Peck v. Knickerbocker Ice Co.

Boardman, J. : Unless the law compels a reversal of this judgment, every consideration of fairness and right would lead us to affirm it. The defendant had the beneficial use of the property for the entire term it required the use, notwithstanding the foreclosure. The premises remained unoccupied for the last month or two before the end of the term, simply because no one' had any use to make of them ; but we think the judgment is readily sustained upon authority. The alleged eviction or surrender was made before Huested, the purchaser, had received his deed. Huested at that time had no title to the property, and the act of delivering the keys of the leased property to him by the tenant was a nullity, so far as Mrs. Peck was concerned. It would not have prevented her from suing and recovering for rent thereafter, becoming due prior to the delivery of the deed. If the act was a nullity when done, no other act was afterwards performed which could constitute an eviction or a surrender of the leased premises prior to the first of November, when the term ended. But passing that consideration, the decree of foreclosure and sale under it do notjper se divest the title of the mortgagor. By ’he decree in that case, the tenant was entitled to the possession [186] of the mortgaged premises until the first of November, unless the purchaser under the foreclosure presented his deed and the order of confirmation by the court. That was not done mitil after November first. The purchaser takes title under and by virtue of the judgment, and he had no right to possession under his purchase, until the performance of such prerequisites as that requires. Until such time Mrs Peck, through her tenant, had the legal right to hold the property, and the contract between them remained unaffected. (Whalin v. White, 25 N. Y., 462; Giles v. Comstock, 4 id., 270.) The confirmation of the report of sale was essential to the purchaser’s acquiring title. (Astor v. Turner, 11 Paige, 436; Clason v. Corley, 5 Sandf., 447; 1 Barb. Ch. P., 528, 529 and 531.) In the case of Simers v. Saltus (3 Den., 214), it is assumed by the court that the purchaser at the mortgage sale was entitled to the possession. We must therefore infer that the sale had been confirmed in accordance with the practice in chancery at that time. (Barb. Ch. Pr., supra.) In Mitchell v. Bartlett (51 N. Y., 447) it would seem that the judgment gave the purchaser the right to the possession on the production of the referee’s deed. Whether a confirmation of the sale had been obtained does not appear ; but the court holds that the purchaser is not entitled to the possession except in pursuance of the provisions of the judgment. While the mortgagor’s title may be divested by the giving of a deed alone, in pursuance of a judgment requiring that only, in this case a confirmation of the sale, as well as the delivery of the deed, was required, and both are necessary to vest title and right of possession in the purchaser. Until the confirmation of the sale by the court, it is not absolute. It may be set aside and a re-sale ordered. The purchaser has acquired only a contingent right. Until such right becomes absolute by confirmation, it would seem to be the better practice that the purchaser ought not to have possession. Por the reasons stated, we think the judgment is right and should be affirmed, with costs. Bocees, J., concurred. [187] Learned, P. J.: I concur in the result, but am not willing to say that confirmation of the report of sale is necessary to vest title in the purchaser. In the present case, I don’t think there was any eviction or surrender which was valid. Judgment affirmed with costs.