persons dispossessed under such writ are entitled to have the possession restored to them.'

Where a writ of assistance in favor of a purchaser at a mortgage foreclosure sale is issued upon notice against a tenant in possession of the mortgaged premises, and is executed by placing the purchaser in possession thereof, it will be conclusive upon the tenant and the purchaser as to the right of possession. If the tenant had any defence against the writ, such defence should have been presented upon the hearing of the motion for the writ; the question whether the writ was properly awarded can not be reviewed in another action in another court.'

$598. Writ against tenants in possession. It has been said that the foreclosure of a mortgage and a sale thereunder of the demised premises pursuant to a decree, extinguishes the title of the mortgagor and also the rights of his lessee. But where tenants in possession of the mortgaged premises have not been made parties to the suit, the purchaser will not be entitled to possession as against them; but if they are made parties, they will be bound to attorn to the purchaser or be removed by a writ of assistance, notwithstanding the fact that they claim under an unexpired lease executed by the mortgagor for a term of years prior to the date of the mortgage foreclosed.*

$599. Writ of assistance not granted against holder of paramount title.-Where, on application for a writ of assistance by a purchaser at a sale under a decree of foreclosure, the party in possession claims to hold the premises. under a lease executed before the execution of the mortgage under which the sale is made, the court will not grant a writ of assistance at the instance of such purchaser. In all cases

'Meiggs v. Willis, 8 N. Y. Civ. Proc. Rep. 125 (1885); Chamberlain v. Chloes, 35 N. Y. 477 (1866).

? Rawiszer v. Hamilton, 51 How. (N. Y.) Pr. 297 (1875).

Smith v. Cooley, 5 Daly (N. Y.) 401, 409 (1874); Simers v. Saltus, 3 Den. (N. Y.) 216 (1846); Kershaw v.

Thompson, 4 Johns. Ch. (N. Y.) 609 (1820).

Lovett V.

German Reform

Church, 9 How. (N. Y.) Pr. 220 (1853).

Thomas v. DeBaum, 14 N. J. Eq. (1 McCart.) 37 (1861).

where the person in possession shows a right paramount to the mortgage, the court will not attempt to decide any questions of legal title, and the purchaser will be obliged to seek possession by proceedings at law.'

Where a purchaser enters into an arrangement with the mortgagor subsequently to the sale, whereby the mortgagor remains in possession, he will be deemed in possession under such contract, and not as a defendant to the foreclosure suit, and the purchaser will not be entitled to a writ of assistance to put himself in possession of the premises; he will then be left to his remedy by an action at law for ejectment or otherwise. It is held that the granting of a writ of assistance to put a purchaser into possession of the premises rests in every case in the sound discretion of the court; and that in all cases of doubtful right, the possession will be left to legal adjudication.❜

§ 600. Summary proceedings under New York Code. -By a provision of the New York Code of Civil Procedure," the remedy by summary proceedings to obtain possession of premises in mortgage foreclosures, is restricted to those cases where the foreclosure is conducted by advertisement and not by an equitable action

1 Schenck v. Conover, 13 N. J. Eq. (2 Beas.) 220 (1860). See McKomb v. Kankey, 1 Bland. Ch. (Md.) 363 (1807), note C.

2

McKomb v. Kankey, 1 Bland. Ch. (Md.) 363 (1807), note C. See Thomas v. DeBaum, 14 N. J. Eq. (1 McCart.) 37 (1861). • § 2232.

4 Toll v. Hiller, 11 Paige Ch. (N.

Y.) 228 (1844).

CHAPTER XXIX.

JUDGMENT FOR DEFICIENCY.

REPORTING DEFICIENCY-WHO LIABLE FOR-LIABILITY ON BONDGUARANTY AND ASSUMPTION INTENTION OF PARTIES

GOVERNS-HOW AMOUNT OF DETERMINED EXECU

TION FOR-MISCELLANEOUS MATTERS.

§ 601. Generally.-All proceedings to collect any deficiency arising on the sale of mortgaged premises under a foreclosure are purely statutory.' The statute, authorizing a judgment of deficiency in an action for foreclosure in New York, was enacted to avoid the necessity of a separate action at law, and to enable one court to dispose of the whole case.'

In most of the states, statutes have been enacted for the regulation of mortgage foreclosures, giving power to the court, not only to direct the sale of the mortgaged premises and to compel the delivery of the possession thereof to the purchaser, but also to adjudge payment by the mortgagor or by any other person liable for the debt of any deficiency that might remain unsatisfied after the sale of the mortgaged premises, and, as in other actions, to issue the necessary cxecution upon such judgment of deficiency.'

