Denton v. Ontario Cnty. Nat. Bank

Decision Date06 October 1896
PartiesDENTON v. ONTARIO COUNTY NAT. BANK et al.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Appeal from supreme court, general term, Fifth department.

Action by Eugene C. Denton against the Ontario County National Bank and others. There was a judgment of the general term (18 N. Y. Supp. 38) reversing the judgment of the trial court, and plaintiff appeals. Reversed.

Henry M. Field, for appellant.

Lorenzo C. Hall, for respondents.

O'BRIEN, J.

This was an action in the usual form for the foreclosure of a mortgage upon a parcel of 33 acres of land, part of an entire farm of 208 acres, of which the defendant bank is in possession. The mortgage was executed and delivered to the plaintiff on the 12th day of April, 1888, by Letitia G. Durand, to secure the payment of her two notes, amounting to $1,060, payable on the 1st day of November thereafter. The mortgage was recorded on the 6th day of June, 1888, and no part of the debt has been paid. The usual judgment in foreclosure was demanded. The several parties defendant made default, except the bank, which resisted the foreclosure upon the following facts, which are alleged or found: On March 3, 1888, the bank purchased 175 acres of the farm, upon a sale under judgment of foreclosure of a $5,000 mortage on that parcel, which mortgage the bank owned; but this sale conferred no title to the 33-acre parcel in question, which was not covered by the mortgage foreclosed. The sale was made, however, subject to two prior mortgages covering the whole farm, including the parcel in question, amounting in the aggregate to $8,000 and interest. On the 2d day of March, 1889, the bank purchased the whole farm upon a sale under a judgment of foreclosure of one of the prior mortgages, amounting to $2,000 and interest, subject, however, to the lien of the other prior mortgage of $6,000, and interest, which remained outstanding. The defendant bank has been in possession of the whole farm, including the parcel covered by the plaintiff's mortgage, since the date of the last sale, and has been in possession of the 175 acres since the date of the first sale, a year before, and in receipt of the rents and profits. There does not appear to be any dispute with respect to the fact that the defendant is a mortgagee in possession, with all the rights and liabilities incident to that position. The controversy in the case arises from the fact-which is conceded-that the plaintiff was not made a party to the action under which the last sale was made, and thus his rights have not been affected by the sale. The bank, however, while admitting that the plaintiff's mortgage has never been foreclosed, insisted that he was not entitled to judgment of foreclosure and sale in this action under the power of sale contained in his mortgage, by reason of the relations which it held to the property, based upon the facts stated, and so, in its answer, demanded judgment that, instead of judgment of foreclosure, the plaintiff be required to redeem. The action has been twice tried, and upon both trials the courts below habe sustained the defendant in this position. The judgment now before us has determined that the plaintiff is not entitled to the relief demanded,-that is, to a decree in foreclosure in the usual form,-but that the defendant bank is entitled to a dismissal of the complaint. The court then stated the account, and prescribed the terms upon which the redemption could be made, charging the defendant with the use, crediting it with interest on the outstanding mortgage which it paid, and with some other items, and found that the plaintiff, in order to redeem the 33 acres, should pay the bank $4,658. The value of this parcel has been found by the court, upon the stipulation of the parties, to be $30 per acre, or $990. The judgment then provides that unless the plaintiff shall redeem within the time named therein, and in the manner stated, his rights, and the rights of all parties claiming under him, in or to the parcel covered by his mortgage, shall be extinguished, and the bank entitled to judgment for the costs of the action.

There are some questions in the case arising from the manner of stating the account, and with respect to the application of the rule requiring separate parcels in such cases to be sold in the inverse order of alienation, but we have not been able to discover that any wrong has been done to the plaintiff in that regard. At all events, in the view that we have taken of the case, we do not consider these matters as important to the determination of the appeal, and, but for the point hereafter noticed, would be disposed to affirm the judgment, and end a litigation which depends more upon forms than any substantial pecuniary interest which the plaintiff has in the property. There is no doubt, upon the facts of the case, that the plaintiffis seeking to foreclose a mortgage upon lands already incumbered by prior liens for much more than their value, and that the defendant is in possession under these liens. The plaintiff's lien would seem to be merely nominal, representing no substantial interest, and yet it can scarcely be said that these facts are a defense to an action for the foreclosure of a mortgage. The plaintiff's mortgage was in full force, and he had the right to bring an action upon it. He certainly had the right to every personal remedy available against the maker of the personal obligations to which the mortgage was security. It is quite possible that he has been defeated or embarrassed in the pursuit of that remedy by the form of the judgment in this case. He has certainly been subjected to the payment of costs in a large amount in the event of refusal or failure to redeem. The situation, doubtless, warranted the courts below in the use of all their powers to protect the defendant from useless litigation; and we would be disposed to sustain their action, if it could be done without violation of principles and rules of procedure that are important to be observed in actions of this character. The defendant, being in possession of the lands under the circumstances stated, has obtained what is substantially a judgment of strict foreclosure against the plaintiff. Instead of bringing an action for that purpose, it set up the facts as a defense to the plaintiff's suit in foreclosure, and it has obtained the same relief as a defendant in this action that it would or might demand as plaintiff in the peculiar form of action referred to. We do not intimate that such a judgment may not be rendered in a proper case, but the party seeking the relief, whether plaintiff or defendant, must make out the facts entitling him to it. The only question in this case that seems to us to involve a legal principle is the right of the defendant, under the circumstances, to a judgment of strict foreclosure, requiring the plaintiff to redeem, or, in case of failure to do so, to submit to a judgment dismissing his complaint, with costs. The form of the judgment and the procedure in actions for the foreclosure of mortgages must be found in article 4, c. 14, § 1626 et seq., of the Code, and no authority is to be found there for such a judgment as this. The general course of procedure in this class of actions cannot be departed from, except possibly in special cases, and upon facts appealing to the...

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5 cases
  • U.S. Bank N.A. v. Haskins, 18-CV-8478 (KMK)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 18 Diciembre 2019
    ...added)). Defendant points in part to cases from the nineteenth century, Moulton v. Cornish, 138 N.Y. 133 (1893) and Denton v. Ontario Cty. Nat'l Bank, 150 N.Y. 126 (1896), (see Def.'s Mem. 13-14), which interpreted a New York Code of Civil Procedure that predates all the operative statutes ......
  • Bastien v. Barras
    • United States
    • United States State Supreme Court of North Dakota
    • 23 Noviembre 1900
    ...2 Jones on Liens, § 1579; 2 Jones on Mortgages, § 1395; Rogers v. Holyoke, 14 Minn. 158; Johnson v. Hosford, 10 N.E. 407; Denton v. Ontario Nat. Bank, 150 N.Y. 126; Wiltsie on Mortgage Foreclosure, § 61; Evans Tripp, 35 La. 371; Williams v. Chapman, 65 Am. Dec. 669; Owens v. Heidberder, 44 ......
  • Bank of the Metropolis v. Faber
    • United States
    • New York Court of Appeals
    • 6 Octubre 1896
  • City of Springfield v. Ransdell
    • United States
    • United States State Supreme Court of Missouri
    • 31 Julio 1924
    ...Murphy, 2 Wis. 533; McKerman v. Neff et al., 43 Ind. loc. cit. 506; Denton v. Ontario County National Bank, 150 N. Y. loc. cit. 126, 134, 44 N. E. 781; Peabody v. Roberts, 47 Barb. (N. Y.) 91; Karl v. Conner, 97 S. W. 1111, 30 Ky. Law Rep. 238; Catterlin et al. v. Armstrong, 79 Ind. loc. ci......
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