
    Emma R. Shaw, Appellant, v. George W. Youmans, Respondent, Impleaded with Anna W. Youmans, His Wife, and Others.
    
      Mortgage foreclosure sale— the mortgagee purchasing the premises cannot, as against the owner of the equity of redemption, waive the requirement that the referee pay taxes—duty of a mortgagor to pay taxes.
    
    Where, in an action brought to foreclose a mortgage upon real property, the judgment of foreclosure and sale, in conformity with the direction of section 1676 of the Code of Civil Procedure, provides that the referee shall pay out of the proceeds of the sale all taxes and assessments upon the premises, the plaintiff in the action, who becomes the purchaser at the sale, has no power, over the objection of the owner of the equity of redemption, to -waive such provision of the judgment, and the owner of the equity of redemption is entitled to an order requiring the referee to pay such taxes and assessments.
    One party to an action cannot waive the provisions of a judgment rendered therein, which benefits the other party thereto.
    Neither a mortgagor of real property nor the owner of the equity of redemption therein owes a duty to the mortgagee, in the absence of a provision in the mortgage to that effect, to preserve the mortgaged premises against taxes and the consequent impairment of the lien of the mortgage.
    Appeal by the plaintiff, Emma E. Shaw, from an order of the Supreme Court, made at the Delaware Special" Term and entered in the office of the clerk of the county of Delaware on the 13th day of March, 1905.
    
      Wagner & Fisher, for the appellant.
    G. W. Youmans and F. W. Youmans, for the respondent.
   Houghton, J.:

The appeal is from an order directing a referee appointed to sell to pay the taxes on the property covered by the mortgages.

Youmans, the defendant, was the owner of the equity of redemption. The interlocutory judgment entered against him provided that the referee should pay out of the proceeds of the sale all taxes and assessments. In this respect the judgment was in conformity to the directions of section 1676 of the Code of Civil Procedure.

The plaintiff purchased the premises at the sale and the referee failed to pay the taxes which were a lien against the property, and they were in process of collection against the owner of the equity, Youmans. Thereupon he moved that the court direct the referee to pay the taxes as he was commanded by the judgment to do, and the court so ordered.

The plaintiff claims that she can waive the payment of the taxes and that the provisions of the Code and of the judgment were for her benefit alone, and cites as authority for the proposition the case ' of Morgan v. Fullerton, (9 App. Div. 233). In that case the purchaser and the plaintiff agreed that the sale should be made subject to doubtful assessments and waived their payment. The village attempted to compel the referee to comply with the judgment and pay the assessments. The court said the municipality had no interest in the judgment, which only affected the parties thereto.

The taxes levied were primarily payable from the personal property found upon the premises whether the owner of the equity might be the owner or not, but when the sale was actually made pursuant to the directions of the judgment that all taxes which were levied should be paid from the proceeds of sale, it became the duty of the referee to pay them in compliance with the provisions of the judgment.

The defendant as a party had an interest in the judgment against • him being observed and ■ carried out. He stood content with it as entered; but if it had not contained the provisions as to the payment of taxes which were liens, he might have objected that it did not conform to section 1676 of the Code, and appealed or moved to correct it.

One party cannot waive the provisions of a judgment benefiting the other party to it. The mortgagor or owner of the equity owed no duty to the mortgagee, in the absence of a provision in the mortgage to that effect, to preserve the lands against taxes and the crowding out of the lien of the mortgage. (Cornell v. Woodruff, 77 N. Y. 206.)

The judgment was in conformity to the provisions of 'the Code with respect to paying taxes. It was binding on the parties, and one party could not waive any of its provisions to the prejudice of the other. The plaintiff could not come in and say that she waived payment of the taxes, which waiver would have the effect of throwing the taxes upon another party who would be relieved and protected if the provisions of the judgment were carried out.

The order was correct and should be affirmed, with ten dollars <costs and disbursements.

All concurred.

Order affirmed, with ten dollars costs and disbursements.  