
    Ann C. Clark, Resp’t, v. Isabella F. Simmons et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 9, 1889.)
    
    1. Foreclosure—Sale—Deficiency.
    At a sale on foreclosure of a first mortgage one C. became the purchaser. At that time he was the owner of a judgment of foreclosure of the second mortgage, upon which a sale was subsequently made subject to his rights acquired on the first sale. He became the purchaser also on the second sale and entered judgment for the deficiency. Held, that the proceedings were regular and that the obligors on the bond were not injured thereby.
    2. Same.
    The mortgage conveyed land in this state and in New Jersey. Held, that plaintiff was not bound to sell the land in New Jersey before entering a judgment for the deficiency.
    Appeal from order confirming report of sale on foreclosure and from order denying motion to stay entry of judgment for deficiency.
    The facts appear fully in the opinion.
    
      JE. It. Olcott and W. M Dylcman, for app’lts; George W. Sleph, ens, for resp’t.
   Barnard, P. J.

The plaintiff held a second mortgage on land partly in this state and partly in New Jersey. The judgment of foreclosure and sale in this action directed the land in both states to be sold. Before the sale the defendant Simmons applied at special term to have the judgment modified so as to exclude the sale of the New Jersey land. This order was made. The premises had then been sold under the first mortgage and been purchased bjr one Conkey.

Conkey owned the second mortgage The defendant Simmons also asked at the special term that the judgment be vacated, because the judgment had become merged in the fee so acquired by Conkey. This part of the ruling was denied. The judgment in this action provided that the plaintiff recover a judgment for the deficiency after the sale of the New York land. This part of the judgment was consented to when the judgment was entered and no motion was made to change the decree in this respect.

The condition on the second sale that it should be subject to Conkey’s rights acquired in the first sale would manifestly convey a title subject to the payment of the amount due on the first mortgage. Conkey was the purchaser at the first sale and owned the second mortgage and made the condition. No wrong was intended. The entire bond was due on the second mortgage loan and its reduction by a void sale did not injure those who were bound to pay the entire bond.

The plaintiff was not bound to sell the land in New Jersey before obtaining a judgment for the deficiency on the bond. Under the old practice an action at law on the bond and a foreclosure in equity could go on together. Dunkley v. Van Buren, 3 Johns. Ch., 330.

The object of the revised statutes and of the Code, § 1627, was to have one remedy by providing a judgment for a deficiency after sale. This means a sale that the courts of this state can order. The bond given to the plaintiff could be sued after the second sale without going through a foreclosure as to the land in New Jersey.

The order should therefore be affirmed, with costs and disbursements as of one appeal.

Pratt, J.

We discover no irregularity in the proceedings of the plaintiff.

The second mortgage was at all times subordinate to the first mortgage and to the rights acquired under it Had the sale been first made under the second mortgage, no irregularity would have been claimed; yet the final result would have been the same. In that case the sale would have been made subject to the first mortgage. In the present case the purchaser occupies the place of the first mortgagee and has succeeded to his rights. The sale under the second mortgage was made subject to such rights.

The practice was proper and the appellant cannot be allowed the relief demanded.

Orders affirmed, with costs and disbursements as of one appeal

Dykman, J., not sitting.  