The proceedings to foreclose the mortgage given by plaintiffs' father to Burbank were regular. The only plausible ground of exception is to the postponement of the sale from the 10th September, 1839, to the 25th of the same month, by a notice dated on the 7th, and which was published in the newspaper on the 11th, the day after the one first appointed for the sale. It was not proved that any person appeared for the assignee of the mortgage, at the time and place appointed for the sale, and then and there gave notice of postponement. If this was essential to a valid postponement, none was made, and the subsequent sale was wholly irregular.
Section 5 of the statute regulating foreclosures of mortgages by advertisement (3 R.S., 5th ed., 860), provides that a sale may be postponed from time to time, by inserting a notice of such postponement, as soon as practicable, in the newspaper in which the original advertisement was published, and continuing such publication until the time to which the sale was postponed. *Page 162
It is the publication of the notice of postponement that adjourns the sale, and such notice need not be published before the day of sale. It must be done as soon as practicable after the necessity for the postponement arises, and this necessity may arise before the sale, but will more frequently arise on the day of sale, so that a publication before the day would be impossible.
In chancery, the foreclosure, and a sale by the master, barred the mortgagor's equity of redemption. (Brown v. Frost, 10 Paige, 243.) A deed was not necessary to accomplish that result.
The 8th section of the statute above referred to declares that every sale, pursuant to a power and conducted as therein prescribed, made to a purchaser in good faith, shall be equivalent to a foreclosure and sale under the decree of a court of equity, so far as the mortgagor's equity of redemption is concerned.
A deed from the mortgagee or assignee, when some person other than himself is the purchaser at such sale, or the affidavits of publication and sale and posting when such mortgagee or assignee is the purchaser, is not necessary to extinguish the mortgagor's equity of redemption: they (the deed in the one case and the affidavits in the other) are evidence of the proceedings to foreclose, and are the means by which the legal title of the mortgagor is transferred. The equitable interest of the mortgagor is the one sought to be barred: that is not barred by a conveyance. It is the decree and sale, or the perfection of the statutory proceedings by a sale, that extinguishes such equity.
The delay in making and recording the affidavits did not extend the plaintiffs' right of redemption; and the purchaser at the sale acquired, as against them, a valid title to the property.
I do not discover in the case any evidence that Burbank acted in bad faith toward the plaintiffs in purchasing the premises. At all events, no such fact is found by the referee. If he (B.) defrauded Aldrich, that furnishes no ground on which the plaintiffs can rest a claim to relief. *Page 163
It may be, and very likely is, a very hard case for these children, but the purchaser has acquired a right in the manner pointed out by the law in the premises, which cannot now be divested without doing infinitely greater injustice to others than it would confer benefit on them.
I am, therefore, of opinion that the judgment should be affirmed, with costs.
All concurred in affirmance.
Judgment affirmed. *Page 164