
    Mary E. Stillwell, as Executrix,, and Samuel S. Stillwell, as Executor, etc., of Nicholas R. Stillwell, Deceased, Plaintiffs, v. John F. Hart and Others, Defendants, Impleaded with Hanson S. Webster and Emma A. Webster, his Wife, Appellants Daniel F. Doody, Purchaser, Respondent.
    
      Mortgage — a pan'ty whose rights arose prior to the mortgage is not cut off by its fore- . closure whether he does or does not answer a complaint alleging his interest ib be subordinate to the mortgage. '
    A judgment-, entered in an action for the foreclosure of a mortgag^, does, not affect the right or title of a'party defendant, alleged in the complaint to have some interest in or lien upon the mortgaged premises which is subordinate to the lien of the mortgage, where it appears that such defendant entered into possession of the premises, prior to the execution of the mortgage, pursuant ¡to a contract to purchase the mortgaged premises, and that he has fulfilled the contract upon his part and has paid the purchase price in full, and has since remained in the open, visible possession and occupation of the premises. It is immaterial whether such defendant appears and answers in the foreclosure action or makes default.
    Appeal by the defendants Hanson S. Webster and Emma A. Webster from an order of the County Court of Kings county, ■entered in the office of the clerk' of the county of Kings on the 4th ■day of February, 1899, directing the issuance of a writ of assistance to place the purchaser at the foreclosure sale had in the above-entitled action in possession of the premises.
    
      George G. Case, for the appellants.
    
      John H. Kemble, for the respondent.
   Hatch, J.

The mortgage, which was the subject of the foreclosure action, bore date December 22, 1890, and Webster, who now claims to be a prior lienor, was made a party defendant in the action to foreclose the mortgage. The judgment of foreclosure does'not appear in the present record; consequently we are uninformed as to its terms. The complaint, however, in the action appears in the record, and so far as its averments affect Webster it is in the usual form, that the defendants claim or have some interest in or lien upon the mortgaged premises, which is subordinate to the lien of the mortgage. It follows, therefore, that Webster’s lien would remain unaffected by any judgment which might have been entered under the complaint, unless his lien was in fact subordinate thereto. It appears by the affidavit of Webster, and the agreement which is made a part of the same, that he entered into possession of the premises in pursuance of said agreement; that he has fulfilled the same upon his part and has paid the purchase price in full, and has been ever since the construction of the building, and prior to the execution of the mortgage foreclosed,, in the open, visible possession and occupation of such premises. It is, therefore, clear that, if these allegations are true, Webster could not be affected in his right or title to the property under any judgment entered in the foreclosure action, and it made no difference as to such rights whether he appeared and answered or made default. (Jacobie v. Mickle, 144 N. Y. 237.)

It follows, therefore, that as to Webster he may not he disturbed-in his possession and occupation by virtue of this judgment, in eon-sequence of which the writ of assistance is not authorized. The-court below concluded that Webster was bound by the judgment of foreclosure, and that his rights were cut off. This, as we have seen,, was erroneous. The court also held that the proof offered in support of the motion established that in fact Webster hadl no lien. But it was not disputed that he had an agreement of purchase, and his affidavit is- that he entered into possession under the sanjie. It is clear, therefore, that he may have and hold a valid lien; his claim-in this respect may not be adjudicated' tqion summarily, and the court is not authorized to try such title upon affidavits.

It follows that the order should be reversed, with ten dollars costs-- and disbursements.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied.  