
    Lawrence v. Delano.
    A purchaser at a mortgage sale, acquires no other or greater estate than would have vested in the mortgagee, if the equity of redemption had been foreclosed.
    Where the owner of premises covered by a mortgage executed by his grantor, assumes the payment of such mortgage, and subsequently, after the time of payment has expired, executes a stipulation, by which, after reciting that he is desirous of extending the loan for the term of four years, he promises and agrees to pay to the holder of the mortgage, interest upon the mortgage debt, for the period of four years, such stipulation will not be held to be equivalent to a new mortgage covering the property as it stands at the date of such stipulation, or embracing other land than that described in the original mortgage.
    'Where a person, for his own convenience, annexes another piece of land to premises which he or his grantor has previously mortgaged, and erects on both parcels, a building which is accessible only from the land so annexed, this will not subject such piece to the operation of the mortgage, so as to carry it to a purchaser of the mortgaged premises, at a sale under the mortgage.
    Land not mentioned in a deed, cannot pass as an appurtenant to another parcel expressly granted and particularly described.
    (Before Oaklet, Ce. J., and Vandeepoel and Sahdfoed, J J.)
    Nov. 9 ;
    Nov. 24, 1849.
    This was an action of ejectment, brought to recover the yossession of a piece of land 2 feet 6 inches wide by 27 feet long, being in the rear of premises known as Ho. 39 Lafayette Place, in the city of Hew York, and which piece was formerly a portion of the lot fronting on Broadway on a line with Ho. 39 Lafayette Place.
    The cause came on for trial before Yaudeepoel, Justice, on the 6th day of June, 1849. Upon the trial, the plaintiff’s counsel read in evidence a deed to him from Charles F. Moulton and wife, bearing date May 1st, 1836, conveying certain lands, of which the premises in question were a part, and proved that he took possession of the premises by virtue of the deed. He also proved that the defendant was in possession at the time of the commencement of the suit, and thereupon rested.
    The defendant produced in evidence a mortgage from Benjamin F. Lee and wife to John J. Astor, dated Jan. 19, 1835, and duly recorded, to secure the payment of $18,000, on the 19th January, 1840. This mortgage covered the premises known as Ho. 39 Lafayette Place, in the immediate rear of which, adjoining, and extending its whole width, was the strip of land, to recover which this action was instituted. Also, a deed from Benjamin F. Lee and wife to the plaintiff, dated February 5th, 1835, conveying the same premises, Ho. 39 Lafayette Place, subject to the above-mentioned mortgage, the payment of which was assumed by the plaintiff as a part of the consideration of the purchase.
    The defendant’s counsel also read in evidence a several agreement entered into October 29, 1846, between the plaintiff, Benjamin F. Lee, and Benjamin Curtis, by which it was provided that a certain alley in the rear of the premises on Lafayette Place, owned by the parties, and adjoining each other, should be kept as an “ alley in common,” and a right of way through the same was made cvpjywrtena/ixt to the jyi'emises on Lafayette Place, owned by the respective parties. The piece of land, for the recovery of which this action was brought, was intermediate the.east line of the “alley in common,” and west line of the premises, Ho. 39 Lafayette Place, then owned by the plaintiff.
    The defendant’s counsel also read in evidence a deed from the plaintiff and wife, to the Unitarian church on Broadway, dated Feb. 13th, 1838. This deed conveyed the lot on Broadway, which was conveyed to the plaintiff by the deed of Moulton and wife, except the strip of land in dispute in this action. The description of the easterly boundary of the lot thus conveyed is as follows: “ Easterly in the rear by property now belonging to Alexander Mactier, fronting on Lafayette place, a/nd a strip of two cmd a half feet im width belonging to the said WilUam B. Lawrence, taken by Mm from the said lot O. (the lot conveyed to the plaintiff by Moulton and wife) and added to the lot owned and occupied by him, fronting on Lafayette place, &c., reserving the use of the alley in common,” &c.
    Also a certain agreement entered into by the plaintiff with the trustees of Mrs. Emily Ward, on the 3d day of April, 1840, by which the time for paying the mortgage of §1800, executed by Benj. F. Lee and wife, to John J. Astor, which became due Jan. 19,1840, and was held by those trustees, was extended for four years; the ■ plaintiff stipulating to pay the interest to the trustees. Also a mortgage from the plaintiff and wife to Isaac Lawrence, dated February 12th, 1840, upon the premises on Lafayette place, covering, in addition to the premises mortgaged by Benj. F. Lee and wife to Astor, the strip of land in the rear, the subject of this action.
    It appeared that the mortgage of Benj. F. Lee and wife to Astor, was foreclosed in January, 1842, and the premises thereby mortgaged sold at a master’s sale, at which the defendant became the purchaser. The master’s deed bore date May 1,1843. It was admitted that the stable on the rear of lot 3STo. 39 Lafayette place and impart on the premises in dispute, was built in 1837, by the plaintiff. The access to the stable was through this part, by means of the alley in common.
    The testimony here closed, and the judge charged the jury, that the matters given in evidence, if the jury believed them, were sufficient to entitle the plaintiff to recover.
    The jury found a verdict for the plaintiff, and the defendant moved for a new trial.
    
