
    The Mutual Life Insurance Co., App’lt, v. Annie Voorhis et al., Resp’ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 28, 1893.)
    
    XiAND GRANTS — MORTGAGE ON UPLAND DOES NOT INCLUDE SUBSEQUENT
    GRANT.
    One V,, who was the owner of certain upland, mortgaged the same to plaintiff and thereafter applied to the commissioners of the land office for and obtained a grant of the land under water adjacent to the mortgaged land. The mortgage was subsequently foreclosed and the land sold to plaintiff. Held, that the foreclosure sale gave plaintiff no right to the land under water; that if any right was obtained by such sale, it was one to sue for damages for an injury to the right of the upland to go to the river.
    Appeal from judgment dismissing the complaint
    Action to procure an adjudication that certain lands under water, granted by the state to the mortgagor, and adjacent to the upland property described in the mortgage, were covered by said mortgage.
    
      Merritt E. Sawyer, for app’lt; Mathias Banta (Arthur T. Hoffman, of counsel), for resp’ts Voorhis and Green; John M. Rider, for other resp’ts.
   Barnard, P. J.

Peter Voorhis owned a lot of land in Nyack, Rockland county, bounded on the east by the Hudson river. On the 25th of April, 1872, he executed a mortgage, in which his wife joined, to the plaintiff to secure a loan of $40,000. This mortgage was foreclosed, "and on the 9th of November, 1880, was sold under a decree in the foreclosure action. The plaintiff bought in the property for $10,000, and duly entered a judgment for the defi: ciency, which was $32,853.40, on the 9th of December, 1880. On the 30th day of November, 1872, Peter Yoorhis applied to the commissioners of the land office for a grant of land under water adjacent to this mortgaged property, and also in front of two other pieces he owned adjoining the same. The grant was made upon the petition of Yoorhis that he was the owner of the upland and in occupation of the same, and that the grant was needed for the beneficial enjoyment of the adjoining uplands for shipping stone quarried on the uplands, and that the petitioner intended to build a dock for public steamboat uses and general purposes. Upon due publication of the notice of application, the People of the state of New York granted the lands under water “for the purpose of promoting the commerce of our said state, or for the beneficial enjoyment of the adjacent owner,” on the 23d of July, 1873. Peter Yoorhis died in the next year. The defendants are the heirs-at-law of the deceased. The question is what interest the facts gave the plaintiff in the lands under water in front of the mortgaged upland. A grant to any other person than the upland owner is void. Chapter 283, Laws of 1850.

The applicant, Yoorhis, was the owner of the land up to the sale under foreclosure. Before that time the mortgage was simply a security. He had no other interest in the land than to be paid out of it. Morris v. Mowatt, 2 Paige, 586; Waring v. Smyth, 2 Barb. Ch., 119; Astor v. Miller, 2 Paige, 68; A star v. Hoyt, 5 Wend., 603 ; Gardner v. Heard, 3 Den., 232 ; Calkins v. Calkins, 3 Barb., 305. The description in the mortgage did not include the lands under water. When it was given Yoorhis, the mortgagor, had no interest in it. The lands belonged to the state. People ex rel Loomis v. Canal Appraisers, 35 N. Y., 461; Ledyard v. Ten Eyck, 36 Barb., 102.

The court of appeals in Gould v. H. R. R. R. Co.; 6 N. Y., 522, held that the owner of the upland had no other right than all others in the lands under water, and while this principle is questioned in Rumsey v. New York & New England R. R. Co., 133 N. Y., 79; 44 St. Rep., 248, no question is made as to the title being in the people as to the lands between high water, mark and under water. Rumsey v. N. Y. & N. E. R. R. Co., 114 N. Y., 453 ; 23 St. Rep., 928; People v. N. Y. & S. I. Ferry Co., 68 N. Y., 71; B. M. Co. v. B. S. I. Works, 129 N. Y., 155; 41 St. Rep. 178.

The foreclosure sale did not, therefore, extend a title in lands not covered by it.. The mortgaged lands were not extended by the mortgage being on tide water, as the lands under water then belonged to the sovereign. The title Voorhis took was absolute and unconditional. Abbott v. Curran, 96 N. Y., 665.

The patentee being the owner of the upland thereof got a good title, and if any right was obtained by the foreclosure sale it was a. right to sue for damages for an injury to the right of the upland to go to the river. This right was destroyed by the upland owner himself and the mortgagee got the land covered by the mortgage. The judgment should be affirmed, with costs.

Dykman and Pratt, JJ., concur.  