
    John F. Hume, Respondent, v. Melancthon Fleet and Others, Appellants; The State of New York, Respondent, Impleaded with Others.
    
      Mortgagors’ default on a loan commissioners’ mortgage — the title vests at once in the loan commissioners, subject to the statutory right of redemption — recitals in a sheriff’s certificate of sale and in his deed-— effect of chapter 158 of the Laws of 1890. ■
    A default by mortgagors in the payment of interest upon a mortgage given, under chapter 150 of the Laws of 1837, to the loan commissioners of the State of New York, operates, by the express provisions of section 30 of the act, as an extinguishment of the equity of redemption and to vest, without legal proceedings taken, the title in the loan commissioners, leaving to the mortgagors only the statutory right to redeem.
    Such title of the State is not affected by recitals in a sheriff’s certificate and deed, of a sale under execution, of the mortgaged lands before the default of the mortgagors, where the judgment roll under which the sale was made is not produced and proved; nor upon such a failure to produce it can such recitals be given effect under chapter 158 of the Laws of 1890, to show the execution and its issue, as it does not appear, as required by the statute, that the property was “ sold by a sheriff for enforcement of the valid lien thereon of a duly docketed judgment,”
    Appeal by the defendants, Melancthon Fleet and others, from an ' interlocutory judgment of the County Court of Queens county in favor of the plaintiff and of the defendant, The State of Hew York, entered in the office of the clerk of the county of Queens on the 21st day of December, 1896, upon the- decision of the court rendered after a trial before the- court-without a jury directing a-sale in partition of the premises described in the complaint.
    
      Dennis McMahon, for the appellants.
    
      Clarence W. Francis, Deputy Attorney-General, for the State of New York, respondent.
   Willard Bartlett, J.:

This is a partition suit in which the County Court of Queens county has rendered an interlocutory judgment,, fixing the interests of the respective parties and directing a sale of the property. The appellants insist that they are entitled to an actual partition of the premises, instead of being compelled to have the property sold, and, furthermore, that the County Court erred in awarding to the State of Hew York any interest whatever in the lands in suit.

These lands consist of meadow bordering upon a creek which flows into Jamaica bay. In the complaint they are described in four separate parcels. They formerly belonged to Abraham Fleet, sometimes otherwise known as Abraham K. Fleet. On March 24, 1834, Abraham Fleet made a trust deed to James II. Hackett, Sarah Van Low and Warren Cornwell for the benefit of his wife,. Martha E. Fleet, his son, John IL Fleet, and any other children whom they might thereafter have born to them, which deed covered a portion of the premises in suit, as well .as other1 property. This deed has been the subject of much .litigation in the courts of this State. Its provisions were considered by the Commission of Appeals in the case of Woodgate v. Fleet (44 N. Y. 1), and subsequently by the Court of Appeals in the same case (64 id. 566). The effect of the decision last cited was to uphold the validity of the deed, which embraced the first and second parcels, b.ut only three-eighths of the third parcel of land described in the complaint.

On June 20, 1831, Abraham Fleet executed a mortgage for $500 to the United States loan commissioners.for Queens county, covering the first, second and third parcels of land described in the complaint, but, under the construction of the trust deed already mentioned, he had at the time no interest in such mortgaged premises except an interest of five-eighths in the third parcel. He was the sole mortgagor, his wife not joining in the instrument.

On October 21, 1849, Abraham Fleet made a second mortgage for $350 to the same commissioners, covering the same premises described in the first mortgage. In this instrument his wife, Martha E. Fleet, also joined. Under the trust deed she was entitled to a vested estate in remainder, which was subject to be divested only by her death prior to the termination of the trust, an event which did not occur. Such remainder was alienable, devisable and descendible. (Moore v. Littel, 41 N. Y. 66; Sheridan v. House, 4 Keyes, 569.) So that the effect of this second mortgage was not only to incumber the five-eighths interest in the third parcel, already spoken of as •remaining in Abraham Fleet, but also to incumber his wife’s remainder, which extended to one-sixth of the first two parcels, and cmmsixth of three-eighths of the third.

The State of New York claims to have acquired these interests of the husband and wife by virtue of a foreclosure of these mortgages and a sale of the property under the"act authorizing the loan of certain moneys belonging to the United States, deposited with the State of New York for safekeeping. (Laws of 1837, chap. 150.) The evidence hardly suffices to prove the statutory sale contemplated by this act, but it does show a default on the part of the mortgagors in the payment of the yearly interest and principal moneys due upon the mortgages. In consequence of this default, the 30th section of ■ the statute became operative, which declares that in such, event “ the commissioners of the county where the lands mortgaged by the borrower are situated shall be seized of an absolute and indefeasible estate in fee in the said lands, to them, their successors and assigns, to the uses in this act mentioned, and the mortgagor, his or her heirs or assigns, shall be utterly foreclosed and barred of all equity of redemption of the mortgaged premises, any law, usage, custom or practice in courts of equity to the contrary notwithstand7 ing.” By virtue of this provision the mortgagors were divested of all title to the property, and retained only a right to redeem as provided in the act.' The default in the payment of interest operated ipso facto as a foreclosure and extinguishment of the equity of redemption, vesting the title to the land in the loan commissioners, and leaving to the mortgagors ho interest in the jnoperty, but merely á special fight to redeem. (Pell v. Ulmar, 18 N. Y. 139.) This privilege of redemption the mortgagors have never exercised, nor so far as appears have they ever attempted to exercise it.

' It is argued that any claim that the State might otherwise assert, growing out of the statutory foreclosure of tliése mortgages, is untenable by reason of certain execution sales before the mortgagors defaulted in the payment of interest or principal, under which sales one Woodgate acquired title.- The judgment rolls and executions, under which these sales are said to have been made, are not produced; but the appellants rely largely upon the recitals in the sheriffs certificate and deed. Those recitals are not sufficient alone to prove a judgment or execution of that period (Goldman v. Kennedy, 21 Abb. N. C. 362), and they are not supplemented by other sufficient proof. It is true that chapter 158 of the Laws of 1890 would make such recitals' prima facie evidence of the executions ■ and of the issue of the same in this case, provided it also appeared that the property had been “ sold by a sheriff for enforcement of the valid lien thereon of a duly docketed judgment.” But as has already been said, there is no competent proof in this record of the existence of any duly docketed judgments under which the sales are said to have been made.

The learned county judge, before whom this case was tried, fixed the interests of the parties, as we understand his Computation, in precise accordance with the views which we have expressed as to their respective rights. In this respect, therefore, the interlocutory judgment must be affirmed. We agree with the counsel for the appellants, however, that the proof fails to show that an actual partition could not be made, without great prejudice to the parties, and we think the judgment should be modified by directing such an actual partition.

All concurred.

Interlocutory judgment modified by directing an actual partition instead of a sale; and as thus modified, affirmed, without costs to either party.  