secured by mortgage, which additional security was foreclosed by the mortgagee, and the proceeds, after paying the expenses, were applied on the new debt and the debts secured by the first mortgage, leaving a deficiency, for which no judgment was ever entered, or execution issued to collect the amount thereof. After the foreclosure and sale the mortgagee assigned the first mortgage without transferring in terms any right to the deficiency, and the assignee, without leave of court, sued to foreclose the original mortgage. Held, that such action was not prohibited by Code Civ. Proc. §§ 1628, 1630, providing that while an action to foreclose is pending, or after final judgment, no other action shall be commenced to recover any part of the mortgage debt without the leave of court, and that, where a final judgment for plaintiff has been rendered to recover any part of the mortgage debt, an action shall not be maintained to foreclose the mortgage, unless execution has been issued on the judgment, and returned unsatisfied, as no action had been brought to recover any part of the mortgage debt, within the meaning of the statute; for the suit to foreclose the mortgagor's equity in the mortgage given as security for the original mortgage was not such an action.

Appeal from supreme court, appellate division, Fourth department.

Action by Frederick Reichert against Charles A. Stilwell and others. From a judgment of the appellate division (67 N. Y. Supp. 1062) affirming a judgment in favor of plaintiff, defendants appeal. Affirmed.

This action was brought to foreclose two mortgages upon the same parcel of land, and the defense was founded upon sections 1628 and 1630 of the Code of Civil Procedure. The facts, so far as material, are stated in the opinion.

Louis L. Waters and D. F. McLennan, for appellants. Augustus C. Stevens, Charles G. Baldwin, and Charles E. Stevens, for respondent.

VANN, J. The defendants' intestate, Charles A. Stilwell, gave two mortgages upon his farm in the town of De Witt, county of Onondaga,-one in 1881, for $2,000; and the other in 1886, for $1,000,-to secure the payment of money borrowed at the dates anċ to the amounts stated. A bond in the usual form accompanied each mortgage, and represented the debt secured. In 1897 he gave a mortgage upon certain salt lots owned b him in the city of Syracuse for $3,720, o" which the sum of $720 represented a new and independent consideration, and the remainde. represented the debt secured by the twc mortgages upon his farm. The mortgage or the salt lots contained the condition that said sum of $720 and interest should be paid, and also that it was given "as a further and additional security for the payment" of the debts represented by the two mortgages upon the farm. In 1899 the mortgage on the salt lots was foreclosed, and the proceeds, above expenses, were applied in payment of said sum of $720, and the remainder upon the two farm mortgages. A deficiency was reported by the sheriff making the sale, but no judgment was ever entered or docketed there

for, nor was any execution issued to collect the amount thereof. Subsequently the holder of all the mortgages, including said deficiency arising in the action to foreclose, transferred the mortgages on the farm to the plaintiff without in terms transferring any right to the deficiency, which, however, passed by operation of law. A few days later the plaintiff began this action to foreclose the mortgages on the farm without obtaining leave of the court, and the defendants' intestate answered, asking that the complaint be dismissed, because no leave had been obtained under section 1628, or execution issued pursuant to section 1630 of the Code of Civil Procedure. The defense was not sustained, and judgment of foreclosure in the usual form was rendered at special term, and affirmed on appeal by the appellate division, one of the justices dissenting. Section 1628 provides that: "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." Section 1630

provides that, "where a 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 has been issued upon the judgment, and returned wholly or partly unsatisfied. As we read these sections, the command of the earlier is not to sue the bond, or the promise representing the mortgage debt, while an action to foreclose the mortgage is pending, without leave of the court; and, of the later, not to commence an action to foreclose, after judgment rendered in an actior at law on the bond or promise, without the return of an execution unsatisfied. The object of the statute is to shield the mortgagor from the expense and annoyance of two independent actions at the same time with reference to the same debt. This is the policy of the law in statutory foreclosures, and was the policy of the Revised Statutes relating to foreclosures by action prior to the enactment of the Code. 2 Rev. St. p. 192, § 156; Id. p. 545, § 2. In other words, only one action is permitted at the same time, except as the statute provides; for it forbids a suit in equity to foreclose the mortgage until the remedy at law on the bond, if resorted to, has been exhausted, and an action at law on the bond, while a suit in equity to foreclose the mortgage is pending, without leave of the court. Throop's Code, notes to sections 1628 and 1630. As was well said in the opinion of the special term: "It was never intended to prohibit a separate foreclosure in equity of two separate mortgages upon separate pieces of property, although each may have been given to secure the payment of the same indebtedness." It may be added that, as the actions to foreclose both mortgages must be be

fore the same court, with all the power of a court of equity, the rights of the parties can be fully protected by imposing any condition as to costs or otherwise that justice may require.

