Calkins v. Isbell (20 N.Y. 147, 1859)

Comstock, J.

I see no reason to doubt that the plaintiff’s suit to recover the possession of the premises in question, and incidentally to have the mortgage thereon declared satisfied, would be barred by the lapse of time, but for the proceeding instituted to foreclose that mortgage. It seems that in 1820 the mortgagor abandoned the possession to Thompson, who had then become the assignee of the mortgage; and this was done under an agreement that the land was to be taken in satisfaction of the debt. This was a parol arrangement, and clearly was not a release of the equity of the redemption or conveyance of the title to the holder of the mortgage. But the possession taken under those circumstances was adverse to the mortgagor’s right, and in twenty years would ripen into a bar to any action, whether at law or in equity, instituted for the assertion of that right. This suit was commenced after twenty years had elapsed, the possession taken as before mentioned having been continued without interruption during all that period.

Thompson in 1822 assigned the mortgage to the defendant Mathew Galkins, and the latter afterwards sold and conveyed the premises in two different parcels, one to the defendant Tucker and the other to one Chapman under whom the appellant Isbell claims title. Mathew Calkins, it seems, never assigned the mortgage, and not long before this suit was commenced he began a foreclosure upon it by advertisement under the statute. The proof shows quite clearly that this was done, not for the purpose of collecting the money alleged to be unpaid on the mortgage, but in order to perfect a title which would be more satisfactory to the grantees Tucker and Isbell. The evidence also leaves no reasonable doubt that the mortgagor understood such to be the motive of Mathew Calkins in commencing the foreclosure; and I 'am satisfied, moreover, that the proceeding was instituted with the concurrence and at the request of both Tucker and Isbell. It is, therefore, to be deemed their act, as Well as that of Calkins, for all the purposes of the*present case.

Under the circumstances stated, I have hesitated somewhat upon the question whether the right of the mortgagor to reclaim the possession of his land was revived by the attempt to foreclose the mortgage upon it; but, on the whole, I am convinced that such is the effect to be given to that proceeding. If a bill of strict foreclosure had been filed, even with the avowed object of perfecting the title, no one would entertain the slightest doubt on the subject. The very decree to be pronounced in such a case would give the mortgagor a certain time to come in and satisfy the incumbrance, to the end that the premises might be restored to him. A notice under the statute, with whatever motive it may be given, is a very distinct and emphatic admission that the holder of the mortgage, if in possession of the land, claims that possession in the character of mortgagee only. This admission is addressed to the mortgagor, and to all other parties concerned. The object may be to perfect a title, but the thing actually done is a very direct invitation to the mortgagor to come forward and pay the debt, the amount of which must be set forth in the notice. The mortgagor may accept the invitation, and if he tenders the money the proceeding is at an end. If the tender does not, per se, discharge the mortgage, it is, nevertheless, a good foundation for a bill to enjoin the sale. But suppose the mortgagor does nothing, and a sale is had under the power pursuant to the notice, resulting in a surplus over and above the amount claimed to be due; it cannot be doubted that the mortgagor, or his representative, is entitled to that surplus. Yet this can be true