
    Lillian F. Naylor, Respondent, v. Catharine Colville and Others, Appellants.
    
      Foreclosure — redemption by a junior incumbrancer, not made a party — redemption allowed without a resale — costs against purchasers who resist a redemption.
    
    "Where the holder of a duly recorded junior mortgage is not made a party to an-action brought to foreclose a prior mortgage existing upon the same premises, the purchaser at such foreclosure sale occupies as to such junior mortgagee the position of a mortgagee in possession from whom the junior mortgagee is entitled to redeem.
    In such a case the decree of redemption should permit such purchaser to retain the possession on paying to the j unior mortgagee the amount due to him and he should not be compelled to submit to a sale.
    The rule that a subsequent incumbrancer, seeking to redeem, must pay the costs of the suit, 'does not apply where the defendants improperly resist the assertion of the right of redemption.
    Appeal by the defendants, Catharine Colville and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 30th day of March, 1896, upon the decision of the court rendered after a trial at the Kings County Special Term.
    
      Alfred Roe, for the appellants.
    
      Oscar Frisbie, for the respondent.
   Willard Bartlett, J.:

The mortgage which the plaintiff sought to foreclose in this action was executed by one John McKernan to Edward K. Robbins on .October 6, 1876, and recorded on February 27, 1877. On the day when it was recorded it was assigned by Edward K. Robbins to the plaintiff, but the assignment was not placed upon record until September 5, 1894. The defendants Colville have acquired possession of the mortgaged premises through the foreclosure of a prior mortgage thereon. This prior mortgage was dated August 28, 1873, and recorded on October 14, 1873. It subsequently passed by mesne assignments to the Sag Harbor Savings Bank, by. which institution it was -foreclosed. The complaint and notice of lis pendens in the foreclosure suit were filed in the office of the clerk of Kings county on June 9, 1877. Although the mortgage of John McKernan to Edward K. Robbins (upon which the plaintiff now sues) had been recorded on February 27, 1877. as already stated, Robbins was not made a party defendant to the bank’s suit. It seems plain, therefore, that neither his rights nor those of the plaintiff, who had succeeded to them as his assignee, could be affected by the foreclosure of the .prior mortgage held by the Sag Harbor Savings Bank. Robbins was a.junior incumbrancer whose lien had not been cut off, and the plaintiff stands in his shoes.

That foreclosure, the purchase of the premises at the foreclosure sale by the bank, and the subsequent sale to the defendants Colville, leaves these defendants in the position of mortgagees in possession, from whom the plaintiff herein, under her subsequent mortgage, is entitled to redeem. ■ (Salmon v. Allen, 11 Hun, 29, 32.) As was held in the case-cited, however, we think a decree of redemption should have been entered, which would permit the defendants to retain possession of -the property if they elect to pay the amount due to the plaintiff instead of an interlocutory judgment compelling them to submit to a sale. There would seem to be no difficulty in modifying the judgment so as to effect this result. The facts found by the trial court are fully sufficient to sustain a decree of redemption. There are only two exceptions to the findings of fact,'and neither .is tenable, there being evidence in the record tending to establish each.

In a suit by a subsequent incumbrancer to • redeem, it is the rule that the party redeeming shall pay the costs of the suit, unless the defendant improperly resists the assertion of the right of redemption. (Belden v. Slade, 26 Hun, 635, 642.) Here, however, the appellants utterly deny, what seems to be a very plain right in .the premises on the part of the plaintiff, and have thus deprived themselves of the benefit of this rule as to costs.

The interlocutory judgment should be modified so as to provide for a redemption by the plaintiff, according to the settled practice in equity, and, as thus modified, should be affirmed, without costs of this appeal.

All concurred.

Judgment modified, in accordance with the opinion of Baetlett, J., and, as thus modified, affirmed, without costs.  