
    Philip H. Hover, Respondent, v. Martha Hover, Respondent; Daniel G. Bogert and Anna T. Pope, as Executors and Trustees, etc., of Louisa M. Bogert, Deceased, Appellants.
    
      Mortgage foreclosure -r- right of a party in interest, on paying the amount due, to an assignment of the moi'tgage.
    
    While a person interested in mortgaged premises, although not occupying the position of a surety, is entitled, on payment of the amount due, to an assignment of a bond and mortgage in process of foreclosure, and may thus avoid paying and satisfying the mortgage, he must present sufficient legal and equitable grounds for such'relief.'
    
      Where, however, one of two tenants in common of property has procured, a mortgage thereon to be placed in the hands of a friend who has commenced a foreclosure thereof, the other tenant in common is not entitled to demand an . assignment of the mortgage on tendering the amount due, with a view to securing a sale of the property at private instead of at a judicial sale, the for- . mer being deemed by him to be a more advantageous way of disposing of the property — especially where the common ancestor of such tenants in common directed his executors to sell the real estate and to. divide the proceeds of sale between such tenants in common, and both of the executors have died without executing the power of sale of the premises given to them by his will.
    Van Brunt, P. J., and Ingraham, J., dissented.
    Appeal by the defendants, Daniel G. Bogert and another, as executors and trustees, etc., of Louisa ML Bogert, deceased, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew Yoik on the 6th day of August, 189Y, denying their motion to compel the plaintiff to assign to them a mortgage.
    
      John J. Sullivan, for the appellants.
    
      L. B. Bunnell, for the plaintiff, respondent.
    
      Alfred R. Bunnell, for the defendant, respondent.
   O’Brien, J.:

- This action was commenced for the foreclosure of a mortgage made by one Henry Otten to the Germania Life Insurance Company, and assigned to the plaintiff. Otten died, leaving him surviving the defendant Martha Hover and Louise M. Bogert (the latter now deceased), his children, in whom the title to the mortgaged premises was vested at the time of the death of Louise M. Bogert. The latter died-in Hew Jersey, leaving a will which was there probated, whereby she appointed Daniel G. Bogert and Anna T. Pope her executors and trustees, and directed them to hold her real estate in trust, to let and rent the same, and apply the rents and income to the use of Daniel G. Bogert during his natural life, and upon his death to sell the real estate and divide the proceeds among certain persons named, the will giving' the executors power to sell during the lifetime of Daniel G. Bogert, and to execute deeds. Before the time of the executors of Mrs. Bogert to answer in this suit had expired, they tendered to the plaintiff the principal and interest of the mortgage and the costs and disbursements of the foreclosure, and presented an assignment for execution, and demanded an assignment of the bond and mortgage to them, which was refused. As a ground for such refusal it was shown that at the death of Otten’s widow, Mrs. Hover and Mrs. Bogert, his children, were alone interested in the property or its proceeds. Mrs. Hover’s position was and is that their interest in the estate of their father was personal property, under the doctrine of equitable conversion, and that either party had the absolute right to require the sale of the property and to have her share of the proceeds paid over to her. Mrs. Bogert’s representatives, on the other hand, insist that for the purposes of this action the mortgaged premises are to be considered real estate, and that, although by the will of Otten the land was directed to be sold and the proceeds paid to the beneficiaries, they elected to take the land in place of the proceeds, and thereby the power of sale became extinguished. In support of this latter view, it would appear that although Otten, by his will, devised the premises to trustees to pay the income arising therefrom to his widow during- her life, and after her death to sell the premises and divide the proceeds among his children, the widow alone qualified as executor, and the other executors are now dead that no sale was made under the. power contained in the will, and that upon the death of the , widow, twenty years ago, Mrs. Hover and Mrs. Bogert took possession of the property,, cared for it, paid taxes, etc., until the death of Mrs. Bogert.

It will thus be seen that the controversy which has arisen grows out of the different views taken by Mrs. Hover and Mrs. Bogert’s representatives as to whether the real estate should be sold and the shares divided, Mrs. Hover insisting that she should receive her share, and Mrs. Bogert during her lifetime having been, as her representatives now appear to be, unwilling to consent to a judicial sale. In the interest of Mrs. Hover the plaintiff procured an assignment of the mortgage and is proceeding with the foreclosure, and . the question presented is as to whether the defendants are entitled, upon tender of the amount, to an assignment of the bond and mortgage. The respondents claim that the moving parties have no interest in this property, vested or otherwise, and that even if- they be regarded as having some interest in the property or its proceeds, they cannot insist upon an assignment, because they do not occupy the position' of surety of present sufficient equitable reasons to justify their demand.

