Dunning v. Fisher , 27 N.Y. Sup. Ct. 178 ( 1880 )

Barnard, P. J. :

The defendant, Clara B. Leavitt, took title to the premises covered by the mortgage in question from one Henry W. Fuller. Her conveyance was made subject to the plaintiffs’ mortgage, and she assumed to pay it as part of the purchase money. Fuller acquired title of a Mrs. Fisher. She gave the mortgage in question to the plaintiffs. The source of title, so far as the same is material for the consideration of this case, dates from a foreclosure action commenced in 1857. The then owner of the equity of redemption, one Ephriam H. Howell, was made a defendant and served by publication. He was in fact dead at the time of the service of the summons in this way. One Roberts bought at the foreclosure sale. There was a prior mortgage of $5,500 upon the premises at the time of the sale, and subject to which the sale was made. Howell was bound to pay both mortgages. Roberts, after ho took the deed, paid the prior mortgage of $5,500, and sold free and clear to Coe. Coe sold to Fisher. I think that the defendant Leavitt was a mortgagor in possession, and could n'ot be dispossessed by ejectment, and that she was bound to defend the action brought against her by the heirs of Howell. The effect of the various deeds from Roberts down to her was to place each of the grantees in privity with the mortgagee in the foreclosure action. Mrs. Leavitt’s defence as mortgagor in possession is averred in the very complaint in ejectment by means of which she claims to have been evicted. The eviction, if not collusive, was entirely illegal, and the case must be considered as if there were no eviction. Mrs. Howell, without the eviction, is in possession under a deed with full covenants of title, and those full covenants are contained in all the deeds since the foreclosure.

The case does not show whether the statute of limitation has run against the Howell heirs. The defendant Howell has her action against her grantor upon the covenants of title,- and this will be sufficient to uphold her covenant to pay the mortgage in question.

The judgment should be reversed and a new trial granted, costs to abide event.

Present — BarNARd, P. J., and Pratt, J.; Gilbert, J., not sitting.

Judgment reversed and new trial granted, costs to abide event.