Cole v. Moffitt

By the Court, Harris, J. The original notice of sale was entirely ineffectual for any purpose connected with the foreclosT ure. It may be, that the republication of the notice with the several notices of postponement, for twelve weeks preceding the day of sale, would be a sufficient compliance with the requirement of the statute. I am inclined to think it would. Disregarding all that had been done prior to the 24th of December, and regarding the notice, as it was then published, as the commencement of the proceedings, I think enough may be found in that notice, however awkward and unseemly it may appear, to meet the requirements of the statute. This notice, too, was affixed upon the outward door of the court house, and thus another requirement of the statute- was met. But, even if the notice as published on and after the 24th of December, and the affixing of a copy of this notice in the manner specified, were sufficient, there is still another ingredient in a valid statute foreclosure which is not to be found in these proceedings. There was no attempt to serve a copy of the notice upon the mortgagor. Without such service, in the manner prescribed by the legislature, if he was living, there could be no valid foreclosure. (See Van Slyke v. Shelden, 9 Barb. 278. King v. Duntz, 11 Barb. 191.) The plaintiff sought to obviate this objection by proving that the attorney who conducted the proceedings had made inquiries for the mortgagor, and had been informed that he was dead. If the death of the mortgagor bad been proved, the objection to the validity of the proceedings would have been removed, unless it had further appeared that [21] he had personal representatives. But there was, in fact, no evidence at all of the death of the mortgagor. , Even if it had been competent to prove such death by reputation, the inquiries and information of which the attorney speaks, furnish no evidence of such reputation. But, in this case, it was not competent to prove such death by hearsay. There were no circumstances to render such secondary evidence admissible. The death of the mortgagor, if the party alleging the validity of the proceedings would show an excuse for not serving him with notice, should have been proved by legal evidence of the fact, and not by mere hearsay or reputation. (Fosgate v. Herkimer Man. & Hydraulic Co. 12 Barb. 352.) If upon a new trial the plaintiff should be able to establish this fact, and there were no personal representatives of the mortgagor upon whom the notice could have been served, he may yet succeed in the action ; but the judgment must be reversed and a new trial granted, with costs to abide the event. [Albany General Term, September 4, 1854. Wright, Harris and Watson, Justices.]