Jackson ex rel. Walsh v. Colden

Sutherland, J. The plaintiff claims title to the premises in question, under a mortgage given by John Yander Speigel to the defendant, bearing date January 22d, 1819, which was assigned by the defendant to the lessor of the plaintiff, on the 2d day of February in the same year. The mortgage was foreclosed under the statute ; and the premises sold on the 9th day of August, 1821, to the lessor of the plaintiff, he being the highest bidder; and this action is brought, to recover the possession of the mortgaged premises thus sold. The plaintiff’s title is resisted on several grounds. 1. It is contended that the foreclosure was void; first, because it was not, and could not be consummated by a deed ; the owner of the mortgage, in whose name the deed must be given, having himself become the purchaser. Secondly, because the acknowledgment of the mortgage was taken out of the state, by a commissioner of the state, and the power to sell, therefore, was not properly recorded. 2. It is contended that the contract, under which the assignment to the lessor took place, was xisurious; that he cannot, — 276 — therefore, recover under the assignment, if the foreclosure should be held.void and inoperative ; and 3. That the defendant was entitled to notice to quit. I am inclined to the opinion, that the lessor of .the. plaintiff acquired a valid and legal, title under, the foreclosure, although no deed was executed upon the sale. The statute (1 R. L. 375, s. 10) provides that no title to mortgaged premises, derived from any sale, made in virtue of a special power .fpr that purpose contained in the mortgage, shall be questioned, impeached or defeated, either at law or in equity, by reason that the mortgaged premises were purchased in by the mortgagee or his or her assignee, or by his, her or their legal representatives, or for his, her or. their benefit or .account ; - provided that the sale was, in every other respect, regular, fair and with good faith. Here is an implied statute authority to the mortgagee, or his assignee, to become a purchaser, not only by his agent, but in his own person. The legislature must have been aware, that the owner of the mortgage-is the person who .maltes .the sale; and in whose name the conveyance to- the purchaser must be given ; and when they authorized the mortgagee, .or his assignee, to become a purchaser, they must have contempla teda sale without a deed, as none, in such case, can be given. / The other .provisions of the act- are adapted to meet a contingency like.this ; and to guard against the. objection on general principles, as well as those which grow out of the statute of frauds, to a foreclosure without deed. The 7th, 8th, and 9th sections of the act provide for perpetuating the evidence of the regularity of the sale. The affidavit of the printer who published the.-advertisement, and -of the person who put it on the door of the court-house, apd also of the person, who acted as auctioneer at the sale, stating the circumstances of.the sale, after having been duly acknowledged and certified, may be recorded.at full kngth •in the book of mortgages, in the clerk’s office of the county where the lands lie ; and the record of either of the affidavits is made, prima facie, evidence of the facts set forth in-it. The affidavit of the auctioneer generally, and I believe universally, has a copy of the advertisement of sale at tached — 277 — to it; and states that tho sale was fair and public; and made at the time and place mentioned in the advertisement ; to whom the premises were struck off, and for what sum. Although the statute is not imperative, that these affidavits shall be recorded, yet the obvious importance to tho purchaser, of putting the evidence which they contain beyond the reach of casualty, has rendered the practice of recording them universal. In this case, they were actually recorded within a fortnight after the sale; and the affidavit of -the auctioneer, by reference to the advertisement attached to it, contains a particular description of the premises sold, the time and place at which the sale took place; and states that the premises were struck off to William Walsh, the lessor of the plaintiff, who was the highest bidder, for $3000. This is cle.uly a sufficient note, or memorandum in writing to take the case out of the statute of frauds; and obviously distinguishes it from that of Simonds v. Caflin, (2 Caines’ Rep. 61.) The point there decided was, that sheriff’s sales upon executions were within the statute of frauds; and would not pass an estate without a deed or note in wiiting, signed by the sheriff; and that the return of tho sheriff, in that case, upon tho execution, was not a sufficient deed or note in writing within the act; because it did not contain tho requisite certainty. Kent, Ch. Justice, who delivered the opinion of the Court, says, “It does not appear what estate was sold, whether an estate for yeais, for life, or in fee, nor is there any certainty as to tho thing sold. It was stated to be all that farm or tract of land in Pompcy, in the tenure and occupation of the defendant ; but there was no estimation of the quantity of laud sold, nor in what part of the