The fact that the deed did not contain the condition stated in the notice should make no difference. See Welche v. Schoenberg, 45 Misc. 126, 91 N.Y.S. 880. If the notice of sale had not contained the statement that the land would be sold subject to the first mortgage, the mortgagee holding the latter might have appeared at the sale, bid an adequate price for the land, and then might have gone into court to litigate the rights as between herself and the second mortgagee. The notice had a tendency to lull her into security, and induce her not to appear at the sale.
( Browning v. Stacey, 52 A.D. 626.) "But it has been said that in the absence of a receiver clause in the mortgage, a receiver pendente lite should not be appointed unless it clearly appears that the mortgagor is not able to meet a deficiency judgment and that the property itself is not worth the amount of the incumbrances on it. ( Welche v. Schoenberg, 45 Misc. 126; Rabinowitz v. Power, 131 A.D. 892. ) "In a great many mortgages there is inserted a clause giving the holder the right to the appointment of a receiver, regardless of whether or not the security is adequate.