There are decisions which favor the view that, in order to compel an assignment, as distinguished from a payment of the' mortgage debt, one must occupy the relation of a surety to the debt secured by the mortgage. Such cases, however, we must regard as no longer controlling, in view of the decision of the Court of Appeals in Twombly v. Cassidy (82 N. Y. 155), where a junior mortgagee tendered the amount and demanded an assignment of the mortgage, and the same objection was raised that he was not a surety; and it was held / that such junior mortgagee might be subrogated to the rights of the senior mortgagee, and upon tender of the amount might compel an assignment of the bond and mortgage although he did not occupy the position of a surety. It Will thus appear that one who is interested in the property, and can present sufficient. legal or equitable grounds for such relief, is entitled to an assignment of the bond and mortgage upon tender of the amount, as distinguished from being obliged to pay the mortgage debt and receive a satisfaction piece.

So upon this application the real question to be determined is as to whether the facts entitle the executors of Mrs. Bogert to- the relief demanded. Such right we cannot regard as by any means clear; because, while the general rule is that one interested in property covered by a mortgage should be permitted to tender the amount due upon such mortgage and take an assignment for' the purpose of preventing a sale ■ of the property, there are exceptions to this rule. ■ Here, Mrs. Hover, pursuing legal rights and remedies^ has just as much right -to have the property sold and obtain her share of the proceeds, in accordance with the expressed intention of her father, as the representatives of Mrs. Bogert have to insist that the property should not be sold. It would be, of course, within the power of the latter to pay off the mortgage. and satisfy the same, and upon the accounting finally between' the parties as to the property, to charge the proportion which. Mrs. Hover was responsible for against her interest in the property. Mrs. Hover has rights and equities as strongly in her favor as any running in favor of Mrs: Bogert’s executors. Having got the mortgage in the hands of one friendly to her, the advantage obtained by Mrs. Hover' in procuring a sale under the mortgage would avoid the expense and delay of an ' application to the Supreme Court to appoint an agent of the court to execute the provisions of her father’s will as to a sale and division of this property. Moreover, if the executors of Mrs. Bogert can now demand an assignment, Mrs. Hover would seemingly have an equal right to demand one; that is, assuming that each sought the assignment for the purpose of. obtaining control of the action and proceeding to have a sale of the premises. This equality in right to demand an assignment renders it difficult to determine when it should cease, and if exercised by each party would lead to endless applications. If the purpose of one, however, was to prevent a sale of the property at all, and of the other to have such sale, this difference might, other things being equal, incline the court to uphold the general rule of exercising its discretion in favor of one seeking to prevent a sale. While such seems, as stated, to have been the attitude of Mrs. Bogert in her lifetime, it is not that of her executors. By the affidavit' of their' attorney it appears that they think a sale is. proper, but incline to a private, as distinguished from a judicial sale, or, to use the language of the affidavit: “ That deponent verily believes, it is to' the interest of the estate of said Louise M. Bogert and also to the interest of the defendant Martha Hover, as the owners of the equity of redemption in said premises, that the said mortgage be assigned to the estate of said Louise M. Bogert and thereby enable the parties interested to sell the mortgaged premises by private contract, which can be done to better advantage than at a forced sale in the near future.”

We think that this reason for wanting an assignment of the mortgage is not sufficient, because it is purely speculative, and there is-nothing to show that an equally good price could not be obtained at a public as at a private sale ; and considering the right of Mrs. Hover under her father’s will to have her share severed from that of her sister, such a right, when attempted to be exercised in the simplest- and least expensive manner, should not be prevented by-according, without sufficient basis, a superior paramount right to Mrs. Bogert’s executors to hold her share in her father’s estate for an indeterminate period,, or compelling Mrs. Hover to go finally to the Supreme Court for the appointment of some one to execute the trust under the will of her father, when it can he speedily done by a sale in this action.

The plaintiff is the son of Mrs. Hover, and presumably has taken the mortgage and is conducting this .action in her interest. Assuming, therefore, that the action is controlled by Mrs. Hover, we cannot, on the facts here presented, see any good or valid reason .why the court should deprive her of her right to obtain in a simple and speedy way her portion of her father’s estate; when’the only objection urged against it is that, in the opinion of the executors of her sister, if they are put in control of the bond and mortgage and of this action, they can, by waiting an indefinite time,, secure by private contract a price which to them seems satisfactory. The question of whether they would ever sell would still remain unsettled, unless an application was made by Mrs. Hover to the Supreme Court, in which event she would obtain exactly the relief which she will secure by proceeding in this action, namely, a disposition of the property by judicial sale.

We think, therefore, the court below was right in ■ holding that there was no sufficient showing made, and the order denying the motion should be affirmed, with ten dollars costs and disbursements.

Williams and Patterson, JJ., concurred; Van- Brunt, P. J., and Ingraham, J., dissented.

Order affirmed, with- ten dollars costs and disbursements.  