
    Weston v. Stoddard et al.
    
    
      (Supreme Court, General Term, Third Department.
    
    May 21, 1891.)
    1. Partition—Immaterial Issues.
    S. conveyed an undivided one-fourth of certain premises to W., receiving W.’s bond for §1,000, and a purchase-money mortgage to secure the same. W. conveyed his purchase to plaintiff, C. M. afterwards acquired the other three-fourths of the premises, and, in ignorance of the conveyance to W., sold a portion of the property therein conveyed to D. and others. After learning of W.’s bond and mortgage, M. procured an assignment of both, and set them up as a lien against C. in an action for partition instituted by him against M. and her grantees, D. and others. C. tendered an issue to M. as to the validity of the mortgage as a lien, which M. accepted, but the court refused to adjudicate the same. Held, that the determination of that issue was not necessary in order to a judgment of partition between the parties, and was properly declined, under Code Civil Proc. N. T. § 975, which provides: “ An issue, the disposition of which is not necessary to enable the court to render the appropriate judgment, is not required to be tried. ”
    2. Same—Lien of Defendant—Parties.
    A defendant, in an action for partition, who sets up a mortgage as a lien on the premises, but who omits to file a copy of her answer upon the defendants having interests adverse to her as mortgagee, must be left to her remedy by foreclosure, and cannot obtain satisfaction of the mortgage before partition of the premises.
    Appeal from special term, Albany county.
    Action by Charles S. Weston against Mary R. Stoddard, Bridget Daig, and others. On April 8, 1855, the defendant Abiel Stoddard owned the premises described in the complaint, and on that day conveyed an undivided one-fourth part thereof to Haskell Weston, who at the same date gave to Stoddard his mortgage thereon to secure his bond, also given for $1,000, the purchase money thereof. The mortgage was duly recorded the same day, and no payments have been made thereon, and it remains unsatisfied. Weston, June 2, 1857, conveyed his undivided one-fourth to Charles Lee and Samuel Weston. The plaintiff and several of the defendants have succeeded to or acquired the title to this undivided one-fourth. Mary R. Stoddard, in 1883, became the-owner of the other undivided three-fourths. She has since sold some lots to the defendant Bridget Daig and others, not knowing anything of the deed to Haskell and his mortgage to Abiel R. Stoddard, but supposing she owned the •entire premises. She has since.obtained an assignment of the bond and mortgage of $1,000. Haskell Weston, from the date of the mortgage to his death, was a resident of Vermont, and never returned to this state. Charles Lee and Samuel Weston were also residents of that state. The complaint alleged the ownership by the plaintiff and Mary R. Stoddard, and the defendants Mary’s grantees, of the premises as tenants in common, and alleged “that there are no general or specific liens or incumbrances against said premises, or against any or either of the undivided shares in said premises.” Mary R. Stoddard, by her answer, denied this allegation, and set up the $1,000 mortgage as a valid lien upon the undivided one-fourth part claimed by the plaintiff and other parties. The plaintiff replied to this answer, setting up payment and the statute of limitations. The court found the facts as above set forth, and also that Mary R. Stoddard has been in actual possession of the premises since 1880, but refused to pass upon the validity of the mortgage, or whether it was a lien upon the shares awarded to the plaintiff, and the defendants who have succeeded to the title of Haskell Weston, but decided that such mortgage, if valid, should attach to such shares; also that the lots sold by Mary R. Stoddard should be embraced in the three-fourths to be set off to her. Defendant Mary R. Stoddard appeals. 3?or former opinion, see 6 H. Y. Supp. 34.
    Argued before Learned, P. J., and Landon and Mayham, JJ.
    
