The plaintiff could, if he had so elected, have commenced an action upon the undertaking of the testator to pay the mortgage, and in the complaint in such action it *Page 431 would have been unnecessary to have alleged any thing about the foreclosure proceedings. If the defendant had relied upon them as a defence it would have been necessary for him to allege them in his answer. But the plaintiff in this action has set out the foreclosure proceedings in his complaint, and seeks only to recover the deficiency, after applying upon the mortgage the amount realized from the sale of the mortgaged premises. The general denial in the answer puts in issue the amount of the deficiency. Upon the trial the plaintiff did not rest upon proof of the testator's undertaking in the deed given to him, but proved the foreclosure proceedings with the view of showing sale of the lands and the amount which yet remained due upon the mortgage. Hence the case was in such a condition that the defendant was entitled to dispute the amount of the deficiency.
It appears that judgment of foreclosure was entered, in which it was adjudged that the sum of $2,508.94 was due upon the mortgage, and a referee was appointed to sell the mortgaged premises. He was directed to make the sale and execute a deed to the purchaser, and out of the moneys realized to retain his fees and expenses and the amount of any liens for taxes or assessments. He was then directed to pay the costs of the attorneys and the amount due upon the mortgage, and to deposit the surplus, if any, with the chamberlain of the city of New York. In pursuance of this judgment he advertised the mortgaged premises for sale, and the plaintiff became the purchaser for the sum of $9,700, that being the highest sum bidden for the same. He reported that he disposed of this sum as follows: that he allowed the plaintiff $1,191.95 for taxes and assessments, and $6,091.25 for prior mortgages assumed by him; that he deducted his charges and expenses and paid the costs, and paid over to the plaintiff $1,802.32, leaving a deficiency upon the mortgage of $741.55. There was nothing in the complaint or judgment in that action about any prior mortgages, and no persons holding prior mortgages were made parties. Prior mortgagees were not necessary parties to the action, and the judgment and sale *Page 432 did not and could not in any way affect their rights. All the referee could do was to sell the premises subject to such mortgages, if any; and all the title he could give was such as the parties to the action had. Such a sale he made. It does not even appear that he, in terms, sold the land free of the prior mortgages, or that it was one of the terms of the sale that the purchaser was to assume any prior mortgages. He reports that he made the sale for the sum above named, and then, in reporting the disposition of the proceeds, he asserts that he allowed the plaintiff to retain over $6,000 for prior mortgages assumed by him. It does not appear who held the prior mortgages, nor how much was due upon them, nor even that there were any prior mortgages, or that plaintiff paid them. After allowing the plaintiff to retain upwards of $6,000, he reports the small deficiency claimed in this action.
There was no adjudication, as against this defendant, that there was a deficiency, and the defendant is in no way estopped from denying that there was a deficiency. Assuming that the report is evidence of all the facts stated in it, it appears that there was no deficiency, and that the plaintiff had in his hands ample money to pay the mortgage and leave a surplus.
Upon such a state of facts, appearing by plaintiff's own proof, he was properly nonsuited, and the judgment must, therefore, be affirmed, with costs.
All concur; RAPALLO, J., not voting.
Judgment affirmed.