Greene County NyArchives Court.....Magilton, William Vs. Mary Holbert 1889
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Source: Reports Of Cases - New York
Written: 1889

Third Department, May Term, 1889.

WILLIAM H. MAGILTON and WILLIAM H. HOLLISTER, Executors of the Will of OSMER 
HOLLISTER, Deceased, Appellants, v. MARY A HOLBERT and Others, Respondents.

Mortgage — right of the holder of a second mortgage to collect, on a foreclosure 
thereof, interest paid by him upon the first mortgage — he is not entitled to an 
assignment of any share of the first mortgage.

Where the holder of a second mortgage, in order to protect his own security, 
pays the interest due upon the first mortgage, he is not entitled, under such 
circumstances, to an assignment of any share of the first mortgage.

Semble, that he may "tack" the amount thus paid to the amount secured by said 
second mortgage, and if there be no intervening equity, may recover such amount 
upon a foreclosure thereof, and may do the same as to any costs paid by him 
under the foreclosure of the first mortgage.

Appeal by the plaintiffs from an order made at a Special Term of the Supreme 
Court, held at chambers, in Catskill, on the 22d day of February, 1889, and 
entered in the office of the clerk of Greene county, denying a motion, made by 
the defendants — that the plaintiffs be directed to execute an assignment of a 
mortgage, to foreclose which the action was brought, and the accompanying bond 
to the defendants Lampman and Werner, and that the plaintiffs, or their 
attorney, sign a consent, substituting said Lampman and Werner as plaintiffs in 
this action — so far as said motion sought an assignment of the principal of the 
mortgage not yet due and payable, but granting said motion so far as the same 
related to the assignment to and substitution of Lampman and Werner to the 
rights of the plaintiffs, sought by this action of foreclosure to be enforced in 
respect to the amount of interest then past due on said mortgage.

The action was brought for the foreclosure of a mortgage given by Mary A. 
Hollister, in April, 1886, upon property in which her mother, Margaret Brown, 
one of the defendants, had a dower interest. In May, 1888, Margaret Brown became 
the owner in fee of the mortgaged property, and thereafter she executed two 
mortgages thereon to the defendants Lampman and Werner, respectively. The amount 
claimed by the plaintiffs to be due and payable upon the bond and mortgage, to 
foreclose which this action was brought, was the interest thereon from April 1, 
1888, to October 1, 1888, amounting to the sum of $125.

The defendants Lampman and Werner, desiring to protect their respective 
interests as subsequent incumbrancers, offered to pay to the plaintiff, and 
tendered the amount due, and to become due, for principal, interest and costs m 
this action, upon the mortgage referred to in the complaint herein, and 
requested an assignment of such mortgage, and the bond accompanying it, and that 
they be subrogated to the rights of the plaintiffs in this action.

John A. Griswold, for the appellants.

Jacob I. Warner, for the respondents. 

By the Court.

When a second mortagee pays the interest of the first mortgage, in order to 
protect his own security, we suppose he may "tack" the amount thus paid to his 
own mortgage, whenever he forecloses, if there be no intervening equity. So, 
probably, he may do as to any costs of the foreclosure of the first mortgage 
necessarily paid by him. But he is not entitled to have an assignment of any 
share of the first mortgage. Because if he were thus to become an owner in 
common with the first mortgagee, the security of the first mortgagee would be 
diminished. The rights of the second mortgagee will be sufficiently protected 
whenever he shall be compelled to foreclose his own mortgage, by proof that he 
has necessarily paid these moneys to protect his security.

The part of the order appealed from should be reversed, with ten dollars costs 
and printing disbursements.

Landon and Ingalls, JJ., concurred.

The part of the order appealed from reversed, with ten dollars costs and 
printing disbursements.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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