      J. Ooii, for the defendant.
    I. By taking the deed from B. F. Lee, the plaintiff assumed the payment of the mortgage as principal. The liability of Lee becoming thenceforth only that of surety. (Cherry v. Monro, 2 Barb. Ch. R. 628.)
    H. The plaintiff afterwards by covenant with B. F. Lee, annexed the right of way through the alley on which the stable abuts, as an appurtenance to the lot. This covenant, therefore, enures the benefit of the defendant as the grantee of the prejmises. Lee was then surety for L. in respect of the mortgage, and the covenant attached to and run with the mortgaged premises for Lee’s benefit as such surety. As to what passes as appurtenant, see 2 Bacon’s Abr. 669; Grant, J. 4; 4 Kent’s Comm. 467, 473.
    HI. The stipulation of W. B. Lawrence to the trustees of Mrs. Emily Ward, was made after the expiration of the original term of the mortgage, and after the stable was built on the lot, and was equivalent to a new mortgage, which must be taken to cover tlie property as it then stood. (3 Kent Com. 420; 4 Ibid. 467; N. Y. Life Insurance Company v. Milnor, 1 Barb. Ch. R. 353.)
    IV". The foreclosure of the mortgage thus given, to which W. B. Lawrence was a party defendant, was in legal effect the same as if the mortgage had been executed by him at the date of the stipulation with Astor, and the statute declares the foreclosure to be as valid as a deed by the mortgagor. The master’s deed operates as if it had been executed by all the parties to the suit.
    V. The plaintiff is bound by his recitals in his recorded deeds to the Unitarian church, and to Isaac Lawrence—stating that the piece of ground in question was annexed to the lot in Lafayette place. (1 Ph. Ev. 89; Van Cortlandt v. Brandt, 17 J. R. 335.)
    VI. The plaintiff by himself building his stable on the rear of the lot, so fixed the boundaries, that a purchaser could not but believe that the lot built on was the lot described in the deeds. He cannot now he suffered to allege that he misled the defendant in regard to the boundaries of the lot. (Rockwell v. Adams, 6 Wend. 467; S. C. 7 Cow. 762; Tarrant v. Terry, 1 Bay 239.)
    VIL. The plaintiff, who was liable for the deficiency on the mortgage, had a direct interest in enhancing the value on the foreclosure sale—suffering Mm therefore to remain silent at the sale, and afterwards to claim that the property apparently conveyed, did not in fact pass, would be a fraud on the defendant. (1 Story Eq. Jur. § 395, 439; Wendell v. Van Rensselaer, 1 J. C. R. 354; Storrs v. Barker, 6 J. C. R. 166; 2 Cowen & Hill’s Notes, 200.)
    
      W. B. Icmrmoe, plaintiff in person.
    I. The evidence, which is not contradicted, shows a complete legal title in the plaintiff.
    II. The master’s deed, in the foreclosure suit, vested in the defendant the same estate, (and no other or greater,) that would have vested in the mortgagee, if the equity of redemption had been foreclosed; which was the same title he had at the execution of the mortgage. (2 R. S. 192, § 158; Miller v. Bristol, 12 Pick. 551.)
    HI. Land cannot pass by implication, nor can land ever be appurtenant to land. (Jackson v. Hathaway, 15 J. R. 447; Harris v. Elliot, 10 Pet. 25; Grant v. Chase, 17 Mass. 443.)
    IY. The title to the alley is not in controversy in the present suit; nor does the defendant fulfil the conditions to entitle him to the benefit either of the covenant between the plaintiff and Curtis and Lee, (as the owners of the adjacent property,) or of the reservations in the deed to the Second Unitarian Congregational Church.
    Y. The agreement between plaintiff and the trustees .of Mrs. Ward, is not a mortgage, nor does it either in terms or by implication relate to the premises in controversy.
   By the Court. Vanderpoel, J.

The plaintiff, when he rested his cause, had shown a clear legal title to the premises in question. The deed from Moulton and wife to Mm, bearing date the first day of May, 1836, includes the premises. Has the defendant succeeded in showing, either a paramount title in himself, or any other state of facts, that should operate as a bar x> his adversary’s legal claim ?

It must be borne in mind, that the action is not brought for* any portion of the alley which was appropriated by the agreement of the 29th day of October, 1836, between the plaintiff, Benjamín F. Lee, and Benjamin Curtis, and called the “ alley in commonThe plaintiff, as the defendant contends, may have owned the right of way through the alley, on which the defendant’s stable abuts as an appurtenance to the lots adjoining the alley. It may be trae, that such a covenent enures to the benefit of the grantees of the premises upon which the stable stands, and yet the real point in the case is untouched. The question then arises, is the defendant the grantee of the premises adjoining the alley; if not, the argument, that the alley is an appurtenance, is irrelevant to the real question involved in the case. It can avail a party but little to show that a right of way is an appurtenance to a piece of land, unless he proves a legal title to such piece of land. The proof of the title to the land may draw after it the appurtenance as an incident; but proof of an easement as an incident to a lot, does not satisfy the inquiry, who owns the principal, the lot itself, or that part of it which borders upon the premises dedicated to the use of a way.

