Howard v. Hatch

Balcom, J. The plaintiff was not entitled to recover unless he proved and established, at the trial, that he had, at the time of commencing the action, a valid subsisting interest in the premises claimed, and a right to recover the same, or — 301 — to recover the possession thereof. (2 R. S. 303, § 3.) It was therefore necessary for him to show that all the requirements of the statute authorizing the sale of the premises hy virtue of the power contained in the mortgage, had been complied with, to entitle him to the report made by the referee. ( Vanslyke v. Shelden, 9 Barb. 278. Stanton v. Kline, 16 id. 9.) Did he do this ? The notice of sale was first published on the 30th day of April, and lastly on the 16th day of July, 1856. The day named in it for the sale was the 24th of July in the same year. ' It was published twelve times, in 12 successive weeks, and only once in each week; and the time of sale was the 85th day after the first publication : so that the notice was published during eighty-four days, exclusive of the one on which it was first published and the day of sale; and I think it was published for twelve weeks successively, within the meaning of the statute prescribing the time and manner of publication. (2 R. S. 545, § 3, sub. 1. Laws of 1842, p. 364, § 5.) It was published during the time between the 16 th and 24th days of July, as much as it was during the time intervening publication days, prior to the 16th of July. The decision in Bunce v. Reed, (16 Barb. 347,) is not an authority against this position ; for Justice Hand, in that case, used this language : “I do not say that an affidavit of publication for twelve weeks successively, is not sufficient on a mortgage sale, if it distinctly appear that the first publication was at least eighty-four days (the day of first publication exclusive) before the sale.” And I think the anonymous case in 1 Wendell, page 90, is not in conflict with the conclusion that a publication is sufficient, on foreclosing a mortgage by advertisement, if it be" made once in each week for twelve weeks successively, although all the publications are made within seventy-eight days, as in this case, when the first is eighty-four days prior to the time specified in the notice for the sale, exclusive of the first day on which it is published. — 302 — And I am of opinion the notice of sale in this case was regularly and sufficiently published. The affidavits of publication and affixing the notice of sale, and of the circumstances of such sale, are made evidence by statute, of the sale and of the foreclosure of the equity of redemption, “ without any conveyance being executed, in the same manner and with the like effect as a conveyance executed by a mortgagee upon such sale to a third person.” (2 R. S. 547, § 14. Laws of 1838, pp. 263, 264, § 8.) It seems, however, that there must now be affidavits of the service of the notice of sale on the mortgagor, county clerk and others, mentioned in the statutes of 1844 and 1857, (Laws of 1844, p. 529 ; Laws of 1857, vol. 1, p. 667,) to make the evidence of the sale and foreclosure complete. (Layman v. Whiting, 20 Barb. 559.) But that question is not now before the court; for all the above mentioned affidavits were made in this case. The only proposition to be determined, on this branch of the case, is whether it was necessary to have the affidavit recorded, to pass the title of the premises in dispute to Tower, under the mortgage sale. Section 12 of the statutes “ Of the foreclosure of mortgages by advertisement,” declares that “ such affidavits shall be recorded at length” by the county clerk, (2 R. S. 547;) but it does not say they must be so recorded before they “ shall be presumptive evidence of the facts therein contained.” And there is nothing in section 14, (by which it is declared that such affidavits “ shall he evidence of the sale and of the foreclosure of the equity of redemption,”) or in any other statute, making it obligatory on the person making the foreclosure and sale, to have the affidavits recorded, in order to pass the title of the lands to the purchaser. I think what is said in section twelve, about the affidavits being recorded, is merely directory; and that the purchaser does not forfeit, or even suspend, his right to the premises purchased, by omitting to have the affidavits record — 303 — ed ; and that the words “ shall be recorded,” in such section, should be read as though they were “ may be recorded.” The only necessity for a provision in section 12, on the subject of evidence, arose because “certified copies” of the record of the affidavits were therein declared to be presumptive evidence of the facts contained in the originals. This is palpable, for the reason that the original affidavits are made evidence of the sale and foreclosure by section 14 j and all that is said in section 12 as to the original affidavits being presumptive evidence, if considered irrespective of the fact that certified copies of such affidavits are declared to be evidence, might have been omitted by the legislature, without varying the effect of sections 12 and 14 in the least, when construed together, as they must be; for the reason that otherwise the two sections, as they stand, would exhibit useless legislative tautology. The conclusion seems to me to be irresistible, that the affidavits pass the title to the purchaser without being recorded; and that Tower acquired the title to the premises in dispute, although the affidavits, which show how he obtained it, were not recorded. In coming to this conclusion, I have not been unmindful of the dictum of the learned Judge Cady, in the Cohoes Company v. Goss, (13 Barb. 144,) that no title passes to the purchaser until the affidavits be recorded. This remark was wholly unnecessary to the decision of the case in which it was made ; and it purports to have been induced by the opinion of Chief Justice Bronson, in Arnot v. McClure, (4 Denio, 41.) But with all due deference to the great learning and usual accuracy of Justice Cady, I think the opinion, in that case, instead of supporting his dictum, militates against it; for Judge Bronson there said : “Now, by express enactment, the affidavits may have all the force and effect of a conveyance by the mortgagee to a third person. (2 R. S. 547, § 12. &'tat. of 1838, p. 263, § 8.) This is in addition to the provision that the affidavits, when recorded, shall be — 304 — presumptive evidence of the facts therein contained; and they now perform the double office of proving the regularity of the proceedings to foreclose, and standing as a conveyance to the purchaser.” (4 Denio 44, 45.) I therefore hesitate much less, in saying that the dictum of Justice Cady is erroneous, than I should if I supposed it was sustained by even an obiter remark of Justice Bronson. The only remaining question to be determined, in this case, is whether the plaintiff should have recovered, without expressly proving that Tower was authorized by the Madison University to foreclose the mortgage, under which he claimed title to the premises in dispute. That institution was duly incorporated by a legislative act in 1846. (Laws of 1846, p. 32.) Tower was the treasurer of the corporation ; and the evidence showed that he took the mortgage and held it, and foreclosed it in his official character, for the corporation. It was assigned to him as treasurer, and “ to his successors in office ;” and he stated, in the notice of sale of the mortgaged premises, that he, “as such treasurer,” was, “the owner and holder” of the mortgage. We should presume that'Tower had authority from the corporation- to receive all moneys due on the mortgage, and to cancel or satisfy it as treasurer. The case of Jackson v. Campbell, (5 Wend. 575,) shows that in the absence of all proof on the subject, we should presume that Tower, as treasurer of the Madison University,- had authority to foreclose the mortgage by advertisement, and sell the premises ; and having such authority, his purchase of the premises at the sale, for himself, for a less sum than was due on the mortgage, did not render the sale void, or prevent him conveying a good title to the plaintiff. The judgment in the action should be affirmed with costs. Campbell, J., concurred. Mason, J., dissented, on the ground that it was not shown — 305 — that Tower was authorized by the Madison University to foreclose the mortgage. [Chenango General Term, May 10, 1859. Mason, Balcom and Campbell, Justices.] Judgment affirmed with costs.