Smart v. Bement

Wright, J.

The action was to foreclose a mortgage on a farm or tract of land in the county of Tioga, executed on the 20th October, 1854, by Egbert Bement and wife to William B. Bement, and by the latter on the 27th October, 1854, duly assigned, for value, to the plaintiff. The complaint contained the general allegations that the defendants Isaac Hyde, Jr., and Valentine Everett, have, or claim to have, some interest or lien upon the mortgaged premises or some part thereof, which interest or lien, if any, has accrued subsequent to the lien of said mortgage. The defendant Bement, the mortgagor, put in an answer, admitting the execution and validity of the bond and mortgage, and the amount due thereon as set forth in the complaint, and set up no defense thereto, but alleged that before making the mortgage he was the owner of an undivided half of the mortgaged premises, and was applied to by William B. Bement, the owner of the other undivided half of said premises, to purchase the same, which he did, and executed the bond and mortgage in question for the purchase-money of said half of the premises, and for no other consideration; which bond and mortgage were sold by William B. Bement to the plaintiff, and the avails thereof applied to the payment of the debts of the latter; that on proceedings on behalf of defendants Hyde and Everett, as creditors of Wm. B. Bement, the title to the said half of the premises so purchased, failed, and was of no value to him, but was declared to belong to William B. Bement, without interfering in' any manner with the lien or validity of the mortgage in the complaint mentioned; that since that proceeding the mortgaged premises have been partitioned between himself and William B. Bement; and he insisted that he was equitably entitled to have that part of the mortgaged premises that had been set off to William B. Bement first sold, and if from that was not realized the amount of the bond and mortgage, interest and costs, then that. the part set off to him should be sold for any deficiency.

The defendants Hyde and Everett also answered in the action. In their answer they admitted the execution of the bond and mortgage, setting up no affirmative defense against the same, nor controverting the fact that the amount thereof should be made from the mortgaged premises, but the allegations of the answer consisted in showing-that, as between themselves and William B. Bement, as creditors of the latter, they had succeeded in obtaining the judgment of the Supreme Court; that the conveyance from William B. Bement to the .defendant Egbert Bement, in October, 1854, of an undivided half of the mortgaged premises (the consideration for which was the bond and mortgage in suit) was fraudulent in fact, and that the same was declared void, and such deed set aside; that the sheriff sold, on one of their executions issued to him, the real estate embraced in such conveyance (viz., the undivided half' part of the premises covered by the mortgage, the other undivided half part belonging to Egbert Bement), and they became the purchasers and now hold the certificates of sale, and they claimed and insisted that if the bond and mortgage in suit are valid and binding securities in the hands of the plaintiff, they are entitled to have the same first enforced against Egbert Bement’s undivided half part of the premises covered by the mortgage before the same can in any manner be enforced, as against the undivided half part thereof conveyed by William B. Bement to Egbert Bement, by the deed of the 20th October, 1854.

Upon this narrow question, raised between the defendants, as to what part, or which interest in the mortgaged premises, that of the defendant Egbert Bement or that which his father as alleged fraudulently attempted to convey to him in October, 1854, should be first sold under the foreclosure judgment, the action has been pending for nearly six years. The question was one in which the plaintiff had no interest whatever; for the whole premises were subject to the lien of his mortgage. The contest has been conducted wholly between the defendants Hyde and Everett, on one side, and the defendant Bement, on the other. Certainly it was of no consequence to the plaintiff, whether Bement’s claim, or Hyde and-Everett’s claim, as to the order of sale, should be preferred; nor could the rights and equities of each defendant as against the other, and on which their respective claims were alleged to depend, be determined in the action. There were no issues of that kind raised by the pleadings. When all the facts as between defendants on the record are before the court, it' may have power to determine issues and adjust equites between them, but it is not bound to do so, especially if there be any right of the plaintiff on the record which may be impaired or invaded. • That the defendants substantially asked by their answers the insertion of a clause in the decree of sale that might jeopard the interests of the plaintiff, seems to me apparent. Bement was the owner of an undivided half part of the mortgaged premises, and Hyde and Everett held the sheriff’s certificates of sale, but no deed of the other undivided half part. In effect, the claim was on the part of Bement that the judgment should contain a provision that the undivided interest claimed by Hyde and Everett in the whole mortgaged premises (for that was the interest they had, if any), should be first sold, and on the part of Hyde and Everett, that Bement’s undivided interest should be first sold — not that the farm or mortgaged premises should be sold in specific parcels, as the interest of each party, as alleged, was in the whole. It was easy to see that such a provision might injuriously affect the plaintiff in the collection of his mortgage debt. Yet the judge at Special Term (under the plaintiff’s objection) proceeded to try the issues between the defendants, raised by their answers. Testimony was received wholly.on their part, sometimes under objections of one party and then again by the other. Hyde and Everett were allowed to introduce the record of a judgment in an action between themselves and the Bements, to which the plaintiff was not a party, and in which judgment it was provided in express terms that his rights as assignee of the mortgage should not be prejudiced thereby, declaring the deed from William B. Bement to Egbert Bement, of the date of October 20, 1854, conveying an undivided half of the mortgaged premises, fraudulent and void as to Wm. B. Bement’s creditors, and setting the same aside.

