out a sale did not operate as an extinguishment of the debt, unless it was averred and proved that the mortgaged premises were of sufficient value to pay the debt. (Spencer v. Harford, 4 Wend. 384. Morgan v. Plumb, 9 Wend. 287.)

2. The other mode is by foreclosure and sale under the decree. This is the usual and preferable mode for all parties. The object in all cases of this kind is, or should be, to make the fund set apart for the payment of the debt available for that purpose, and to return the surplus, if there be any, to the mortgagor, or those who have succeeded to his rights. For this purpose, not only the parties to the mortgage are made parties to the action, but all persons having liens on the mortgaged premises, by mortgage or judgment, at the time of commencing the suit. No one can be bound by the decree who has not been made a party to the action. A junior incumbrancer may desire to redeem, and he should have the opportunity. And there are various reasons why prior incumbrancers should also be included. The purchaser can thus be enabled to acquire a title good against all the world; and a multiplicity of suits is avoided by bringing all before the court at once.

Prior to 1830, the mortgagee might pursue his remedy at law by action on the bond or other security, by action of ejectment to be let into possession of the mortgaged premises, and by bill in equity to foreclose. (Dunkly v. Van Buren, 3 John. Ch. 330. Hughes v. Edward, 9 Wheat. 489.)

This was often oppressive, and always attended with great expense. But now, by the revised statutes, the action of ejectment upon a mortgage is abolished. (2 R. S. 312, § 57.) If the creditor proceeds at law to recover the debt secured by the mortgage, he is forbidden to sell under his execution the equity of redemption in the mortgaged premises. And in order to guide the sheriff in this respect the plaintiff's attorney is required to make an endorsement on the execution, giving a brief description of the mortgaged premises, and directing the sheriff not to sell them. (2 R. S. 368, §§ 31, 32. Delaplaine v. Hitchcock, 6 Hill, 14.) If the mortgagee proceeds in equity to foreclose, no proceedings are thereafter to be had at law, without leave of the court. The court of equity has power to decree a sale of the mortgaged premises, or of so much thereof as may be necessary to discharge the amount due on the mortgage and the costs of the suit. It has power not only to compel the delivery of the possession of the mortgaged premises to the

purchaser, but to direct the payment by the mortgagor of any balance of the mortgage debt that may remain unsatisfied after a sale of the premises in the cases in which such balance is recoverable at law; and for that purpose to issue the necessary executions, as in other cases, against other property of the mortgagor, or against his person. (2 R. S. 191, §§ 151, 152.) If the mortgage debt be secured by the obligation or other evidence of debt executed by any other person besides the mortgagor, such person may be made a party to the action, and payment of any balance remaining after sale of the mortgaged premises may be decreed as well against such other person as the mortgagor. (Id. § 154. Leonard v. Morris, 9 Paige, 90.)

There are numerous cases where a court of equity affords the only remedy for the mortgage creditor. That is the case when the instrument contains no power of sale, or when the deed is absolute in terms, and is shown by parol proof to have been intended as a mortgage. The mortgaged premises cannot be sold in any such case on default of the mortgagor, without a decree in a foreclosure suit. (Hart v. Ten Eyck, 2 John. Ch. 62.) So also, when the mortgage is given to secure the performance of covenants or other thing than the payment of money. (Ferguson v. Ferguson, 2 Comst. 360.)

Cases often arise where there are successive mortgages on the same premises. They may become due at different times; and may each cover some premises not common to the other. But a court of equity can so mould the remedy as to do justice to all, and to prevent any one from squandering the fund intended for the benefit of the others also.

A subsequent mortgagee may file a bill to redeem a prior mortgage, and for a foreclosure and sale on both; or if the prior one be not due, for a sale subject to it. (The Western Ins. Co. v. The Eagle Ins. Co. 1 Paige, 284.)

But it is not always necessary that the junior mortgagee should offer to redeem the prior mortgage. He may, without such offer, file a bill of foreclosure and sale, and for payment of all incumbrances thereon out of the proceeds. (Vanderkempt v. Shelton, 11 Paige, 28.)

An equity of redemption is in some respects similar to a trust estate. The legal seisin is in its owner. He may alien it, devise it by will, and it is descendible to his heirs at law. It may be mortgaged. But a mortgage of this kind, usually called a second mortgage, is seldom recommended by English conveyancers, for two reasons:

1. Because a third mortgagee, without notice, may, by paying off the first mortgage, acquire a preference over the second. 2. Because great difficulties may arise in calling in the money; for as a second mortgagee has no legal remedy, he is driven to a bill in equity to recover even his interest. These reasons are not applicable in this state. The first arises out of the doctrine of tacking which is superseded in this state by our recording laws. (Crabbe's Law of Real Property, § 2256.) Each security is to be paid off according to its priority. (McKinstry v. Mervin, 3 John. Ch. 466.) The recording of the security is notice to all the world; and hence a third mortgagee cannot, by purchasing the first mortgage, squeeze out the second. The other objection to a second mortgage, that the holder of it is driven into equity for redress, applies in this state to all mortgages; it being the evident policy of our law to adjust the rights of the parties in all cases in a court of equity. The principal objection to a second mortgage is that unless the security is abundantly ample, the mortgagee may be compelled to take the premises and pay off the first mortgage, or hunt up a purchaser who will take the premises and pay off both.

