PER CURIAM:

We think that the bond and mortgage given by the Glenwood Cemetery Association to Erastus W. Smith was valid and enforcible, and that the foreclosure sale divested the association of its title and interest in the portion of the Smith tract so sold. The mortgage was a purchase-money mortgage and a part of the transaction of conveyance by Smith to the association of the tract of twelve and twenty one-hundredths acres. The deed and mortgage constitute an indivisible act, and are to be regarded as one instrument and construed as a conveyance upon condition of payment expressed in the mortgage. ( Dusenbury v. Hulbert, 59 N.Y. 541; Greenpoint Sugar Co. v. Whitin, 69 id. 328.)

The sale under the foreclosure judgment of the unoccupied portion of the Smith tract was not prohibited by chapter 419 of the Laws of 1871.

No question arises in this case as to the right to sell under a foreclosure judgment lands upon which interments have been made, or which have been sold by the cemetery association for burial purposes, but upon which interments have not yet been made, as all such portions of the mortgaged lands were expressly excepted from sale by the decree of foreclosure and sale.

The defense of the alleged invalidity of the Smith mortgage was interposed by the Glenwood Cemetery Association in the foreclosure action, and the judgment of the court adjudged the mortgage to be valid and enforcible. While the plaintiff herein was not a party to that action, it was not necessary that she should be made a party, being only a creditor of the association as a holder of its certificates of indebtedness. That judgment still stands unmodified, and the referee has found that it should not be set aside or interfered with, and that the action in which it was rendered was instituted and conducted without collusion and to enforce a just debt, past due, and his decision is amply supported by the evidence.

The portion of the judgment appealed from should be affirmed, with costs of this appeal to the defendants David H. Carver, Israel T. Deyo and Martin L. Deyo against the plaintiff.

Judgment unanimously affirmed, with costs to the defendants Carver, Deyo and Deyo.