
    Caroline Eyring, Appellant, v. The Hercules Land Company, Respondent, Impleaded with Others.
    
      Mortgage foreclosure — notice, to a party appearing, of an application for judgment—failure to give notice of the hearing before the referee—primary liability created by an assumption of a mortgage— consideration paid for a release of part of the mortgaged pi'emises.
    
    Where, in an action brought for the. foreclosure of a mortgage upon real property, a defendant:who has appeared but has not answered receives notice of.a motion for judgment, but does not appear at the time specified therein, and without further notice to him the court' appoints a referee to compute the amount due upon the mortgage, who makes his report, and upon the filing of such report the court grants a judgment of foreclosure, such defendant is not entitled to have the judgment opened on the ground that he did not receive notice of the hearing before the referee.
    Where a portion of mortgaged premises is conveyed subject to the mortgage, the grantee covenanting to pay the mortgage, a subsequent grantee, not covenanting to pay the mortgage, whose deed refers to the conveyance assuming it, thereby has notice that, by an agreement between the parties in interest, the land so conveyed is primarily liable for the payment of the mortgage, and ■, he is notun a position to assert the rule that mortgaged premises should be sold in the inverse order of alienation.
    It is immaterial what consideration a mortgagee receives for releasing part of the mortgaged premises from the lien of the mortgage, where it is agreed that the mortgage shall remain a continuing security upon the unreleased part.
    Appeal by the plaintiff, Caroline Eyring, from an order of the County Court of Erie county, entered in the office of the clerk of the county of Erie on the 6th .day of August, 1896, vacating a. judgment of foreclosure.
    
      
      Charles H. Ribbel, for the appellant.
    
      Clinton B. Gibbs, for the respondent.
   Follett, J.:

None of the defendants in the action appeared except the Hercules Land Company, the owner of the fee of lots 67 and 72, which appeared but did not-answer. After the time to answer had expired the plaintiff moved for judgment, and served oh the attorney of the land company a notice of motion. The land company failed to appear, and the court appointed a referee to compute the amount due on the mortgage, and on the filing of his report, which was done the next day, granted the usual judgment of foreclosure.

The land company insists that the judgment was irregular because notice of the hearing before the referee was not given. Computing the amount due on the mortgage was but an incident to the application for judgment, and the computation might have been made by the court, or it might, as it did, appoint a referee for that purpose.

The plaintiff’s practice was regular, and the land company was not entitled to have the judgment opened on the ground that notice of the hearing before the referee was not given.

The mortgage, when given, covered lots 59, 60, 67 and 72. Three years afterwards, on the 3d day of August, 1887, the mortgagor conveyed lots 67 and 72 to Frank L. Anderson. The affidavit of the plaintiff’s attorney states that the conveyance was made subject to the lien of the mortgage, which the grantee covenanted and agreed to pay. This fact is not disputed by the defendant’s affidavits. By this transaction lots 67 and 72 became primarily liable for the payment of the mortgage, and lots 59 and 60 were secondarily liable.

July 2, 1888, Frank L. Anderson conveyed, by a deed recorded July 23, 1888, lots 67 and 72 to Charles P. Brandel, subject to the mortgage, the grantee covenanting to pay the amount due thereon.

July 11,. 1890, Charles P. Brandel, by a deed recorded July 10, 1890, conveyed lots 67 and 72 to Fletcher Barron, subject to the mortgage, and two other mortgages, all of which the grantee covenanted to pay before January 1, 1891.

April 15, 1892, Fletcher Barron conveyed lots 67 and 72 to the Hercules Land Company, by a deed recorded April 18, 1892. The grantee in this deed did not covenant to pay the mortgage, and there is no reference thereto in the deed, but reference is expressly made in the deed to the conveyance from Braudel t,o Barron. By this, reference the .land company had notice that by agreement between the parties in interest lots 67 and 72 were primarily liable for the payment of the mortgage, and it is not in a position to assert the rule that in mortgage cases the land mortgaged is to be sold in the inverse order of alienation. It is nowhere asserted in the record that lots 67 and 72 have been released from the lien of the mortgage, except as the result of the rule last referred to. It is asserted in the moving affidavits that when the mortgagor conveyed to Anderson, the mortgagee received $1,100, which was the amount of the mortgage, for the release of lots 59 and 60, but there is no assertion that lots 67 and 72 were released. It is entirely immaterial what consideration the mortgagee received for the release of. lots 59 and 60, provided the parties in interest then agreed that the mortgage should remain a continuing security on lots 67 and 72.

The order appealed from should be reversed, with ten dollars costs.

All concurred.

Order reversed, with ten dollars costs and printing disbursements.  