
    National Fire Insurance Company v. McKay et al.
    
    
      Counter-claim, in Foreclosure suit.—Eight of Appeal.
    
    In a suit for the foreclosure of a purchase-money mortgage, a defendant against whom no personal decree is sought, cannot set up, by way of counter-claim, an eviction under a paramount title, though he may he the assignee of the plaintiff’s covenants for title.
    A defendant whose interests are, in no way, affected by the form of the judgment, cannot appeal from it, though erroneous as to his co-defendants, who acquiesce.
    Appeal from the general term of the Supreme Court, in a foreclosure suit.
    This was an action to foreclose a purchase-money mortgage, executed by one Joseph W. Savage, in favor of the plaintiff. The plaintiff’s deed of conveyance contained the usual covenants for title, and against incumbrances. *The defendant,-McKay, who was the grantee of gavag6) ancj t}le assignee of the plaintiff’s covenants, claimed that the premises, at the time of the conveyance to Savage, were not free from incumbrances, and that he had been evicted under a sale for taxes then due and a lien upon the land. The complaint claimed judgment for any deficiency, against Savage only, and McKay was expressly notified in writing, that no personal claim was made against any other of the defendants. ' Further facts'are stated in the opinion of the court. The referee decided that McKay could not avail himself of the above facts stated in his answer, either by way of defence or counter-claim. There was a judgment of foreclosure, an(* o£a™s* Savage for any deficiency; *against McKay for the costs occasioned by his answer ; and as to Steele, the purchaser at the tax-sale, who had been made a defendant, the complaint was dismissed. McKay appealed from the judgment.
    Talcott, for the appellant.
    Rogers, for the respondent.
   Comstock, C. J.

The situation of the several defendants and their relation to the controversy are as follows: Savage was the mortgagor, and was personally bound for the payment of the debt. McKay was the purchaser of the premises, subject to the mortgage, but, in his answer, he insisted that all his right and title had passed to the defendant, Steele, under the tax-sale. Steele was the purchaser at the tax-sale, and, in his answer, he claims to have acquired, by that purchase, a title to a portion of the premises, which overreached the mortgage. Savage, the mortgagor, did not answer the complaint.

Upon this state of facts alone, and laying out of view the question of counter-claim on the plaintiffs’ covenants of warranty, the plaintiffs were entitled to the usual decree of foreclosure and sale, in respect to so much of the premises as Steele did not claim, and for the deficiency against Savage. None of the defendants could resist or complain of such a decree; Savage could not, because he made no defence; McKay could not, because, in effect, he disclaimed all interest in the land; Steele could not, because he only claimed the part which would not be affected by such a decree. Such is, in fact, the decree actually pronounced, and so far there is plainly no ground for the present appeal of McKay.

But the decree directs the sale of the whole premises, as well the part claimed, as that not claimed, by Steele, in hostility to the mortgage, while, at the same time, it dismisses the ^complaint as to him with costs, leaving the question of title, however, open between him and the person who should purchase at the sale. The reasons are not apparent for such a disposition of the case; the referee found the facts to be true, which Steele averred in his answer, relating to the tax-sale and his own title under it; if then Steele thus acquired a paramount title, he had a right to claim an unqualified decision in his favor; if otherwise, then the plaintiffs were entitled to an unqualified foreclosure and sale. There is, however, nothing in this disposition of the controversy between the plaintiffs and Steele, of which McKay can complain; he shows no interest in himself, which is at all affected, and so far, therefore, there is no ground for his appeal.

This becomes still plainer, when we consider, that notwithstanding the tax-sale by which he claims to have been divested of his title, the mortgage may, nevertheless, remain a valid lien on the whole premises, and the plaintiffs may have a right, as against the purchaser at that sale, to foreclose and sell the whole. (1 R. S. 937, §§ 112 to 119, 5th ed.) McKay fails to aver in his answer that the notice was given, which the statute prescribes, in order to cut off the mortgage. If, therefore, a judgment might have been pronounced, as is plainly the case upon his answer, for an absolute sale of the premises, which would foreclose the rights of Steele, he surely cannot complain of one which directed the sale, without foreclosing those rights. The plaintiffs and Steele might each have a regular appeal, because their rights were not more fully adjudicated, but McKay has no interest in that question.

It is said, that McKay, on purchasing the premises from Savage, assumed and agreed to pay the plaintiff's mortgage, and that he ought to be relieved from that liability, in consequence of the eviction under the tax title of Steele. But there is nothing in the decree which can affect his rights in this respect. Upon his own showing, he stands in the relation of indemnitor to Savage, so that, if the liability of Savage upon his bond shall be enforced, a cause of suit' will arise against himself. The neglect of Savage to answer, and the judgment against him by reason of that default, do not affect the question; McKay -cannot be prejudiced by that judgment. His own answer may perhaps exhibit facts which ought to exonerate Savage from any further liability for the purchase-money of the premises; but if Savage did not for himself choose to interpose that defence, he must take the consequences and he alone. He cannot resort to McKay, without proving the liability; his own default, and the judgment thereon against him, will not establish it against another party.

The appellant’s answer, the truth of which he offered to prove, shows that he is the assignee of all the covenants contained in the conveyance of the plaintiff to Savage, among which are the covenants against incumbrances and for quiet enjoyment. These- were broken, he insists, by the eviction at the suit of Steele under the tax title, and he claims that the facts constitute a counterclaim which should have been tried and determined in his favor. But I think this point is not well taken. A counter-claim must be one “ existing in favor of a defendant, and against a plaintiff, between whom a several judgment might be had in the action.” Upon McKay's own statement, which he offered to verify, I do not see, that anything was in litigation between him and the plaintiffs, or that any judgment could be rendered against him, except one for costs for interposing a groundless defence to the suit. According to the answer, no' cause of action existed against him; the complaint claimed nothing against him personally, and stated no facts as the foundation of such a decree; the answer showed that he had no title or interest in the mortgaged premises to be affected by the decree. His defence, therefore, must be deemed to have been put in, for the mere purpose of establishing a legal cause for an independent suit on the plaintiffs’ covenants, without any demand against himself being at all involved in the controversy. Without undertaking, at this time, to expound the provisions of the Code which relate to counter-claim, I am satisfied, they do not apply to such a case as this. Of course, the claim could only be enforced, in this case, by a judgment in the appellant’s favor, for the damages sustained in consequence of the eviction. But the plaintiffs might, notwithstanding such & >dSmeilt’ k® entitled to the decree for foreclosure and sale which they have obtained; the alleged counter-claim does not impair or affect the right to that relief. I apprehend, that' a counter-claim, when established, must, in some way, qualify or must defeat the judgment to which a plaintiff is otherwise entitled. In a foreclosure suit, a defendant who is personally liable for the debt, or whose land is bound by the lien, may probably introduce a set-off to reduce or extinguish the claim. But where his personal liability is not in question, and where he disclaims all interest In the mortgaged premises, I do not see how he can demand a judgment against the plaintiff on a note, a bond or a covenant. Such is virtually this case; the appellant has, as he insists, a cause of action against the plaintiffs upon a broken covenant, but that cause of action, if it exists, does not enable him to resist or modify the relief to which the plaintiffs are entitled. I think the judgment should be affirmed.

Judgment affirmed.  