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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 162 The questions presented on this appeal relate to the decision of the General Term affirming the interlocutory judgment above mentioned. In the view we take of those questions it is not material to inquire what consequences would have followed if Onderdonk had remained silent in this action, or when pressed by the plaintiff or his co-defendant, had contented himself with a simple denial of their allegations. He did neither. Of two courses he made his election. He became an actor in the proceedings, and by answer asked affirmative relief. Having in mind that the judgment might be either for an actual partition of the land itself, or for a sale of the land and a division of its proceeds, he contemplates both and avers that his judgment is a valid and subsisting lien on the premises, and in order to enforce his claims asks, first, that the premises be declared subject to said judgment, or second, that *Page 164 it be paid out of the proceeds of the sale in this action, if any there be. He asks the same as to his mortgage of 1850. Consistently with the position taken by the pleadings, he put in evidence at the trial his decree of foreclosure, and the mortgage to which it related; also the mortgage of 1850, given as collateral to the decree and mortgage last mentioned, and requested the court to find they were not paid or barred by the statute of limitations, and to compute the amount due; that the sale should be subject to them, or their amount be first paid out of the proceeds of the partition sale. Upon each of these propositions the court was against him, and we are unable to perceive how, having taken the chance of a favorable decision, he can successfully contend that the court had nothing to do with the question of the validity of those apparent liens.
In the recent case of Jordan v. Van Epps (85 N.Y. 427), the plaintiff claimed to recover a dower interest in land; the defendant made title under a sale by virtue of a judgment in partition, to which the plaintiff was a party. She objected that her claim was prior to the rights involved in the partition suit, and therefore was not affected. Answering this point, and referring to the cases cited in its support, the court say in substance that none of them hold, and it is not decided, that in an action for the partition of land such a right cannot be made the subject of adjudication, although it related to the title prior to that acquired by the tenants in common, when no such defense is interposed and the objection is not taken. Nor does the appellant's case differ from the one supposed, because after the trial he asked the court to find, among other conclusions of law, "that in any view of the case, the plaintiff cannot have, nor can any defendant have in this form of action, affirmative relief against the defendant Onderdonk, on the ground that the said judgment and mortgage, or either of them, are barred by the statute of limitations."
The court had jurisdiction over the parties, and the defendant without protest had submitted his rights under the decree and mortgage to its adjudication. It may be that he could not have been compelled to bring them into court. This question *Page 165 we do not decide. He voluntarily presented and sought to have them enforced.
In the next place, we think the relief given by the trial court was warranted by the case as presented. The foreclosure was in equity. Its object was to enforce the mortgage lien, and its effect was to fix conclusively the amount due upon the debt, which was its sole foundation. It did not create a new one; and the power of the court in the proceeding was limited to a decree for the sale of the mortgaged premises, or such part thereof as might be sufficient to discharge the amount due on the mortgage, and the costs of suit. (2 R.S. 191, § 151.) The proceeds of such sale could under the statute (supra, p. 192, § 159), "be applied" only "to the discharge of the debt so adjudged to be due, and the costs." The mortgage was not extinguished, and notwithstanding the decree, the rights and liabilities of the mortgagor continued under the statute (supra) to be measured by the obligations stated in the mortgage, until final payment. When the whole amount is not due the decree remains by the very language of the statute, "as security" (§ 163, p. 193) "for any default subsequent thereto in the payment of any portion or installment of the principal, or of any interest due upon such mortgage," and it provides that a sale may be ordered for its payment, and so as often as a default shall happen. Until the bond or debt, to secure which the mortgage was given, is fully paid by the execution of the decree, or otherwise, the mortgagor cannot require the bond and mortgage to be returned to him, or canceled. (In re Costar, 2 Johns. Ch. 502.)
The debt upon the bond then is secured by the mortgage and also by the decree. Yet by this double security it is not placed on any different footing from a debt due upon bond and mortgage. The entering of a decree of foreclosure is not necessary to give security to the debt, for the lien subsists. (Lansing v.Capron, 1 Johns. Ch. 617.) The decree is a means only of enforcing the lien of the mortgage and so rendering it available. (Bucklin v. Bucklin, 1 Abb. Ct. of App. Dec. 242.) That lien remains until the debt is paid or discharged. Neither *Page 166 the foreclosure suit nor the decree affects that, nor does either impair the mortgagor's right to redeem. That right remains the same after decree and until an actual sale of the mortgaged premises under it. (Brown v. Frost, 10 Paige, 243). So, notwithstanding the decree, the lien is liable to be defeated by the same presumption founded upon lapse of time. If the mortgage stands alone, without payment or proceedings to enforce it for twenty years, the presumption of payment accrues. If by virtue of foreclosure a new "security" has been taken, the same policy will, under the same circumstances, raise the same presumption. Upon this principle it has been held that where there had been a foreclosure sale, not followed by a conveyance to the purchaser, or any recognition of the mortgage by the mortgage debtor, it will be presumed after the lapse of twenty years that the land had been redeemed from such sale. (Reynolds v. Dishon, 3 Bradw. [Ill.] 173.)
The mortgage here, of which Onderdonk was the assignee, matured so as to be the cause of action in foreclosure, and judgment was obtained on the 29th of April, 1848. Conceding that by stipulations in the mortgage of 1850, enforcement by sale was stayed for ten years, he was at liberty to proceed upon the decree and also on that mortgage in 1860. This action was commenced in July, 1881, and the defendant Onderdonk thereafter, and not before, set up his judgment and mortgage. This was more than twenty years after the cause of action under any construction accrued, and a recovery upon either is barred whether the question is considered under the limitation prescribed by the Revised Statutes (Title 2, part III, chap. 3, 2 R.S. 295, § 90), or the Code of Procedure (Laws of 1848, chap. 438, § 90), or the Code of Civil Procedure (§ 381). No proof was given to take either claim out of the operation of the statute. The policy of the law and substantial justice required that judgment should be given against them.
It is not necessary to determine whether the provision of the Revised Statutes (2nd vol., part 3, chap. 4, tit. 2, § 47), as the respondent claims, or those of the Code of Procedure (§ 376), *Page 167 would, if otherwise applicable, govern this case, for we think it is not within the intent or scope of either. The action for foreclosure has indeed resulted in a decree, but it is merely for the purpose of enforcing the lien of the mortgage as by a special execution. It is not for the payment of any sum of money, nor can it be docketed. If after sale there should appear to be a deficiency, it may, when other steps have been taken, be made a personal judgment. Until then it is inchoate. Such is its present condition. As it now stands no "amount of money" (in the language of the Revised Statutes, § 47, supra), can be said "to be recovered by it," nor is it "a final judgment or decree for a sum of money," nor does it direct "the payment of a sum of money," as under section 376 of the Code of Procedure. It is final so far as it directs "the sale of the property mortgaged," and the application of the proceeds (§ 1626), but beyond that, all depends upon a contingency. The decree requires the sheriff to specify the amount of the deficiency, if any, and on the confirmation of his report, the defendant named "pay the amount of such deficiency." As to this, other proceedings are required, and the judgment or decree is not final, so that the statute would run against it. It depends upon an order to be made after sale.
For the reasons before stated, the judgment should be affirmed.
MILLER, EARL and FINCH, JJ., concur; RUGER, Ch. J., RAPALLO and ANDREWS, JJ., dissent.
Judgment affirmed.