The New-York Life Insurance & Trust Company agt. Abraham Cutler and wife, George M'Lane and wife, Peter Young, and twenty-three others, 9 How. Pr. 407

Welles, Justice. One ground of the motion is, that the order for the writ of assistance was obtained ex parte, and without notice. That question was settled in the case of the New-York Life Insurance & Trust Co. agt. Rand, (8 How. Pr. R. 35,) affirmed on appeal to the general term, (Id. 352,) where it was held that notice of the application was unnecessary. In this case, the order appears to me to have been in all respects regular. Every thing was shown in the affidavit upon which it was granted required by the law or the practice.

But there is another question, which is raised upon the affidavits produced on the present motion, of much more grave importance. It is shown by the affidavit of Peter Young, one of the defendants in the foreclosure suit, that about fifty-nine years before the date of the affidavit, he purchased the premises in question (the Lodi farm) of one Peter Ten Brook, and shortly afterward moved on to it with his family, where he and they continued to reside, without interruption or change of actual possession, until about five years since, when Henry D. B. Cutler showed him a deed for the premises from John I.

Young to said H. D. B. Cutler and others, and requested the deponent to leave said premises, which he accordingly did, and said Cutler took possession. The same affidavit states that about thirty years since, the said premises were sold by the sheriff of Seneca county by virtue of an execution issued upon a judgment in the supreme court, against him the said Peter Young and the said Abraham Cutler, at which sale Henry D. Barto was the purchaser: that shortly afterward Barto sold the same premises to Jacob I. Young and John I. Young of the state of New-Jersey: that shortly after that, the said Jacob I. & John I.

Young executed to the deponent (the said Peter Young) a lease in writing for the farm, upon which he continued to reside, and pay rent to the lessors, until the said Jacob I. Young released his interest therein to said John I. Young, after which he paid the rent to the said John I. Young as long as he occupied the farm. This affidavit is corroborated by that of his daughter Catherine Cutler, the wife of Abraham Cutler. The affidavit of Andrew J. Cutler states that he was one of the" grantees in the deed from John I. Young to H. D. B.

Cutler and others, which bore date May 22, 1847, for the premises in question: that he purchased the interest of H. D. B. Cutler in said land, and took possession of the same by virtue of his interest, about January 20th, 1849, and about the 10th of February, 1850, leased the farm to one Arthur Broderick for the term of three years, and that since that time he has purchased the interest of the remaining grantees in the said deed from John I.

Young, making the entire title in said farm; and that in March, 1858, he leased the said farm to the said George M’Lane for one year, who entered and held until removed as before stated. It is urged, in opposition to the motion, that as M’Lane was a party to the foreclosure, he was liable to be removed under the authority of the decree. This is answered as I think conclusively, as far as respects this motion, by the fact that after the decree, and purchase by Baker, he surrendered all the possession he had of the mortgaged premises.

After that, he had the same right to acquire and retain the possession as if he had not been a party to the foreclosure suit.

There is no reason why he should not, as he had obeyed the decree and submitted himself to its requirements; and if he afterward found a person, who was not a party to the foreclosure suit, in the actual possession as owner, claiming title in hostility to the title through the foreclosure, he was at liberty, in my judgment, to go into possession under such person, without being liable to be turned out by virtue of the decree of foreclosure, which had already expended its force with regard to him.

It cannot be deemed to have the effect of a perpetual injunction upon him in relation to the possession, without reference to subsequently acquired rights, but must be restricted to such rights as the decree is presumed to have settled. In this case M’Lane was in possession when the writ of assistance was executed, as tenant to Andrew J. Cutler, who was not a party to the foreclosure suit, and the question, I think, must be regarded in the same light as if Andrew J. Cutler had been in possession previously, and was the person who had been removed, and was now making the present motion.

The moving affidavits show,—and the contrary is not proved by the opposing affidavits,—that Henry D. B. Cutler received possession of the premises in question about five years ago from Peter Young, one of the defendants in the foreclosure suit, who, it appears, had, since long before the date of the mortgage, occupied them as tenant to the persons from whom the said Andrew J. Cutlej claimed to derive his title. The latter, therefore, stands inde pendent of the foreclosure suit or the decree made therein, and cannot be dispossessed in this

summary manner, not being bound or affected by the decree. I have considered the question whether, as H. D. B. Cutler received the possession of the premises from Peter Young, one of the parties to the foreclosure suit, and since the commencement of that suit, he and his grantee, Andrew J. Cutler, should not be regarded as standing in privity with the said Peter Young, and thus concluded by the decree, inasmuch as this is a question of possession merely. If A. J.

Cutler had derived his title from Peter Young, or, in the language of the decree, had come into possession under him, after the commencement of the suit, I think this would undoubtedly have been the consequence. But that is not the case; on the contrary, he derived his claim from persons to whom Peter Young had sustained the relation of tenant a long time before the mortgage was given. His relation was that of assignee of the landlords of Peter Young, and the possession of the latter was their possession, and an attornment by him to any other person than his landlords, pending that relation, would have been void.

It is of importance to look at the nature of the possession of Peter Young, which he surrendered to H. D. B. Cutler. If it had been a possession-in his own right, he being a party to the decree, any person taking possession from or under him would have been bound by the decree and liable to be removed the same as Peter Young himself. But his possession, being as tenant to the individual to whom he surrendered, the surrender was merely

an act of loyalty to his landlord, who, not being a party to the suit, was not, I think, bound by the decree. Of course, I do not assume to decide or intimate who has the title or best claim to the premises. That question must be determined by an action. All I intend to decide in this connection is, that Andrew J. Cutler, under the circumstances, is not bound by the decree; and that M’Lane, although a party to the suit for the foreclosure of the mortgage, having satisfied the judgment therein, quoad its effect upon him, was at liberty to enter under A. J.

Cutler, who was lawfully in possession under a claim hostile to that derived from the mortgage. In this case, so far from H. D. B. or A. J. Cutler coming into possession under Peter Young, he was in possession under their grantors. Upon the whole, I think the motion should be granted to vacate the order for the writ of assistance, and the writ be set aside, and the possession be restored to M’Lane.