¶1When the second mortgagee pays the interest of the first mortgage in order to protect his own security, we suppose he may “tack” the amount thus paid to his own mortgage, whenever he forecloses, if there be no intervening equity. So, probably, he may do as to any costs of the foreclosure of the first mortgage necessarily paid by him. But he is not entitled to have an assignment of any share of the first mortgage; because, if he were thus to become an owner in common with the first mortgagee, the security of the first mortgagee would be diminished. The rights of the second mortgagee will be sufficiently protected, whenever he shall be compelled to foreclose his own mortgage, byproof that he has necessarily paid these moneys to protect his security. The part of the order appealed from is reversed, with $10 costs and printing disbursements.
5 N.Y.S. 507
Magilton v. Holbert
Decided May 27, 1889
New York Supreme Court · decided 1889-05-27
Defendant Mary Holbert executed a bond and mortgage to plaintiffs. Afterwards defendant Margaret Brown became the owner of the mortgaged premises, and executed the two mortgages to the plaintiffs,—one to defendant Lampman, and the other to defendant Werner. Afterwards, the defendants having failed to pay an installment of interest, the plaintiffs commenced this action to foreclose their mortgage for the non-payment of such interest.
Decided 1889-05-27