
    Nelson D. Morehouse, Res’pt, v. Joel B. Morehouse, by his committee, App’lt, impleaded with Talcott B. Morehouse et al.
    
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed June, 1886.)
    
    1. Evidence—Witness—When testimony oh a deceased witness given in another trial oh action may be read in evidence—Code oh Civil Procedure, §§ 829-830.
    Where in an action to collect the balance of a mortgage, the testimony of C. D., then deceased, which he had given in an action in which one, T, was plaintiff and Nelson, Talcott and Joel B. Morehouse were defei dants (said three defendants being parties to this action), was read in evidence against the objection of Joel B., the issues framed by the pleadings not being precisely the same, hut under the issues in each action the point in issue touched by 0. D.’s testimony being the same Held, that where the parties are the same or in privity, and the issues or the point in issue the same such evidence is admissible.
    8. Same—When admitted, ih parties not identical.
    Although the parties are not quite the same, if the subject-matter to be now established is the same against the party again-1 whom the testimony is offered as upon a former trial, and was of as much importance to that issue as it is to this, the witness being dead, the testimony taken in such other action will he admitted.
    3. Same—When testimony given on a former trial can be read under
    Code Civil Procedure, § 830.
    The testimony of the plaintiff herein given on a former trial of this action (Joel B., one of the defendants, having become non compos mentis and having been placed under a committee since the former trial and the action having been continued against his committee), was properly received under Code Civil Procedure, § 830.
    4. Mortgage—Foreclosure—When the lien of mortgage lost.
    So long as the sale of property on the'foreclosure of a mortgage remains incomplete by the refusal of the moitgagor, who was the buyer, to pay the amount bid, the mortgagee cannot he deprived without his own consent of the benefit of his mortgage, or compelled to waive the good security, and take a cause of action for a simple debt against the buyer.
    A ppm at, "by the defendant, Joel B. Morehouse, by his committee, from a judgment entered upon the trial at the special term, Saratoga county.
    This action was commenced as an equitable one to collect a balance due the plaintiF on the joint bid made by Joel B. and Talcott B. Morehouse at a sale of real estate on the foreclosure of a mortgage. The defendant, Joel B. More-house, testified in his own behalf on a former trial of this action, but in the interval between that time and the present trial had become insane from the result of a stroke of paralysis, and a committee was appointed. An order was made .continuing the action against his committee.
    
      A. Pond, for app’lt; Nathaniel O. Moak and John C. Hulbert, for res’pt.
   Landon, J.

The finding that Joel B. Morehouse has never paid anything upon or by reason of the bid upon the foreclosure sale, is in accord with the evidence of Joel himself. The elaborate argument of the appellant in opposition to this finding rests upon the fiction of a constructive payment for Joel by means of the payment of Talcott, when it is quite clear that it was the purpose of all the parties that Talcott’s payment should be for himself and for the release of his half of the farm, and not at all for the benefit of Joel or for the release of his half. If by means of any mistake in figures, Talcott should be credited with more than his half, which is not clear, he did not pay for Joel’s benefit, did not intend to do so, and it would be an entire perversion of the understanding of the parties to give it that effect now. Each was the devisee of an undivided half of the farm covered by the mortgage. They partitioned the farm between themselves, procured plaintiff to foreclose the mortgage, each one agreeing to pay plaintiff, upon the bid, one-half the amount due upon the mortgage, with costs. The plaintiff could have held them as joint debtprs, but at their request treated each as his separate debtor for the one-half, and acted to his own prejudice upon that request, and has the right to treat them as estopped to insist that they are joint debtors.

