William H. Hays et al., Respondents, v. Maria H. Thomae, impleaded, etc., Appellant

William H. Hays et al., Respondents, v. Maria H. Thomae, impleaded, etc., Appellant. (Argued April 22, 1874; decided May 26, 1874.) Where, in an action to foreclose a mortgage, a judgment of foreclosure and sale simply, has been perfected, without a provision as to a deficiency, the death of the mortgagor does not prevent the execution of the judgment, and an application to revive is unnecessary. The judgment binds all persons claiming any interest in the lands under the mortgagor, and is to be enforced only by a sale of that interest. Appeal from judgment of the General Term of the Supreme Court in the second judicial department, modifying a judgment in favor of plaintiffs entered upon the decision of the court at Special Term, and affirming it as modified. This was an action to revive a judgment of foreclosure and sale, and for leave to enforce the same. The original action was against Joseph Dean and wife, mortgagors. The judgment contained no provision for any deficiency. The original defendants died intestate. The defendants in this action are their children and heirs at law. George H. Forster for the appellant. The complaint fails to set forth a cause of action and should have been dismissed. (Catskill Bk. v. Sandford, 4 How., 100; Cameron v. Young, 6 id., 372; Aldon v. Clarke, 11 id., 207; Thurston v. King, 1 Abb., 127.) Where, in an action for the foreclosure of a mortgage, the mortgagor dies after decree, there is no occasion to revive or bring in new parties. (Harrison v. Simons, 3 Edw. Ch., 394, 395; 2 Bro. Ch. Pr., 694; 1 Newb. Pr., 666; 1 Hoff. Pr., 390, 391; 2 Eq. Ca. Abr., 279; Finch’s R., 169; West’s R., 675, 676; Lynde v. O’Donnell, 21 How. Pr., 34.) John H. Dos Bassos for the respondents. This action was properly brought to revive the judgment of foreclosure and sale, and defendants were properly made parties. (Code, §§ 121, 376; 1 Fisher on Mort., 508; Wright v. Rose, 5 Sim. & Shu., 323; Moses v. Murgatroyd, 1 J. Ch., 130; Story’s Eq. Pl, § 366 et seq.; Jay v. Martine, 2 Duer, 254.) [MAJORITY — Rapallo, J.] Rapallo, J. We think that this action was unnecessary. The decree made and entered before the death of the mortgagors could be executed notwithstanding their death, and binds all persons claiming any interest under them. It is to be enforced only by a sale of their interest in the property. No part of it is to he enforced in personam. The case of Harrison v. Simons (3 Edw. Ch. R., 394) is in point, and was, we think, correctly decided. There the death took place before enrollment of the decree. The court held that the death did not prevent the enrollment, and consequently did not prevent the execution of the decree, and denied the application to revive, as unnecessary. The court below should have dismissed the complaint, and, under the circumstances of the case, it would have been proper to dismiss it without costs. The judgment should be reversed, and the complaint dismissed without costs to either party in the court below, but with costs to the appellant of the appeal to this court. All concur. Judgment accordingly.