Without statutory authority such an execution could not be issued in a foreclosure against the property of the mortgagor or other person liable for the deficiency remaining unsatisfied after the application of the proceeds of the sale to the payment of the mortgage debt. An action at law was formerly the only remedy for the recovery of such deficiency.

§ 602. Referee conducting sale reporting deficiency.— The referee conducting the sale in a mortgage foreclosure, is usually required to report any deficiency remaining unpaid after the sale of the property and the application of the proceeds thereof to the payment of the debt. The referee should ascertain the amount of the deficiency, and also the names of the parties who are liable for its payment, and state these facts in his report to the court; a direction to the referee to report such facts should be included in the decree of sale.

A referee's report of sale, which shows that the apparent deficiency is produced entirely by the unauthorized

v. Stevens, 63 N. Y. 341 (1875); Thorne v. Newby, 59 How. (N. Y.) Pr. 120 (1880).

1 N. Y. Code Civ. Proc. § 1627; Florida Code (Bush's Dig.) 849 (1872); North Carolina Code, § 190; Wisconsin Rev. Stat., § 3156. See Equitable Life Ins. Co. v. Stevens, 63 N. Y. 341 (1875); Thorne v. Newby, 59 How. (N. Y.) Pr. 120 (1880); Jarman v. Wiswall, 24 N. J. Eq. (9 C. E. Gr.) 267 (1873). See ante § 195 et seq.

2 Stark v. Mercer, 4 Miss. (3 How.) 377 (1839); Fleming v. Sitton, 1 Dev. & B. (N. C.) Eq. 621 (1837); Waddell v. Hewitt, 2 Ired. (N. C.) Eq. 252 (1842); Orchard v. Hughes, 68 U. S. (1 Wall.) 73 (1863); bk. 17 L. ed. 560. But see Wightman v. Gray, 10 Rich. (S. C.) Eq. 518 (1859). See ante § 195-199.

3 McCarthy v. Graham, 8 Paige Ch. (N. Y.) 480 (1810).

allowance of a claim to the purchaser, is to be treated as not reporting any deficiency.'

§ 603. Contingent decree for deficiency.-The plaintiff in an action to foreclose a mortgage can not have a personal judgment against any of the defendants prior to the final decree of foreclosure and sale. The correct practice is, to make a contingent judgment in the decree of foreclosure and sale for the payment of any deficiency which may appear upon the coming in and the confirmation of the report of sale, and that the plaintiff have execution therefor. An execution can not be issued until the deficiency has been ascertained from the report of sale. Where the person adjudged in the decree to be liable for the deficiency, has not appeared in the case, it is the practice in New Jersey, after ascertaining the amount of such deficiency, to award execution therefor ex parte.

The deficiency for which a mortgagor is liable, is ascertained by deducting the proceeds of the sale from the amount due on the mortgage for principal and interest, together with the costs and all taxes and assessments. In a case where the decree of sale directed that the mortgagor, or other party personally liable for the debt, should pay any deficiency arising on the sale, the property was struck off for enough to satisfy the mortgage, but the purchaser refused to complete the sale; an order requiring him to do so was obtained, but was not enforced; the plaintiff, without proceeding against him for contempt, procured an order for a resale, and upon the second sale there was a deficiency; it was held that the mortgagor, or other party

1 Bache v. Doscher, 67 N. Y. 429 (1876), aff'g 41 N. Y. Supr. Ct. (9 J. & S.) 150. See ante § 204.

2 Cobb v. Thornton, 8 How. (N. Y.) Pr. 66 (1852).

Cobb v. Thornton, 8 How. (N. Y.) Pr. 66 (1852); McCarthy v. Graham, 8 Paige Ch. (N. Y.) 480 (1840). See ante § 202-204.

Bank of Rochester v. Emerson,

10 Paige Ch. (N. Y.) 115 (1843); Howe v. Lemon, 37 Mich. 164 (1877).

White v. Zust, 28 N. J. Eq. (1 Stew.) 107 (1877).

6 Marshall v. Davies, 78 N. Y. 414 (1879), reversing 16 Hun (N. Y.) 606. See also Mitchell v. Bowne, 63 How. (N. Y.) Pr. 1 (1881); s. c. 14 N. Y. Wk. Dig. 234. See ante 204.