The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-12-17


IMPORTANT As TO FIRST AND SECOND MoRTa ACES.
Dso ls--Augs1sss Jenkinsrs The Coninesa, Insurance
Company general proposition that junior incum-
brancer Ia entitled to redeem prior mortgage IT, apprs
bend too well settled TO Do opened for discussion
Such Is the language Of the elementary trssss aud the
right Is recognized in adudgsd cases: Fell Vs.
Brown, 2 Bro G. C. 27s; St1nehemer va Thompson,
Ak. 40; Knight knight, Sp- Williams, S3l, Kont,
Con 162, Story Ed Jur., 1O13 Burnett Vs. Dennis
ton et Johns, CHI Sb Pardoe vs. Van Auken, Barb,
bec s. 5e5 Avorn Taylor seiden III Roosevelt
The President &C. of the Bank Of Nsgsrs and oshers
Hopk., Oh. 8, 67o, q. .. on appeal. c,m. 400
And the authorities appear TO to establish that
Cha redeemng party who Ia not himself liable prin
cral debtor but who Is compelled redeem for the pro-
lection Of his own lien upon the orsaged premises "a
entitled TO subrogaon to the rights of senior
EAqee The tghs OF ths senior mortgage req pay
Of the mortgage debt and upon default nl- hi
bill and obtain decree exfiaguishing equity II
dmpion and forecosing all who have an interest 10 tn
mortgaged premises carries With it and implies rg1t in
each who is LA to be thus fecos-d In
those who are entitled TO the estate Of the mogAg,r Ia
the land or who have legal equitable interes hsre
in TO psy the mortgage debt in cscnage OF such ssno
mortgage.
TO this extent the right Of foreclosure and tue right
But the right ofthe party subrog d,es
all the used by s you'd "a to
that Inference. Fiat right depends upon the
ton Of tho parties liable % be sorecess = each othsr
the particular situation OF this party c~imrg ch ignt
and especially aud genera upon the iuq whether
such subr CATION necessary for hs protection of the
rights he redeemDg parry and tie Of his
interest," and therefore upon the crcu in wli,a
the right Of redemption Is sougb - b. exercised fnus
same premises the mcrtgagol y have dec - f the
mp'ion OF the first morgag but By psym
Ger such decree acquires no ign; TO -ubrgadon He
pays his debt, hrSt De:omss by
Il 1ed So the grantee Of the morg.g)r add ng tue Zee
SUBJECT to the mortgages may redeem the frs rtgage,
but he does not thereby become entitled to
than shev that the right redeem doss nscssat
include the right 10 tuofogssi,n 70 the con iton %
TIE first mortgage.
In the present the defsndants hold mortgage
which, according TO is terms Is payable
The plaintiff holds mortgage given TO secure q
cf money which will not become payable until the year
1885, and the ques raised BY hereto H.
Who alleges nothing in his bill wing TIA. 1t
Is in any m.nner necessary for his projection
only insist his right TO pay OF toe drt mortgage,
but may also claim suor0gation to the position o. the
a. st mortgage and compel the latter to assign to him
Ard this inquiry involves consideration II the ground
opon whch the tight Of suorogasion e equity peoceei,
sabrcgatiou necessary nis projection, and this will
be true when, I'm order 10 make his osn Claim bens
property from the previous incumD' auce"
No such necessity nor reason VIVA ever Is stated
u the complaint herein for seeking to reee frsr
,norgage-for aught that appears In the c,mpliot
norgsgor interest xocrung the drst mortgage
and pays me n;sssss accsg 20 ahe gl.iaa
which the Of the p.ints mortgage give him Tue
fret mortgage deos not call for the money and does not
wish TO receive IL.
Tho plaintiff appears to me TO come voluu-
teer 10 whom nothing IL duet0 wards VIII for sug1t
tia, appears, the morgagor will pc form duty in
due ron for his Posction to Interfere between ae
pay the debt or submit tn be foreclosed.
That these circumstances which such second
noreogee may only redeem, but may require such
subTosstcn, cannot be oenied wnen, for n.rly,
mortgage entitled TO the actual possession Of the
ortgged PREMISE and to the receipt of the aud
profits IN payment Of the mortgages debt such right Is no
In this last case his title TO the possession aud the rents
And profits cannot be exercised unless the prior incum
brance Is removed.
