
    John J. Quinlan, Resp’t, v. Emily A. Stratton et al., App’lts.
    
      (Supreme Court, General Term, Second Department
    
    
      Filed May 12, 1890.)
    
    Mortgage — Subrogation.
    Where a second mortgage was executed and delivered for a loan which the mortgagor agreed to apply in extinguishment of the first mortgage, and a portion was so applied, and thereafter said first mortgage was assigned to one who paid therefor the amount remaining unpaid thereon, Held, on foreclosure of the second mortgage, that the plaintiff was entitled to be subrogated to the rights of the holder of the first mortgage on paying the balance due thereon.
    Appeal from judgment of foreclosure and sale.
    The defendant Emily A. Stratton mortgaged the premises in ult to Joseph Fitch for $2,500; $1,000 of the principal was paid fli and then Fitch died; Amos L. Fitch was appointed executor f his will, and default having been made in paying the interest on said bond and mortgage, foreclosure proceedings were begun >y said executor. Emily Stratton, mother of the defendant "mily A. Stratton, loaned at various times sums of money to said efendant aggregating $2,000. A portion of said moneys was sed in paying off the incumbrance of the Fitch mortgage and reventing the property from being sold on foreclosure. Subsequently the said bond and mortgage and the decree of reclosure and sale in the action of Fitch against Stratton were signed to the defendant Judson.
    Prior to said assignments the bond and mortgage in issue in .is action were duly executed and delivered by the defendant mily A. Stratton to her mother, Emily Stratton, to secure the yment of said $2,000. Said bond and mortgage were subseently assigned to Susan C. Currie, and by her assigned to the aintiff, who brought this action to foreclose the said mortgage, fault having been made in paying principal or interest.
    The defendants answered separately. Mr. Judson claimed that ,s assignments gave him a prior lien. The defendant, Emily A. ration, alleged that Susan C. Currie was the real party in inter-It, and that by reason of equities in her favor in certain transacts between herself and said Susan C. Currie, the action should 1 and the complaint be dismissed.
    The court found in favor of the plaintiff as against the defend-t, Stratton, and in favor of defendant, Judson, to this extent: ¡at the assignment of the decree in foreclosure in the Fitch ac-n was for the benefit of Emily Stratton, as well as defendant, .dson; and that the plaintiff succeeded to her rights ; and that payment of $2,015.53 with interest from February 14, 1881, defendant, Judson, plaintiff would be subrogated to all his rights. The interlocutory judgment provides for a foreclosure and sale of the premises subject to defendant Judson’s claim.
    
      S. W. Judson, for app’lts; Frank N. O'Brien {Jas. D. Bell, of counsel), for resp’t.
   Barnard, P. J.

The plaintiff is the assignee of a second mortgage. It was given by ¡Emily A. Stratton to her mother, Emily Stratton, and assigned by her to one Susan C. Currie, and by her to the plaintiff. There is no question made as to this mortgage; nor as to the amount due upon it. There was a first mortgage for $2,500 on the property, and the complaint averred that this mortgage was to have been paid by the loan procured on the second mortgage by agreement between Emily A. Stratton and her mother, that it was only paid in part, and that the defendant, Judson, had taken an assignment of the first mortgage in concert with Emily A. Stratton, and claiming that the plaintiff’s mortgage should be deemed the first lien on the premises. The proof failed to show that the first mortgage was subject and infe rior to the plaintiff’s mortgage in respect to the amount paid by Judson for the first mortgage, which was the actual amount left unpaid on it. The proof did show that some of the money obtained by the second loan actually went to extinguish the first mortgage, and that the agreement between Emily A. Stratton and her mother was, that the loan was all to be used to pay the first mortgage. So far the equities seem to be plain. Judson can hole his claim for all he paid to get it, but the mortgage he holds aftei he is paid in full should be held for the money which went tc extinguish it derived from the second loan.

That was the agreement between the owner of the land and the person who loaned the money and no reason is perceived whj Judson can object. He is paid in full. Mrs. Stratton cannot ob ject that her property be held as if the portion of the new loai had been used to purchase the first mortgage pro tanto. Gans v. Thieme, 93 N. Y., 225.

The evidence shows that one James T. Stratton gave a mort gage to Susan C. Currie for $2,750 in April, 1865.

The defendant claims that Emily Stratton, her mother, askec her to make the loan and that she “ reluctantly sold ” the mort gage now owned by Judson and had to covenant that the $2,751 mortgage was collectible, which realized a large loss.

, The proof fails to show that the defendant Emily A. Stratto? had any claim against Emily Stratton or Susan C. Currie whe they severally made the assignments of the mortgage now he! and owned by the plaintiff.

The first objection to the decree has no weight if tnese conch sions are just. The case will then stand as if the plaintiff hel a second mortgage and the defendant a first mortgage and the de cree provided that the first mortgagee should take his debt, intei est and costs and assign to the second mortgagee. This is in ac cordance with settled law. Twombly v. Cassidy, 82 N. Y., 155.

The judgment should, therefore, be affirmed, with costs.

Dykman and Pratt, JJ., concur.  