
    Alice Crocker et al., Resp’ts, v. Ervin G. Gollner et al., Impl’d, App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 22, 1892.)
    
    1. Judicial sale—Motion to compel completion oe purchase.
    T. purchased certain property at foreclosure sale. Upon examination of the title he found a Us pendens on the premises, filed by L. in an action, to enjoin the mortgagee from erecting a flat upon it in violation of an. agreement between them, and that the court of appeals had rendered a decision in L.’s favor, and therefore T. declined to complete his purchase. Plaintiffs and defendant moved to compel him so to do. Pending such, motion L. bought plaintiffs’ mortgage and rights and caused them to withdraw their motion, whereupon the court refused to compel T. to complete^ the purchase. Held, no error; that L. was entitled to acquire plaintiffs’ mortgage to prevent the abrogation of his easement, and a sale having-been had, which, if carried out, would destroy it, the purchaser, being willing to forego his contract, would not be compelled to complete it at the instance of the defendant, who, by the sale, would avoid his contract, with L.
    £. Same—Pbotbction of basement—Loches.
    In such case L. could not be charged with loches in not having acquired: plaintiffs’ mortgage earlier, because up to the time he did acquire it the-judgment of the lower court that he had no easement stood unreversed,, so that had he sought to compel such assignment he would have failed.
    Appeal by the defendants Grollner and wife from order denying motion to compel purchaser at foreclosure sale to complete his purchase.
    Prior to the commencement of this action to foreclose a purchase money mortgage, an action had been brought against defendant Grollner by one Lester A. Lewis to restrain him from building an apartment house in violation of an agreement made with Lewis, and others, in which action Lewis was unsuccessful and appealed. After the present action was commenced the court ' of appeals reversed the judgment in the prior action, and the purchaser at the foreclosure, finding that a lis pendens had been filed and that the title had been refused by a title company, refused to complete his purchase. Pending a motion to compel such completion Lewis and the others who were interested in the restrictive agreement bought the mortgage in suit and served notice of withdrawal of the motion so far as the plaintiffs wére concerned. .
    The opinion at special term was as follows:
    Cullen, J.—That the purchaser would acquire under the foreclosure and sale a perfect title I have no doubt. The mortgage foreclosed is for the purchase money of the lands, and, of course, is paramount to any incumbrance that the acts or contracts of the grantor Grollner can have imposed on the lands. But this is not decisive of the application. -Defendant Lewis, in whose favor it is claimed Grollner created an easement or restriction upon the-mortgaged premises, has now acquired the mortgage in suit The-affidavits aver that all the liens, except the purchase money mortgage, accrued after the filing of the lis pendens in the action brought by Lewis to enforce the agreement made by Grollner. Lewis’ equities are therefore superior to those of all the other parties to the action except the plaintiffs, and the equities of the plaintiffs extend only to the right to have their mortgage paid. Lewis, therefore, was entitled to acquire plaintiffs’ mortgage to prevent the abrogation of his easement, and to have the sale made subject to his easement. Had this been done before the sale his rights would have been clear. A sale has been had. If carried out, Lewis’ easement is destroyed. But the purchaser is willing ta forego his contract. The plaintiffs, having assigned their mortgage, withdrew their application to compel the purchaser to complete the purchase. The only party who seeks to enforce the sale is the defendant Grollner, who, by the sale, avoids his contract with Lewis. He certainly has no equity in his claim, nor can the defendant Lewis be properly charged with loches in not having acquired plaintiffs’ mortgage earlier. While the trial courts found the fact that Grollner had made the agreement restrictive of the use of the mortgaged lands, it was held that such an agreement could not be enforced. Had Lewis sought in this action to compel an assignment of the' plaintiffs’ mortgage, he would have failed because of the judgment in the other action that he had no interest or easement in the lands. It was not till the judgments of the court of appeals reversing the judgment below that Lewis could assert his rights. Then he promptly acquired the paramount mortgage. Under these circumstances, it seems to me unjust to carry out the sale.
    Motion denied, with ten dollars costs.
    
      Alfred R. Page, for app’lts; Wm. C. Beecher, for pl’ffs-resp’ts; Rufus T. Griggs, for resp’t Lewis; Brewster Kissam, for resp’t Tinsley, purchaser.
   Dykman, J.

—This is an appeal from an order of the special term denying a motion to compel a purchaser at a foreclosure sale of real property to complete his purchase.

The appeal is destitute of merit, and the order should be affirmed on the opinion of the court at special term, with ten dollars costs and disbursements.

Barnard, P. J., concurs; Cullen, J., not sitting.  