paid by a subsequent grantee, C.,with the proceeds of a mortgage given by him to defendant in 1871. The judgment on which the execution was issued was not discovered by or known to the several grantees or mortgagees. In an-action by defendant to foreclose its mortgage the property was sold, but the judgment was afterwards reversed, and on a new trial the court hold that this defendant was entitled to be subrogated to the rights of the first mortgagee, and the same should be revived and declared a lien superior to the rights: of plaintiff’s wife, and the land was again sold. In an action for restitution, Held, that the title of plaintiff and his wife being at all times subordinate to the lien of defendant’s mortgage, he could not maintain the. action.
    Appeal from judgment of the special term, dismissing the complaint upon the merits with costs, and $250 extra allowance, entered on the 14th day of April, 1890.
    The action is brought to recover restitution from the defendant for having sold the plaintiff’s property upon a judgment in foreclosure of a certain mortgage, subsequently set aside, and the judgment reversed as against plaintiff’s remote grantor, executed by Marks Cottrell and wife, on the 80th day of January, 1871, to. the defendant.
    Plaintiff seeks to recover as grantee and successor in interest of his deceased wife, Isabella B. Clute, who claimed title to the premises, under a deed from the sheriff and by virtue of a sale on execution on a judgment against one Thomas Hall entered February 4,1865.
    Tilomas Hall acquired title to the premises on the 20th day of November, 1863, by the name of Thomas A. Hall, and under the latter name, and on the same day, and previous to the entry of said judgment, executed a mortgage thereon to Moses Chamberlain, his grantor, for the sum of 6,000, to secure the payment, of that much of the purchase money thereof. On the 19th of. June, 1886, Hall conveyed the premises to Jane B. Hyde, subject, to said mortgage, which was in fact assumed by her as part of the purchase price. Jane B. Hyde paid off and discharged said mortgage on August 18th, 1886, using and applying for such purpose, in part, $5,500, obtained by her giving a mortgage on the premises for that amount.
    On the 22d day of August, 1866, Jane B. Hyde conveyed the < premises to Samuel Hyde, and after several intermediate conveyances the same were conveyed, on the 14th day of September,. 1867, to Marks Cottrell, subject to said Hyde mortgage and which he assumed to pay as part of the purchase money thereof. On. the 31st of January, 1871, Marks Cottrell paid off the Hydemortgage of $5,500, using and applying for that purpose $6,000 obtained by him of the Emigrant Industrial Savings Bank, defendant and respondent herein, and to secure which he and his wife executed to the said bank the mortgage for that amount set forth and described in the pleadings and judgment in this action.
    The searches made for the several grantees and mortgagees did not show the judgment against Thomas Hall, nor did they or defendant have actual knowledge thereof.
    At the time of the purchase by plaintiffs wife, Marks Cottrell was seized of and in possession of the land.
    In June, 1881, this defendant brought an action to foreclose its mortgage, to which plaintiff’s wife was made a party, and a judgment recovered. On appeal said judgment was reversed by the general,term and a new trial granted, that court, however, holding that defendant was equitably entitled to priority in the collection of its mortgage over any title of Isabella B. Clute.
    In October, 1884, said action came on for trial a second time at a special term of this court in the city of New York, and a judgment was had and entered therein, upon the same facts, to the effect that said mortgage of $6,000 of Marks Cottrell and wife to the defendant was good and valid for the amount thereof; that defendant be subrogated to the extent of such amount to the rights of Moses Chamberlain under said mortgage of Thomas A. Hall and wife to him; that the satisfaction piece thereof be can-celled, and that the same be revived and restored and declared to be a subsisting lien on said premises, prior and superior to any right, title or interest therein of said Isabella B. Clute, under or*' by virtue of said sheriff’s deed to her, or said judgment, execution and sale thereunder; that said Hall mortgage be foreclosed and said premises sold thereunder under the direction of Benjamin W. Pranklin, referee, in the usual way, and that this defendant should be paid the amount due on said Cottrell mortgage, which judgment was duly entered, and was affirmed by the general term and court of appeals.
    The premises were sold under the first judgment in December, 1882, to Richard Mahon, who went into possession, and they were again sold under the second judgment, in 1885, to Timothy Donovan, who assigned his bid to defendant, and the latter quit claimed to Mahon. •
    
      T. J. Clute, for app’lt; Bartholomew Skaats, for resp’t.
   Dykman, K.

There never was any merit in the plaintiff’s action, and that destitution of merit extends to this appeal.

The decision of the court of appeals in the cases of Clute v. Emmerich, 99 N. Y., 342, and The Emigrant Industrial Savings Bank v. Thomas J. Clute, 114 N. Y., 634; 24 N. Y. State Rep., 509, controls all the questions involved in this action.

The title of the plaintiff and his wife being at all times subordinate to the lien of the mortgage from Cottrell to the defendant, they can have no remedy in hostility thereto.

The judgment should be affirmed, with costs.

Pratt, J., concurs; Barnard, P. J., not sitting.  