Dings v. Parshall

Mullin, P. J.:

The plaintiff being a junior mortgagee of the premises in question, had the right to redeem them from the lien of the senior mortgage held by Parshall. (2 Story Eq. Jur., 291; 1 Hilliard on Mortgages, 323.)

To entitle a subsequent mortgagee to redeem from a senior mortgage, he must pay the amount due on such prior mortgage and the costs of the foreclosure. (1 Hilliard on Mortgages, 397.)

The tender of the amount due on a mortgage before sale by a junior incumbrancer for the purposes of redemption, is equivalent to actual payment if properly made, and the money tendered is set apart, and kept for the prior mortgagee. (Edwards v. Farmers’ Fire Insurance and L. Co., 21 Wend., 467; Stoddard v. Hart, 23 N. Y., 556.) No distinction is perceived as to the effect of a tender, between that of a mortgagor to a mortgagee, and of a subsequent incumbrancer to the same party to redeem. In each case the effect is to discharge the lien of the mortgage on the mortgaged premises, and if tender discharges the lien in one case, it ought to have the same effect in another.

Where the junior incumbrancer has paid the debt of’the prior incumbrancer, he is entitled to be subrogated to the prior lions and all securities held by the prior incumbrancer, as security for his debt. (Ellsworth v. Lockwood, 42 N. Y., 89-96.)

He is subrogated by law. A surety who pays the debt of his principal is entitled to subrogation in equity, and to an assignment of the securities held by the creditor.

When, therefore, a second mortgagee pays to the first mortgagee his debt, although the first mortgage is thereby satisfied, the second mortgagee is entitled to hold the premises as security for the amount paid on the first mortgage. (Ellsworth v. Lockwood, supra, 96.)

If I am right in holding that the tender to Parshall, before his assignment to Williams, put an end to his lien on the premises, then nothing passed by his assignment to Williams; he had nothing to assign.

The plaintiff had the right to protect her interest in the property by injunction, as a sale upon the judgment might east a cloud upon her title and subject her to litigation to remove’it.

The order must be affirmed with ten dollars costs, to be paid by defendant Williams.

Present — Mullin, P. J., Surra and Noxon, JJ.

Order of Special Term affirmed, with ten dollars costs and disbursements.