
    Sigmund J. Seligman, Resp’t, v. Jonas Sonneborn, App'lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 27, 1887.)
    
    Specific performance of contract for purchase of land—When compelled—Title.
    In action to compel the specific performance of a contract for the purchase of land the proof showed that the property belonged to Claus Bulwinkel on August 15,1860, when he executed a mortgage to one, Cheesman covering five lots of land in all and including the premises in question. Cheesman began foreclosure, August S3, 1863, which was continued after his death by his executors, and ón decree and sale the executors became purchasers and took a deed in their capac.ty as executors. The summons was served upon Bulwinkel by publication, although the proof shows he was dead at that time. Under proceedings subsequently taken by these executors for foreclosure of same mortgage by advertisement, enough property was sold, exclusive of the premises in question, to satisfy the mortgage debt. T-he executors, thereafter, gave a quit-claim, de d of these premises to the heirs of Bulwinkel and these heirs conveyed this property to plaintiff. Held, that the title of plaintiff is valid.
    Appeal from judgment entered upon the report of a referee.
    
      Stephen Pfeil, for app’lt; Richard S. Newcombe, for resp’t.
   Bartlett, J.

—This is an action to compel the specific performance of a contract for the purchase of land. The referee before whom the cause was tried upheld the title of the plaintiff, and the defendant now appeals.

It seems quite clear that the plaintiff’s title is good. The property belonged to Claus Bulwinkel on August 15, 1860, when he executed a mortgage to John C. Cheesman, cohering five lots of land in all and including these premises. A suit to foreclose this mortgage was begun on August 22, 1862, by Mr. Cheesman, and continued after his death by his executors, and resulted in a decree and sale, at which the executors became purchasers, and took a deed from the referee in foreclosure to themselves in their capacity as executors.

The summons was served upon Claus Bulwinkel by publication. The referee in the present action has found that Bulwinkel was dead at the time this foreclosure suit was commenced, and the evidence suffices to sustain the finding.

His title, therefore, was unaffected by the decree therein or the sale to Cheesman’s executors.

Under proceedings subsequently taken by these executors for the foreclosure of the same mortgage by advertisement, enough property was sold exclusive of the premises in question here to satisfy the mortgage debt.

The executors thereafter gave a quit-claim deed of these premises to all the surviving heirs of Claus Bulwinkel, and these heirs conveyed the property to the plaintiff. '

Under these circumstances his title is valid, even if Bulwinkel was not dead at the time of the institution of the Cheesman foreclosure suit, for the executors had the right to become the purchasers at the sale under the judgment in that action (Valentine v. Belden, 20 Hun, 537), and could afterward convey a good title to their grantees. Lockman v. Reilly, 95 N. Y., 65. And, if Bulwinkel died before the foreclosure suit was begun, as has been found by the referee, the land was subsequently released from the obligation of the mortgage by virtue of the foreclosure by advertisement, in which it did not become necessary to sell these premises in order to realize the whole amount, due; and the title, therefore, was in the heirs of Bulwinkel, unincumbered by the mortgage, when they conveyed the-land to the plaintiff.

The judgment should be affirmed, with costs.

Van Brunt, C. J., and Brady, J., concur.  