The defendant claims under the foreclosure sale of a mortgage executed by Benjamin F. Lee and wife to John Jacob Astor, on the 19th January, 1835. If this be the source and only ground of his title, it must fail The mortgage does not contain the strip of land in question, and a purchaser under a mortgage sale acquires no other or greater estate than would have vested in the mortgagee, if the equity of redemption had been foreclosed. (2 R. S. 2d Ed. 119, § 164.) The defendant’s deed, not embracing the premises, he has no paper title. Can the other facts and points relied upon by him, help him ?

The defendant relies upon the stipulation to the trustees of Mrs. Emily Ward, of the 3d of April, 1840, by which the plaintiff agreed to pay the interest upon the mortgage at the rate of seven per cent, for the term of four years. It is said, that this stipulation was given after the stable was built upon the lot, and was equivalent to a new mortgage which must be taken to cover the property as.it then stood. We cannot see how this stipulation can, legitimately, be held to stretch the mortgage, so as to make it cover the strip in question. It speaks of an existing mortgage on the house and lot, in Lafayette Place; but there is nothing in the stipulation whereby premises other than those described in the mortgage were subjected to its control or operation. There is, surely, nothing in the stipulation indicating even an intention. to enlarge the mortgage, in respect to the premises covered by it. The stipulation cannot therefore aid the defendant.

It is urged, that the plaintiff is bound by his recitals in his recorded deeds to the Unitarian church and his mortgage to Isaac Lawrence. As to the latter, which is dated the 12th day of February, 1840, if that included the premises in question, it proves nothing in favor of the defendant, as he neither connects, nor attempts to connect, himself with it. It is scarcely necessary to add, that in this mortgage, given six years after the date of the mortgage under which the defendant claims, it was corn.; petent for the plaintiff to include, with the lot in question, all the lands he then owned in the city, without creating, even by implication, in the defendant, a title to land not included in the deed or mortgage under which he claims.

In the recitals of the deed to the Unitarian church, dated the 13th day of February, 1838, we find nothing that can prejudice the right or claim of the plaintiff. It bounds the premises conveyed, easterly in the rear by property now belonging to Alexander Mactier, fronting on Lafayette Place, “ cund by a strip two and a half feet in width, taken by him from the said lot, G, and added to the lot owned and occupied by him., fronting on Lafayette Place.” It is contended, that this shows the fact, that the plaintiff had then annexed the strip in question to the lot covered by the mortgage under which the defendant purchased. Suppose he did, for his own convenience, annex another piece of land to the premises which he or his grantor had previously mortgaged, we have yet to learn, that such an . act would so subject such piece to the operation of the mortgage, as to carry it to the purchaser under the mortgage sale. The recitals and description in the deed to the Unitarian church, cannot help the defendant.

3STor can we accede to the soundness of the sixth point taken by the defendant, that the plaintiff himself by building his stable on the rear of the lot, so fixed the boundaries, that a purchaser could not but believe that the lot built on was the lot described in the deeds, and that he cannot therefore now, in a court of law, be suffered to allege, that he has misled the defendant, in regard to the boundaries of the lot.

The defendant assumes that the plaintiff ought to have been present at the master’s sale, and given the purchaser notice of his claim to the strip in question; and this, upon the principle, that he who does not speak when good conscience requires him to speak, shall ever afterwards remain silent. Whether the plaintiff' must be presumed to have been present at the sale, and being present, was obliged to speak, in order to save his right to land not included in the mortgage or decree of sale under which the defendant purchased, are questions that will more properly arise on an appeal to the equity side of the comt. Whether the defendant could successfully raise them in equity, it is not necessary or proper for us here to consider ; more especially as we are informed, that he has taken the incipient step towards invoking the equitable power of this court. It is enough to say, for the purposes of this action, that we do not find enough in the defendant’s sixth point to bar the legal right and title of the plaintiff. This we say, without indicating any opinion as to the weight of this point, when it shall be addressed to the conscience of the court. Suffice it to say, that in this cou/rt of law, the legal title of the plaintiff cannot yield to the equitable considerations now addressed to us.

As the title to the alley is not in controversy in this suit, it is needless to inquire, whether the defendant has entitled himself to the benefit of the covenant between plaintiff and Curtis and Lee, as the owner of the adjacent property, or to the reservations in the deed to the Unitarian church. It cannot be held, that this strip of land can go as an appu/rtenam,ce to the defendant’s • lot. Platt, Justice, well remarks, in Jackson v. Hathaway, 15 John. 454,—“ a mere easement may, without express words, pass as an incident to the principal object of the grant; but it would be absiu’d to allow the fee of one piece of land, not mentioned in the deed, to pass as an wppw'tena/nt to another distinct parcel, which is expressly granted by precise and definite boundaries.

Motion for new trial denied.  