After an examination of this case, I have come to the following conclusions:
(1.) The complaint was sufficient to authorize a judgment allowing the plaintiff to redeem if a balance should be found due on the mortgage. The case made was undoubtedly, in one aspect, that of a full payment; but it was conceded that it would depend upon the proof and the state of the accounts, and impliedly that it might turn out that some amount less than that which the defendant claimed would appear to be unpaid. Hence one part of the prayer was that the balance, if the debt were not fully paid, might be ascertained and determined, and there was a prayer for general relief, such as might be agreeable to equity. After the trial, the plaintiff *Page 539 asked that a judgment for a redemption should be given in case the mortgage should not be found to be fully paid. When such a result was arrived at by the referee he should have adjudged that the plaintiff redeem or be precluded, according to the usual course in redemption suits, or in suits having a double aspect, looking to satisfaction or redemption as the case, on the accounts, should require. It follows that, if there were no other difficulty, the general term was right in pronouncing such a judgment as the referee should have given.
(2.) But the defendant's counsel insists that error was committed on the trial, on account of which the determination that only $1259.84 was due ought not to be sustained. The judgment of the special term being in the defendant's favor he could not appeal, and hence had no opportunity of reviewing the rulings upon which the alleged errors are predicated. Hence he urges that the general term, if it determined that the judgment on the report was wrong, should have awarded a new trial, in order that the questions which arose upon the testimony might be determined in such a manner that they could be reviewed by the general term, and in this court. The answer which the judges at the general term gave to this suggestion was, that the defendant might have appealed to the general term from the determination that only a certain amount was due, although the general judgment was in his favor. This answer is not satisfactory to my mind. No doubt a party may appeal from any separate part of a judgment which is adverse to him, though he may be satisfied with other portions of it. But I think this was not a case of that kind. Here the only judgment was in favor of the defendant, dismissing the complaint. It was no part of the adjudication that only a limited amount remained unpaid. That determination was in the finding, but was not one of the items of the judgment. It could no more be appealed from than any of the conclusions of fact or of law stated by the referee, or any of the reasonings of the *Page 540 court. But I am of opinion that it was competent for the general term to have reviewed the case on the exceptions taken on the trial, and also upon the facts, so far as to determine whether the findings were warranted by the evidence, and that this court can review the case so far as questions of law were raised upon the trial, by the exceptions, although the defendant could not and did not appeal to the general term. Suppose the general term, upon an examination of the case, on the plaintiff's appeal, upon the view of its jurisdiction which I have suggested, had come to the opinion that although the judgment was not consistent with the finding as to the amount, yet that there were errors of law or fact of such a character that the finding ought not to be sustained, it would have been its duty to have refused to modify the judgment so as to allow a redemption. But it should have set it aside and have ordered a new trial, so that the question as to the amount due could have been tried and determined in a manner free from any just exception. If, on the contrary, the general term had considered that the trial had been legal and free from just exception, and that the determination of the question of fact was warranted by, and not against the weight of evidence, it would have been their duty to do what they actually did in the judgment before us, namely, modify the judgment so that it should conform to the legal result of the findings. The office and jurisdiction of the general term being such as I have stated, we are to assume that it found no error to exist in the trial; that the exceptions taken in the progress of it were not well taken; and that the conclusions of fact found were not against the weight of the evidence. The jurisdiction of this court is to review the determination of the general term upon all these questions, except as to the facts, or the conformity of the finding with the evidence. So far as the conclusions of fact are concerned the case ends with the general term, but as to the matters of law, we sit in review of its determination. It follows that we are bound to look into *Page 541 the exceptions to the ruling of the referee, and to award a new trial if any of them are well taken, and this is the only remaining question in this case.
(3.) The defendant, on the trial, objected to the maintenance of the action on the ground that the plaintiff did not appear to be a bona fide purchaser of the mortgaged premises. There was a motion for a nonsuit on that ground, which was denied, and the defendant's counsel excepted. I see no reason to doubt but that, as between Ephraim Beach and the plaintiff, the title to those premises passed from the former to the latter by the conveyance executed shortly before the suit was commenced. Although Ephraim Beach admitted, in effect, in his testimony, that the conveyance was made to enable him to be a witness in the suit the plaintiff was expected to commence to procure the satisfaction of the mortgage, that was not a circumstance which could impair the effect of the deed, as between the parties. If the plaintiff, by that conveyance, became the owner of the premises, as he clearly did, he was entitled to all the legal and equitable remedies which any owner would have to procure the removal of an alleged incumbrance which was inequitably set up or kept on foot against the land. Supposing this to have been a deed of gift as between the parties, the defendant could not question the consideration, for he had no more right against a voluntary grantee than he had against the grantor. Except as to the competency of the grantee as a witness, he was not injured by having to contest the matter with the plaintiff rather than with his grantor. I have looked into the authorities cited to show that a person acquiring title under such circumstances can not file a bill of this nature, but I think they do not establish that position. The right to redeem mortgaged premises, or to have a mortgage satisfied when the mortgage debt has been paid, is as absolute a right as any known to the law, and it is not the less absolute that it has to be asserted in a court of equity. But the change of title to the mortgaged premises in this case let in *Page 542 the grantor, Ephraim Beach, as a witness. If the law had determined that a party parting with title under such circumstances, with a design to give testimony for the grantee, in an expected controversy, would not be competent to give testimony for his grantor, of course the plaintiff would be beaten, unless he could prove his case by other testimony. But such a person is not, in law, incompetent as a witness, however strongly the circumstance may operate against his credibility. The case is not within the provisions of § 399 of the code, which forbids an assignor of a thing in action to testify on behalf of a person claiming title through him, where the other party to the contract is not living. That rule applied, as the referee held, to the assigned personal demands, but not to the land which was conveyed. The reason upon which that exception was founded would probably apply to a case situated like this. But the statute does not reach such a case, and the only advantage which the defendant could have from this peculiar feature of the transaction would be to question the credibility of the witness. We are to assume that the referee made all due allowance for that circumstance. The question on the merits was, whether the $10,000 of state stock was delivered to the testator, T.B. Cooke, under an agreement that the proceeds of the sale of it should be applied to the payment of the indebtedness secured by the mortgage, or whether it was delivered to him without such agreement, so that it would be applicable on the general accounts existing between these parties. The referee took the first mentioned view of this evidence, and accordingly applied the whole proceeds towards the extinguishment of the debt secured by the mortgage, irrespective of any other demands Cooke had against Beach. Whether this was right was a question upon the proof, which we can not go into. If it was not, by the agreement and understanding of the parties applicable specifically to the mortgage debt, then it could not be availed of by the plaintiff, except by way of set-off, or upon some principle of the implied appropriation of payments, and in *Page 543 either case the whole of the accounts between the parties must have been examined. The plaintiff's counsel declined to go into the accounts, and the referee did not examine them, though there was evidence respecting them. He held that the evidence showed that the proceeds of the stock were, by the agreement of the parties, to be applied towards the indebtedness of $10,000 secured by the mortgage. Th whole question on the merits was, whether this conclusion was right. As we must assume it to have been correct, because we have no jurisdiction to review it, we can not do otherwise than affirm the judgment of the Supreme Court.
DAVIES, HOGEBOOM, and MULLIN, JJ. concurred.