
    Anna M. Herrmann and Others, Appellants, v. Cabinet Land Company, Respondent, Impleaded with Karl Herzing and Others, Defendants.
    Second Department,
    March 13, 1914.
    Real property — ejectment—mortgagee in possession—possession hy purchaser under foreclosure sale void as against owner of equity of redemption.
    Although a sale on foreclosure is void as against the owner of the equity of redemption, where he has not been made a party to the suit, the purchaser at the sale of his assignee becomes an assignee of the mortgage, and if he enter lawfully into possession becomes a mortgagee in possession.
    Hence, where the defendant, in an action for ejectment, after alleging that the land in question was conveyed to plaintiff’s intestate subject to a purchase-money mortgage in the foreclosure of which an affidavit attached to the judgment roll purported to show personal service of the summons and complaint upon the intestate on a certain date, but the pleadings alleged that he died several years prior thereto, and that the purchaser at the foreclosure sale assigned his bid to another who completed the purchase and conveyed to the defendant, pleads as a defense that he thereafter entered peaceably into the actual possession of the property, without notice that the intestate had not been served with the pleadings in the foreclosure action, the complaint should be dismissed.
    Appeal by the plaintiffs, Anna M. Herrmann and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 25th day of September, 1913, granting the motion of the defendant Cabinet Land Company for judgment on the pleadings and for a dismissal of the complaint, and also from the judgment entered in said clerk’s office on the 6th day of October, 1913, upon the said order.
    
      Merle I. St. John, for the appellants.
    
      Lynn C. Norris [Arthur P. Hilton with him on the brief], for the respondent.
   Jenks, P. J.:

The action is ejectment, and the question is whether the defendant Cabinet Land Company is entitled to the judgment that dismisses the plaintiffs upon the merits. The plaintiffs’ demurrer to th§ said defendant’s second defense was overruled, and thereupon a motion was made for judgment.. In 1874 the land was conveyed to plaintiffs’ intestate, subject to a purchase-money mortgage. In the foreclosure of that mortgage in 1897, an affidavit attached to the judgment roll purported to show personal service of the summons and complaint upon the said intestate in 1899, but the pleadings alleged that he died in 1890. The purchaser at the foreclosure sale made in -903 assigned his bid to the Anonymous Company, which completed the purchase, received the referee’s deed in 1909, and thereupon conveyed to this defendant. The said defendant for its second defense, after recital of these matters, pleads: “ That thereafter and in or about March, 1909, this defendant entered peaceably into the actual possession of said Lot Number 355, and it has continued and now is in possession thereof. That said entry was made under and by virtue of said judgment of foreclosure and sale and in reliance upon the fact that said Charles H. Schorr purported to have been actually served with the summons and complaint in said action and without any notice or knowledge whatsoever of the claim set forth in the complaint herein that the said Charles H. Schorr died before the date of said service and that he was not served in said action.”

Even though the sale was void as against the owner of the equity of redemption, in that he was not made a party to the foreclosure suit, the purchaser at the foreclosure sale became the assignee of the mortgage, and, if he entered lawfully into possession, became a mortgagee in possession. (Townshend v. Thomson, 139 N. Y. 152; Croner v. Cowdrey, Id. 471, 476; Barson v. Mulligan, 191 id. 320; Brobst v. Brock, 10 Wall. 519; Bryan v. Brasius, 162 U. S. 418; Romig v. Gillett, 187 id. 111; Phyfe v. Riley, 15 Wend. 248; Lowenfeld v. Ditchett, 114 App. Div. 56.) The entry made pursuant to the judgment of foreclosure and sale and the referee’s deed thereupon, was “lawful” within the purview of the rule. A similar entry was said to be lawful and under color of right in Townshend v. Thomson (supra). (See, too, Romig v. Gillett, supra, 117.) The cases cited by the learned counsel for the appellants can be discriminated. In Howell v. Leavitt (95 N. Y. 617) the possession was obtained by what the court described as a “trespass” and by force. In Deutsch v. Haab (135 App. Div. 756) the court animadverts to the fact that there had been no sale under the attempted foreclosure, and the question now up was not before the court. In Barson v. Mulligan (191 N. Y. 306) the question was whether “a mortgagee who takes possession of the mortgaged premises as tenant under a lease from a life tenant can become a mortgagee in possession without the consent of the mortgagor ” (p. 313), and the point of the decision is that one who enters as a lessee could thereby not hold over as a mortgagee any more than he could acquire lawful possession by force or fraud (p. 322). Constant v. Barrett (13 Misc. Rep. 249) presented a somewhat similar question. In Becker v. McCrea (193 N. Y. 423) the question was whether a mortgagee in possession could set up title of adverse” possession against the right of redemption. There had been a foreclosure suit which went to judgment, but there was no sale thereunder. Hoye v. Bridgewater (134 App. Div. 255) but recognizes a general principle that consent of the mortgagor is necessary to constitute a mortgagee in possession, which is not applicable when the possession is acquired as it was in the case at bar.

The rule of Townshend’s Case (supra) is not confined to the mortgagee as a purchaser at the sale, or to his assignee, but applies to any purchaser. (Code Civ. Proc. § 1632; Continental Insurance Co. v. Reeve, 135 App. Div. 737.) Shriver v. Shriver (86 N. Y. 575), contra, relies wholly upon Watson v. Spence (20 Wend. 260), which was decided in 1838 under a sale consummated in 1810, prior to the enactment of the said section of the Code or of its parent statute (2 R. S. 192, § 158; R. S. pt. 3, chap. 1, tit. 2, § 158).

The judgment is affirmed, with costs.

Thomas, Rich, Stapleton and Putnam, JJ.. concurred.

Judgment affirmed, with costs.  