An action to foreclose a mortgage is not an action to recover the mortgage debt from the mortgagor personally, but to collect it out of the land by enforcing the lien of the mortgage. There is only one cause of action alleged, even if the bond is set forth in the complaint, and judgment for deficiency is de manded as a part of the relief. No motion to separate could be successfully made, under section 483 of the Code, upon the ground that a cause of action at law on the bond had been united with a cause of action in equity on the mortgage. An action to enforce a mortgage is not an action in personam to recover a debt from an individual, but is in the nature of a proceeding in rem to appropriate the land by foreclosing the lien of the mortgage and applying the proceeds to discharge the debt. The Revised Statutes authorize the court in an action of foreclosure to render judgment against the person liable for the mortgage debt for any deficiency that may remain after selling the land and applying the proceeds. 2 Rev. St. p. 191, § 154. That, however, is not a distinct and independent cause of action, but is an incidental remedy, dependent wholly upon the statute, and subsidiary to the main object of the action. Before the passage of the Revised Statutes the court had no power to include a provision for deficiency in a decree of foreclosure. Dunkley v. Van Buren, 3 Johns. Ch. 330; Jones v. Conde, 6 Johns. Ch. 77. The nature of an action to foreclose a mortgage was considered by us in Dudley v. Congregation of St. Francis, 138. N. Y. 451, 34 N. E. 281. In that case the mortgage was void, but the debt that it was given to secure was valid, and hence the plaintiff insisted that he should recover upon the bond, which was covered by the allegations of the complaint in the usual form. "In an action to foreclose a mortgage," as we said when discussing the subject in that case, "a judgment for deficiency is authorized and may be rendered as incidental to the principal relief demanded, but it cannot be rendered in an action where the plaintiff fails to establish the mortgage. The peculiar statutory provisions applicable to actions of foreclosure above referred to indicate that it was never intended to permit the joinder in the same complaint of two separate causes of action, one at law to recover a personal judgment on the bond for the debt, and the other in equity to procure a sale of the land covered by the mortgage, given to secure the same debt, and the application of the proceeds thereon; and, if not, then the complaint in this case does not contain but a single cause of action, and that in equity, for the foreclosure of the mortgage lien. It is true that the giving of the bond is stated, but that is incidental to the main facts al

leged, and only necessary, if at all, for the purpose of showing the consideration of the mortgage and the amount of the deficiency, if any. When the plaintiff failed to establish the mortgage, he failed to establish his cause of action in its whole scope and meaning, and he could not stand upon the incidental allegations in regard to the bond." Hence the deficiency judgment, if one had been entered and docketed, would not have been a "final judgment for the plaintiff in an action

to recover any part of the mortgage debt.” No action has been brought to recover any part of the mortgage debt, within the meaning of the statute, for the suit to foreclose the mortgagor's equity of redemption in the two salt lots was not such an action.

The opinions below make further discussion unnecessary, and we affirm the judgment appealed from, with costs.

GRAY, O'BRIEN, BARTLETT, and MARTIN, JJ., concur. PARKER, C. J., and HAIGHT, J., not voting.

Judgment affirmed.

(172 N. Y. 154)

UIHLEIN et al. v. MATTHEWS et al. (Court of Appeals of New York. Oct. 7, 1902.) QUITCLAIM DEED-CONSTRUCTION AND EF

FECT-PAROL EVIDENCE.

1. The owner of a building conveyed three inches of land to an adjoining owner, with the right to use his party wall, in consideration of a covenant by the grantee, stipulated to run with the land, that she would not during a specified time use the building to be erected for a saloon. A dispute arose as to the title to a portion of the lot, and the grantor executed and delivered for a consideration a quitclaim deed of her entire lot, including the portion in dispute, without any reservation as to the building restriction. Held, that the building restriction was thereby removed.

2. Evidence of acts and conversations between the parties to a quitclaim deed before its deliv ery, in order to show that it was not intended thereby to release a building restriction in a prior deed to a part of the same land. is inadmissible.

Bartlett, Martin, and Vann, JJ., dissenting. Appeal from supreme court, appellate division, Fourth department.

Action by August Uihlein and others against Margaret Matthews and others. From a judgment of the appellate division (68 N. Y. Supp. 309) affirming a judgment for plaintiffs, defendant Matthews appeals. Reversed.