The owner of the equity of redemption in the mortgaged premises is a necessary party to an action for the foreclosure of the mortgage. Where, therefore, the mortgagor has conveyed his equity of redemption to another, no suit in equity can be instituted against the mortgagor for the payment of the mortgage debt, without making the grantee of the equity of redemption a party. (Reed v. Marble, 10 Paige, 409.)

An equity of redemption is subject to the curtesy of the husband. (Casborne v. Scarfe, 1 Atk. 603, and see ante.) It is also subject to the dower of the wife against all but the mortgagee or those claiming under him. (Collins v. Torry, 7 John. 278. Coles v. Coles, 15 id. 319. Van Dayne v. Thayre, 14 Wend. 233, 19 id. 162.)

As the whole of a man's estate, whether it be real or personal, is, on his death, liable to the payment of his debts, the equity of redemption may be sold for that purpose, under appropriate proceedings, and the purchaser become the owner of it subject to the mortgage. (Willard on Ex'rs, 323.)

Any subsequent incumbrancer, whether by judgment or mortgage, has a right to redeem. In case premises are sold under a junior incumbrance, the purchaser of the mere equity of redemption is pre

WHEN PROPERTY CANNOT BE SOLD IN PARCELS. 145 sumed only to bid to the value of such equity of redemption beyond the amount of the previous specific liens upon the premises. He takes the property, therefore, subject to those liens; and the property becomes the primary fund for the discharge of those liens. Equity will not permit such purchaser to keep the land, at the price thus bid, and resort to the personal liability of the mortgagor to satisfy the amount of such specific lien. If, in such a case, the mortgagor is compelled to pay the prior mortgage, he will, in equity, be subrogated to the rights of the first mortgagee, and will have the right to an assignment of such prior bond and mortgage, to enable him to reimburse himself from the fund in the hands of such purchaser of the mortgaged premises. (Vanderkemp v. Shelton, 11 Paige, 28. Tice v. Annin, 2 John. Ch. 128. Heyer v. Pruyn, 7 Paige, 470.)

The New York statute, we have seen, authorizes the court to decree a sale of the mortgaged premises, whether the mortgage contains a power of sale or not, and to direct the payment of the unsatisfied balance, when such balance would be recoverable at law. It thus accomplishes the whole in one action. Various questions arise in the exercise of the powers of the court in these cases, which have generally been settled upon wise and comprehensive principles of natural equity. Thus, where the mortgaged premises are incapable of being sold in parcels, or of being divided without injury, the whole may be sold, though the whole debt is not due; and the proceeds applied to pay the interest and costs, and the surplus to the principal of the debt. (Campbell v. Macomb, 4 John. Ch. 534.)

Sometimes it is not necessary to anticipate the whole debt on the sale for an installment, in which case a provision should be made to render further litigation unnecessary. Thus, when the interest on a mortgage is payable annually, and the principal at a future period, on a bill for a foreclosure and sale for the non-payment of the interest, the whole subject is usually brought before the court on the report of a master under the former practice, or of a referee under the present mode, as to the situation of the premises, and whether they can be sold in parcels or not, and stating such other facts as may be essential to aid the court in its determination of the matter; when the whole or a part of the mortgaged premises will be sold, as the court may deem just and necessary. In case it be unnecessary to sell the whole, the decree of sale and foreclosure will stand as further security for the payment of future installments of principal and interest, as they become due. An order will be obtained, from time WILL.-10.

to time, for future sales, on the foot of the decree, and obtaining a further report of the amount due. (Brinkerhoff v. Thallhimer, 2 John. Ch. 486. Lyman v. Sale, 2 id. 487.)

We have already alluded to cases where the land becomes the primary fund for the payment of the debt secured by mortgage. Though, in general, the debt is the principal and the mortgage the incident, or the security, the parties may by their dealings reverse this order; in which cases equity compels the parties to their agreement. This is sometimes by express agreement. Where land is expressly conveyed, subject to a mortgage thereon, the land is the primary fund, as between the grantor and grantee, and those deriving title from the grantor, for the payment of the mortgage debt. (Jumel v. Jumel, 7 Paige, 591.) On the same principle, where a mortgagor sells part of the land subject to the whole mortgage, the part sold is liable primarily for the mortgage debt, and the personal estate of the deceased grantee is liable only for the deficiency. (Halsey v. Reed, 9 id. 446.)

It is often an important inquiry to ascertain the order in which successive mortgages shall be paid off, where the premises charged by the mortgage have been sold at different times and to different parties. The general rule is that the different parcels should be charged with the incumbrance in the inverse order of their alienation. (Clowes v. Dickinson, 5 John. Ch. 235. Schryver v. Teller, 9 Paige, 173.) The principle is the same where there are general liens upon the whole land, and subsequent mortgages on the parcels, the general liens are primarily chargeable on the parcels in the inverse order of their being mortgaged. (Schryver v. Teller, supra.)

So when lands belonging to several persons are covered by a mortgage given by one from whom they all derive their title, the several parcels must be sold in the inverse order of their alienation. And where the purchase money has been paid in good faith, the first purchaser has the prior equity, although the consideration was not actually paid until other portions had been actually purchased and paid for. (Grosevenor v. Lynch, 2 Paige, 300.)

The same doctrine applies where mortgaged premises are sold subsequent to the date of the mortgage to different purchasers; such parcels, upon a foreclosure of the mortgage, are to be sold in the inverse order of their alienation, according to the equitable rights of the different purchasers, as between themselves. (Guion v. Knapp, 6 Paige, 35. Snyder v. Stafford, 11 id. 71. The New York Life