town it lays, or how marked or houndedand he says, “ in all cases of sheriffs sales, the thing sold must be specified with s) much precision, as-that, from the description, it can be reduced to a certainty.” Tho affidavit of the auctioneer does contain all the particulars in which the return of the sheriff was here held to he defective; and clearly, in my judgment, removes the objection growing out of the statute of frauds. — 278 — If the statute, then, by authorizing the mortgagee, ur his assignee, to become the purchaser at the mortgage sale has impliedly dispensed with the necessity of a deed to pass the estate in such a case, since none can be given ; and if there is a sufficient note in writing to take the case out of the statute of frauds, then the equity of redemption of the mortgagor was regularly foreclosed, and the whole estate vested in the lessor of the plaintiff by the mortgage sale. Whether the acknowledgment was void or not, on account of its having been taken in Vermont, by a commissioner of this state, it is not material to decide; though I incline to the opinion that it would have been void, between different parties. But it does not lie in the mouth either of Golden or Vander Speigel, after having procured the acknowledgment to be thus taken, and the mortgage, with the power of sale to be recorded, to question the authority of the commissioner. They have affirmed his authority; and shall not be permitted now to question it as against a bona fide purchaser under the power. But the acknowledgment and registy of the mortgage are not necessary to its validity, as between the original parties; nor would an entire omission to record the power, affect the sale as between them. (Berry v. Mut. Ins. Co. 2 John. Ch. Rep. 611. Jackson v. Dubois, 4 John. Rep. 216.) Mr. Justice Kent, in Bergen v. Bennet, (1 Cain. Ca. Err. 17,18,) says, the only use in recording the power is, for the benefit of the purchaser; and it does not lie with the mortgagor to object to the validity of the sale, by reason of that omission. The mortgage having been, therefore, regularly foreclosed, and the lessor of the plaintiff become the purchaser, neither the question of usury, nor the necessity of notice can arise. The lessor’s title, is derived from the mortgage, in which there is no pretence of there having been usury; and not under the assignment, in which the usury is alleged to have taken place. The mortgagor in possession, has never, I believe, been held to be entitled to a notice to quit from the purchaser under the foreclosure of the mortgage. There is no privity, nor any thing like the relation of landlord and tenant, sub — 279 — sisting between them; (3 John. Rep. 422. 2 John. Rep. 75, 84. 4 John. Rep. 215. 6 John. Rep. 272,) but if there was, the case of Jackson ex dem. Bennet v. Lamsen, 17 John. Rep. 300,) has settled that the notice of sale under the power is equivalent to six months notice to quit. It was urged on the argument, that this was not an operative mortgage, as between Vander Speigel and Golden; that it was made for the purpose of enabling Golden to raise money, and falls within the principle established by this Court in Munn v. The Commission Company, (15 John. Rep. 44,) and Bennett v. Smith and Phelps, (15 John. Rep. 355,) and Powell v. Waters, (17 John. Rep. 176,) that if a bill or note be made for the purpose of raising money upon it; and it is discounted at a higher premium than the legal rate of interest ; and when none of the parties whose names are on it, can, as between themselves, maintain a suit on the instrument when it becomes mature, provided it had not been discounted, that then such discounting would be usurious, and the instrument void. Admitting that this principle may be applicable to specialties, as well as to negotiable paper, it must be with the qualifies tion, that the person purchasing knew that the specialty was not operative, being made for the purpose of raising money. The evidence in this case does not establish the fact that Walsh knew of the circumstances attending the creation of the bond and mortgage when he became the purchaser of it. His application to Vander Speigel to know if he had any objection to his purchasing the bond and mortgage ; and Vander Speigel’s reply, that he would as soon pay him as Golden, or any other person, afford satisfactory evidence that he at that time believed the bond and mortgage to be fair and valid ; and there is nothing in the case to show that he learned the real nature of the transaction, “before he completed the purchase, or until the winter of 1821. This view of the case renders it unnecessary to consider whether the assignment of the mortgage to Walsh, was usurious or not. Woodworth, J. concurred. — 280 — Savage, Ch. J. doubted upon the question of usury; but as to tlie other points, he remarked as fohows: 1. By the act concerning deeds, (1 R. L. 369,) and the act authorizing Commissioners to be appointed to take the proof and acknowledgment of deeds, passed March 24,1818, (sess. 41, ch. 55,) it seems to have been the policy of the legislature, to provide officers authorized to take the proof or acknowledgment of deeds in all places where they could possibly be