Gage v. Simon L. , 30 Barb. 387 ( 1859 )

By the Court, T. R. Strong, J,

The plaintiff derives title to the premises in question through the foreclosure of two mortgages, executed by Thomas Eyder to him, and a purchase by him of the premises at a sale thereof in the foreclosure suit. Eyder received a conveyance of the title expressly subject to the payment of the defendants’ mortgage. The premises thereby became the primary fund for the payment of the mortgage debt to the defendants, and Thompson, the mortgagor in the defendants’ mortgage, who executed a bond in connection with the mortgage, a mere surety. This was the state of things at the time of the mortgage and the sale to the plain= tiff, and it continued afterwards.

How the defendants, in the suit for the foreclosure of their mortgage, have obtained a judgment of foreclosure and sale, with the usual provision, as I understand, making Thompson personally liable for any deficiency, upon a sale of the premises, of the proceeds to pay the debt and costs. As against Thompson, the defendants certainly are entitled to collect the costs; and if Thompson should be compelled to pay the costs, he would either be entitled to the benefit of the judgment for his indemnity, or to an action against the plaintiff personally, to recover the sum paid. Whichever remedy he would be entitled to, it would be inequitable to allow the judgment to be enforced against him and require him to have recourse to that remedy. Full justice may be administered in this suit, and circuity of action avoided.

[Monroe General Term, December 5, 1859.

In my opinion the plaintiff was equitably bound to pay the costs in the defendants’ judgment, to entitle him to redeem; and that the judgment at special term should be affirmed with costs.

T. R. Strong, Welles and Johnson, Justices.]