Brill v. Shively

Sharpstein, J.

This appeal is from a judgment and order denying defendants’ motion for a new trial in an action to foreclose a mortgage executed by defendants to plaintiff. -The mortgage embraces two distinct tracts *675 of land, which, for convenience, we shall designate as tracts 1 and 2. Upon tract 2 there was a mortgage prior to plaintiff’s, which was foreclosed before this action was commenced. In that action plaintiff was made a party, as claiming some interest subsequent to and subject to the lien of the plaintiff in that action. The plaintiff herein filed an answer in that action, in which he set out the mortgage which he held upon said tracts 1 and 2, and prayed that if any surplus should remain after applying the same to the amounts due on said prior mortgage the same be applied to the payment of the mortgage of the plaintiff herein, defendant in said action, to foreclose said prior mortgage.

It nowhere appears that tract 1 was in any way involved in the action to foreclose the mortgage prior to the plaintiff’s on said tract 2, but appellants contend that the judgment in that case is a bar to this action, and that the court below erred in holding that it is not. It is sufficiently clear to us that the judgment in that case did not, and could not, affect any land or interest outside of the tract involved in that action. The plaintiff’s mortgage embraced two tracts, one of which only was involved in that action. The other was as much outside of that action as if it had been mortgaged to the plaintiff in a separate mortgage. It could not be foreclosed in an action brought to foreclose a mortgage upon another and separate tract of land.

No bar to this action is shown, and no other defense appearing in the record, the judgment and order must be affirmed.

Judgment and order affirmed.

McFarland, J., Harrison, J., Paterson, J., Ga= routte, J., and De Haven, J., concurred.

Rehearing denied.