
    Cornelia F. Ross, Appellant, v. The Glenwood Cemetery Association and Others, Impleaded with David H. Carver and Others, Respondents.
    
      Purchase-money mortgage — the deed and mortgage are to be construed as one instrument— sale of land of a cemetery association under mortgage foreclosure—the holder of a certificate of indebtedness of a cemetery association is not a necessary party thereto.
    
    Where, upon a sale ot real property, a mortgage is given back for a portion of the purchase price, the deed and the mortgage constitute an indivisible act and are to be regarded as one instrument and construed as a conveyance upon the condition of payment expressed in the mortgage.
    The holder of a certificate of indebtedness issued by a rural cemetery association, incorporated under chapter 133 of the Laws of 1847, is not a necessary party to án action to foreclose a purchase-money mortgage covering land conveyed to the cemetery association for cemetery purposes.
    Chapter 419 of the Laws of 1871 does not prohibit the sale, in such an action, of that portion of the mortgaged premises which has not been used for interments or sold by the cemetery association for burial purposes.
    Appeal by the plaintiff, Cornelia F. Ross, from such portion of á judgment of the Supreme Court, partly in plaintiff’s favor and partly in favor of the defendants, David H. Carver and others, bearing date the 12th day of April, 1902, and entered in the office of the clerk of the county of Broome, upon the report of a referee, as adjudges that a bond and mortgage executed by the defendant, The Glenwood Cemetery Association, to Erastus W. Smith, of date April 1,1877, and given as part purchase price of the tract of land therein described, was legal, valid and enforcible by foreclosure, and from such portion of said judgment as adjudges that the proceedings in the action for the foreclosure of said mortgage, and that the judgment of foreclosure and sale entered therein, and that the sale had under said judgment were legal and valid, and that the conveyance executed pursuant to said sale divested said association and all persons claiming under it, and this plaintiff, of all right, claim and interest in and to the lands so sold, and vested' a valid title in the grantees named in' said conveyance, and from such portion of said judgment as dismissed the complaint upon the merits, with costs as to said grantees.
    The defendant, The Glenwood Cemetery Association, ■ was a domestic corporation, incorporated in June, 1875, under the provisions of chapter 133 of the Laws of 1847 of the State of New York, entitled “An.act authorizing the incorporation of rural cemetery associations,” and the acts amendatory thereof.
    Soon after its incorporation said association acquired by purchase from various persons some sixty acres of adjoining lands for the purpose of devoting the same to cemetery purposes. Included in said sixty acres was a tract of twelve and twenty one-hundredths acres which the association purchased from Erastus W. Smith and wife by contract in the summer or fall of 1875, or spring of 1876, and of which the association took 'a deed of date March 30, 1877. While holding the twelve and twenty one-liundredths acre tract under contract, said association erected a sexton’s house thereon in which the office of the association has always been kept, set out ornamental trees, and laid out the main road entering the cemetery and crossing said tract to the Parker and Congdon purchases on the east where all the interments, covering in the neighborhood of ten acres, and numbering about two thousand, have been made, with the exception of the few interments made upon the twelve and twenty one-hundredths acre tract within the last three or four years. For the purpose of securing the payment of $3,490 of the purchase price of said tract of land of twelve and, twenty one-hundredths acres, and as a part of the transaction of conveyance, the Glenwood Cemetery Association duly executed and delivered to said Erastus W. Smith its bond for such sum, payable within four years from date, with interest, secured by a mortgage in the usual form, upon said tract of twelve and twenty one-hundredths acres. Said mortgage was in April, 1882, duly assigned by Erastus W. Smith to the Chenango Valley Savings Bank of Binghamton, N. Y., said association certifying in wilting to said bank, as an inducement to the bank to take said assignment, that said mortgage was a good and valid mortgage in all respects, and that there were no defenses, legal or equitable thereto. Default having been made in the payment of both principal and interest of said bond- and mortgage, the Chenango Valley Savings Bank in June,’ 1899, brought an action for the foreclosure of said mortgage against said association, one Fobs and one Hulbert. Said association interposed an answer alleging that said mortgage was invalid for the reason that the lands therein described were purchased by said association for use for cemetery purposes as was well known to said Smith when he took said mortgage, and to the plaintiff when it took an assignment thereof, and that actual interments had been made upon a portion of said tract of land. The issue thus joined was brought to trial at a term of the Supreme Court held in September, 1899, and a judgment of foreclosure and sale was duly granted and entered for the sale of said tract of twelve and twenty one-hundredths acres, excepting therefrom those portions in the northeast corner of the tract which had been sold for burial purposes, and upon which said interments had been made. Pursuant to said judgment of foreclosure and sale, said tract of land was sold in November, 1899, under written objection by plaintiff, and was struck off- to the defendant Israel T. Deyo, who assigned one-third of his bid to the defendant David H. Carver and one-third to the defendant Martin L. Deyo, to which three persons a déed of said tract was duly executed and delivered by the referee who conducted said sale. The surplus arising upon the sale was paid to the county treasurer ánd an order confirming said sale was duly granted and entered in December, 1899. Said grantees entered into possession of the lands so bought and have erected several houses thereon and otherwise improved the same.
    From time to time, between December, 1875, and November, 1891, the said Glenwood Cemetery Association assumed to issue certificates of indebtedness amounting in the aggregate to $168,300, of which the referee found that about $33,000 only were valid, a portion of which valid certificates were owned by the plaintiff herein.
    The plaintiff has brought this action for the purpose of having determined the validity, ownership and amount of the certificates of indebtedness of said association, and to have said foreclosure sale adjudged to be void, and the title to said land adjudged to be in said association. Said referee found as to the validity and invalidity of said- certificates of indebtedness, ánd no appeal has been taken from ‘the judgment entered upon his findings relative thereto. Said referee decided that said bond and mortgage were legal and valid obligations of said association and enforcible by foreclosure; that, the foreclosure proceedings were legal and valid, and that the judgment of foreclosure and sale, and the sale in pursuance thereof, divested the Glenwood Cemetery Association and all persons claiming under them, and the plaintiff herein, of all right, claim and interest in and to the lands so sold, and that the referee’s deed given in pursuance of said sale vested the title to the lands sold under said judgment in the grantees therein named, and said referee directed that judgment be entered in favor of said grantees, dismissing the complaint as to them on the merits, with costs. The plaintiff herein filed exceptions to the report of said referee and has appealed, as above stated, from a portion of the judgment entered upon the decision of the referee.
    
