lien upon the property, or any part thereof. Except as otherwise expressly prescribed in this article, the proceedings upon and subsequent to the reference must be the same, as prescribed in article second of this title, where a reference is made as prescribed in section one thousand five hundred and sixty-one of this act. § 1622. Where the interlocutory judgment directs a sale, if the right of dower of the plaintiff is inferior to any other lien upon the property, the judgment may, in the discretion of the court, direct that the property be sold either subject to the lien, or discharged from the lien; and, in the latter case, that the officer making the sale pay the amount of the lien, out of the proceeds of the sale. § 1623. Immediately after completing the sale, and executing the proper conveyance to the purchaser, the officer making the sale must make and file with the clerk a report thereof, showing the name of the purchaser, and the purchase price paid by him, or, if the property was sold in parcels, the name of each purchaser, and the price and a description of the parcel sold to him; the sums which the officer has paid out of the proceeds of the sale, pursuant to the interlocutory judgment; the purpose for which each payment was made; the amount and items of his fees and expenses; and the net amount of the proceeds, after deducting the payments. § 1624. Upon confirming the sale, the court must ascertain, by a reference or otherwise, the rights and interests of each of the parties in and to the proceeds of the sale, and also what gross sum of money is equal to the value of the plaintiff's dower in the net proceeds of the sale, calculated upon the principles applicable to life annuities. The court must thereupon render final judgment, confirming the sale, and directing that the gross sum so ascertained be paid to the plaintiff, in full satisfaction of her right of dower; and that the remainder of the proceeds of the sale be distributed among the persons entitled thereto. § 1625. The provisions of article second of this title, relating to a sale made as prescribed in that article, and to the distribution, investment, and care of the proceeds, apply, as far as they are applicable, to a sale made as prescribed in this article, and to the distribution of the proceeds of a sale, as prescribed in the last section. ARTICLE FOURTH. ACTION TO FORECLOSE A MORTGAGE. 1626. Final judgment; what to § 1629. Complaint to state wheth contain. er such action brought. therein, execution must be returned. 1631. Notice of pendency of action to be filed. § 1632. Effect of conveyance upon sale. 1633. Disposition of surplus. 1635. Payment after judgment; when proceedings to be stayed. § 1636. When part only of the property to be sold. 1637. When the whole property may be sold. 1626. In an action to foreclose a mortgage upon real property, if the plaintiff becomes entitled to final judgment, it must direct the sale of the property mortgaged, or of such part thereof as is sufficient to discharge the mortgage debt, the expenses of the sale, and the costs of the action. § 1627. Any person, who is liable to the plaintiff for the payment of the debt secured by the mortgage, may be .made a defendant in the action; and if he has appeared, or has been personally served with the summons, the final judgment may award payment by him of the residue of the debt remaining unsatisfied, after a sale of the mortgaged property, and the application of the proceeds, pursuant to the directions contained therein. § 1628. While an action to foreclose a mortgage upon real property is pending, or after final judgment for the plaintiff therein, no other action shall be commenced or maintained, to recover any part of the mortgage debt, without leave of the court in which the former action was brought. § 1629. The complaint, in an action to foreclose a mortgage upon real property, must state, whether any other action has been brought to recover any part of the mortgage debt, and, if so, whether any part thereof has been collected. § 1630. Where final judgment for the plaintiff has been rendered, in an action to recover any part of the mortgage debt, an action shall not be commenced or maintained to foreclose the mortgage, unless an execution against the property of the defendant has been issued, upon the judg ment, to the sheriff of the county where he resides, if he resides within the State, or, if he resides without the State, to the sheriff of the county where the judgment-roll is filed; and has been returned wholly or partly unsatisfied. § 1631. The plaintiff must, at least twenty days before a final judgment directing a sale is rendered, file, in the clerk's office of each county where the mortgaged property is situated, a notice of the pendency of the action, as prescribed in section one thousand six hundred and seventy of this act; which must specify, in addition to the particulars required by that section, the date of the mortgage, the parties thereto, and the time and place of recording it. § 1632. A conveyance upon a sale, made pursuant to a final judgment, in an action to foreclose a mortgage upon real property, vests in the purchaser the same estate, only, that would have vested in the mortgagee, if he equity of redemption had been foreclosed. Such a conveyance is as valid, as if it was executed by the mortgagor and mortgagee, and is an entire bar against each of them, and against each party to the action who was duly summoned, and every person claiming from, through, or under a party, by title accruing after the filing of the notice of the pendency of the action, as prescribed in the last section. § 1633. If there is any surplus of the proceeds of the sale, after paying the expenses of the sale, and satisfying the mortgage debt and the costs of the action, it must be paid into court, for the use of the person or persons entitled thereto. If any part of the surplus remains in court for the period of three months, the court must, if no application has been made therefor, and may, if an application therefor is pending, direct it to be invested at interest, for the