To prove, also, the sale, by the sheriff, under one of these executions, on the 10th March, 1859, of the real estate embraced in and covered by such deed; that they became the purchasers and received the sheriff’s certificates of sale, and still owned them; and that the only consideration for the bond and mortgage in suit was the conveyance of October 20, 1854,—Bement was also permitted to show the sale and assignment, by William B. Bement, of the bond and mortgage to the plaintiff, and the application of the proceeds thereof to the payment of Bement’s debts; also, to introduce in evidence a judgment entered in January, 1860, in an action in the Supreme Court, wherein he was plaintiff, and William B. Bement was defendant, partitioning the mortgaged premises between them. And the judge, after thus receiving the defendant’s proofs, found as the facts: First, the adjudication in the action of Hyde and Everett against the Bements,- that the deed of October 20, 1854, was, as to the plaintiffs therein, fraudulent and void, and was set aside; second, that the mortgage in suit was executed as the consideration for such conveyance;. third, that the plaintiff was a bona fide purchaser, for value, of such mortgage; fourth, that the proceeds of the mortgage were applied by William B. Bement to the payment of his debts; fifth, that the mortgage covered, not only the undivided half of the farm conveyed by William B. Bement to Egbert Bement, by deed of October, 1854, but also the undivided half conveyed in March previous; sixth, that, since the determination in the suit of Hyde and Everett against the Bements, the farm has been partitioned, and the half thereof set off to Egbert Bement; seventh, that, since such determination, Hyde and Everett have become the purchasers of the other half, under the sheriff’s sale, by virtue of the execution in their favor against William B. Bement, having received a sheriff’s certificate, but no deed; eighth, that Egbert Bement never received any consideration whatever for the bond and mortgage sought to be foreclosed in this suit. Hpon these findings, his legal conclusions were, that the plaintiff was entitled to judgment, directing the sale of the mortgaged premises, or so much' as was necessary to pay his mortgage, interest and costs of suit; and that, on such sale, • the premises be sold in parcels, and the half part set off to William B. Bement, or his creditors, be first sold, and, if it does not produce sufficient to pay the plaintiff’s judgment, then the half part of Egbert Bement, or as much as may be necessary to make up the deficiency, be sold. Accordingly, a judgment was entered, directing á sale of the mortgaged premises, to satisfy the amount due on the mortgage (§3,918.54) and costs; and further directing that the premises be sold in parcels, the first parcel to be sold being that described in the judgment of partition as set off to William B. Bement; and in case that be not sufficient to satisfy the mortgage debt and costs, then to sell the part of the mortgaged premises set off to Egbert Bement. This judgment was reversed, or modified, by the General Term, by the entry of the usual one in foreclosure cases, viz., that the mortgaged premises, or so much thereof as may be necessary to satisfy the mortgage debt and costs, be sold; and it is from the latter judgment that these litigatory defendants between themselves have appealed to this court.

If there be any merit in the appeal of either of them, I have failed to discover it. The plaintiff has obtained, by the judgment of the General Term, what I think he was originally entitled to upon the pleadings. He wag the assignee of a mortgage covering the whole premises; and no issue was anywhere raised by the pleadings that the amount claimed was not due, nor that the mortgage was not wholly valid in his hands. But if the view be incorrect," that he should have had the judgment appealed from on the pleadings, the case will be searched in vain for any evidence to impeach the validity of the mortgage in his hands, or to show that he was not entitled to enforce it against the entire premises. Clearly, the defendants, as against the plaintiff, have no ground for appeal.

The judgment should be affirmed.