Mygatt v. Coe , 8 N.Y. St. Rep. 434 ( 1887 )

Van Brunt, P. J.:

The whole argument of the appellant seems to be based upon an erroneous view of the effect of the mortgage and foreclosure and sale thereunder to the plaintiffs. His argument demonstrates that the plaintiffs, by virtue of their mortgage alone, could claim no title in the land, and that a mortgagee holds simply a chose in action, secured by a lien upon the land, and that the mortgagor is for all practical purposes invested with the title. But the change effected by a foreclosure and sale under the mortgage seems to have been entirely overlooked. In the case of Christ Church v. Mack (93 N. Y., 488) the Court of Appeals decided that the effect of a foreclosure deed is to vest the purchaser with the entire interest and estate of mortgagor and mortgagee as it existed at the date of the mortgage. In other words, the same estate passes which the mortgagor could have conveyed by deed at the time of giving the mortgage. The case cited turned upon this question, and the point was distinctly and squarely presented and decided. If this is the law, then the plaintiffs, by the sheriff’s deed, acquired the same rights as though Nancy Fisher had conveyed the premises in question to the plaintiffs at the time of the giving of the mortgage, and it is not disputed that if she had done this the plaintiffs could have maintained this action. The claim that the only damages which the plaintiffs could recover would be the amount paid for the sheriff’s deed is not tenable. They succeeded to Nancy Fisher’s rights, and it might well be claimed that they had a right to recover the whole consideration mentioned in the deed to her.

The judgment appealed from must be affirmed, with costs.

Bartlett and Lawrence, JJ, concurred.

Judgment affirmed, with costs.