But in this State mortgage can by statute main
lain eye ;tment.
closure and 80 long either OF inter st pin
ps il due 70 him, the proc deprives him
u no interest In enjoyment Of tae auis usr,gasea
30 holds his mo tgsee rs me security the future
aymens Of moneys not yet due, ano which, for aught
hat appears be made to appear viii be paid 10
lin BY The mcrtgagor when the day OF payment ar
ives
the first mortgage required that his debt should be
aid-or proceediog to forecl0se-or II he or the
ee about to do any hing which could operate to nave
vas the ha holder Of the aser received it
security, he might with proprsty and equity call upon
lie court, only TO rsr him to redeem but to npsI
assignment o such Hrs. mortgage him Tor his pro-
sction. believe hat in every case to which lave been
pierred by counsel and all that have examined one Of
reasons for claiming redemption and suorog son ex
ed-ether the second mortgage ceb. or the debt sc
red by the subordinate lien redemption
ssy due snd payable o. the holder OF the drst mort
age ABOUT 70 foreciose do which ope-
when the second mortgage bee me. payable the holder
cmes with full right 70 require that the property DC
rPled 70 the payment Of the sum due to himself aud
IL cannot BIZ done without 6 disengagiag II from
revious in,umbrances" and on the other hand,
q holder Of the arst mortgage demsnd' hi, money
10 proceeding 70 foreccse ten the ses md morga-
ling subrogated to the rights o. the drst mortgage.
the claim TO rec en- pton from who has re-
lived absolute conveyance Of the equity OF recemp
on the right redeem IL o. absolute aud
alaed But the second mortgages in this has only
conditional conveyance ~ that equity. He Ids II
erey security and unless he can soo~ some reason
by IL Necessary for the preservation Of his security
should redeem perceive sufficient ressoa for
nserposi'ion OF ths Court TO eaabs him 70 OBTAIN the
session and contri OF the first mortgage DEBT. he
already all that he bargaiued for AMI, 20 far - ap.
from the present complaint all TO ch he egutt
y entitled. The purpose or motive prompting him to
reds mption Is not disclosed ny the 1t CON-
int he rests on naked tact that he hsds second
rRsge not yet payable. II the Court may consider
pat from the description Of the mortgaged premises
yen in the complaint, seems probable, viz that the
sn,es consist Jingle lot Of ground, with the oali
thereon incapable q tsle n parcels the plaintiff
ks by obtaining control Of the d st mortgage 20
&c himself in position 10 which he may pea,tc4'ly
npe the payment 81 hi. own m'rtgsgs deb, shonga
wn 10 -ble until 1898; for oovouly II he FORE
se the drst mortgage and the pre- misses cannot sold
parcels, he will far rs the premises are sufficient
abe to collect both dsots, unsss the mortgsgor Il pre-
red TO pay OF the hrst mortgage.
Ear tbe condition Of the second mortgage may be
ned TO that Of surety for the payment Of the drst
rfgage (snd am Ii has 10 soue ent oseu 50
ardeo he L. entitled To be treated with favor
court Of equity, and AN free 70 .sy tia. risht
ubds to apprebend would b. sufficient 70 warrant
prs yer Tor the relief uph in this case; AMI II IL APP
ed that the property ws. dsprec ttsag N value or
Il was kept IN repair, that he had rece sed
mortgage without uai knowledge Of the existence
he first mortgage, upon an express agreement, or
plain duty on the part o. the mottgAgor = pay Oh
first membranes wben " became Que a. TO
the second mortgage availsbe for any ul,er,r par-
~ bsd in view al the time OF It's delivery Ga nix he
RI should in either II these sase, we'll the
PRS before mentioned giaut him such relief Bat up
he merely naked statement that he holds q mortgage
(be equity OF redemption, conditioned for iuture
nent not yet due, appears 70 me tnst he mases no
calling the interere OF c,urt Of equity He
DO assolue interest in thu eqdty OF redempdn the
gage being, under our laws, mere security; ne DIES
hold the Whole OF the mortgAGos. fh. equity
emptiou IL pledged 10 him, II Is true bat with con ~
hubsrto fully terfof mes $50 far appears BY the
go. . pca wh{rh ne nj fyrmsl ne ia