When this case was in the Court of Appeals (42 N. Y., 89), two questions only were presented and disposed of, one touching the right of plaintiff to an assignment of the mortgage upon payment of amount due, and the other touching the right of defendant Lockwood, to sell the whole property in one parcel, when plaintiff demanded that fifty acres off the south side should first be sold, he agreeing to bid the amount due therefor. A majority of the court held that plaintiff was not entitled to an assignment of the mortgage as demanded. Three of the eight judges concurred in a reversal by reason of the sale in one parcel. Two judges were for a reversal, but no ground is stated in the report.- It may have been upon the question of assignment. It is questionable, therefore, how far such former decision is an authority. (James v. Patten, 6 N. Y., 16.) The same questions are now again presented. I do not see that any other considerations are of importance, or would control our decision.
The appellant excepts to many findings and refusals to find upon the facts, but no findings which the referee might have made in the respects excepted to could affect our decision.
There is no substantial controversy in the evidence upon the important points.
The former decision of the Court of Appeals, controls us as to plaintiff’s right to an assignment of the mortgage as a condition of his payment of the amount due. He had no such right.
*551If we should, assume that the right to sell in one parcel was decided adversely to defendant by that court, upon the facts as then before the court, we shall find the case upon that point now very different. Upon the former trial no evidence was given by the defendants. Now, it appears that the traet mortgaged was entire and undivided at the time the mortgage was given; that Joslyn was in possession of the north fifty acres claiming to own them under contract; that Ketcham was in possession of the remainder and southern portion of the premises sold under the mortgage; that such purchases were made after the execution of the mortgage, and that no other division into lots or farms had been made before the sale. Now, under these circumstances, the plaintiff demands that fifty acres off the south end of the track be first sold. This fifty acres does not comprise the lot or farm claimed and occupied by Ketcham, but only a part of it, indeed less than half of it I believe. The fifty acres had no fixed, known or definite boundaries. No description of it was made or suggested at the time, nor is it easy to see how any accurate description to constitute the basis of a conveyance and possession under it, could have been made without the aid of an actual survey. The south side of the land was bounded on the river, and it was not an easy task to determine where the line of fifty acres would come. It would depend also upon the variable points of compass upon which such north line might run, in the discretion, of those controlling its direction. It was not, therefore, a distinct tract or parcel, that could have been conveniently sold, described and conveyed, and hence the request of plaintiff did not make a case within 2 Revised Statutes (546, § 6). Defendant Lockwood was therefore, justified in his refusal to sell as requested. It is an entirely different state of facts from that presumed to exist by Mr. Justice Suthee-LAND in 42 New York (Ellsworth v. Lockwood), when there was nothing to show “ that the designated fifty acres were not so situated as to be conveniently capable of being sold, described and conveyed as a distinct parcel or tract ” (page 101). Upon that assumed fact, tegether with the request or demand of plaintiff to sell such fifty acres, does the learned justice rely to sustain his conclusion. If either fact be wanting'the conclusion fails. Because, I assume it will never be held, that a mortgagee is bound to sell in parcels *552without request, where the division was made into parcels after the execution of the mortgage. To hold that a sale of the property in one parcel as • described in the mortgage, under such circumstances is void, would be in the highest degree dangerous. The mortgagee is often" in no situation, to know of subsequent divisions of the mortgaged property. A sale, therefore, without knowledge of such divisions or without request to sell in known and recognized parcels, should not be avoided. However the law may be finally held on the facts as assumed by Mr. Justice Suth-eblaND, upon those now found the sale should be held good. (Lamerson v. Marvin, 8 Barb., 9; Griswold v. Fowler, 24 id., 135; Cox v. Wheeler, 7 Paige, 250.)
But there is another sufficient reason why this judgment should be affirmed. The plaintiff at the time of the foreclosure and sale was the legal owner of the fee in the mortgaged lands, subjeot to this mortgage which he was bound to pay. (I disregard for the present the claims of Joslyn and Ketcham.) Plaintiff was, therefore, the primary debtor for the amount due to Lockwood on the mortgage. He was there on the sale in person or by his agent with the necessary money to pay the debt and discharge the mortgage. He refused to do so except upon a condition which he had no right to demand. It was plaintiff’s own folly therefore, that a sale took place. His object, very likely, was to cut off the claims of Ketcham and Joslyn. If their claims were valid as against the plaintiff, he ought not in equity and by indirect means to impeach their title. If their claims were invalid, plaintiff could have dispossessed them as well after, as before the satisfaction of the mortgage. By the findings of the referee on the present trial they were honafide purchasers from Mott, who had an apparently perfect title of record, subject only to Lockwood’s mortgage. Under such purchase valuable improvements were put upon the lands by Ketcham and Joslyn, with the knowledge of the plaintiff, and without any claim or pretense, upon his part, of any hostile interest or title. It would, therefore, be inequitable and unjust toward Ketcham and Joslyn, to allow such sale to- be set aside in the interest of the plaintiff, who voluntarily permitted it to take place and permitted the purchasers to expend large sums of money upon the lands bought by them, without notice or warning of any *553kind. On tbe facts found, plaintiff was in the wrong in not paying up the mortgage before the sale, he having the money there to have done so. Defendants Ketcham and Joslyn, prior to such mortgage sale, bought in good faith, of a person having an apparent title, entered into possession and improved the property. The plaintiff knows all this and says nothing. Ketcham and Jos-lyn buy in the property on the mortgage sale, in order to perfect their title. How have Ketcham and Joslyn been guilty of any wrong? Why should their equitable, if not legal rights, be imperiled in favor of one who has refused to do his legal duty, that he might take an undue advantage of them ? I concur therefore, with the referee, that the sale was regular, fair and valid, that defendants Ketcham and Joslyn took a good title under such sale, and that plaintiff established no cause of action against the defendants or either of them.
The judgment is therefore affirmed, with costs.
Leaiíned, P., J., concurred. BooKes, J., took no part.Judgment affirmed, with costs.