Opinion
March Term, 1897.
James H. Bain, for the appellant.
C.H. Sturges, for the respondent.
It is manifest from the above statement that the judgment entered is not in conformity with the decision of the court, and that, in some particulars, it cannot be sustained by that decision. It is also apparent that, while the appeal from the judgment does not bring before us all the matters of which the plaintiff complains, yet from both appeals we have before us the whole case. And by considering them together we may examine and pass upon each of the objections which the plaintiff makes to the judgment as finally entered. Her first objection is that the final judgment improperly denies her costs of the action. The decision directs that an interlocutory judgment be entered in accordance with the foregoing findings, "with the costs of this action." These findings were to the effect that the conveyance in question was a mortgage and not a conveyance in fee, and were, therefore, squarely in plaintiff's favor. Her claim was sustained, and defendant's claim, set forth in his answer, that he owned the premises in fee by virtue of such deed, was decided against him. The direction, therefore, that judgment be entered, "with the costs of this action," could only mean that it be entered in favor of the plaintiff, with costs. The direction for costs is specific. There is not a feature in the case to indicate that they could have been intended for the defendant. Everything indicates that they were intended for the plaintiff. This was an action in which costs were in the discretion of the court, and under section 1022 of the Code it was the duty of the court to award or deny them when it made its decision. I am clearly of the opinion that the decision did award costs of this action to the plaintiff, and that such was the proper time and method of awarding them.
Assuming then that the question of costs is properly determined at the time of making the decision, and that the decision in question awarded costs to the plaintiff, I am of the opinion that the Special Term, at which the final judgment was taken, was without authority to disregard or modify that decision. In this instance the judgment was taken before the same justice who tried the case, but it might have been well taken before some other justice; and the impropriety of one justice at Special Term changing or modifying the decision of another, even in the matter of costs, is too apparent to need discussion. It is very apparent from the provisions of the Code that the judgment to be entered must conform to the decision of the court. (§§ 1022, 1228, 1230, 1231.) And such conformity must be maintained as much in the matter of costs as in any other of its provisions. It seems, therefore, that the judgment is not correct in denying costs to the plaintiff.
The plaintiff further complains that this judgment improperly allows interest upon the sums that the defendant advanced to pay interest for the plaintiff. In this she is incorrect. The decision finds that the conveyance in question was a mortgage given to secure defendant for such sums as he had already advanced at plaintiff's request, and for such sums as he should thereafter advance to pay interest on three certain mortgages against the premises. The amount of such sums so paid was not proven upon the trial, but a reference was ordered to ascertain the same. Where money is paid at the request of another, interest is allowed from the time of such payments. (11 Am. Eng. Ency. of Law, 396.) In Liotard v. Graves (3 Caines, 234) SPENCER, J., says: "On money advanced, interest is legally demandable." (See, also, Purdy v. Philips, 11 N.Y. 406.) As a matter of law, then, the amounts so advanced would draw interest from the time of such payment, and there is nothing in the decision inconsistent with the right to include within the security the interest lawfully accruing upon the loan secured.
The plaintiff also claims that there is nothing in the decision to warrant a judgment against her for the amounts expended in repairs and improvements upon the mortgaged premises. It is apparent that it must have appeared to the court that the defendant was a mortgagee in possession, and that he would, therefore, upon an adjustment of the amount due upon the mortgage, be required to account for the rents and profits so received by him; and, therefore, as an offset to such claim on plaintiff's part, it was proper to order an inquiry as to both the rents and profits and the expenditures for taxes, improvements and repairs, in order to properly adjust the amount due from the plaintiff to him. (Pom. Eq. Juris. §§ 1216, 1217.) The mortgage, however, was not given to secure any part of such advancements, and, except so far as they were necessary, to satisfy any claim the plaintiff might have for the use and occupation of the premises, they were not properly chargeable against the plaintiff.
The plaintiff further claims that the provision in the judgment requiring the plaintiff to pay to the defendant the amount due upon the mortgage in ninety days, and in default thereof to be forever barred and foreclosed of her equity of redemption therein, was neither warranted by the decision, nor was it within any of the issues tried in the action.
