The plaintiff claims title through the foreclosure of two mortgages, executed by the former owner, Nelson Phillips, subsequent to the contract *118made by the defendant for the purchase of the same premises. The case shows that the defendant is in possession claiming under his prior executory contract of purchase. Without going into the question of the defendant’s rights under his contract, it is sufficient to dispose of this case to look into the plaintiff’s title. As mortgagee or assignee of the mortgagee, he cannot maintain this action. But if he has acquired the title of the mortgagor by a valid foreclosure of either mortgage as against the mortgagor, he may take his position as to the defendant, and upon default of payment of the moneys due upon the contract by the defendant, may doubtless turn him out of possession. And I think the referee was right in holding that the defendant may redeem the premises from the lien of both mortgages by paying to the plaintiff the balance due upon his contract, even after a valid statutory foreclosure ; and also that the defendant is entitled to all payments made to the mortgagor in good faith before notice of the mortgages. Whether the pleadings admit of the affirmative relief \ granted to the defendant in this case, is at least doubtful.
But, in my opinion, the plaintiff should have been non-suited for the reason that he failed to show a valid statutory foreclosure of either mortgage.
As to the mortgage to Margaret Ann Granville, there is no proof that notice of sale was ever served upon the mortgagor. As to the mortgage to the plaintiff himself, there is no affidavit that the mortgagor, or the other parties served by mail with notice of sale, resided at the several places to which the notices were directed. This was necessary to make a good service. (2 B. S. 545, § 3, sub. 3. Laws of 1844, eh. 346, p. 529.)
As the plaintiff has failed tó make title under these statutory foreclosures, it is evident he must fail upon a new trial, unless he is allowed to amend the affidavit so as to show that the persons served by mail with notice of sale, respectively resided at the places to which the notices were directed. • It *119is very questionable whether suchan amendment can be allowed by the court, although new affidavits might perhaps be'filed and recorded, which would lay the foundation of another action. The statutory procéedings to foreclose a mortgage are not proceedings in court, so as to authorize the courts to remedy defects in them. It has always seemed to me that when a party is iu possession under an equitable title or claim, the holder of a subsequent mortgage upon the premises might obtain his object much better by a foreclosure in equity. In ■ this case, it seems to me that the plaintiff might make the defendant a party to a foreclosure of his mortgage in equity, and the decree might provide the terms upon which the defendant should take the legal title or be foreclosed of his equity. It will do no good to serve him with notice of a statutory foreclosure, as he is not a subsequent grantee within the meaning of section 3 of the statute already referred to, so as to authorize service of notice on him ; nor is he barred by the provisions of section eight, as he does not claim by title subsequent to the mortgage. For the same reason the service of notice of the foreclosure upon Lot Phillips was unavailable to cut off the equitable title of the defendant under his contract of purchase. The foreclosure was doubtless subject to the prior equity of the defendant, and did not in any manner impair his right to a conveyance upon paying up the balance due, including such sums, if any, as he had paid to his vendor in his own wrong, after actual notice of the claim of the plaintiff. (Moyer v. Hinman, 13 N. Y. Rep. 180.)
[Onondaga General Term, April 4, 1865.But these questions are not necessarily involved in the decision of this appeal, as it is sufficient to hold, as we must, that the plaintiff failed to show a valid foreclosure as against the mortgagor,
Judgment reversed, and a new trial ordered, with costs to abide the event.
Morgan, Bacon, Foster and Mullin, Justices.]