#### The Emigrant Industrial Savings Bank, Resp’t, *v.*Thomas J. Clute, Impleaded, etc., App’lt.1

*(Court of Appeals, Second Division,*

*Filed June 4, 1889.)*

Subrogation—Mortgage—Foreclosure. •

The action was brought to foreclose a mortgage, and have the same declared a lien on the premises, superior to the lien of defendant, Isabella, Clute, on the ground that the plaintiff was entitled to be subrogated to a certain other mortgage on said premises, made by one Hall. The defendant, Clute, claimed title to the premises under a deed to her from the sheriff, by virtue of a sale on execution nn a judgment entered February, 1865, which conveyed all the right, title an interest of one, Thomas Hall. Hall acquired title in November, 1863, and on the same day executed a mortgage thereon to one Chamberlain, his grantor. In June, 1866, Hall conveyed to one Hyde, subject to the mortgage, which was assumed by the latter. Hyde paid the mortgage in August, 1866, using for such purpose a lien obtained by giving a mortgage on the premises to one Pearsall, and others, executors, etc. In August, 1866, Hyde conveyed to Samuel Hyde, and in September, 1867, the premises were conveyed to one Cottrell, subject, to the Hyde mortgage. In January, 1871, Cottrell paid off the Hyde mortgage, using for that purpose money obtained by him of the plaintiff, being-the proceeds of the mortgage given by him to plaintiff, and, upon such payment, the Hyde mortgage was surrendered to plaintiff. *Held,*that plaintiff is entitled to be subrogated to the rights of Chamberlain under the; first mortgage. Parker and Brown, JJ., dissenting.

Appeal from, judgment supreme court, general term, first department, affirming a judgment of the special term in foreclosure.

This action was brought to forclose a mortgage on certain premises in Fortieth street, in the city of New York made by one Marks Cottrell and wife to plaintiff, to secure the sum of $6,000 and interest, bearing date January 30, 1871, and to have the same declared a lien on said premises prior and superior to the title and interest therein of the defendant, Isabella B. Clute, on the ground that the plaintiff was entitled to be subrogated to a certain other mortgage on said premises, made by one Hall.

b-ist trial _ thereof, judgment was entered for plaintiff, which has since been set aside by the general term, *510-on the ground that the theory on which it was rendered was wrong, inasmuch as the relief provided thereby was simply to enforce plaintiff’s mortgage as a lien superior to the title of defendant, whereas it should have directed a revival of the Hall mortgage and a foreclosure thereof; and a new trial was ordered so that the cause might be tried on the latter theory.

Pursuant to this decision a new trial has been had upon the same evidence and a judgment rendered subrogating plaintiff to the Hall mortgage, and foreclosing the same, which judgment has been affirmed by general term.

Following are the facts shown on the second trial:

The defendant, Isabella B. Clute, claimed title to the premises, under a deed to her from the sheriff of New York, recorded the 26th day of February, 1869, and by virtue of a sale on execution on a judgment, entered in New York York county clerk’s office, on the 4th day of February, 1865, against one Thomas Hall, which deed purported to convey all the estate, right, title and interest which Thomas Hall had on the day last mentioned, or at any time thereafter, in the premises. Thomas Hall acquired title to the property on the 20th day of November, 1863, by the name of Thomas A. Hall, and under the latter name, and on the same day, and previous to the entry of said judgment, executed a mortgage thereon to Moses Chamberlain, his grantor, for the sum of $6,000, to secure so much of the purchase money thereof.

On the 19th day of June, 1866, Hall conveyed the premises to Jane B. Hyde subject to said mortgage, which was, in fact, assumed by her as part of the purchase price.

Jane B. Hyde paid off and discharged said mortgage, on August 18, 1866, using and applying for such purpose in part, $5,500, obtained by her by giving a mortgage on the premises for that amount to Edward Pearsall and another, ■executors of Francis Pearsall, dated and recorded the same day, and paying the balance in cash; and upon such payment being made, said Hall mortgage was surrendered and delivered to said Pearsall’s executors.

On the 22d day of August, 1866, James B. Hyde conveyed the premises to Samuel Hyde, and, after several intermediate conveyances, the same were conveyed, on the 14th day of September, 1867, to the defendant, Marks Cottrell, subject to said Hyde mortgage, and which he also assumed to pay as part of the purchase money thereof.

On the 31st of January, 1871, Marks Cottrell paid off the Hyde mortgage of $5,500, using and applying for that purpose the $6,000, obtained by him of the plaintiff herein, being the proceeds of the mortgage for that amount given by said Cottrell and wife to the plaintiff; and, upon such payment, said Hyde mortgage was surrendered and delivered to the plaintiff, said mortgage with the interest thereon being more than sufficient to absorb, as it did absorb in its payment, the entire amount of said $6,000.

*511At the time when Isabella B. Clute took her deed from the sheriff, Marks Cottrell was seized, and in the actual possession of said premises, subject to the Hyde mortgage; and during the whole period when Thomas A. Hall was seized of said premises, his right, title and interest therein, were subject to the mortgage of $6,000, given by him to Moses Chamberlain.

*Bartholomew SJcaats,*for resp’t; *Thomas J. Clute,*for app’lt.

1

 Affirming, 37 Hun, 644, *mem.*

Per Curiam.

The judgment in *Clute*v. *Emmerich*(99 N. Y., 342), is decisive of this case. It was there held that the title of Isabella B. Clute was subject to the plaintiff’s mortgage. There is no merit in the point that the complaint is insufficient to authorize a judgment cancelling the record of the discharge of the mortgage from Hale to Chamberlain, restoring the lien of the mortgage, and directing ics foreclosure. The plaintiff alleges in its complaint, the consideration upon which that mortgage was given, its cancellation, that the money, with which it was paid, was borrowed upon the mortgage given by Hyde to the Pearsalls, and that the mortgage from Hyde to the Pearsalls was subsequently paid and cancelled by money borrowed of the. plaintiff upon its mortgage; and very clearly indicates that the plaintiff is entitled to be subrogated to the rights of Chamberlain under the first mortgage. Several exceptions to the refusal of the court to find certain facts, requested pursuant to section 1023 of the Code of Civil Procedure, are discussed, but all of them are subordinate to the main question, which has been determined by the court of appeals, and would be unavailing, if found in the appellant’s favor; besides, the case does not show that it contains all of the evidence, or all bearing upon the propositions which the appellant requested the trial court to find.

The judgment should be affirmed, with costs.

All concur, except Parker and Brown, JJ., dissenting.