
    (69 Hun, 74.)
    BIGELOW v. DAVOL et al.
    (Supreme Court, General Term, Second Department.
    May 8, 1893.)
    Mortgages—Eights of Junior Mortgagee.
    Where a senior mortgagee has foreclosed, and bought in the land, without making the owner of a junior mortgage of a part of such land a party, the owner of such junior mortgage cannot enforce his mortgage against the portion of the land covered thereby, free from the senior mortgage, by paying the proportionate part of the senior mortgage debt, since the land covered by the junior mortgage is subject to the payment of the whole senior «mortgage debt.
    Appeal from special term, Kings county.
    Action by Georgianna Bigelow against William H. Davol and others to foreclose a mortgage. From a judgment for plaintiff, defendants appeal.
    Reversed.
    For former report, see 16 N. Y. Supp. 646.
    Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
    A. P. & W. Man, (E. Ellery Anderson, of counsel,) for appellants.
    Joseph M. Pray, for respondent.
   BARNARD, P. J.

The plaintiff is the owner of a mortgage executed on the 1st of September, 1887, conveying 18J sixty-fourth parts of certain, premises in Brooklyn to Joseph M, Pray. She acquired her title thereto in October, 1887, and her assignment was recorded in ¡November, 1887. The premises were subject to a previous mortgage given in 1884. In 1889 this prior mortgage was assigned to one Hutchinson, who foreclosed it, but did not make ■the plaintiff a party defendant in the foreclosure action. The property was bought in by Hutchinson at the foreclosure sale, and soon after his purchase he sold the land to defendant Davol. Davol went into possession, and expended large sums of money in improving the property. TIpon the former appeal in the case (16 N. Y. Supp. 646) it was held that this Hutchinson foreclosure did not bind the plaintiff, and that she could foreclose her mortgage as if the Hutchinson foreclosure.had not been had. We do not think that the complaint in this action puts in issue the prior mortgage, which was foreclosed. There is an averment that Davol is in possession, and that the defendants, including Davol, be bound; but this is in the usual form of averment incidental to a foreclosure action. It does not, in the present case, mean that the second mortgage should be put before the first, and, by a general prayer, that the purchaser at the foreclosure sale of the first mortgage should be subject to the second mortgage, which was not brought in the first foreclosure action. If a sale be had in this action it will be subject to the first mortgage, and to any equities which Davol has, by virtue of his purchase, as against the plaintiff. The plaintiff’s mortgage only covers a part of the premises covered by the second, and does not cover all which is described in her mortgage; and the decree in this case provides that the plaintiff may pay 6|- sixty-fourth parts of the amount due on the first mortgage, and take the proportions covered by her mortgage free upon such payment.

There is proof tending to assail the plaintiff’s mortgage, and this appeal involves these two questions: Whether the provision providing that the plaintiff may pay the proportion of the first mortgage, and take the land free, is valid; and whether the mortgage of plaintiff is good.

We think that the provision for the payment of a portion of the first mortgage, only, is improper. The first mortgage covered all, and all of the property covered by it is to be held for its payment. 2 Hoff. Ch. Pr. 157. The portion of the decree which provides for the payment of a portion of the first mortgage should be modified, and the sale be directed subject to whatever rights Davol has in the premises sold. This modification will carry out the spirit of the former decision,—that the sale under the second mortgage is as if there had been no foreclosure of the first mortgage.

Is the mortgage good? It was given by Cecilia Arthur to Joseph M. Pray. Although her brother joined in it, the mortgage failed as to him. The mortgage debt was, if any existed, one for services rendered by Joseph ¡M. Pray in behalf of the estate of their father, in which he was one of the executors to the father’s will. The mortgage was given for services rendered as an attorney for the children,—htúrs. The debt, if any, was from the four children. William Arthur and Alexander Arthur did not, or could not, sign, and the whole debt is thus put on Cecilia. The mortgage should not be held good, without further proof, for over one-fourth of the amount of it, in any event. As between Pray and Cecilia, there is no proof of a debt for any amount Mr. Pray paid nothing, and Miss Arthur got nothing, except a claim had been shown to her brother Alexander, and Mr. Pray supposed that he had told his sister Cecilia. She denies all knowledge of it. The claim was received as collateral to a claim, and this claim was for services as executor in defending the estate. There is no proof sufficient to uphold the mortgage as against Cecilia. Collier v. Munn, 41 N. Y. 143. And it is a very significant fact that the mortgage was deemed of no force, because Cecilia obtained the surplus upon the first sale with the knowledge of Mr. Pray, who was Mrs. Bigelow’s attorney, and neither Pray nor plaintiff asserted any right to such surplus. As the case now stands, there is no validity to the mortgage, as against Cecilia Arthur. The plaintiff only took what Mr. Pray had to sell. Trustees v. Wheeler, 61 N. Y. 88. The judgment should be reversed, and a new trial granted; costs to abide event. All concur.  