necessary. But it does not necessarily follow that iheyare confined to their territorial limits. The Judges of the Supreme Court of the United States have, of course, jurisdiction throughout the United States; and the Judges of the Superior Courts of the several states, within their states. There is nothing prohibiting those officers from acting within the limits of this state or of any other state. The trust, as to them, seems to be a personal one, arising from that weight of character supposed to be connected with the offices they respectively hold. The Commissioners, by the act of 1818, have the same powers which a master in Chancery or a Judge of the Common Pleas previously had. Their jurisdiction, no doubt, extended throughout the state; and, but for the case oi Jackson v. Humphrey, (1 John. Rep. 498,) I should have contended that their authority w;as not limited by territory. It was there decided that a Judge could not take proof in Canada, because he could .not administer an oath out of the state, nor could the witness be convicted of perjury. These pbjections would lie equally'well to an act by any other officer out of the state. We certainly could not convict a witness in this state who had sworn falsely in Vermont, before the Chief Justice of that state; and if he should be indicted in that state for perjury thus commuted, might it not be well urged that he bad not oifended against the laws of that state ? And that the Chief Justice in administering an oath to him acted extrajudicially, and without authority under the laws of that state 1 There is, however, one argument to be drawn from the act of 1818, in favor of confining the officers named in the act to their several appropriate jurisdictions. The commissioners first received their authority from the act of the 24th of March, 1818, the 5th section — 281 — of which provides that when a deed is proved or acknowledged before a Common Pleas Judge or Commissioner, and such deed is to he recorded in a different comity fiom that in which the Judge or Commissioner resides, no record shall he made of it, unless accompanied by a certificate from the clerk of the county in which such Judge or Commissioner j-csides, stating that such person is Judge or Commissioner, and that the signature is genuine; and the 6th section provides that nothing in tiiis act shall extend to deeds proved or acknowledged out of the state. Now, whether the 6th section is construed to extend to the whole act, or to the 5lli section, it seems to show the intention of the legislature on tills question. If it relates to the whole act, then it expressly denies the power of the Commissioners out of the state. If it has relation only to the certificate of the county Clerk mentioned in the 5th section, then, if the Commissioners possess the power cóntended for, this would follow, that when acting in their own counties, their signatures, and official existence must be proved by the county Clerk; hut when acting out of the state no such proof is required; that is, when they act out of the state, greater credit is to he given to their official acts than when acting within it; an absurdity not to be imputed to the legislature. I apprehend the legislature never intended the Commissioners should execute their offices out of the state. But that point is not very material in this case. The acknowledgment is necessary in order to warrant the record ; hut the recording a mortgage or power of sale is not necessary to their validity as between the parties. 2. The proceedings and sale under the statute are a species of foreclosure of the equity of redemption ; and I confess I can see no necessity for a deed, unless when a third person purchases. The mortgagee has the legal estate. It is true, for some purposes, the mortgagor is deemed to be the owner and to he seised until after foreclosure; but he cannot set up title in himself against the mortgagee after condition broken. In Bergen v. Bennett, (1 Cain. Cas. Err. 1,) and Jackson v. Henry, (10 John. Rep. 185,) the assignee conveyed to his own agent, and the Court cqn. — 282 — sider it equivalent to a purchase by the assignee. The first case happened before, and the last after the passage of the act authorizing the mortgagee, &c. to purchase. In both cases the conveyance was deemed valid. If so, would not a deed from the assignee to himself be valid 1 Such a deed would certainly be an useless ceremony, if it be true that the mortgagee or assignee.already has the legal estate. 3. A notice to quit, after a six months notice of the foreclosure and sale, was clearly not necessary. There was nothing like the relation of landlord and tenant existing between these parties. The assignee, holding the legal estate, was entitled to recover against any person holding under, or by title derived from the mortgagor, which was the case of this defendant. The objection tliat the mortgage was not a valid instrument, upon any other ground than that of usury, ought not to be listened to when coming from the very man who had transferred it as a valid mortgage to the lessor of the plaintiff. To allow it, would be permitting the defendant to take advantage of his own fraudulent conduct. Judgment for the plaintiff.