
    Russell Bradford, Appellant, v. Ella R. Downs and Marcus E. Downs, Respondents; Ella R. Downs v. Reuben W. Ross and Others.
    
      Foreclosure of a mortgage upon an undivided interest —proceedings not stayed in order that the entire premises may be sold more advantageously at a partition sale.
    
    In an action brought by the bona fide holder and assignee of a mortgage, given by a tenant in common upon her undivided one-fourth interest in certain premises to her cotenants, who have assigned it to the plaintiff, which has proceeded to judgment, a stay of proceedings should not be granted at the instance of the mortgagor, to the end that the premises may be sold under the judgment to be entered in an action of partition, in which the mortgagor is the plaintiff, solely because, in the opinion of an expert, a better price will be obtained by the mortgagor upon a sale of the whole property than she is likely to realize from the sale of her undivided quarter interest under the judgment in foreclosure.
    O’Brien and Williams, JJ., dissented.
    Appeal by Russell Bradford, the plaintiff in the first above-entitled action, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9th day of November, 1897, staying a sale under the judgment of foreclosure in the action.
    
      A. Stickney, for the appellant.
    
      D. B. Ogden, for the respondents.
   Patterson, J.:

The order appealed from by the plaintiff Bradford stayed proceedings in an action for the foreclosure of a mortgage after such action had proceeded to judgment and a sale of the mortgaged premises had been advertised by the referee named in the judgment. The order was made upon a motion of the mortgagor, who does not pretend to have any defense to the mortgage, but who only claims that a delay of a sale, under the foreclosure judgment, until such time as the property may be sold under a judgment in a partition action, will be of advantage to her, and that a better price for the property may b"e procured under a partition sale than under a foreclosure sale. It appears that the mortgaged premises were owned by Mrs. Downs and Reuben W. Ross, Eva J. Rogers and Estelle Ross, as tenants in common, each being entitled to an undivided one-fourth part. Mrs. Downs began an action for the partition of the premises in May, 1897. At that time Eva J. Rogers and Estelle Ross were the owners of a mortgage upon Ella R. Downs’ (the plaintiff in the second above-entitled action) undivided interest. That mortgage was assigned in August, 1897, to the plaintiff Bradford, who brought this action to foreclose it. There is nothing whatever in these papers to show that the assignment was made for any oppressive purpose or to gain any advantage, or for any other reason than to make an absolute transfer thereof to Bradford, who, in seeking to enforce the security, is merely pursuing his legal right, and in the effort to enforce that right is entitled to the aid of the court, and if that aid is withheld without sufficient reason he merely suffers a denial of justice.

The question involved here is not as to the power of the court to control its judgments or its process and to suspend the enforcement of one or the operation of tire other in furtherance of justice ; it simply is whether, on the facts of this case as they are made to appear on this motion, it was proper for the court below to interfere with Bradford’s absolute right to the remedy given him by the solemn judgment of the court. The only circumstances made to appear as a ground for granting this motion was the opinion of one real estate broker, who states in an affidavit that the value of the property embraced in the partition suit is $296,000, and “ a sale, however, of an undivided fourth interest therein, in case such interest were sold separately, would involve very serious loss, and would bring very much less than one-fourth of what the entire property would bring on a sale thereof.” We are unable to see what in justice there is in allowing a suitor, situated as Bradford is, to pursue that course which the law has provided for him for the enforcement of his rights. He is doing nothing hut that which the mortgagor authorized him to do in case of default, namely, to foreclose the mortgage and sell the undivided one-fourth interest as an undivided one-fourth interest. To obstruct him in the pursuit of his remedy and the realization of his money in due course of law, only because a debtor fancies or believes that it will be more to that debtor’s interest if another course is pursued, can never he a reasonable ground for the court depriving a suitor of that to which he is absolutely entitled. It is simply an application to the court to deprive a creditor of his legal right, to suit the convenience of a debtor, based in this case only upon the opinion of one person as to the possible consequences of the court allowing the creditor to do that to which it has adjudged him to be absolutely entitled. To maintain this order would be to establish a mischievous precedent, if hardship in the execution of the process of the court alone is judicially declared to be a sufficient cause for suspending that execution. All the moving party is entitled to is a fair sale in the regular ivay. If unforeseen circumstances, which would depreciate the value of the property, were to arise, such as invasion or pestilence or some great public calamity, it would be within the power of the court, doubtless, to postpone a sale, but to stay all a plaintiff’s remedy and make his right abide the event of other proceedings in which he has no interest is to deprive him altogether of his right, or make it subordinate to the wish and put it under the control of third persons.

The condition annexed to the order, that the moving party should give security for any deficiency arising on a sale in the partition suit, and the making and service of such undertaking, does not affect this question. "The plaintiff Bradford has not been accorded a favor by the order, the acceptance of which would preclude his appealing therefrom.

The order of the court below was manifestly wrong and must be reversed, with ten dollars costs and disbursements, and the motion for a stay of proceedings denied, with ten dollars costs.

Van Brunt, P. J., and Ingraham, J., concurred; O’Brien and Williams, J J., dissented.

O’Brien, J.

(dissenting):

We concur with Mr. Justice Patterson that the court had power, which upon a proper showing it should exercise; but we differ with him in thinking that upon the facts shown the power was improperly exercised. The partition suit was first brought, and were it not for the extension of time accorded to the mortgagee, Mrs. Downs would have been enabled to have a decree and sale in partition before there could have been a sale in foreclosure, and we have her attorney’s affidavit in which, with respect to the extensions of time in the partition suit, he says : “ I assumed, as in my opinion I had the right to assume, after my conversations-with their counsel, that the result of the extensions would not be permitted to be that a sale in foreclosure could be had before a sale in partition or an actual partition.” In addition, we have the statement under oath of a reliable real estate expert, which, not being controverted, we must take as true, to the effect that if the undixdded interest of Mrs. Downs is sold in the foreclosure it will bring a very considerable percentage — he says forty per cent — less than it would bring if sold in the partition suit in conjunction with all the other undivided interests in the property. Taking his valuation of the property as a whole, it xvill be seen that Mrs. Downs’ interest would be $75,000. If sold in foreclosure, separate from the other undivided interests, it xvould bring, according to the expert, forty per cent less, viz., $45,000, xvhich would just about cover the mortgage, interest and costs and taxes. So that the .result would be that Mrs. Downs would have nothing left. It would, therefore, appear to be to the advantage of Mrs. Downs and of the mortgagee, if all he desires is to collect his money, that the sale should be had in the partition suit.

As a condition of obtaining the stay, the court beloxv required that a bond for $7,500 should be given, conditioned that Mrs. Downs should pay any deficiency in the foreclosure sale or any deficiency of her share of the proceeds of sale in partition if one should be had, to meet the entire amount of the foreclosure judgment, interest and costs, including any costs of adjourning the foreclosure sale. So that the effect of staying the foreclosure suit is not in any way to injure the mortgagee, but to give, him this additional security and provide a method of sale in partition which, according to the evidence, would furnish him a larger fund out of which his mortgage could, be paid. It is impossible to conclude, therefore, from this record that the mortgagee can in any way be injured, except to the extent that he is prevented from proceeding arbitrarily with what he claims to be his right of executing his decree in a foreclosure sale, regardless of the injury which he may inflict upon Mrs. Downs.

It would be difficult to present a stronger array of facts to invoke the power of the court to prevent a needless loss to Mrs. Downs without any corresponding benefit to the mortgagee.

We think that the order should be affirmed, with costs.

Williams, J., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  