
    Jarvis v. Chapin et al.
    
    
      (Supreme Court, General Term, First Department.
    
    March 13, 1891.
    Fobeclosuee op Mobtgage—Rights of Second Mobtgagee.
    In an action to forclose a first mortgage, it was stipulated by the various parties interested that, instead of selling sufficient of the property only to satisfy the first mortgage, the entire premises should be sold in different parcels, so as to realize sufficient to pay the second mortgage and any other liens that might exist. Owing to the refusal of some of the bidders to complete their purchase, the amount realized by the sale was insufficient to pay the whole amount due on the second mortgage. Held, that the holder of such second mortgage was not estopped by reason of such stipulation from bringing an action to foreclose his mortgage for the balance due thereon, and that he was not bound to proceed in the former suit in which he was a defendant to compel the bidders to complete their purchase; that duty devolved either upon the first mortgagee or the owner of the equity of redemption.
    Appeal from judgment on report of referee.
    Action by Nathaniel Jarvis, Jr., as trustee of the estate of'Thomas Wynns, deceased, against Anna A. Chapin, as executrix, etc., of Willard P. Chapin, deceased, Edward S. Bull, and others. From the judgment of foreclosure and sale, the defendant Bull appeals. -
    Argued before Van Brunt, P. J„ and Daniels and O’Brien JJ.
    
      James E. Chandler, (Robert B. Harlow, of counsel,) for appellant. Anderson Brice, for respondents.
   O’Brien, J.

The mere statement of the facts of this case, without the citation of any authorities, would make it reasonably certain that the judgment should be affirmed. This action was brought to foreclose a mortgage made by Welland P. Chapin to Thomas H. Landon to secure the sum of $11,000. The mortgage covers real property situated in the city of Hew York between 151st and 152d streets, and between Eighth and Edgecombe avenues. At the time of the making and record of this mortgage there was a prior mortgage upon the same property. An action to foreclose the prior mortgage was commenced about August, 1887, and as incident thereto due notices of pendency of action were filed in the office of the clerk of the city and county of Hew York. A judgment in said action directed the sale of the mortgaged premises, or such part thereof as might be sufficient to discharge the said first mortgage debt, together with expenses and costs. The property was sold for enough to pay the first mortgage, and left a surplus, the whole of which was subsequently paid to the plaintiff in this action, and credited by him upon the bond and mortgage, and after such payment there still remained a balance due to plaintiff, to recover which he commenced this action to foreclose his mortgage. Although the plaintiff in this action was not a party by name to the record in the action to foreclose the first mortgage, owing, no doubt, to the fact that the assignment of the mortgage by Landon to plaintiff was not recorded until the 2d day of May, 1889, he was the real party in interest, and his interest was represented by the executor of Landon, deceased. It may be assumed, moreover, that plaintiff had knowledge of the pendency of the action to foreclose the said first mortgage, and never made any application to be made a party prior to the decree of foreclosure and sale therein. After the decree had been made in the action to foreclose the first mortgage, a stipulation was entered into by the attorneys, by which it was agreed that all the premises should be sold by the referee. Under this stipulation, which was known to plaintiff, the entire mortgaged premises were put up in 30 different parcels, and bid in by various purchasers. The purchasers of lots numbered from 19 to 27, both inclusive, and lots Hos. 29 and 30, refused to complete their purchases, and no application has ever been made to the court to compel them to accept title. The ground of their refusal to take title is some paramount claim alleged to exist in favor of plaintiff as an individual. The plaintiff, after successfully prosecuting his claim against the surplus fund, commenced this action to foreclose his mortgage, which covered the same identical property and premises which were covered by the first mortgage already foreclosed, and under which the effort was made to sell all the property, as stated. The defense interposed, though overruled by the referee and still claimed by appellant to be good in law, is that by virtue of the stipulation made in the suit brought to foreclose the prior mortgage, to which stipulation the plaintiff was privy, and the benefit of which he has received to the extent of the payment out of the surplus moneys, plaintiff bound himself to pursue his remedy for the collection of his debt by means of that stipulation exclusively, and is therefore estopped from maintaining this action. It is conceded that if the purchasers on the foreclosure of the prior mortgage, who refused to complete their purchase, were compelled to do so, the surplus would be sufficient to satisfy the plaintiff’s mortgage. Appellant contends that plaintiff is bound to pursue his remedy in the surplus proceedings, and compel such purchasers to complete their bargains. In other words, it. is claimed that plaintiff is estopped from maintaining this action by the judgment sale and stipulation in the former action. All the questions urged upon this appeal relating to exceptions to the referee’s rulings, and the latter’s refusal to agree to appellant’s claim, center around this question as to whether the defense interposed is valid in law. The defense has at least the merit of novelty, and in its support appellant invokes the principles which underlie the doctrine of estoppels, both legal and equitable, and the principles which relate to the power of the court to determine the rights of all the parties to a foreclosure suit in a single action. It is difficult, however, to follow the appellant in his effort to make applicable the principles of law invoked. Stripped of all verbiage, the question at issue is reduced to a narrow, and apparently very simple, one. The plaintiff has a mortgage on property upon which a prior mortgage exists. The latter is foreclosed in an action to which the plaintiff, personally or by privy, is made a party. It is agreed therein, for the benefit of all the parties in interest, that, instead of selling sufficient of the property only to satisfy the first mortgage, the entire premises should be sold in different parcels, so as to realize sufficient, not only to pay the first mortgage, but the second mortgage, of the plaintiff, and any other claims that might exist against the property. The benefit of the stipulation and the intention of the parties was frustrated by the failure to take title of the purchasers who had bid at the sale. As to so much of the property as was sold, and the title thereto in the purchasers perfected, all rights of the plaintiff and the subsequent incumbrancers, who were made parties to the suit, were cut off and foreclosed. As to the balance of the property, which was simply exposed for sale and bid off by persons who refused to complete their purchase, the plaintiff’s mortgage lien still remains, and no principle, legal or equitable, should or can prevent his proceeding to enforce such lien in a proper action, such as he has here brought. It is idle to insist that it was plaintiff’s duty to proceed in the former suit, in which he was a defendant, and compel the bidders to complete their purchases, and thus raise sufficient to pay his claim. That duty devolved either up.on the plaintiff in the prior foreclosure suit, or upon the owner of the equity of redemption, and, while the plaintiff here might have taken upon himself that labor, he was not so compelled, either by force of the judgment itself or the stipulation upon which so much stress has been laid. He could with perfect propriety elect to follow this method of collecting money which is admitted to be justly due him upon his mortgage. We have examined the ease and exceptions on appeal, and find no reason for disturbing the conclusions or judgment of the.referee. The judgment should therefore be affirmed, with costs and disbursements. All concur.  