People ex rel. Bridenbecker v. Prescott

Mullin, P. J.: The objections taken by the defendant, on his appearing to show 'cause, were properly overruled. The first objection, that the proof of service of the notice of sale was insufficient, was too general to be available. Ho defect is suggested, so that no intelligent ruling could be made upon it. The next objection, that the facts necessary to constitute a legal foreclosure or sale are not sufficiently stated or shown, is also too general; no defect is pointed out. The objection, that the notice of sale on the foreclosure proceedings does not state or show that‘the subscribers to the notice had any [423] lawful right or authority to foreclose or make the sale, is answered by saying that no such statement need be made in either the foreclosure proceedings or notice of sale. The statute regulating proceedings to foreclose mortgages,* does not require any such statement to be made. Section 4 of the statute above cited, prescribes what shall be inserted in the notice of sale; the first of which is, that the names of the mortgagor and mortgagee, and of the assignee, shall be stated. Upon the death of the mortgagee, leaving a will by which executors are appointed, the legal title to the mortgage vests in the executors, in the absence of any bequest of it to some one else; and, when the executors affixed to their names the words, “ Executors of Jacob J. Eolts, deceased,” they disclosed their interest, and how it was acquired. Executors or adminstrators are not assignees within the meaning of that term used in the fourth section, above referred to. But if they are, the notice sufficiently discloses the fact. The annexation of the words, executors, etc., is not only descriptio personae, but is descriptive of the character in which they acted. The objections to the introduction of the affidavits of posting, etc., were properly overruled. The plaintiff was not required to state in his affidavit the name of each person upon whom notice of sale was served, or the precise day of service. It was for him to swear that copies of the notice were served on the mortgagors, and all persons having liens on, or interested in, the mortgaged premises. The papers offered contained the details of the service, and were competent to support the general averment of due service in the affidavit. The affidavits of publication show the notice to have been published for twelve weeks. The first publication was on the eighth day of April and again on the fifteenth, twenty-second and twenty-ninth ; the sixth, thirteenth, twentieth and twenty-seventh of May; third, tenth, seventeenth and twenty-fourth of June, and on first of July. The sale was on the third of that month. It was published, therefore, thirteen times, and the sale was on the eighty-sixth day from the first publication. The evidence given, and the admissions made, fully establish the facts stated in the plaintiff’s affidavit, and entitled him to a warrant that he be put into possession. [424] It is not important in this case to inquire how far the proceedings in foreclosure of mortgages, and of sales on execution, are open to review before officers authorized to entertain these summary proceedings. If they may be reviewed, it follows that they may be annulled, and thus the action of the highest court in the State pronounced illegal and void by a justice of the peace. This cannot be so. * It must be enough to produce before the officer the record of the proceedings on foreclosure. Whether they are in strict conformity to the statute, is not a subject with which the officer has anything to do. The former decision of the county judge dismissing the proceedings was not a bar to the subsequent one, as the dismissal was caused by defects in the affiadvit on which they were founded, † The county, judge had jurisdiction and his rulings were correct, and his judgment must be affirmed. • Present— Mullin, P. J., Smith and Gilbert, JJ. . Proceedings affirmed. Footnotes [*] 3 R. S. (5th ed.), 859, §§ 1 to 16 [*] Brown v. Betts, 13 Wend., 32. [†] Geisler v. Weigand, 5 Seld, 227.