Dobbs v. Niebuhr

Laeremore, C. J.

The clear and conclusive opinion of the judge who tried this cause at special term renders further discussion of the main principles involved unnecessary. We affirm the judgment, adopting the line of argument of said opinion. It may not be amiss, however, to notice briefly one point which was argued with great pertinacity on this appeal. Counsel for appellant concedes that the court has power in a foreclosure suit to consider the interests of the incumbrancers whose liens are subsequent to that of the mortgage foreclosed, and to order the premises to be sold in such manner that their rights, as well as those of the plaintiff, shall be, as far as possible, protected. The main contention before us was that the power had been improperly exercised in the present case, because such subsequent incumbrancershad not served copies of their answers on the owner of the equity of redemption, under section 521 of the Code. But we think the judge of the special term correctly held that if it was the duty of anybody to obey the rule there-laid down, the obligation rested on the owner of the equity himself, and not upon the junior mortgagees. The position is quite simple. The holder of the prior mortgage began foreclosure proceedings, and necessarily made the subsequent mortgagees parties defendant. The latter, pleading in regular form, served answers to the plaintiff’s complaint. Whatever controversy exists is the usual one between plaintiff and defendants, and not one between separate defendants. If the necessity or desire had existed for a determination of the rights of the defendants as between themselves, whose duty was it to comply with section 521 ? The language itself answers this question,—“a defendant who requires such determination.” Did the junior mortgagees require such determination? Assuredly not, for any purpose. They have mortgages valid upon their face, and all the affirmative action necessary on their part was to offer formal proof of the same, and rest. Presumptively, all rights of the owner of the equity are as subordinate to the.liens of the junior mortgagees .as to that of the plaintiff. The owner of the equity must therefore take the -¡initiative, if he wishes to question the validity of a junior mortgage, or to «oppose any effort made by the junior mortgagee, in his controversy with -.plaintiff, to compel plaintiff to sell the mortgaged premises, that a substantial •surplus shall be realized. The judgment should be affirmed.

Van Hoesen, J.. concurs.