On the 23d day of March, 1871, George Jeffers was the owner of a farm consisting of about five hundred acres of land, a portion of which was situated in the county of Orange, in this State, and the remainder in the adjoining State of New Jersey; and on that day he executed a mortgage upon *Page 102 the whole of the land to secure the payment of $15,000, which was recorded in Orange county on the same day. On the 31st day of March, 1876, he conveyed to John F. Ryerson about five acres of that portion of the land which was within Orange county, by a deed dated on that day and recorded in that county on the 26th day of May thereafter, and on the same day that grantee conveyed the same land to his son, the present respondent. On the 26th day of April, 1876, Jeffers executed another mortgage upon the whole farm to secure the payment of $4,600, which was recorded in Orange county on the 29th day of May thereafter. Welling, the present appellant, became, by assignment, the owner of these two mortgages, and thereafter, October 9, 1877, he took from Jeffers another mortgage upon the same farm, excepting the portion thereof conveyed to Ryerson as above stated, to secure the payment of the sum of $4,400, which was also recorded in the county of Orange.
In June, 1880, Welling commenced foreclosure proceedings by suits both in New York and New Jersey. The New York suit was to foreclose the first mortgage, Ryerson being made one of the defendants, and on the 29th day of September, 1880, a judgment was rendered therein directing the sale of the lands situated within this State, without reference to the New Jersey lands, and providing that the land not conveyed to Ryerson should be first sold, and that his land should be sold only in case the other land should not sell for enough to satisfy the judgment and costs. The New Jersey suit, to which Ryerson was not a party, was to foreclose the three mortgages, and resulted in a foreclosure judgment on the 5th day of October, 1880, directing the sale of the lands situated in New Jersey.
While Welling was proceeding to execute the judgment in this State, Ryerson tendered to him the amount due upon his mortgage, and costs, and demanded that he should receive the same and execute and deliver to him an assignment of the mortgage, or release his lands from the lien thereof, which Welling refused to do.
It is conceded that the land in this State was of less value than the amount due upon the first mortgage, and it is not *Page 103 questioned that the whole farm, excluding that owned by Ryerson, was of more value than the sum due upon that mortgage.
We are of opinion that Ryerson's demand should have been complied with. After the conveyance by Jeffers of the five acres to Ryerson, according to a well-established rule of equity, he could have required that the balance of the whole farm covered by the prior mortgage should be first sold before resort to his portion thereof. That was an equity which Welling was bound to respect, and which in some way he could be compelled to respect. The fact that the land was situated in two States does not affect the matter.
Welling was proceeding to foreclose his mortgage in disregard of this rule. He had obtained a judgment which authorized a sale of Ryerson's land without any resort to the New Jersey land, and he threatened to execute the judgment in that way. Ryerson's land stood to Welling only as security for the other land, to be resorted to only in case that should prove to be insufficient. Under such circumstances Ryerson's position was such that he had the right to protect himself by claiming an assignment of the mortgage and judgment, so that he could use the same so as to secure his equitable rights. (Averil v. Taylor, 8 N.Y. 44;Cole v. Malcolm, 66 id. 363; Twombly v. Cassidy, 82 id. 155.)
It appears by the record in the case of Ryerson v. Welling, that the judgment in this State has been executed by the sale of the land within this State excepting that belonging to Ryerson, and that the New Jersey judgment has also been executed by the sale of the land in that State, and that all the land sold brought more than sufficient to satisfy the first mortgage and all the costs of the foreclosure proceedings and of the sales. Hence that has in fact been accomplished which equity requires, and Ryerson is entitled to have his land released and discharged from any liability.
The fact that the deeds to Ryerson, senior, and by him to his son, were not properly acknowledged so as to entitle them to be recorded or read in evidence, is not available to the appellant. In the case of Welling v. Ryerson the complaint recognizes *Page 104 the deed as properly executed and recorded, and the answer alleges that it was duly executed, acknowledged and recorded, and the judgment adjudicates in effect that these deeds were properly acknowledged and recorded, as it gives them effect and priority over the second mortgage of Welling. In the case of Ryerson v.Welling the complaint contains averments substantially that the deeds were properly executed, acknowledged and recorded, and those averments are not denied in the answer.
We are, therefore, of opinion that in the one case the order should be affirmed, with costs, and in the other case the judgment should be affirmed, with costs.
All concur.
Order and judgment affirmed.