George E. Milliman, for appellant. Scott Cummings, for respondents.

the sale of ales, beers, wines, and liquors for the period of five years from May 4, 1898. The facts upon which the judgment rests were found by the trial court, and appear fully in the record without dispute, and hence the appeal presents the question whether the judgment is sustained by the conceded and undisputed facts. The defendant owns a block or building adjoining the plaintiffs. The premises of the latter are occupied as a saloon kept by the plaintiff McManus as the tenant of his coplaintiff. He formerly owned the premises so occupied by him, as well as the land upon which the defendant's building now stands, but a short time before the commencement of this action he conveyed the premises where his saloon now is to his coplaintiff, continuing, however, the saloon business at the same place under a lease from Uihlein. The defendant having recently erected a building upon her lot adjoining the plaintiffs', leased it to be used as a saloon or place for the sale of ales and liquors. The courts below have enjoined such use of the defendant's premises as in violation of a covenant on her part with McManus. This judgment is in accordance with the theory of the action and the prayer of the plaintiffs' complaint. The defendant contends that no such covenant existed or was in force at the time of the commencement of the action, and this contention involves the construction and legal effect of certain conveyances between the parties. On the 4th day of May, 1898, the defendant, being about to erect a building on her adjoining lot, agreed with McManus, who then owned the property now held by the plaintiffs, for the conveyance to her of three inches of land east of the line of his building for her party wall. On that day a written instrument was executed, which conveyed the three inches to the defendant, and it was duly recorded the next day. In this conveyance, which was also executed by the defendant, she covenanted and agreed with McManus, the grantor, that "she would not use or permit to be used the building to be erected by her upon her said property as a saloon and restaurant, or as a place for the sale of ales, beers, wines, and liquors, for the period of five years from the date of said instrument." The courts below have held that this was a valid restriction upon the use of the defendant's property, made upon an adequate consideration, and binding upon her. If the restriction was not removed by the subsequent acts and conduct of the parties, that conclusion would not be open to question. The defendant, having erected her building, applied for a loan thereon, when it was found that there was included in her lot a strip of land about two and a half feet wide as to which there was some defect in regard to the title, and it is found that it became a matter of dispute as to whether the defendant or McManus had the title. The latter refused to settle the dispute by a release or otherwise for some time,

and in the end exacted from the defendant $125 for his claim, if any. On the 28th day of September, 1898, McManus and his wife executed and delivered to the defendant a quitclaim deed of her entire lot by metes and bounds, including the two and a half feet in dispute, whereby the grantor conveyed to the defendant the land, "with all and singular the hereditaments and appurtenances thereto belonging or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof, and all the estate, right, title, interest, claim, and demand whatsoever of the said party of the first part, either in law or equity, of, in, and to the above-bargained premises, with the said hereditaments and appurtenances; to have and to hold the said described lands and premises to the said party of the second part, her heirs and assigns, to the sole and only proper benefit and behoof of the said party of the second part, her heirs and assigns, forever." This deed was recorded on the 11th day of November, 1898. On the 7th day of November, 1898, the parties entered into another agreement, which had all the effect of a conveyance, and was recorded November 17, 1898, but the only purpose of that instrument was to allow the defendant to extend her building and the west wall thereof about two feet beyond the front of plaintiffs' building, or to the line of the street. It enlarged the defendant's rights, and in no respect did it restrict her in the use of her property. The two instruments conveying to the defendant the right to maintain her party wall expressly provided that the rights and covenants therein provided for should run with the land, and, although nothing on that subject is mentioned in the quitclaim deed, yet, in the absence of some words of limitation, that form of conveyance carries to the grantee the benefit of all covenants running with the land. Devl. Deeds, § 849; Jenks v. Quinn, 137 N. Y. 223, 33 N. E. 376; Brady v. Spruck, 27 Ill. 478; Morgan v. Clayton, 61 Ill. 35.

It cannot be doubted that the agreement between the parties which contains the restriction in question created an easement in favor of the plaintiffs and their land, and imposed a servitude upon the defendant's property. The right which the plaintiffs thus acquired to restrict the use of the defendant's property is sometimes called a negative easement, which is the right in the owner of the dominant tenement to restrict the owner of the servient tenement in the exercise of general and natural rights of property. Pitkin v. Railroad Co., 2 Barb. Ch. 221, 47 Am. Dec. 320; Day v. Railroad Co., 31 Barb. 548; 2 Washb. Real Prop. (5th Ed.) 314. The servitude thus imposed upon the defendant's property was in every legal sense an incumbrance, and an interest in lands which could pass only by deed. Huyck v. Andrews, 113 N. Y. 81, 20 N. E. 581, 3 L. R. A. 789, 10 Am. St. Rep. 432. The sole question in this

case is whether this easement in favor of the plaintiffs and servitude upon the defendant could survive the broad terms of the plaintiffs' grant to the defendant, made several months after the servitude was imposed. That grant conveyed to the defendant every possible right, interest, or claim that the grantor had or could assert against the premises in law or equity. The plain legal effect of that deed was to release or annul the restriction in favor of the grantor against the property. The continued existence of the servitude would be inconsistent with the terms of the grant and contradictory of its entire scope and meaning, and so we think that upon the delivery of that deed the easement and servitude ceased to exist. It ceased to exist as to both of the plaintiffs, since the deed from McManus to Uihlein was made subsequent to the time when the prior conveyances referred to had taken effect.

