
    John Ruyter, Resp’t, v. Mary Birch Reid, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed June 3, 1890.)
    
    Foreclosure—Parties.
    A party in possession at the time of the commencement of an action of • foreclosure is a proper party defendant, in the absence of any allegation or evidence that such party was in possession under some right or title superior to the mortgagor.
    
      Appeal from judgment of the supreme court, general term, third department, affirming judgment of foreclosure.
    
      James G. Matthews, for app’lt; George 3. Stevens, for resp’t.
    
      
       Affirming 22 N. Y. State Rep., 200.
    
   O’Brien, J.—This

was an action to foreclose a mortgage made by one Wickes March 1, 1874, to secure the payment to one Turner of the sum of $1,200, and the interest thereon, in five years from the date thereof, upon certain premises in the city of • Albany. The mortgage, with the bond accompanying the same, was assigned to the plaintiff. It has been found that the principal sum, with interest thereon from September 1,1881, was due. The mortgage was recorded in the clerk’s office of Albany county March 24, 1874. The complaint alleged that the defendant, Mary B. Eeid, individually and as executrix of William Eeid, her husband, and also several other parties, who were made defendants in the action, had or claimed to have some interest in or lien upon the mortgaged premises, or some part thereof, which interest or lien, if any, had accrued subsequent to the lien of the mortgage,

The only defendant who answered was Mrs. Eeid. She denied all the allegations in ■ the complaint, and specially denied that she had, or claimed to have, any interest in or lien upon the mortgaged premises, which had accrued subsequent to the lien of the mortgage, but alleged that she was the owner of, and had title to the premises, and that her title and ownership were paramount and superior to the lien of the mortgage. This answer raises the only question involved in the case. The referee to whom this issue was referred for trial reported findings in accordance with the allegations of the complaint, and found that the answering defendant’s interest in or lien upon the premises, if any, accrued subsequent to the lien .of the mortgage. The general term' has affirmed the judgment entered upon this report The plaintiff proved that on the 31st day of July, 1874, the municipal authorities of Albany sold the premises upon a local assessment to William Eeid for the term of one thousand years, and upon like assessments and for a like term of years in 1876 and 1882, and 1883.

Upon these sales a certificate or paper called a declaration of sale was issued to the purchaser reciting the sale and stating that the, same was subject to redemption by the owner in the manner provided by the statute and to any other claim in behalf of the city at the time of the sale for other liens or assessments. It does not appear whether the owner ever redeemed from these sales or not. The defendant then gave in evidence two conveyances of the premises to William Eeid by the county treasurer of Albany county, dated respectively June 12, 1880, and June 12, 1882, which appear to have been duly recorded. These conveyances recite that certain water rents and taxes levied or charged upon the said premises by the city of Albany remaining unpaid, the premises were sold in pursuance of the statute, and not having been redeemed by the owner within the period prescribed by law, the same are conveyed under the power given to the county treasurer by the statute. There is no finding and no proof in the case to show that any of the taxes or local assessments upon which the land was sold to Eeid were liens upon it at the time that plaintiff’s mortgage was recorded. In fact the defendant, through her counsel, having put in evidence the deeds from the county treasurer, stated that she declined to litigate the superiority of her title in this action, and no requests for findings of fact or law were submitted by the defendant to the referee. It was admitted that in 1882, after one of the sales by the county treasurer of the land to him, William Eeid went into possession and remained in possession till his •death, and that at the time of the commencement of this action his widow, the answering defendant, was in possession. The case does not disclose any title whatever in Mrs. Eeid. There is no finding or proof in the record that she succeeded in any way even to such title as her husband had at the time of his death, and which was derived through the sale of the land for taxes and assessments. She is described in the proceedings as the executrix of the last will of her husband, but there is neither finding nor proof that he ever made a will, and if he did the case does not show that it was proved or that it gave the defendant any interest in the premises in question. Sufficient facts were not found or proven to warrant us in assuming that she claimed or was entitled to dower in the lands even if her husband ever acquired such an estate therein as was necessary to endow her. If she claims some right or interest in the premises derived from her husband, as she probably does, the case is silent as to the nature or quality of that estate or interest or the means by which it was transferred and became vested in her. There is no finding or proof in the record connecting her with whatever title her husband obtained by the purchase of the land at the sales made by the county treasurer. As she was in possession at the time of the commencement of the action she was properly made a party defendant to an action to foreclose the mortgage. If she could allege and prove any facts showing that she was in possession under some right or title superior and adverse to the plaintiff mortgagor, then that right or title could not properly be determined in an action of foreclosure. Corning v. Smith, 6 N. Y., 82; Lewis v. Smith, 9 id., 502; Merchants' Bank v. Thomson, 55 id., 9.

