¶1The mortgage, through the foreclosure of which the defendants derived their title, was prior to the agreement between the mortgagor and the plaintiff. The title taken by the foreclosure vested by relation as of the time mortgage was made. (Rector,etc., v. Mack,93 N.Y. 488; Batterman v. Albright, 122 id. 484.) It does not appear that the mortgagee in any manner assented to such agreement.
¶2In Sheldon v. Edwards (35 N.Y. 279) the arrangement that the property there in question should be treated as personal was made between the mortgagor and mortgagee.
¶3In Tifft v. Horton (55 N.Y. 377) there was a stipulation of the mortgagee made before the sale that the legal rights of the plaintiff should not be changed by the foreclosure sale.
¶4In Globe M.M. Co. v. Quinn (76 N.Y. 23) the plaintiff was assignee of lease of the premises made prior to the mortgage, and in Tyson v. Post (108 N.Y. 217) the mortgagee was a party to the agreement that the property in controversy there should remain personal.
¶5I concur in affirmance.
¶6BROWN and VANN, JJ., concur with FOLLETT, Ch. J., HAIGHT, J., concurs with BRADLEY, J. PARKER, J., dissents, and LANDON, J., does not sit.