The facts upon which the legal propositions are based may be briefly stated: On the tenth day of January, 1883, the defendants, John Lisk and Abial L. Russell, the mortgagors, in the several mortgages mentioned in the complaint and in the judgment, were the owners, as tenants in common, of two parcels of land which in all the proceedings in the action have been treated by all the parties as separate and distinct parcels, and are so described in the mortgages. Upon each of said parcels there existed at that time a mortgage lien, less in amount than the value of the property. At the same time the said Russell was the individual owner of two other parcels of land upon which there was also mortgage liens. None of the owners of these several liens were made parties to this action, and all the mortgages and judgments *in which the parties to this action are interested are subsequent and subordinate to said several liens.
On the said 10th day of January, 1883, the said Lisk and Russell executed to the plaintiff the two mortgages first described in the complaint, and there was due upon them at the time of the entry of final judgment the aggregate sum, including the interest and premiums paid for insurance, $4,863.94. Subsequent thereto and on the 12th day of July, 1884, the said mortgagors executed and
The final judgment directed that out of the proceeds the costs of the suit and the plaintiff’s first two mortgages and interest be first paid, which then amounted in the aggregate to the sum of $4,863.94. The surplus remaining after satisfying this part of the decree, it will be observed, was more than sufficient to pay the plaintiff’s; third mortgage, which was a lien upon the mill lot, and is about equal to the amount which the appellant claims is due upon and secured by its mortgage upon the “ store lot.”
The real and substantial question in dispute between the parties is, which of these mortgages should be first paid out of the surplus arising upon the sale of all the mortgaged premises ? The appellants’ position is that as its mortgage was executed and recorded prior to the plaintiff’s third mortgage it is, in equity, a lien upon the surplus moneys. The final judgment did not' dispose of this controversy. It contains a provision that out of the proceeds of the sale, properly applicable thereto, there be paid to the plaintiff the sum of $1,092, the amount found due on his third mortgage, and then directs that in all other respects the rights and equities of all the parties be reserved until the further order of the court. It is
The question presented is first to be considered as between the plaintiff and the appellant. By the application of a well-settled equitable rule the appellant may insist that the plaintiff’s first two morgages should be paid out of the proceeds of the sale, derived from a sale of the premises embraced therein, exclusive of the parcel covered by its mortgage. The fund derived from the sale of those parcels was more than sufficient for that purpose. The effect of a distribution made on this basis will be to secure to the appellant the application of the entire sum realized on the sale of the parcel covered by its mortgage, or so much tñereof as may be necessary to pay the same in full. The appellant’s mortgage will be thus fully protected, and nothing will be taken from the plaintiff, as he will thereby secure the full satisfaction of both of his mortgage liens, which are prior in point of time to the appellants.
The cases are decisive of the question as between parties whose mortgage liens stand in the same relation to each other as these do as to point of time and accruing under the same circumstances. ¥e only need to apply the general rule as stated in Bernhardt v. Lymburner (85 N. Y., 172), viz.: “ Where there are several successive grantees of different portions of mortgaged premises, the land on foreclosure is to be sold in the inverse order of alienation, and this secures the equitable rights of the parties as between themselves. The first grantee of part of the mortgaged premises, who has purchased for full value and without any agreement to assume the mortgage, may justly claim that the burden of the incumbrance should be cast in the first instance upon the remaining lands of the grantor, and a second or other grantee takes subject to the equity of the prior grantee. The same principle is applicable
The appellant was a mortgagee in good faith, and it may be flssrimp.fi that when it accepted the same it was with a full knowledge of the equitable rule, that the remaining parcels covered by the plaintiff’s mortgages would be first sold in satisfaction of the debt secured thereby. Nothing has been disclosed in this case which should result in a defeat of this expectation. The appellant’s mortgage was intended as a security for the payment of eight notes made by the mortgagors, Lisk and Russell, and indorsed by it as an accommodation indorser.' Upon some of those notes a judgment has been recovered by the Moravia National Bank, as holder, against the maker and indorser, in the sum of $1,007, which was docketed in the Seneca county clerk’s office. Upon some of the other notes a judgment has also been recovered by another party, and against the makers alone, for the sum of $552. It does not appear that the appellant has paid either of the notes, or any part of the said judgment recovered against it by the bank upon a portion of the notes so indorsed by it. The defendant, the Water-town Steam Engine Company, hold two mortgages executed by Lisk and Russell upon parcels “ A ” arid “ C,” both of which are subsequent in point of time to the appellants and to the plaintiff’s third mortgage. That company appeal’s upon this appeal, and contends for an affirmance of the order, chiefly upon the ground that the appellant may, in view of these facts, seek protection against its liability as indorser by a resort to separate funds, one of the premises recovered by its mortgage and the other the lands and premises upon which the judgment recovered by the Moravia bank is a lien, and invokes the application of the rule that where a creditor having a lien on separate funds should not be permitted to proceed with the collection of his debt so as to disappoint the creditor, who has a lien only on one of them.
This question is not properly up for consideration on this appeal. The appellant has had no opportunity to establish the extent of its liability as indorser of the notes of the mortgagors, nor was the question up at the time of the making of the order of distribution
So much of the order appealed from as directs the payment of the plaintiff’s third mortgage in the first instance, out of the surplus money and the particular fund out of which the same be paid, is reversed. The other provisions of the order are affirmed, without costs of this appeal to either party. This will result in leaving the entire surplus subject to the further order of the court.
So much of the order appealed from as directs the payment of the plaintiff’s third mortgage, and, also, so much of the order as directs out of what fund the plaintiff’s first two mortgages be paid, is reversed. In other respects the order is affirmed without costs of this appeal to either party.