
    John M. French, Jr., App’lt, v. Daniels W. Powers, Impl’d, Resp't.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed April 15, 1890.)
    
    1. Chattel mortgage—Foreclosure of—Purchase by mortgagee of PROPERTY MORTGAGED.
    The purchase by a mortgagee of the mortgaged property on the foreclosure of his chattel mortgage does not invalidate the foreclosure, nor prevent him from acquiring a title freed from the mortgagor’s right to redeem.
    2. Same.
    In this case the referee found that all of the partners of the firm making a chattel mortgage had notice, were present at the sale and made no objeetion to it or to the mortgagee becoming the purchaser, and were parties to the action brought to foreclose the mortgage on real estate, in which a defense was interposed by a judgment-creditor of the firm and a trial had, and the amount realized from the sale under the chattel mortgage was applied as a payment upon the amount due the mortgagee. Meld, that tiie members of the firm were estopped from raising any questions relating to the regularity, but not affecting the merits of the sale, by their acquiescence in it when made, by raising no objection to the subsequent application of the moneys arising from it, and by their long delay, more than six years, before seeking to set it aside.
    Appeal from judgment of the supreme court, general term, fifth, department, affirming judgment dismissing the complaint.
    
      George G. Munger, for app’lt; Oscar Craig, for resp’t.
    
      
       Affirming 42 Hun, 657, mem.
      
    
   Follett, Oh. J.

Appeal from a judgment of the general term of the fifth department, affirming a judgment dismissing the complaint on the merits, entered on the report of a referee. From about January 1, 1854, to about January 14, 1862, John M. French, David L. Stiles and Elijah Bottum were partners under the name of John M. French & Co., engaged in manufacturing various articles from iron, at Rochester, New York, and in manufacturing pig iron at Ontario, New York. During this period Daniel W. Powers was engaged in banking and loaning money at Rochester. During that time Powers loaned to John M. French & Co., and advanced, for their benefit, to others, large sums of money, receiving as security a mortgage upon certain real estate, dated April 10,1860, and a chattel mortgage dated July 19, 1861.

January 1, 1857, John M. French & Co. executed a mortgage upon part of their real estate to James Chappell to secure him for such liability as he might incur for the benefit of the firm as an accommodation endorser, acceptor or otherwise. Chappell became liable as an accommodation endorser for John M. French & Co., in a large amount, and especially to the Union Bank of Rochester, and on the first day of April, 1859, he assigned this mortgage to the above bank as collateral security for the liabilities of John M. French & Co. for which Chappell was liable as an endorser.

January 14, 1862, the property covered by the chattel mortgage was sold under a foreclosure of it for $11,410.

April 14, 1862, Daniel W. Powers paid to the Union Bank the claims which it held against the firm and the bank assigned its mortgage to him. April 18, 1863, the real estate covered by this mortgage was sold under a judgment of foreclosure, and a deficiency of $4,440.89 arose. Later, in 1863 (the date not appearing), the real property covered by the mortgage given April 10, I860, was sold pursuant to a judgment in foreclosure. In ascertaining the amount secured by this mortgage the referee, in computing the amount due, charged Powers with the amount he realized on the chattel mortgage, and also with $4,000 for the use of the real estate covered by the mortgages, he having occupied it for two years as a mortgagee in possession. From this judgment no appeal was taken. Under the sale a deficiency of $15,071.05 arose. One John Craig purchased all of the realty sold under these foreclosures, taking the conveyances in his own name, but in fact for the benefit of Daniel W. Powers.

The firm held a contract for the purchase of a blast furnace in Ontario, Wayne county, which was assigned to Powers as collateral, and on which there was unpaid about $800. The firm made default in payment, and on being threatened with ejectment, Powers, at the request of the firm, paid the amount due and took a deed in his own name. Some other property was held by Powers as security for the debts of the firm and of the individual partners. September 16, 1868, John M. French and David L. Stiles assigned and conveyed to this plaintiff all of their interest, being two-thirds, in the property of the late firm and all causes of action which it had against Powers; and in that month this action was brought, in which it was alleged, among other things, that it was agreed between Powers and the firm, that he, after acquiring the property, should hold and manage it and carry on the business of the late firm for its benefit, first paying all sums due to himself. It is also alleged that Powers held a large sum of money and a large amount of property in his hands derived from the firm, beyond what was necessary to satisfy all of his demands, and an accounting was prayed for.

The case was tried before a referee in 1875, and it was held that the agreement alleged in the complaint was not made, and that Powers was not indebted to the plaintiffs on account of the transactions between himself and the firm, but the judgment entered on that report was reversed at general term, 30 Hun, 308, by reason of the exclusion of certain evidence offered by the plaintiff. On the second trial, a new referee found the facts as they were found by the first referee.

An examination of the evidence leads us to the conclusion that none of the material findings of fact are without any evidence tending to sustain them, and so reviewable in this court as questions of law.

The appellant insists that the chattel mortgage was not legally foreclosed, because (1) the property was purchased by the defendant ; (2) that the notice of the sale was insufficient in two or three particulars. It has been recently settled by this court, Casserly v. Witherbee, 30 N. Y. State Rep, 92, that the purchase by the mortgagee of the mortgaged property on the foreclosure of his chattel mortgage does not invalidate the foreclosure nor prevent him from acquiring a title freed from the mortgagor’s right to redeem.

The referee finds that all of the partners of the firm had notice, and were present at the sale and made no objection to it, or to the defendant becoming the purchaser. All of the members of the firm were parties to the action brought to foreclose the mortgage given April 10, 1860, in which a defense was interposed by a judgment creditor of the firm, and a trial had, and the amount realized from the sale under the chattel mortgage was apjolied as a payment upon the amount due to Powers. From this judgment no appeal was taken. The members of the firm should be held to be estopped from raising any questions relating to the regularity, but not affecting the merits of the sale, by their acquiescence in it when made, by raising no objection to the subsequent application of the moneys arising from it, and by their long delay, more than six years, before seeking to set it aside.

The complaint contains no allegation that the firm transferred any property to Powers on a usurious consideration, and there is no finding that any property was held, or was transferred on such a consideration, nor was any request preferred that such a fact be found, and the question raised by the appellant’s eighth point is not before the court.

Our attention is called to several rulings, admitting and excluding evidence, which are asserted to have been erroneous, but an examination of each one of them has failed to disclose a material error.

The judgment should be affirmed, with costs.

All concur except Bradley and Haight, JJ., not sitting.  