      C. S. Lester, for appellant. W. B. French, for respondent.
   Landon, J.

There was an issue joined between the plaintiff and the defendant Mary R. Stoddard whether the purchase-money mortgage given by Haskell Weston, April 3,1855, upon an undivided fourth of the premises for $1,000 and interest, which mortgage is now owned by said defendant, is a subsisting incumbrance thereon. The court found that the mortgage was given, and that no payments have been made thereon, and that it is unsatisfied of record; also that the mortgagor and his grantees, and those claiming the undivided one-fourth, have been continuously non-residents of the state since the date of the mortgage. The plaintiff and 17 of the defendants are found by the court to be the owners of the undivided one-fourth. The court refused to determine the question whether the mortgage was a subsisting incumbrance upon the share of the plaintiff and the said 17 defendants, but adjudged that they were entitled to that' share, and that the mortgage, if valid, should attach thereto to the exclusion of the remaining three-fourths which were allotted to the defendant, and to the defendants holding under her; and that the mortgage should be subject to any defense that the plaintiff and any of the defendants interested in theone-fouvth setoff to them may have thereto, “its validity as a mortgage or lien upon said premises not being passed upon or adjudicated in this action.” The defendant Mary R. Stoddard claims that since the plaintiff tendered the issue, and she accepted it, and the issue was joined between them, the court erred in not determining it. It was undoubtedly competent for the court to determine the issue, but as it was joined only between the plaintiff and the defendant, and not between the defendant and the 17 other defendants who were interested in the one-fourth part of the premises as to which the mortgage was alleged to be an incumbrance, it is obvious that the determination would bind only the parties to the issue, and leave the question open between the defendant Stoddard and the 17 other defendants interested in the question. The determination of the issue was not necessary to the determination of the rights of the parties to a partition of the premises, and to the several allotments of their respective shares. Section 975, Code Civil Proc., provides: “An issue, the disposition of which is not necessary to enable the court to render the appropriate judgment, is not required to be tried.” Had the defendant Stoddard served her answer upon the 17 other defendants pursuant to sections 521 and 1543, then the whole controversy as to this mortgage could have been brought before the court, as to all the parties interested in it, and the court, in its discretion, would either have determined it, or have directed judgment pursuant to section 1204, substantially as has now been done, and then have severed the action, under section 1205, and directed that the same proceed between such of the parties as raised or were tendered issues as to the mortgage. The defendant has not improved her position by omitting to serve her answer upon the defendants interested in the claim raised by it. We think the procedure adopted by the court was within its discretion, and that the discretion was properly exercised.

The court found that the defendant Mary R. Stoddard had been in possession of the premises since 1880, holding adversely. It had been previously determined that she was only entitled to hold as tenant in common. Stoddard v. Weston, 6 N. Y. Supp. 34. It is not claimed that her adverse holding, if her title was in fact nothing more tiian that of a tenant in common with the other parties, could defeat the action. Section 1543. Under the present Code, it is what a party to the action rightfully holds, and not what he may wrongfully claim, that determines the nature of the relief to be awarded respecting iiim. But the defendant claims that she was a mortgagee in possession, and as such entitled to retain possession until her mortgage is fully paid; and that since the action is a possessory one, and she is by the judgment to be ejected from such portion of the land as is allotted to others, (section 1558,) she will therefore be turned out before her claim to stay in is determined, and hence her claim to have the validity of her mortgage, and the amount due thereon, was wmll, founded, and it was error to reserve or postpone its determination. Whether the defendant Stoddard is mortgagee in possession we do not decide. We have already decided that her assignor of the mortgage was not. Stoddard v. Weston, supra. The defendant Stoddard is not entitled to any such judgment against the parties upon whom she has not served her answer. Edwards v. Woodruff, 90 N. Y. 397; Payn v. Grant, 23 Hun, 134. Assuming that the court had sustained the defendant's position, then plaintiff could not have procured final judgm'entof partition against her, for in such case her possession would have been that of holding the premises as security for payment of her mortgage, and not merely as tenant in common. Redemption would have to precede final judgment, since such judgmentawardspossession to the several parties. Section 1558. Plaintiff being defeated or postponed, and the .non-answering defendants having no issues to bring before the court, this defendant would secure a substantial, and perhaps unjust, victory. She is responsible for withholding the issues from the other defendants, and, though she may claim this relief only against the plaintiff, she in fact w.ould obtain it for a time at least against the defendants, and the court, to prevent this injustice, may properly deny it until she brings before the court upon this issue all the parties interested in its determination. Such is the spirit, if not the exact letter, of section 452. If the defendant’s mortgage is an incumbrance, her remedy by foreclosure is not prejudiced by this judgment. If she is a mortgagee in possession and entitled to payment before partition, she has not so pursued that remedy as to justify the court in awarding it to her in this action. Whether the one course or the other is pursued, is a mere question of the remedy, and, as the one left to her is sufficient, her rights of property remain unimpaired. Interlocutory judgment affirmed, with costs. All concur.  