The defendant, Williams, is a proper party to this action.
The effect of his purchase at the tax sale, subsequent to the mortgage, and the lease to him thereupon, was to create a lien in his favor, which entitled him to priority over the mortgage, to the extent of his lien. There is no question of adverse title in Williams, involved.
In his answer he does not set up an adverse claim by title paramount. He says he has an interest in, or lien upon, the mortgaged premises. That his lien is a lien paramount to the mortgage sought to be forelosed. In thus defining his attitude it is conceded that he speaks truly. Having failed to serve the notice required by the Laws of 1871 (chap. 381, vol. 1, p. 747, secs. 13-16) he has acquired no title to the mortgaged premises.
*490But he has a valid prior claim for the consideration paid at the tax sale, with forty-two per cent interest to he added thereto. That is the extent of his claim and lien.
Prior incumbrancers — and the claim of the defendant, Williams, is of that nature — are proper parties to an action for the foreclosure of a mortgage (Harris agt. Beach, 3 John. Chy., 459 ; Holcomb agt. Holcomb, 2 Barb., 20; Walsh agt. Rutgers F. Ins. Co., 13 Abbott, 33, 38, 39; Brown agt. Volkening, 64 N. Y., 76 ; Moller agt. Muller, 12 Hun, 674).
The propriety of this defendant being made a party is shown by Becker agt. Howard (66 N. Y., 5).
There must be judgment of foreclosure, but the defendant, Williams, must be paid first out of the proceeds arising on the sale, the amount of his lien, above recognized and established.