
    STIMSON v. ARNOLD.
    
      N. Y. Supreme Court, Third Department, Third District ;
    
    
      Special Term, June, 1878.
    Apportionment. — Foreclosure of Mortgage. — Vesting of Title on Foreclosure Sale.
    Where a judgment of foreclosure and sale provides that the surrender of possession can only be required on the exhibition of the deed, that formality may be waived by the party in possession. The actual title passes on the delivery of the deed; and the surrender of possession as of that day may be inferred by the jury, from the acts of the parties.
    
    If the change of title and possession are accomplished intermediate the periods for the payment of storage for goods on the premises, and there is no agreement for apportionment, storage payable subsequently to the change, although partly for a period previous thereto, is payable to the purchaser.
    
    Motion by plaintiff for a new trial upon the judge’s minutes.
    The action was brought by Frank C. Stimson against Collins Arnold to recover the value of the storage of certain machinery in the Clifton Mills at Cohoes, by the plaintiff’s assignor for the defendant. The assignor had been in the occupancy of the mills under a lease, and whilst so occupying, the defendant, by an agreement with him, was permitted to leave certain machinery, originally belonging to said mill, and which he had purchased, in said mill, on storage. The defendant paid for storage to the assignor of plaintiff, up to December 9, 1876.
    On August 29, 1876, a decree of foreclosure of a mortgage, antedating the lease of plaintiff’s assignor, and covering the said Clifton Mills, was obtained. Under such foreclosure decree the premises were sold September 28, 1876, to William White, as trustee for the Home Savings Bank, and on December 20,1876, a deed was delivered. The order confirming the sale was entered February 27, 1877. After December 9, 1876, the defendant declined to pay storage to the assignor of plaintiff, and paid to the purchaser.
    On December 27, 1876, the purchaser at the foreclosure sale went to the mill, and assumed to take possession. He did not, however, see the assignor of the plaintiff, who was absent. Large and extensive repairs were subsequently made by the purchasers upon the premises, the assignor of the plaintiff superintending them, but there was no formal demand of possession, nor exhibition of deed to him until November, 1877. The defendant claimed, however, that the possession of the purchasers had been fully recognized by plaintiff’s assignor, long prior to that date.
    The court charged the jury that the purchaser at the foreclosure sale could not, from the language of the decree, have required the possession of the mili against the will of plaintiff’s assignor without a formal demand thereof, and an exhibition of the deed, but it was, nevertheless, competent for him to make such surrender voluntarily, and to recognize the title of the purchaser and his possession as of a prior date, and that up to the time when such possession was acquired, or up to the date at which the plaintiff’s assignor recognized the possession of the purchaser as commencing, if he did so, the plaintiff could recover. The jury-found for the defendant. The plaintiff insisted that in any event he was entitled to recover storage between December 9, 1876, and the 20th of the same month.
    
      George L. Stedman, for plaintiff:
    The verdict was against the evidence. The plaintiff was entitled to judgment for storage from December 9, 1876, to the time of the execution and delivery of the deed. It is probable that the terms of sale did not contemplate a deed until it was given, and that the money therefore was not paid until then (Mitchell v. Bartlett, 52 Barb. 319, p. 327). The plaintiff was entitled to judgment for storage from December 9, 1876, to the time of the presentation of the deed by White upon the premises, December 27, 1876. Same as to confirmation, February 27, 1877. He was also entitled to judgment for storage from December 9, 1876, to the time Stimson surrendered or attorned to White. This, by all the evidence, was at least not until March, 1877. The theory upon which the court submitted the question of recovery to the jury (aside from the question of amount), was that Stimson had surrendered. He was a tenant of the mill, and in charge of the goods until he did so surrender. His assignee is entitled to be paid for this (Clason v. Corley, 5 Sandf. 447; Astor v. Turner, 11 Paige, 438; Jackson v. Colden, 4 Cow. 270, 274). The court erred in submitting to the jury the question whether or not the plaintiff was entitled to recover at all. It should at least have instructed the jury that plaintiff was entitled to recover for one of the periods above named. It also erred in refusing to instruct the jury that Stimson was a tenant of the Clifton Company up to the time of the production of the deed and certified copy, and liable for rent up to that time : and in refusing to instruct the jury that the plaintiff was entitled to recover from December 9, 1876, up to March, 1877.
    
