Lewis v. Atkinson

Wright, J.

-The only point made in the argument is, that after the decree of partition in the action brought by Daniel Yirdin and the sale thereunder by the referees, the mortgage lien of plaintiff attached to the proceeds of the sale of the incumbered portion, and not to the land itself; and that, as a consequence, defendant’s-title is paramount to that of plaintiff.

Assuming that defendant can make this point at this stage of the controversy, after the foreclosure and partition, we are nevertheless very clear that it cannot avail him. Plaintiff was not a party to the partition proceedings commenced by Daniel Yirdin, and if it be admitted, that, when a party, he must look to the proceeds and not the property for the satisfaction of his debt, it by no means follows that he must do so when not in court, nor in a position to protect his rights. The provisions of the Code of 1851 (§§ 20, 30, 31,) referred to by counsel, and in force when the partition was ordered, were not intended to turn the mortgagee over to the proceeds of the sale in a case to which he was not a party. If a party, and the lands are sold to a stranger, the charge would attach to the proceeds. But would this rule apply, when the lands, or the interest mortgaged, was bought in, at the referee’s sale, by the mortgagor?

Decree affirmed.