Crowell v. Wells , 25 N.Y. St. Rep. 1035 ( 1889 )

Barnard, P. J.

It must be assumed that the sale was properly made. The order which requested the order of the sales of the different parcels as between the parties was not appealed from, and from the order it appears that the Bierds piece was to be sold last. When it was reached there were only a few dollars unpaid on the mortgage, and to raise this small sum the Bierds piece was sold, and realized the large surplus in question. The sale under the Doody mortgage, as to prior equities, left the parties where it found them. Both Doody and Bierds bought subject to the prior mortgages as a matter of course, but, ^s between each other, when the prior mortgages were foreclosed, the rights of the purchasers at the Doody sale, as they existed before the Doody sale, could be set up, so as to have an equitable result reached by the sale of the first mortgage. Whether this be so or not, the order of sale is binding on all the parties who are now litigating about the surplus. The referee properly rejected the evidence attacking the Bierds deed in the surplus hearing. The decree held that deed good, and that the piece covered by it was to be last sold, and to introduce the evidence offered was to destroy the decree by which the surplus was obtained. There is no pretense that the rights of the parties have been changed since the decree was entered. Order affirmed, with costs.