benefit of the person or persons entitled thereto, to be paid upon the direction of the court. § 1634. Where an action is brought to foreclose a mortgage upon real property, upon which a portion of the principal or interest is due, and another portion of either is to become due, the complaint must be dismissed without costs against the plaintiff, upon the defendant paying into court, at any time before a final judgment directing a sale is rendered, the sum due, and the plaintiff's costs. § 1635. In a case specified in the last section, if, after a final judgment directing a sale is rendered, but before the sale is made, the defendant pays into court the amount due for principal and interest, and the costs of the action, together with the expenses of the proceedings to sell, if any, all proceedings upon the judgment must be stayed; but, upon a subsequent default in the payment of principal or interest, the court may make an order, directing the enforcement of the judgment, for the purpose of collecting the sum then due. § 1636. Where the mortgage debt is not all due, and the mortgaged property is so circumstanced, that it can be sold in parcels without injury to the interests of the parties, the final judgment must direct, that no more of the property be sold, in the first place, than is sufficient to satisfy the sum then due, with the costs of the action and expenses of the sale; and that, upon a subsequent defauit in the payment of principal or interest, the plaintiff may apply for an order, directing the sale of the residue, or of so much thereof as is necessary to satisfy the amount then due, with the costs of the application and the expenses of the sale. The plaintiff may apply for and obtain such an order, as often as a default happens. § 1637. If, in a case specified in the last three sections, it appears that the mortgaged property is so circumstanced, that a sale of the whole will be most beneficial to the parties, the final judgment must direct, that the whole property be sold; that the proceeds of the sale, after deducting the costs of the action, and the expenses of the sale, be either applied to the satisfaction of the whole sum secured by the mortgage, with such a rebate of interest, as justice requires; or be first applied to the payment of the sum due, and the balance, or so much thereof as is necessary, be invested at interest, for the benefit of the plaintiff, to be paid to him from time to time, as any part of the principal or interest becomes due. 132 N.Y. 100 133 Id. 64. 136 Id. 10. ARTICLE FIFTH. ACTION TO COMPEL THE DETERMINATION OF A CLAIM TO § 1638. Who may maintain action. 1640. Proceedings when defend- 1641. Id.; When he pleads title. 1643. Proceedings when defend. 1644. Judgment awarding de- § 1645. Judgment for plaintiff. 1649. Id.; when defendant's § 1638. [Am'd 1891.] Where a person has been, or he and those whose estate he has, have been for one year in possession of real property, or of any undivided interest therein, claiming it in fee, or for life, or for a term of years not less than ten, he may maintain an action against any other person to compel the determination of any claim ad. verse to that of the plaintiff which the defendant makes to any estate in that property in fee, or for life, or for a term of years not less than ten, in possession, reversion or remainder, or to any interest in that property, including any claim in the nature of an easement therein, whether appurtenant t› any other estate or lands or not, and also including any lien or incumbrance upon said property, of the amount or value of not less than two hundred and fifty dollars. But this section does not apply to a claim for dower. § 1639. [Am'd 1891.] The complaint in such an action must set forth facts showing: 1. The plaintiff's right to the real property; whether his estate therein is in fee or for life, or for a term of years not less than ten; and whether he holds it as heir, devisee or purchaser, with the source from or means by which his title immediately accrued to him. 2. That the property, at the commencement of the action was, and, for the one year next preceding, has been in his possession, or in the possession of himself and those from whom he derives his title, either as sole tenant or as joint tenant, or tenant in common with others. 3. That the defendant unjustly claims an estate or interest or easement therein, or a lien or incumbrance thereupon of the character specified in the last section. The complaint must describe the property as prescribed in section fifteen hundred and eleven of this act. The demand for judgment may be to the effect that the defendant and every person claiming under him be barred from all claim to an estate in the property described in the complaint, or from all claim to an interest or easement therein, or a lien or incumbrance thereupon, of the character speci fied in the last section, or it may combine two or more of said demands with other demands for appropriate relief. § 1640. If the defendant, in his answer, puts in issue the matters specified in subdivision second of the last section, and succeeds upon that defence, final judgment must be rendered in his favor, dismissing the complaint, and awarding to him costs against the plaintiff. § 1641. [Am'd 1891.] The defendant may, in his answer, either with or without the defence specified in the last section, set forth facts, showing that he has an estate in the property or any part thereof, adverse to the plaintiff, in fee, or for life, or for a term of years not less than ten, in possession, reversion, or remainder, as in a complaint for the same cause of action; or the defendant may set forth facts showing that he has an interest or an easement in, or a lien or incumbrance upon, said property; and thereupon he may demand that the complaint be dismissed, or any judgment to which he would be entitled in an action brought by him to recover that estate in said property, or to enforce in any manner the interest or easement therein, or the lien or incumbrance thereupon which he asserts; or he may combine any two or more of said demands. |