Cohoes Co. v. Goss

By the Court, Cady, J. The only question is, did the judge before whom the cause was tried, err in deciding that the defendant, Bentley, had not shown a regular foreclosure of the mortgage, nor shown such a state of facts as estopped the plaintiffs from insisting that the mortgage had not been regularly foreclosed 1 If he did not err in so deciding, then he certainly did not err in directing the jury to find a verdict for the plaintiffs. The evidence in the cause shows that at the time the defendant alledges that he purchased the mortgaged premises, the comptroller was the assignee of the bond and mortgage, and the mortgaged premises were not advertised or sold in his name, nor was he named in the advertisement of sale as the assignee of the mortgage, as required by 2 R. S. 2d ed. 450, 2d subdivision of section 4. The defendant, Bentley, put his defense on the ground that he was at the time he answered, the true and lawful owner of the mortgaged premises, by virtue of a foreclosure of the mortgage mentioned in the complaint, and a sale of the premises under and by virtue of said mortgage and foreclosure. He alledged various facts, in his answer, in order to show that there [144] was a regular statute foreclosure, and among others that a copy of the notice was affixed on the outer door of the building where the county courts of the county of Albany are directed to be held, at least twelve weeks prior to the time therein specified for the sale of the said premises, and that allegation was denied by the plaintiffs, and no evidence offered to prove it. Unless a notice was so affixed there could not have been a valid foreclosure. It was for the defendant to prove that fact. The statute gives no effect to a foreclosure unless conducted as prescribed in the statute. There must be an affidavit of the fact of the sale, made by the person who acted as auctioneer; an affidavit of the publication of the notice of the sale made by the printer of the paper in which it was published, or his foreman; and an affidavit of the affixing a copy of the notice on the outward door of the court house; and when these affidavits are filed and recorded they are a substitute for a deed. (Laws of 1838, ch. 266, § 8.) But until such affidavits be made, filed and recorded, or a deed given in pursuance of the sale, no title passes to the purchaser. (Arnot v. McClure, 4 Denio, 41.) It is therefore certain that the defendant gave no evidence that he is the “ true and lawful owner of the premises mentioned in the complaint, by virtue of a foreclosure of the said mortgage.” Upon the argument it was insisted, on the part of the defendant, “ that the testimony was sufficient to maintain ah action by the defendant, Bentley, against the plaintiffs, to compel a specific performance, or a continuation of the title by his bidding off the property on the sale under the mortgage.” But has the defendant set up such a defense in his answer ? In his answer he claims “ that he is the lawful owner of the premises.” He does not set up any executory contract of which he has a right to a specific performance, and thereby acquire a title to the premises, He has not alledged in his answer, that he paid or offered to pay, or was ready and willing to pay, any consideration for the premises. And suppose he succeeds in this action upon that answer, he will hold the premises without paying any consideration. Had he intended to rely upon any executory contract which gave him an equitable right to hold possession, he [145] should have stated the terms of the contract, and averred a rear diness to perform on his part. Again, it was insisted on the part of the defendant “ that if there were any irregularity in the foreclosure, or any want of authority in the plaintiffs to make such foreclosure in the name of the Exchange Bank, the plaintiffs are estopped to raise that objection in this action.” What, according to the answer of the defendant, have the plaintiffs done by which they are estopped? The defendant alledges that although the mortgage was assigned to the Exchange Bank, the plaintiffs had an interest therein; that the notice of sale was published as well under the immediate agency and direction of the plaintiffs, as of the bank; that McElwain acted in the publication of said notice, and in conducting the sale as auctioneer, not only as the attorney of the bank, but also as the attorney of the plaintiffs, and that the said sale to the defendant was made by the plaintiffs, and for their benefit, as well as by the bank, and for the benefit of the bank. Suppose all this be true, does it estop the plaintiffs from alledging that neither the bank nor themselves were then the owners of the mortgage, or had any power to sell the mortgaged premises; or does it estop the plaintiffs from alledging that the sale was irregular and void, because the notice of sale was not affixed on the outer door of the court house ? If a man sells a piece of land to which he has no title, and receives a thousand dollars for it, and gives a quit-claim deed, and afterwards acquires a title, he is not estopped from alledging that he had no title when he gave the quit-claim deed. (4 Kent's Com. 98, 99.) In this case, there has been no deed or covenant of warranty on the part of the plaintiffs ; nothing so solemn as even a quitclaim deed. Hay, they have not, by themselves or their agent, signed any paper whatever. The plaintiffs, then, are not es-topped by deed. If estopped at all, it must be by matter in pais. What have they done ? It is said that D. McElwain, by their authority, and as their attorney, published a notice that the premises in question would be sold at public auction at a certain time and place, by virtue of a power contained in the [146] said mortgage; at the time and place mentioned in the notice, the defendant attended and made the highest hid for the property, and McElwain struck it off to him, and said that the property was his. Who was estopped or hound by that? Was the defendant bound to pay his bid without he was furnished with all the affidavits required by statute, to show the regularity of the foreclosure? Was he not at liberty to say, “I find that the mortgage under which you have been pretending to sell, does not belong to the Exchange Bank, but to the comptroller of the state. I find the notice of sale has not been affixed to the outer door of the court house,” and might say, “ I have not yet signed any memorandum binding myself to make the purchase, nor have you yet given me any note or memorandum that you will give me a title ; and I will not, therefore, pay my bid.” ’ The rule as to estoppels in pais, as well as those by deed is, that both parties must be bound if either. (Welland Canal Co. v. Hathaway, 8 Wend. 484.) If he was not bound when his bid was accepted, no one was. If he, immediately after his bid was accepted, might have said, “ I retract my bid, you have not given me any note or memorandum that the land shall be conveyed to me, nor have I signed any agreement to pay my bid, and I will not do it.” Neither party was bound by what was said or done at the auction. ( 2 R. S. 2d ed. 69, §§ 6, 8, 9.) Suppose the owner of a farm should, in a public assembly, offer it for sale to the highest bidder, and a person should bid $1000, and the owner of the farm should say to him, you are the highest bidder, the farm is yours ; would either be bound ? If not, neither party was bound in this case. The, language of the statute is, that every contract for the sale of lands, shall be void, “ unless the contract or some note or memorandum thereof expressing the consideration, be in writing, and be subscribed by the party by whom the lease or sale is to be made, or by the agent of such party, lawfully authorized.” Let it be granted that D. McElwain was " the lawfully authorized agent of the plaintiffs, and of the Exchange Bank; neither he nor they have signed any contract, or any note or memorandum thereof, of which a specific performance could be decreed in any court. [147] (Mc Whorter v. McMahan, 10 Paige, 386,) shows that the vendor or his agent must sign the contract or memorandum thereof. Coles v. Bowne, (Id. 535,) is to the same effect. The Trustees of the Baptist Church of Ithaca v. Bigelow, (16 Wend. 28,) shows that the memorandum of the sale made by the agent of the vendor must contain all the terms of the sale— no part can be supplied by parol. I am, therefore, of opinion that the motion for a new trial should be denied, with costs. [Warren General Term, May 3, 1852. Willard, Hand, Cady, and C. L. Allen, Justices.] New trial denied.