The plaintiffs were permitted, against the defendant's objection and exception, to prove the acts and conversation of the parties prior to the delivery of the quitclaim deed to the defendant, in order to show that it was not intended by that conveyance to release or otherwise affect the restriction upon the use of defendant's property contained in the prior agreement in regard to the party wall. The precise question is whether a person who has an interest in the real property of his next neighbor in the nature of an easement, and who conveys absolutely, without any exception or reservation of such easement, can afterwards be permitted, in an action to enforce the right involved in the easement, to show by parol that he intended to retain it, notwithstanding his deed. We think that the testimony was inadmissible. The deed in terms, as we have seen, purported to convey all the right, title, and interest of the grantor. The language employed necessarily included any easement that the grantor had or claimed with respect to the premises conveyed, and it was not competent to show by parol evidence that the easement was reserved or excepted. It was a violation of the rule which excludes such evidence to vary, explain, or contradict a written instrument that was complete in itself, and without ambiguity in its terms. The legal effect of the deed upon the prior easement was to be determined upon the words embodied in the conveyance, and not with reference to what the grantor thought or understood. When words have a definite and precise meaning, it is not permissible to go elsewhere in search of conjecture in order to restrict or extend the meaning. That deeds or other written instruments cannot be varied, enlarged, or restricted by evidence of that character appears from the words of the statute and the general consensus of authority. Laws 1896, c. 547, § 205; Armstrong v. Granite Co., 147 N. Y. 495, 42 N. E. 186, 49 Am. St. Rep. 683; McCluskey v. Cromwell, 11 N. Y. 601; Green v. Collins, 86 N. Y. 254, 40 Am. Rep. 531;

Thomas v. Scutt, 127 N. Y. 133-138, 27 N. E. 961; Case v. Phoenix Bridge Co., 134 N. Y. 78, 31 N. E. 254; Englehorn v. Reitlinger, 122 N. Y. 76, 25 N. E. 297, 9 L. R. A. 548; House v. Walch, 144 N. Y. 418, 39 N. E. 327; Devl. Deeds, § 837. It follows that all parol evidence tending to show that, notwithstanding the clear and comprehensive words of the quitclaim deed, the grantor therein still retained the right to restrict the grantee in the use of the property conveyed, should have been excluded. If, in consequence of fraud or mutual mistake, the deed conveyed more than the parties intended, it was subject to reformation in equity; but no facts have been found to justify any relief of that kind. This is an action projected upon the theory that the servitude imposed upon the defendant's property by the party-wall agreement remained in force after the plaintiff had conveyed the premises. Moreover, there is nothing in the record that tends to show that the defendant ever intended to pay to the plaintiff a considerable sum of money for a deed of all his interest in her property, and at the same time leave an outstanding incumbrance in the grantor that affected her title. In the absence of clear proof to the contrary, the natural and reasonable construction to be placed upon her acts and conduct would be that her intention was to procure a title clear and absolute, that she could mortgage or convey in the same way as she could if the restriction in question had never been imposed upon her land. This conclusion is not qualified or affected by the last or supplementary writing in regard to the party wall. That paper, as already observed, enlarged the defendant's rights by allowing her to extend her wall to the street line. The very fact that it did not impose any restriction, or by any form of words attempt to revive what was extinguished by the deed, tends rather to confirm than to weaken the general effect of that conveyance upon the easement, as indicated in the principles herein stated.

The judgment should be reversed, and a new trial granted; costs to abide the event.