Upon the trial the testimony of Galvin Bake, then deceased, which he had given in an action in which one Tourtellot was plaintiff, and Nelson, Talcott and Joel B. Morehouse were defendants, was read in evidence against the objection of Joel B. The parties to this action were parties to that action. The issues framed by the pleadings are not precisely the same, but under the issues in each action the point in issue touched by Bake’s testimony was the same, and in the former action must have been fatal to the main defense alleged, whereas in this action its force would have been entirely neutralized if the payment alleged by the defendant Joel, had been established. Where the parties are the same or in privity, and the issues, or the point in issue, the same, such evidence is admissible. Jackson ex dem. Barton v. Crissey, 3 Wend., 251; Osborn v. Bell, 5 Den., 370; Lawson v. Jones, 61 How., 425; Clark v. Vorce, 15 Wend., 193; Bradley v. Mirick, 91 N. Y., 293.

When the parties are the same, and the point in issue the same, we can clearly see that the party against whom the testimony is offered had the same opportunity and the same interest as now to resort to every test to probe the witness and his testimony. And we see no reason, although the parties are not quite the same, if the subject-matter to be now established is the same, against the party against whom the testimony is offered, as upon a former trial, and was of as much importance to that issue as it is to this, why the death of the witness should exclude his testimony. The party against whom it is now offered has once had his day in court in the very matter of developing that testimony, and that too, under a pressure of interest as great as now exists, so that nothing can be presumed to have been omitted from want of opportunity, care or interest.

In Philadelphia, etc., Railroad Company v. Howard (13 How. [U. S.], 334, 335) the action was between Howard and the Philadelphia, Wilmington and Baltimore Railroad Company as for covenant broken. There had been a former action between Howard and another and the Wilmington and Southern Railroad Company as for assumpsit. The Wilmington and Southern Railroad Company and the Baltimore and Port Deposit Company were subsequently, by the legislature, consolidated into the present defendant, the Philadelphia, etc., Railroad Company. The deposition of a witness taken upon the same subject-matter in issue in this case as in the former, viz., whether a certain paper made by one of the constituent companies was under the corporate seal or not was held to be admissible. There the parties were not the same; one action was assumpsit, the other covenant. See, also, 1 G-reenl. Ev., § 164. Upon principle and authority we think the evidence was properly received.

The testimony of the plaintiff given upon the former trial of this action was properly received under section 830, Code Civ. Pro. That section is remedial and should be liberally construed. It renders competent, first, the testimony of a party given upon a former trial, in case such party has since died; second, the testimony given on the former trial of any person, who since then has become incompetent to be examined on this trial by virtue of section 829. Section 829 affects the competency of the witness to be now examined, but section 830 establishes the competency of bis testimony given upon a former trial of the same case. A technical reading of the section which should make the death of a party the condition precedent to the competency of the testimony of any witness other than the deceased party, may possibly be made, but the spirit of the statute should prevail, and that gives competency to the testimony previously given in the case between the same parties, before the incompetency attached to the witness. Pennsylvania cases tend to show that this sensible rule exists at common-law (Galbraith v. Zimmerman, 100 Penn. St., 374; Pratt v. Patterson, 31 P. F. S. [81 Pa. St.], 114; Evans v. Peed, 28 id. [78 Pa. St.], 415; Hay’s Appeal, 10 Norr. [91 Pa. St.], 265); and we think it should not be defeated by an adherence to the letter in opposition to the spirit of the statute. The objection of the statute of limitations was overruled upon the former appeal.

The complaint states that upon a foreclosure of the mortgage by advertisement, the mortgaged premises were struck off to Joel B. and Talcott Morehouse, and it characterizes that proceeding as a sale, but it expressly shows-that the sale was not completed by payment of the sum bid. So long as the sale remains incomplete by the refusal of the defendant to pay his part of the bid, the plaintiff cannot be deprived, without his own consent, of the benefit of his mortgage. He cannot be compelled against his consent to waive a good security and take a cause of action as for a simple debt against such a debtor. Ho statute of limitations has run against his mortgage. The contention of the defendant that the mortgage could not be satisfied in effect as to Talcott’s share of the farm and be on foot upon Joel’s, rests upon no solid foundation. It was Talcott’s duty to protect by payment his own share, under the understanding between Joel, Talcott and the plaintiff.

The judgment is right and should be affirmed, with costs.

Peckham, J., concurs; Bockes, P. J., not voting.  