In this case there are two appeals. The plaintiff is a junior mortgagee, holding a mortgage on lands in Yonkers, upon which the defendant holds a prior mortgage. There are two intervening mortgages, held by strangers to the action.
The plaintiff tendered to the defendant the amount due on defendant’s mortgage, and demanded an assignment. This was refused. The referee held that the tender -did not discharge the lien.
I think the referee was correct. The plaintiff had no standing as to the land, which entitled him to pay the mortgage debt of defendant.
It is not like the case of Kortright v. Cady, where the owner of the fee tendered the amount of the mortgage to free his land, but the case of a mortgagee tendering to a prior mortgagee. (Ham v. Jex, 66 Barb., 232.)
Besides the tender was not made to extinguish the lien but was *29accompanied with a demand for an assignment. There is no legal ground for the plaintiff’s appeal.
The defendant also.appeals, and the case presents purely a question of law upon the facts found by the referee.
The plaintiff had a fourth mortgage upon the property, and the defendant the first mortgage as already stated. There was a judgment prior to all the mortgages. The holder of this judgment, by a private arrangement with plaintiff, agreed to postpone the lien of the judgment to that of the fourth mortgage.
He then issued an execution on the judgment, and at the sheriff’s sale the defendant paid the full amount of the judgment, and took the sheriff’s certificate of sale in entire ignorance of the agreement between plaintiff and the holder of the judgment; under this, certificate the defendant would be entitled, at the proper time, to a deed of all the right, title and interest of the judgment debtor, at the date of the entry of the judgment.
I think the defendant took the judgment debtor’s interest, without reference to the secret agreement.
The holder of the judgment had the title and the right to enforce it. He made no reservation, and gave no notice indicating that it was not what it purported to be, the first lien on the property sold. I am unable to see any reason which entitles plaintiff to an assignment of defendant’s mortgage. It puts him in no better position than he is now.
The sale under plaintiff’s mortgage is for the benefit of all subsequent claims, and the priority of lien can be determined on proceedings to distribute surplus.
If a prior mortgagee may be compelled to assign his mortgage to a subsequent one, when there are more than one subsequent, to which one must he assign % Why pass over the two intervening mortgages, and assign to plaintiff.
I think the judgment should be reversed, and a new trial granted, at Special Term, costs to abide event.
Present — BaeNAed, P. J., and Gilbeüt, J.; DyemaN, J., not sitting.Judgment reversed, with costs.