In this claim she is correct. Such provision amounts to a strict foreclosure of the plaintiff's equity of redemption. It requires her to redeem in an unusually short time ( Perine v. Dunn, 4 Johns. Ch. 140), and grants to the defendant relief that is rarely granted against a mortgagor in this State. The defendant's rights in the matter are but those of an ordinary mortgagee in possession, and do not require for their protection the enforcement of so severe a remedy. Certainly such relief is not warranted in an action where it is not suggested by either of the pleadings, and is very far outside of any issue tendered by them. ( Smidt v. Jackson, 11 Hun, 361; Bolles v. Duff, 43 N.Y. 469; Denton v. Ontario Co. N. Bank, 150 id. 126.) No fact is found, or conclusion of law contained, in the decision which warrants a judgment directing any foreclosure whatever of the plaintiff's equity of redemption. It is not there found that plaintiff had made default in paying the amounts which the deed was given to secure. Assuming that such amount was payable on demand, it can hardly be claimed that she was in default in not paying it so long as defendant was holding the premises and claiming that the conveyance to him was an absolute one in fee, instead of a mortgage; and when the decision directs that judgment be entered in conformity with the findings therein, it falls very far short of directing a judgment for a strict foreclosure against the plaintiff.
The whole scope of the decision is, that the conveyance in question, although absolute in form, was in fact given and received as a mortgage, and that is must be deemed such in the hands of defendant. There is no suggestion in the decision that plaintiff had made default in paying the moneys which such conveyance was given to secure, or that the defendant was then entitled to any judgment for the enforcing or collection of the same. I conclude, therefore, that the motion of the plaintiff to strike such provision from the judgment because it did not conform to the decision should have been granted, and that upon the appeal from the order denying such motion such question is presented for our consideration.
It is manifest that the sole effort of the plaintiff in the two appeals which she has taken is to make the judgment conform to the decision of the court. With that decision she is content, and in her claim that no subsequent Special Term can order a judgment not in harmony with that decision she is correct.
These views lead to the conclusion that the judgment must be made to conform to the decision, as follows:
First. By striking therefrom the provisions fixing the amount paid by the defendant for repairs and improvements, together with interest thereon, and also the amount charged against him for the use and occupation of the premises and interest thereon. Inasmuch as the repairs and improvements exceed the value of the use and occupation, such excess is not a claim against the plaintiff which can be tacked to the mortgage in question, and the account, therefore, is not necessarily any part of the judgment.
Second. By fixing and determining that the amount owing from the plaintiff to the defendant, and which is secured by the deed in question, at the date of such decree, is the sum of $644.23, instead of the sum of $983.85, such being the sum advanced by defendant to pay interest on the three mortgages against the premises, with interest upon such advances from the time they were made.
Third. By striking out from such judgment all the provisions for redemption by the plaintiff and for foreclosure of the plaintiff's equity of redemption, and providing in lieu thereof that the deed shall hereafter be held by the defendant or his assigns as a mortgage or security for that amount merely, and not as an absolute conveyance of the premises. Such a provision is in harmony with the decision, gives to the defendant all the security to which he is entitled under such decision, and in no manner restricts him from proceeding to a foreclosure of his mortgage and a collection of his debt.
Fourth. By striking out the provision that no costs are allowed to either party, and inserting in lieu thereof a provision allowing costs to the plaintiff in this action, to be duly taxed.
All this relief, I think, can be properly granted to the plaintiff upon the appeal from the order above mentioned, and her proper way to procure the judgment herein given her was by the motion which she made. ( Corn Exchange Bank v. Blye, 119 N.Y. 414, 417.)
The order appealed from, therefore, should be reversed and an order entered amending and correcting such judgment in accordance with the provisions above stated, with ten dollars costs and disbursements of this appeal, and with ten dollars costs of the motion below.
In the matter of the appeal from the judgment, the judgment, as amended by the above order, is affirmed, without costs of such appeal to either party.
All concurred.
Order reversed and motion granted in accordance with the terms of the opinion, with ten dollars costs and disbursements of this appeal, and ten dollars costs of the motion below.
Judgment modified and amended in accordance with opinion, and, as so modified, affirmed, without costs of the appeal to either party.