Pell v. Ulmar

By the Court, S. B. Strong, J. I would gladly make a dis-. position of this cause favorably to the defendant if I could do so, consistently with the rules of law, for he has acted in good faith, and performed substantially what could be required from him. The fault which vitiates his defense was that of a public officer, in which he had no participation. If, however, he has any rights in the property in question they are of an equitable character, and cannot be enforced or sustained in the present action. The premises in dispute were mortgaged by R. A. Cooke and his wife to the loan commissioners of the county of Kings, [505] on the 29th of July, 1837. Default having been made in the payment of the interest, and the same remaining due on the first Tuesday in October, 1842, and for twenty-three days thereafter, the two commissioners, on the 29th day of that month, declared the mortgage foreclosed, and thereupon duly published a notice that such premises would be sold on the first Tuesday of the following February. In the intermediate time the term of office of Mr. Ryder, one of the commissioners, expired, and he thereupon ceased to act in that capacity. A successor was appointed, but he never qualified, and Mr. Fames, the other commissioner, conducted the subsequent proceedings alone; there not having been any other proper associate appointed until they had terminated. Mr. Fames, as commissioner, exposed the premises for sale on the first Tuesday in February, 1843, but there being no bids, the matter stood over until the third Tuesday in the following September. In the intervening time he took possession of the mortgaged premises, and advertised them for sale on the last mentioned day, when he made an attempt to sell them, but no one offering the requisite amount, he bid them in for the state. They were afterwards patented by the state to Blackwell, under whom the defendant claims title. Cooke, the mortgagor, and his wife, conveyed the premises, subject to the incumbrance, to the plaintiff, in May, 1838. The office of the associate commissioner (Mr. Ryder) had not been absolutely vacated according to the provisions of the revised statutes, when any of the transactions to which I have alluded took place. The specified instances of vacancy are the death of the incumbent, his resignation, his removal from office, his ceasing to be an inhabitant of the state or district, his conviction of an infamous crime, his refusal to take the oath or to file his official' bond when one is required, and the decision of a competent tribunal annulling his election or appointment. (1 R. S. 122, § 34.) By another provision of the revised statutes, (1 R. S. 117, § 9,) any officer (except certain judicial officers) who shall have entered upon the duties of his office is required to continue to discharge such duties, although his term of office shall have expired, until a successor in such office shall [506] be duly qualified. Although the proposed successor had omit-, ted to file his bond within the requisite time, and in effect refused to act, and there was one of the instances of vacancy specified in the 34th section to which I have alluded, yet that is qualified by the 9th section; and taking the two together, (and, as they were passed at the same time, that is the proper way to consider them) the old officer whose term had expired had not only the right, bat was bound, to act. It would seem to follow, and I think it does, that under those circumstances the associate fully office had not the powers of sole commissioner. As a general rule, statutes conferring powers upon officers, relative to the divesture of estates, are construed strictly. Titles to our property are so important that they should not be compulsorily destroyed or affected, except by means clearly defined and closely pursued. Where powers are conferred upon a number to act collectively, and especially in matters involving any discretion, it is an indication that the association, if not the concurrence of all is essential. The two commissioners acted together in October, 1842, and what was then done by them was legal. They then, pursuant to the 30th section of the act of April 4th, 1837, became seised in fee simple of the mortgaged premises to the uses mentioned in that act, but the mortgagor, his heirs and assigns had the right of possession expressly reserved to him or .them until the first Tuesday of February thereafter, and to redeem the same as subsequently provided. According to the decision of the court of appeals in Olmsted v. Elder, (1 Selden, 144,) the mortgagor had the right of possession, as against strangers, until the subsequent measures required by the statute to divest such right had been pursued. It was also held in that ease that a sale by one commissioner was unauthorized ; that the purchaser, although subsequently receiving a deed from both commissioners, acquired no title; that he could not be deemed an assignee of the mortgage, as the commissioners had no right to assign it; and that consequently such purchaser was a stranger, and could not protect his possession against the mortgagor. The differ [507] ence between that case and the present one is, that there the defendant derived title under a deed .from the commissioners, and here the defendant has received a patent from the state. But as neither was authorized by law, both must be equally ineffectual. [Dutchess General Term, April 8, 1856. If the right of possession until the first Tuesday in February, 1843, had been made determinable upon the default of the mortgagor alone, in express terms, then as there was such default the title of the state would have become absolute, and the possession of the defendant would have been protected. But .the statute does not so declare. It is quite apparent that the subsequent proceedings specified in the statute were requisite to divest the right of possession of the original owner. If the state officers had done nothing subsequent to the publication of the advertisement of sale, in October, 1842, it could not be supposed that the mortgagor’s right of possession was gone. What was done by a single commissioner, after that, being unauthorized by the statute, was null and void, and could not divest any right. The 23d section of the act of April 4,1837, authorizing one commissioner to execute a deed, where there is a vacancy in the office of commissioner, in cases where a sale had been regularly made, certainly implies that without an express enactment the statutory powers cannot be exercised by one alone, in any emergency. The statute of May 12, 1846, providing that the acts of the one commissioner after the expiration of the term of office of his associate, and before a successor had been duly qualified, should be of the same force, effect and validity as if they had been performed by two commissioners jointly, could not, and did not, act retrospectively, so as to take away any existing right. We hold our rights of property under a higher power, which cannot be overthrown by the legislature. The judgment should be affirmed. Brown, S. B. Strong and Rockwell, Justices.]