White v. Lester

By the Court.

Hogeboom, J.

The plaintiff sues in ejectment to recover from the defendants the possession of certain premises in Chautauqua county. He claims title through John Z. Saxton, who was the admitted owner in 1837, and he showed a regular deduction of title from and through him, sufficient to maintain the action unless it is defeated by facts to be hereafter noticed. The defendants also claimed through Saxton, who, in August, 1837, executed to the commissioners for loaning certain moneys of the United States, a mortgage upon said premises pursuant to the Laws of 1837, c. 150, on which default was made in paying the interest due in October, 1842. On Dec. 6, 1842, an entry was made of this circumstance, and of the fact that the premises were advertised for sale for the first Tuesday of February then .next, in the commissioners’ book of minutes and in their annual report to the comptroller. The premises appear to have been duly advertised for sale by publication and posting in the manner required by law, except that there was no order for the advertisement entered in the minute hook; nor copy of the advertisement entered therein; nor entry of the places where, or of the persons by whom, the advertisements were put up; all of which was enjoined by the statute before referred to. The substance of the statute appears to have been observed in regard to the actual advertisement, and I am inclined to think the provisions as to the entries in the minute book above referred to were, notwithstanding the declaration of the statute, section (33), that “ all purchases made contrary to the provisions of this section (33) shall be void,” directory rather than compulsory, as against a Iona fide purchaser ignorant of the irregularity. These irregularities were not violations of the provisions of section 33. King v. Stow, 6 Johns. Ch. 323.

On Feb. 7, 1843, up to which time the plaintiff appears to have been in possession, the premises were duly sold by both commissioners, and struck off to one Kewland, who then, or within a few days thereafter, received a deed in due form from the commissioners, went into possession and executed to the commissioners a new mortgage upon the premises. The defendants deduce a regular title through him. He paid his bid in cash to the commissioners, and the bid and subsequent transfer of title to the defendants was in his name, though he purchased, in fact, as the case states, for the benefit of the Chautauqua County Bank, but without any direction from the directors, by which I understand is meant that that institution was, by the purchaser, intended to have the benefit (if any) of the purchase. I scarcely think this was a violation of the charter of the bank (L. 1831, c. 219), as the purchase was purposely made in the name of Kewland and the title designed to be kept in him, although, if the premises were subsequently sold at a profit, he meant that the bank of which he was the cashier should have the benefit of it. There was no disability inNewland to purchase, as there is in the case of trustees with regard to the lands of their beneficiaries, and therefore the purchase would not, I think, be void, but would inure to the benefit of Hewland, if it could not be for the benefit of the bank. Such a transaction would not avoid the sale as against the plaintiff.

Although both commissioners were present at and made • the sale, the entry of it in the book of minutes was made by only one of the commissioners and signed only by him, though purporting to be the act of both. This is claimed to be a fatal irregularity, under the 'ease of Olmsted v. Elder, 5 N. Y. 144. But no such point was presented in the latter case; and since the case of Pell v. Ulmar, 18 N. Y. 139, it must be regarded as overruled. Moreover, there is nothing in the law which requires this entry to be signed by the commissioners; and purporting, as it does, to be the act of loth, we can not presume against the truth of such a statement, simply because it is certified to be true by the signature of one commissioner.

There would appear, therefore, to be great doubt whether, if the case for the plaintiff rested upon the irregularity of the proceedings to foreclose the loan office mortgage, they were sufficiently defective to make them invalid. But I think an effectual answer to the plaintiff’s claim consists in a fact now to be noticed. The plaintiff, who succeeded to .the title of the mortgagor, suffered the mortgage to become foreclosed by operation of law, by his delinquency in paying the amount due by the terms of the mortgage. This was held, in Pell v. Ulmar, 18 N. Y. 139, 145, to be equivalent to a foreclosure pronounced by the decree of a court, and nothing remained in the plaintiff but a special privilege of redemption. The plaintiff went out of possession, and the defendants (or New-. land), took immediate possession, under a deed dated as of the day of the sale, and executed a few days afterward. It does not appear, it is true, as suggested by the plaintiff, that the commissioners took actual possession. They had no right to do so until after the day of sale, and then they did so in effect by putting them grantee in possession, who, or his successor has occupied ever since. If we-assume that the alleged irregularities in the sale were sufficient to vitiate it as such, nevertheless the default in the payment of the interest, as .was held in the case of Pell v. Ulmar, from which this case can not be distinguished, destroyed and foreclosed the plaintiff’s title;—• destroyed even his common law equity of redemption, and left him nothing but a special right of redemption, to be enforced only by strict compliance with the provisions of the abt of 1837. He had, therefore, no right which could be prosecuted by action of ejectment against the commissioners or their assignees. Newland took possession under the authority and consent of the commissioners, and having paid the amount of the mortgage, must be regarded, equitably at all events, as a mortgagee in possession. If in under such a title, he could not be dislodged by an action of ejectment;—for such an action is forbidden by the Revised Statutes. 2 R. S. 312, § 37. But the case of Pell v. Ulmar holds that his rights are even less perfect than would be those of a mortgagor against a mortgagee in possession. The plaintiff’s counsel has attempted, but I think unsuccessfully, to distinguish this case from Pell v. Ulmar. He is mistaken in supposing that Hewland never took possession under his deed from Green & Douglass; and I think also, in supposing that the deed-was their individual deed. It purported to be on its face the deed of the commissioners, and such was the effect of the aehnowledgment.

The judgment should be affirmed.

All the other judges concurred, except H. R. Seeder, J., who did not vote.

Judgment affirmed, with costs.