
    Farrell Lunny, Appellant, v. Malleville W. McClellan and Others, Respondents.
    First Department,
    December 14, 1906.
    Mortgage — when rights of heirs not made parties to foreclosure subordinate to rights of mortgagee in possession — when heir subsequently-born must offer to redeem before bringing ejectment.
    A mortgagee of lands who obtains legal possession after default, even without foreclosure, may withhold possession from the mortgagor and those claiming tinder him until a tender of the mortgage debt, and an- action, óf ejectment will not lie until such tender." So too a purchaser oh foreclosure who enters into possession becomes as to those whose rights' have not been cut off by the action, an assignee of the mortgage and a mortgagee in possession.
    One S. owning lands mortgaged the same and conveyed to L. who took subject to the mortgage.- L. died intestate, leaving a widow and minor children and the, plaintiff, then unborn. Prior to the plaintiff’s birth the widow -conveyed her life interest to. S. and the interests of the living children were also conveyed in infancy proceedings by order of the court. S. -bought in the premises on the foreclosure of the mortgage, in which action the plaintiff then unborn was not made, a defendant.
    ' Ih ai-subsequent action.-of ejectment brought by the-plaintiff,
    
      Held, that irrespective of any question as to whether his rights had been cut- off - bythe foreclosure or whether the Statute of Limitations had run, liis rights-were subordinate to those of the mortgagee and the purchaser on foreclosure who went into possession, and that under the rules aforesaid an offer to redeem was a prerequisite to ejectment. _ ■
    Appeal by the plaintiff, Farréll Ltinny, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 17tli day of March, 1906, upon the verdict of-a jury rendered by direction of the court after a trial at the New York Trial Term.
    
      George W. Files, for the appellant.
    
      William Mitchell, for the respondents.
   Laughlin, J.:

-This is an action in ejectment to recover an undivided one-seventh and undivided one-forty-second. interest in real property situated in the county of New York. ' On. the 1st day- of September, 1849, one James B. Shaw owned the premises in question in fee simple absolute and was in possession thereof. On that day he mortgaged the premises to secure the payment of the sum of $5,700- and the mortgage was duly recorded. Thereafter, and on the 5th day of October,. 1849, Shaw conveyed the premises to Farrell Lunny, who, On the 1st day of Jamiary, 185Ó, died intestate.seized of the premises-subject to the mortgage, leaving him surviving his widow and seven infant children, including the plaintiff, who was not born until the fifth day of August thereafter. In. the month oj February, 1850, Jane Lunny,. one of the- infant children-of Farrell Lunny, died intestate. . On the 18th day of April, 1850^ by infancy proceedings for the conveyance of their real estate the interests of the five children, being all of the children of said Farrell Lunny except Jane, who had died, and the plaintiff, who had not been born, were duly conveyed to said Shaw. On the 14th day of May, 1850, an action was duly instituted to foreclose the.mortgage given by said Shaw prior to his conveyance to Lunny. Shaw, who had given the mortgage and had acquired the interests of the five infants, the widow of Lunny and the five children who had conveyed to "Shaw, were made parties defendant. Pending the foreclosure action the widow released and conveyed all her interest in the premises to Shaw. The premises were duly sold in the foreclosure action and purchased by Shaw to whom a referee’s deed was executed and delivered on the 1st day of May, 1851, and recorded on the twenty-sixth day of the same month. Shaw thereupon entered into possession of the premises arid he and his grantee have ever since remained in possession thereof. This action is brought upon the theory that the plaintiff became and remained a tenant in common of the premises, owning one-seventh as heir of his father, subject to his mother’s light of dower, and owning an undivided one-forty-second as an estate in remainder as heir of his sister, subject to his mother’s life estate therein. His mother did not die until the 2d day of January, 1888. It is claimed that the-life estate of the plaintiff’s mother, which was conveyed to Shaw, continued and that the plaintiff had no right of action for his estate in remainder until the termination of that life estate "on the death of his mother, and that as against his interest as a tenant in common the Statute of Limitations' would not run in favor of a cotenant. The defense interposed was the Statute of Limitations and these are the ■ questions that were litigated upon the trial. The point suggested itself to the court on the argument, although the question does not appear to have been raised and was not suggested on the appeal that the plaintiff has mistaken his remedy. If the action cannot be maintained, the judgment which in effect is a dismissal of the complaint should be sustained even though the grounds upon which it has been entered are untenable. We deem it unnecessary, therefore, to decide whether, if this action could be maintained, the Statute of Limitations has run against the plaintiff’s right, for we think that there is another ground upon which the judgment must be affirmed. The rights of the plaintiff were subordinate to the rights of the mortgagee who received his mortgage prior to the time the plaintiff’s father ■ obtained -title. By the referee’s deed in foreclosure of that mortgage Shaw obtained the title of the mortgagee, which was superior to the title which he had acquired from the widow and some of the heirs of Lunny, and, although the rights of the plaintiff were not cut off, Shaw, as to him, became a mortgagee in possession, and the plaintiff’s only remedy was a right of redemption under which, if his time to redeem was not barred by the Statute of Limitations, he could have tendered the amount owing to Shaw or his successors in title, and then, perhaps, have maintained ejectment on their refusal to accept, or have brought a suit in equity to- redeem which would have involved an accounting for the rents, issues and 'profits. (Barson v. Mulligan, 66 App. Div. 486.) The rule is well settled that where a mortgagee obtains lawful possession of the mortgaged premises, after default-,, even without foreclosure by a statutory proceeding or by a suit in equity he -and his assignees of the mortgage may withhold possession against the mortgagor and those -claiming under him until the amount of the mortgage debt is tendered and an action in ejectment will not lie’against him or his assignees in their favor. (Randall v. Raab, 2 Abb. Pr. 307; Ross v. Boardman, 22 Hun,. 527; Hubell v. Moulson, 53 N. Y. 225; Hubbell v. Sibley, 50 id. 468 ; Barson v. Mulligan, supra.) There was no tender in this case. It'is likewise well settled that the purchaser on the foreclosure of the- mortgage who enters into possession becomes, as to those whose rights have not been cut off by the foreclosure, an assignee of the mortgage and a mortgagee in possession. (Townshend v. Thomson, 139 N. Y. 152; Robinson v. Ryan, 25 id. 320 ; Wheeler v. Morris, 2 Bosw. 524; Jackson v. Bowen, 7 Cow. 13 ; Smith v. Gardner, 42 Barb. 356 ; Wing v. Field, 35 Hun, 617.)

It follows, therefore, that as this action in ejectment cannot be maintained, the judgment is right and should be affirmed.

Patterson, Ingraham, McLaughlin and Clarke, JJ., concurred.

. Judgment affirmed, with costs. Order hied.  