BARTLETT, J. (dissenting). I am of opinion that the appellate division reached a proper conclusion, and that the judgment should be affirmed. A clear statement of the facts is essential to an understanding of the questions presented by this appeal. For several years prior to the month of January, 1899, the plaintiff McManus owned the premises situate in the city of Rochester known as No. 161 West avenue, and occupied the same as a saloon and restaurant. West avenue runs east and west. These premises were 18 feet wide and 100 feet deep. The defendant Margaret Matthews was the owner of a vacant lot 14 feet in width and about 100 feet in depth on the east side of and adjoining the premises of McManus. The defendant Matthews, being desirous of erecting a brick building on her lot, entered into nego

* * *

tiations with McManus for the purchase from him of three inches of land included in his premises and east of the east wall of his building thereon; and also for the use of the east wall of the McManus building as a party wall. Thereafter, and on the 4th day of May, 1898, pursuant to such negotiations, said agreement was entered into, and in consideration thereof the defendant Matthews covenanted and agreed with the plaintiff McManus that "she would not use or permit to be used the building to be erected by her upon her said property as a saloon and restaurant, or as a place for the sale of ales, beers, wines, and liquors, for the period of five years from the date of said instrument." It was further agreed that these covenants should run with the land. There is no finding that McManus owned any land east of his east wall except the three inches here conveyed, and his testimony shows that he never made any claim that he did. It is further found that after the defendant Matthews had erected her building she applied for a loan, and it was then discovered that within the bounds of her lot there was a strip of land about 21⁄2 feet in width, and extending the length of the lot, which was apparently not covered by her deeds, and it was a matter of dispute between herself and the plaintiff McManus as to the ownership thereof (there is no claim that McManus was her original source of title); that thereafter, and in the early part of November, 1898, McManus and wife, for the purpose of settling such controversy, for a valuable consideration, gave the defendant Matthews a quitclaim deed of all his interest in said land; that contemporaneous with the delivery of such quitclaim deed, and as a part of the same transaction, McManus and defendant Matthews entered into a written contract recognizing and continuing the former contract made by them, and dated the 4th day of May, 1898. This quitclaim deed is in evidence. It is to be borne in mind that the total width of the Matthews lot was only 14 feet, and yet this quitclaim deed purports to convey all the lands from the center of McManus' east wall to Julia street, a distance of about 44 feet. The 30 feet east of the land that the defendant Matthews owned McManus never claimed to own, nor had he any title to the Matthews lot. The real situation is clearly disclosed by the findings and the evidence. The defendant Matthews, having applied for a loan, was advised that within the bounds of her lot there was a strip of land about 22 feet in width and extending the depth of it, which was apparently not covered by the deeds. Neither the findings nor the evidence locates this 22-feet strip, and it is evident that the searcher of the title had some difficulty, as is often the case, in locating the various lots west of Julia street on West avenue, including those of Matthews and McManus. In order to correct any difficulty regarding this unlocated strip

of land, McManus, for a consideration, was induced to execute a quitclaim deed of all the land lying between his east line as bounded by the party wall and Julia street, although making no claim of title. The findings and the evidence make it plain that the sole object of this quitclaim deed was to correct this alleged defect in Matthews' title. It is expressly found that as a part of the same transaction a written contract was executed between the parties continuing the former contract and conveyance of May 4, 1898. These two contracts are in evidence, and the latter not only continued in force the agreement of May 4, 1898, as stated, but provided that Matthews having erected a brick building upon her land, extending the west wall thereof about two feet beyond the front wall of McManus' building to the line of the street, that the agreement of May 4, 1898, should apply to the entire west wall as erected, and conferring upon each party the right to use the extension as a party wall. McManus and wife, in January, 1899, conveyed to the plaintiff Uihlein, who afterwards leased the premises to McManus, and the latter continued to conduct on the premises a saloon and restaurant. The defendants O'Hara and Murphy were copartners, and about the 1st of July, 1899, with knowledge of the covenant entered into by Matthews, in which she agreed not to use her building for the sale of liquors, etc., for the period of five years from May 4, 1898, opened and conducted a saloon and restaurant upon the Matthews premises in alleged violation of this covenant. This action seeks to enforce the covenant, and restrain O'Hara and Murphy from conducting said business. The complainant also prays for damages, and for a reformation of the quitclaim deed, if it be found that the legal construction thereof was to render of no force or effect the covenant in the agreement and conveyance of May 4, 1898.

While it is the general rule that deeds or other instruments cannot be varied, enlarged, or restricted by parol evidence, yet there are many and well-established exceptions thereto. A familiar example is found in that power which has always been exercised by a court of equity to declare a conveyance which is absolute upon its face a mortgage. In the first place, we have read into this quitclaim deed the agreement of May 4, 1898, which includes the very covenant in question; also the subsequent agreement, executed contemporaneously with the quitclaim deed, the two constituting one transaction. It would seem to go without saying that a court of equity, under the undisputed facts here disclosed, has the power to examine all the written instruments, and, in the light of their provisions and the testimony of the parties interested, determine the exact nature of this transaction and the effect of the various conveyances and contracts. It is disclosed that during the negotiations resulting in the quitclaim deed it was not suggested that the