But she failed to do this and her possession must be deemed subordinate to that of Wickes, the mortgagor, and who was the true owner- when the mortgage was made and recorded. There is nothing in the record to show that even William Eeid, her husband, acquired or claimed any right or title paramount to that of the mortgagor, but on the contrary the inference is that he claimed •under him as the plaintiff does, and therefore he, if living, could have been made a party. Lewis v. Smith, supra; Brown v. Volkening, 64 N. Y., 76.

It has already been pointed out that the defendant has not in any way connected herself with the title that her husband acquired under the conveyances to him made upon the tax sales, but if she had the question would then arise whether that title ■would constitute any obstacle to the plaintiff’s action to foreclose his mortgage. These sales and conveyances were all subsequent in date to the delivery and record of the plaintiff’s mortgage. It is not claimed, or at all events it is not found or proved, that any of the assessments or taxes, to collect which the sales were made, were liens when the mortgage was recorded, and hence it is difficult to see how the plaintiff’s rights can be cut off or affected by charges imposed subsequently, without notice to him, or an opportunity to redeem.

By chap. 356 of the Laws of 1874, passed May 7,1874, entitled “An act in relation to the redemption of real estate sold for the non-payment of assessments in the city of Albany,” it is provided:

“ Section 1. Mo sale for real estate hereafter made for the nonpayment of any assessment in the city of Albany shall destroy or in any manner affect the lien of any mortgage thereon duly recorded, except as hereinafter provided.

“ Section 2. It shall be the duty of the purchaser at such sale to give the mortgagee a written notice of such sale, requiring him to pay the amount of the purchase money, with interest at the rate allowed by law thereon, within six months after the giving of such notice.”

It was not shown by the defendant that any notice was given to the owner of the mortgage sought to be foreclosed in this action, and therefore his rights have not been affected by the sale, and it would not change this result even if it were true that the notice required by this statute applies to municipal assessments, and not to taxes, as these assessments were included in the sum to collect which the sales were made. People v. Hagadorn, 104 N. Y., 516; 5 N. Y. State Rep., 782.

We do not consider it necessary to pass upon the validity or regularity of the sales made by the treasurer of Albany county, and the municipal authorities of the city of Albany, to William Reid. It is enough to say that the appellant has not shown any right under these sales in this action to entitle her to a dismissal of the complaint or any other relief as against the plaintiff. The general rule is that a party who has an interest in real estate anterior to that of a mortgagor is not affected by a judgment in a suit for the foreclosure of the mortgage, though made a party under the allegation in the complaint that he has or claims some interest subsequent to the lien of the mortgage. Jordan v. Van Epps, 85 N. Y., 427; Barnard v. Onderdonk, 98 id., 158; Goebel v. Iffla, 111 id., 170; 19 N. Y. State Rep., 105.

Whatever right the defendant had subsequent to the mortgage is barred by the judgment in this action, and she has not established any claim anterior to it that would justify the referee in granting her motion to dismiss the complaint

We think that 'the case was correctly decided in the courts below, and that the judgment should be affirmed, with costs.

All concur.  