#### Hirsch v. Livingston.

*Foreclosure—sale upon,—whm‘e purchaser relieved, from, purchase.*

Upon the foreclosure of a mortgage, the tenants of the mortgagee were not made parties. *Held,*that they not being bound by the judgment, could not be dispossessed thereunder; and a purchaser at the foreclosure sale would not, for that reason, be Compelled to complete his purchase.

Appeal by Jeremiah Pangburn from an order at special term, denying motion that the referee making sale of mortgaged premises *264refund the deposit made by the purchaser purs \ to the terms of the sale, and that he be discharged from his bit

The action was brought by Henry Hirscl Livingston, executor, etc., and another, to fort At the foreclosure sale, the premises were purch Other facts appear sufficiently in the opinion. gainst William, e a mortgage, i by appellant.

*H. R. McMahon,*for appellant.

*M. S. Thompson,*for respondent.

Daniels, J.

The premises were sold under a foreclosure judgment, recovered by the plaintiff in this court in an action in his favor against William Livingston and another. The interest sold in them consisted of a term for years, created by a lease given by William B. Astor. After the appellant had bid off the property, subscribed the terms of sale, and paid ten per cent upon the purchase price, he declined to take the title, on account of certain restraints imposed by the lease, and because at the time when the action was commenced there were tenants in possession of the demised premises, who ever since then continued therein, that were not made parties to the -action, and were not bound by the judgment.

These objections were verified by the affidavit of the appellant, and have not been denied on the part of the plaintiff. For that reason they must be assumed to be well founded in fact; and if they are, the purchaser has shown that he could not, by any legal proceedings under the judgment, acquire possession of the premises sold him, if he had taken a conveyance of the title. For as the tenants were in possession when the action was commenced, and had since remained in possession, it is clear that they could not be forcibly dispossessed by any process which could be issued to enforce the judgment. *Fuller*v. *Van Geesen,*4 Hill, 171.

If such a sale would give the purchaser a title, it would fail to confer any right of possession against the tenants holding the property; and that would deprive him of an important interest which he was justified in expecting would be acquired by his purchase. If the tenants were willing to yield up their possession to the purchaser at the foreclosure sale, that ought to have been shown as a fact by way of answer to his motion. As long as that was not attempted, it cannot be presumed for the purpose of com-*265polling him *to*receive a title plainly defective. What he had the right to suppose he was to receive by means of the purchase was not merely a title to the interest sold, but beyond that, the power of securing immediate possession. If he could obtain the former, the latter did not exist, because of the defective proceedings in the foreclosure action; and .that, under the law governing the obligations of purchasers at ■ foreclosure sale in courts of equity, was sufficient to justify thb appellant in his refusal to complete the purchase. *Morris*v. *Mowatt, 2*Paige, 586, 590; *Veeder*v. *Fonda,*3 id. 94; *Seaman*v. *Hicks,*8 id. 655.

The order should be reversed, with 110 costs, besides disbursements on the appeal; and an order should be entered relieving the purchaser from his bid, and directing the deposit made by him to be refunded by the referee.

*Order reversed.*