
    Anne A. Morss, App’lt, v. Edward Burns et al., Impl’d, Resp’ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 8, 1892.)
    
    Mortgage—Foreclosure—Tax title.
    On the tiial of an action to foreclose a senior mortgage the complaint-was dismissed as to a junior mortgagee on the ground that the premises covered by her mortgage had been released from the prior mortgage, but on the sale the whole property was sold by the referee. The back taxes-were paid by the purchasers from the proceeds of the sale, and they took, an assignment of the tax title in aid of their own. Held, that such assignment did not make their title paramount to that of the junior mortgagee..
    Appeal from judgment dismissing the complaint as to two of the defendants.
    Action to foreclose, a mortgage.
    
      William, II. Arnoux and O. M. Bovee, Jr., for app’lt; Wilson. Brown, Jr., and Michael II. Owrdozo, for resp’ts.
   Barnard, P. J.

On the 24th of September, 1870, Thomas B„ Hawley was the owner in fee of a considerable tract of land in Westchester county. On that day Hawley and wife executed, and delivered to one Hawley D. Clapp a mortgage for $150,000.. The premises described in the complaint were part of the premises; described in the Clapp mortgage. Accompanying the mortgage there was an agreement between Clapp and Hawley and Mrs. Hawley in respect to the division of the proceeds of the sales-moneys for the premises described in the mortgage. In 1874 Clapp began a foreclosure of the $150,000 mortgage. The court, of appeals gave a new trial and the final judgment in May, 1881, resulted in dismissing the complaint as to the plaintiff. She took her mortgage in June, 1879, and at the time she took them Hawley and wife had the right to give their’s. When the sale was-made under the judgment, in accordance with the remittitur of the court of appeals; there were taxes on certain of the property and the property described in the plaintiff’s mortgage was subject to back taxes. The defendants Burns and Parker bought at the-sale. The back taxes were- paid in cash by them from the proceeds of the sales and they took the tax title in aid of their own. This did not make their title paramount to plaintiff. The purchasers paid nothing but what they agreed to pay for the land and the court paid the taxes out of the moneys belonging to those persons who should have paid the taxes before. The referee, by the decree, was directed to pay the back taxes first. Their tax certificates did not displace the plaintiff from her lien and the taxes since the sale should have been paid by the purchasers. They cannot pay a mortgage in that way.

The judgment should be reversed and a new trial granted, with costs to abide event

Pbatt, J., concurs; Dykman, J., not sitting.  