[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 220 I am of opinion that the plaintiff was entitled to redeem, by paying the mortgage debt, principal and interest, and is not obliged to pay the costs of the foreclosure suit commenced by the defendants against Thompson and the Ryders. The plaintiff was not affected by the foreclosure suit upon the defendants' mortgage, to which he was not made a party. He was, therefore, entitled to redeem, precisely as though no such action had been brought, namely, by paying the mortgage debt and interest. The costs were incurred in an action in which he was not concerned. (Vroom v.Ditmas, 4 Paige, 526.) The Supreme Court, in the present case, held that the circumstance that Ryder purchased subject to the defendants' mortgage took the case out of the established rule. The judgment upon the foreclosure of the defendants' mortgage contains the usual clause providing for a judgment to be docketed against the mortgagor, Thompson, for any deficiency which may remain of the mortgage debt, interest and costs, after applying the proceeds of the sale. It is said that, unless the plaintiff is compelled to pay these costs on redeeming, Thompson may be made liable to pay them, and that the plaintiff, as the grantee of Ryder, who purchased the premises of Thompson subject to the defendants' mortgage, ought to indemnify the latter against these costs. It seems to me that there are two answers to this *Page 221 position. Ryder did not, by taking a conveyance from Thompson subject to the mortgage, enter into a contract with him to pay off that mortgage. The insertion of that statement in the conveyance, if it was inserted, which is not quite certain upon the finding, served only to qualify the covenants of title, and did not oblige Ryder to pay the mortgage debt, except so far as he should think it for his advantage to do so to preserve his title to the land. He was at liberty to give up the land, and leave Thompson to pay the mortgage. (Belmont v. Coman,22 N Y, 438.) Thompson, it is true, had an equity which would enable him to compel the mortgagee to exhaust his remedy against the land before resorting to him. But the defendants' foreclosure suit was not adapted to subject the land, simply because the owner of the land was not made a party. If he had been, not only the mortgage debt, but the costs, as an incident to the suit for collecting the debt out of the land, ought to have been paid out of the proceeds of the sale. Again, Thompson is not in need of any indemnity. There never can be any sale under the foreclosure if the plaintiff redeems, and consequently no deficiency for which a judgment can be docketed. The mortgage debt and interest will be paid, and this will put an end to the right to sell. The defendants have pursued a remedy which, by leaving the owner of the land outside of the proceedings, has left him at liberty to extinguish the mortgage against his premises without any regard to the pending suit, which did not concern him. The consideration that the defendant had no actual notice of the plaintiff's mortgages was of no moment. When seeking to extinguish the equity of redemption and to bring the premises to a sale, it was his duty to ascertain to whom that equity of redemption belonged. It was the subject of transfer by sale or mortgage, and it had been actually mortgaged to the plaintiff, and his mortgages were on record.
I am in favor of reversing the judgment of the Supreme Court; and, as all the material facts are admitted in the pleadings, there should be a judgment declaring that the plaintiff has made a valid redemption of his premises from the lien of the defendants' mortgage, and that such lien is *Page 222 extinguished; and the plaintiff should recover his costs in the Supreme Court and in this court.