      Edward K. Clark, for the appellant.
    
      Israel T. Deyo, for the respondents.
   Per Curiam:

We think that the bond and mortgage given by the Glenwood Cemetery Association to Erastus W. Smith was valid and enforcible, and that the foreclosure sale divested the association of its title and interest in the portion of the Smith tract so sold. The mortgage was a purchase-money mortgage and a part of the transaction of conveyance by Smith to the association of the tract of twelve and twenty one-hundredths acres. The deed and mortgage constitute an indivisible act, and are to be regarded as one instrument and construed as a conveyance upon condition of payment expressed in the mortgage. (Dusenbury v. Hulbert, 59 N. Y. 541; Greenpoint Sugar Co. v. Whitin, 69 id. 328.)

The sale under the foreclosure judgment of the unoccupied portion of the Smith tract was not prohibited by chapter 419 of the Laws of 1871.

No question arises in this case as to the right to sell under a foreclosure judgment lands upon which interments have been made, or which have been sold by the cemetery association for burial purposes, but upon which interments have not yet been made, as all such portions of the mortgaged lands were expressly excepted from sale by the decree of foreclosure and sale.

The defense of the alleged invalidity of the Smith mortgage was interposed by the Glenwood Cemetery Association in the foreclosure action, and the judgment of the court adjudged the mortgage to be valid and enforcible. While the plaintiff herein was not a party to that action, it was not necessary that she should be made a party, being only a creditor of the association as a holder of its certificates of indebtedness. That judgment still stands unmodified, and the referee has found that it should not be set aside or interfered with, and that the action in which it was rendered was instituted and conducted without collusion and to enforce a just debt, past due, and his decision is amply supported by the evidence.

The portion of the judgment appealed from should be affirmed, with costs of this appeal to the defendants David H. Carver, Israel T. Deyo and Martin L. Deyo against the plaintiff.

Judgment unanimously affirmed, with costs to the defendants Carver, Deyo and Deyo.  