      Nathaniel C. Moak, for defendants:
    A deed in a foreclosure sale passes the title immediately on delivery, without waiting for a report of sale and an order of confirmation (Mitchell v. Bartlett, 51 N. Y. 447; Fort v. Burch, 6 Barb. 60, 76; Cheney v. Woodruff, 45 N. Y. 98; Fuller v. Van Geesen, 4 Hill, 171; 1 Jones on Mort. §§ 775, 777; Thomas on Mort. p. 367, 369, 374; Whalin v. White, 25 N. Y. 462-3). An attornment to a mortgagee or one claiming under same title is valid (1 R. S. 744, § 3 ; 1 Edm. St. 696). Plaintiff’s assignor having once recognized the possession of the purchaser could not afterwards repudiate such recognition (Brown v. Dawson, Arnold & Hodges, Q. B. 114). When the order of confirmation was entered, it related back to the time of the giving of the deed (Fuller v. Van Geesen, 4 Hill, 171; Fort v. Burch, 6 Barb. 75-6; Mitchell v. Bartlett, 52 Id. 327, affi’d 51 N. Y. 447, 451). The acts of parties may amount to a confirmation and a recognition of title (Gowan v. Jones, 18 Miss. 168; Roper on Jud. Sales, § 125). The sale under the foreclosure entitled the purchaser to the rents (Wintermute v. Light, 46 Barb. 278, 283).
    
      
       Compare on this subject, besides the cases cited in the text, the following, viz.: Kable v. Mitchell, 9 W. Va. 492, 514; Armstrong v. McClure, 4 Heisk. (Tenn.) 80; Bowery Savings Bank v. Richards, 3 Hun, 366; 2 Jones Mortg. §§ 1659, 1666; Freeman on Executions, § 311; Terpenning v. Agricultural Ins. Co., 14 Nun, 299; Farmers’ Mutual Ins. Co. v. Forney, 1 Leg. Chron. 270.
    
    
      
       As to apportionment under a written instrument, compare L. 1875, p. 616, c. 542, which provides as follows, viz.:
      “ Section 1. All rents reserved on any lease granted after the passing of this act, and all annuities, dividends and other payments of every description, made payable or becoming due at fixed periods under any instrument executed after the passing of this act, or (being a last will and testament) that shall take effect after the passing of this act, shall be apportioned, so that on the death of any person interested in any such rents, annuities, dividends, or other payments as aforesaid, or in the estate or fund from or in respect of which the same shall issue or be derived, or on the determination by any other means whatever of the interests of any such person, he or she, and his or her executors, administrators or assigns shall be entitled to a proportion of such rents, annuities, dividends and other payments, according to the time which shall have elapsed from the commencement or last period of payment thereof respectively (as the case maybe), including the day of the death of such person, or of the determination of his or her interest, all just allowances and deductions on account of charges on such rents, annuities, dividends and other payments being made.” Section 2 provides for the recovery by representatives, and section 3 declares its inapplicability to insurance policies.
      As to apportionment of rent to representatives of a tenant for life, see Betts v. Betts, 4 Abb. New Cas. 416.
    
   Westbrook, J.

[After stating the facts.] — As the decree of foreclosure provided that the surrender of possession could only be required on the exhibition and presentation of the deed, possession could not have been earlier compelled (Mitchell v. Bartlett, 51 N. Y. 447). That formal mode of obtaining possession, however, the party in possession could waive. The deed was dated December 20, 1876, and the actual title then passed (Fuller v. Van Geesen, 4 Hill, 171). The storage for the month, which commenced in December, 1876, having been paid up to the ninth of that month, did not, according to the evidence of the plaintiff’s assignor, become due until ten days before its expiration, which was January 9, 1877. The jury have found that by the agreement of the plaintiff’s assignor and the purchaser, as evinced by the course of their dealings and acts, the possession and rights of the latter attached on the day of the date of the deed, which was December 20, 1876. E"o storage became due until after that time, and as there was no agreement for its apportionment, it was properly payable to the purchasers, whose rights and possession began, as the jury has found, December 20, 1876 (Zule v. Zule, 24 Wend. 76).

Without any elaborate discussion of the evidence, which is unnecessary upon this motion, I content myself with the general statement, that there was sufficient evidence to submit the question to the jury, whether or not the plaintiff’s assignor had recognized the purchaser’ s rights as taking effect December 20, 1876 % At all events, there clearly was evidence to submit to the jury, that the purchaser took actual possession December 27, 1876, and that from that date his actual possession was recognized and acquiesced in. This would still be prior to the maturity of any claim for storage, and therefore such compensation for storage was payable to the purchaser. The jury having answered all questions of fact in favor of the defendant that actual possession was not in plaintiff’s assignor when storage became due, it followed that storage, which became due thereafter, belonged to the purchaser at the foreclosure sale, and that defendant was entitled to a verdict.

Motion for a new trial denied with costs.  