Hardin v. Hyde , 1863 N.Y. App. Div. LEXIS 87 ( 1863 )

Morgan, J.

The defendants took their mortgage expressly subject to the prior mortgage. It may be admitted that the mortgagor could defeat the prior mortgage, quoad the Herkimer County Bank as invalid. (2 R. S. 519, § 7, 5th ed.) But the question is a different one when the defendants propose to intervene between the mortgagor and the bank. It cannot be distinguished in principle from the case of a usurious mortgage which the statute declares to be void, but which a purchaser of the land, who takes it subject to the usurious mortgage, cannot avoid for that reason. (Post v. Dart, 8 Paige, 639. Cole v. Savage, 10 id. 583.) It can be avoided only by the party who made it, or by some one standing in legal privity with him, and not by a mere stranger to the transaction. (Dix v. Van Wyck, 2 Hill, 522) A purchaser of the equity of redemption cannot, nor can a subsequent mortgagee, set up the defense. (Sands v. Church, 2 Seld. 347.) The defendants having taken their mortgage subject to the prior mortgage, now come into court and claim to violate their own agreement by setting up a defense, in which the debtor alone has an interest. In this I think they are mere volunteers, and equity in general is remedial only to those who come in upon actual consideration. (1 Fonbl. Eq. 348.) In a bill for relief, the want of title in the plaintiff is fatal. (Story’s Eq. Pl. § 512.) And when the defendants have precluded themselves from questioning the plaintiff’s title, but have agreed to take subject to it, there is no ground upon which they can invoke the aid of a court of equity to put them in a better position than they contracted for. If they succeed, they take a lien larger than they contracted for, and leave the debtor still liable to pay the debt which they agreed should be a prior charge upon the mortgaged premises. I think the judgment should be affirmed.

Hardin v. Hyde.

Mullin, J. and Bacon, J. concurred.