
    George H. Case, App’lt, v. William T. Mannis et al., Resp’ts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed September 25, 1890.)
    
    1. Foreclosure—Order of sale—Right of way.
    The rule that real estate should be sold on the inverse order of alienation applies to a right of way over lands. And where the owner of the right of way agreed to bid upon a foreclosure sale for the property, exclu sive of the right of way, the amount of the mortgage debt and costs, tlic court will protect his rights and order the premises other than the right of way to be first sold.
    2. Same—Costs.
    A finding by the referee that the " plaintiS have his costs of this action,” does not authorize the entry of costs personally against anyone.
    Appeal from an order at special term, among other things directing the order in which parcels of land should be sold by a referee in foreclosure. In October, 1871, T. and wife mortgaged the property to G. and 0. W. B., aucl the latter assigned the mortgage to plaintiff in 1887. He brings an action of foreclosure. The defendant, Mannis, answered. It appeared that on October 5, 1883, G. and C. W. B. quit-claimed and released to T. a right of way over a strip ten feet' wide ; that on October 11, 1883, T. and wife conveyed by warranty deed to 0. this right of way; and that on December 5, 1883, C. and wife conveyed the same by warranty deed to the defendant, Mannis. But prior to all these latter acts and on September 15, 1876, T. and wife had executed a second mortgage upon the premises to S. and J. S. S., which was foreclosed and the property bought in by- T.’s wife September 30, 1882. On September 30, 1882, T.’s wife and T. mortgaged the premises to a bank. On October 23, 1883, the bank released from its mortgage the strip to T. On March 7, 1885, the bank foreclosed, reserving the strip from the sale. On the sale one John Case became the purchaser. The mortgaged premises arc worth more than the present mortgage debt and costs. The defendant, Mannis, offered to bid for them, exclusive of the strip, more than the mortgage debt anil costs. ’ The special term ordered that the rest of the mortgaged premises be sold before the strip, and also held that under a direction of the referee “ that plaintiff have his costs of this action,” it was error to tax costs against Mannis personally. This had been done.
    
      J. A. Kellogg, for app’lt; B. 0. Bascom, for resp’ts.
   Learned, P. J.

The order appealed from was right.

1. The affidavit shows what was the irregularity complained of, viz.: the entry of a judgment for costs not warranted by the report of the referee. The preliminary objection was properly overruled. . m

2. The report of the referee who tried the case found “ that plaintiff have his costs of this action.” As the action was one for foreclosure, this language simply meant that the plaintiff should recover costs in the manner usual in such actions, that is, from the avails of the sale. If the referee had intended that the plaintiff should recover costs personally against any defendant he would have so stated. As to the merits, that is, whether the referee ought to have allowed costs against any defendant personally, that question could only be examined on appeal from the judgment. As the report stood, the plaintiff was not regular in entering costs personally against any one. And the entry was properly corrected by the court.

3. The special term could properly direct the order of sale in this case, if it chose so to do.

The direction made was equitable and just. The mortgage was on a lot of land. Subject to the mortgage a right of way over a strip of ten feet wide belongs to Mannis. The title to that ten feet subject to the mortgage and subject to the right of way is in Kate K. Traver, coming to her through the foreclosure of a second mortgage dated in 1876. The title to the rest of the lot subject to the mortgage is in John Case, coming to him through the foreclosure of a still later mortgage dated in 1882, which when foreclosed in 1885 did not cover the ten feet.

The owner of the right of way offered in his moving affidavit to bid enough on the sale to make the judgment and costs out of the land exclusive of the strip of ten feet. The court ordered that the part of the land other than the strip of ten feet be first sold. This is in accordance with the equitable rule. The right of way was conveyed by the owner of the land in 1883.

The plaintiff who appeals is not injured by this direction to sell. It is not shown that the land sold thus in parcels will not bring as much as if sold as a whole. And the offer made by Mannis is a protection to the plaintiff. For if on the sale" Mannis should permit the piece first sold to bring less than the judgment and costs the court could order a re-sale. But there is no real danger,, since Mannis is desirous to save his right of way.

No one else appeals. But the plaintiff’s counsel urges that John Case should have had notice of this motion. He was a defendant in the action and did not appear. If he desired to protect his interests he should have appeared and presented his claim. We have no reason to assume that he is not satisfied with the direction given by the court. Furthermore as the owner of the mortgage,, under the foreclosure of which John Case obtained title, released this ten feet, it would be inequitable to permit John Case, the owner of the residue, to get indirectly the benefit of the value of that ten feet, by compelling the sale of the whole property in one parcel.

The order is affirmed, with ton dollars costs and printing disbursements.

Landoh and Mayham, JJ., concur.  