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Bechstein v. Schultz

19 Abb. N. Cas. 168 Court N. Y. Supreme Court, First Department, General Term ; English

Delivered by Bartlett, J.

Contents

Majority

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BECHSTEIN v. SCHULTZ.
N. Y. Supreme Court, First Department, General Term ;
June, 1887.

Headnote

1. Foreclosure by action ; omission to publish, notic-e of adjournment of sale.] Failure to publish notice of the postponement of a sale in foreclosure by action as required by Code Civ. Pro. § 1678, until after the adjourned day, does not constitute a jurisdictional defect in the proceedings, available to a purchaser of the property more than two years after the confirmation of the sale, no objection having been made by any of the parties.
2. The same; irregularity merely.] Such an omission is an irregularity, and ground merely for setting aside the sale upon the seasonable application of a party to the foreclosure suit.
Submission of controversy under Code Civ. Pro. § 1279.
The facts are fully stated in the opinion.
Linus A. Gould, for the plaintiff.
Wm. L. Snyder, for the defendants.
I. The statute (Code Civ. Pro. § 1678) is mandatory. “ Ho tice of a post
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ponement ” of a sale, cannot be given after tlie time to which the postponement is had, is past. Such notice cannot relate back to the date, of the postponement. A publication of the notice afterwards cannot cure the defect (Bicknell v. Byrnes, 23 How. Pr. 486 ).
If one requirement of the statute can be omitted, then, upon the same reasoning, the entire statute can be omitted. If the notice of postponement can be disregarded, the requirement as to publishing three weeks or twice in each week can be disregarded. The party might choose to say, the statute requires the notice of sale to be published twice a week, but to save expense I will publish it only once The statute requires that the notice of sale shall be published in two newspapers, but to save expense, I will publish it in but one.
The mode pointed out in the statute must be complied with. The proceeding is to divest another of his property, and where the law gives the court the power to sell, but prescribes the mode in which the power shall be exercised, in order to make the power effectual, it must be exercised in the exact mode prescribed for its exercise.
II. The defect in advertising was not cured by the subsequent publication, nor by the service of the order confirming the report of sale. The defect goes to the jurisdiction, and is not a mere irregularity. There is no provision of the statute which provides that the confirmation of the referee’s report in foreclosure shall operate as a bar as to all parties to the action, as in cases of partition. Hence this case, being in foreclosure, does not fall within the rule declared in the court of appeals in Woodhull v. Little ( 102 N. Y. 165 ). The statute declares specifically in partition suits, that upon the confirmation by the court of the report, the final judgment shall be binding and conclusive upon all parties who appeared in the action (Code Civ. Pro. § 1557). This provision, however, does not apply to foreclosure proceedings. Nor does the case fall within the decision in Abbott v. Curran ( 98 N. Y. 665 ). That decision simply
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involved the construction of the statute, which provides that where all parties consent, the property may be sold by a referee. In case such consent is not procured, the property shall be sold by the sheriff. An absentee who did not appear did not consent, and the court held the statute included parties only who appeared in the action, and that the reference was proper without the consent of such absentee (Abbott v. Curran, 98 N. Y. 665 ). The time for selling, pursuant to notice, had passed, when on September 2 it appeared that the adjournment had not been published. The court held in Bicknell v. Byrnes ( 23 How. Pr. 486 ), that “ when the time for selling, pursuant to notice, has passed, and no valid sale has been made, or if valid, the party elects to disregard it, he cannot again sell without the authority of the court, unless lie again advertises the sale ” (Bicknell v. Byrnes, 23 How. Pr. 486 ). The sale, in order to make it valid, should have been advertised de novo. The case at bar is not within Everson v. Johnson ( 22 Hun, 115 ); nor Stearns v. Welsh ( 50 How. Pr. 186 ; aff’d in 7 Hun, 676 ); nor Gallup v. Miller ( 25 Hun, 298 ); nor La Farge v. Van Wagenen ( 14 How. Pr. 54 ). In Everson v. Johnson (above), the notice of sale was published, but not in all the editions issued on the days on which the notice was published (1880). In Gallup v. Miller ( 25 Hun, 298 ), it was held that after judgment of foreclosure, further personal service of notice of sale on the mortgagor was not required (1881). Le Farge v. Van Wagenen ( 14 How. Pr. 54 ) and Stearns v. Welsh ( 50 How. Pr. 186 ) were proceedings had prior to the enactment of Code Civ. Pro. §, 1678. At the time those proceedings were had, sales were conducted and regulated by Rule 74 of court, requiring the notice to be published twice in each week for three weeks, but having no provision for adjournment. The legislature vested the court with full discretion as .to the mode of sale prior to the adoption of § 1678 of the Code in 1880. Since that time the legislature has directed the mode of conducting the sale, so that it is no longer dis-.
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cretionary, but is now a matter of law regulated by statute. Rule 74 is now superseded by Rule 62, which provides that “ the sale must be held as prescribed by § 1678 of the Code.”

The purpose of the plaintiff in this litigation is to enforce the specific performance of a contract for the purchase of real property. The plaintiff’s title to the premises is derived through a judgment in a foreclosure suit, and the sole objection which the defendants make to the title is that there was an omission to publish notice of an adjournment of the foreclosure sale, from August 19, 1884, to September 2, 1884, until September 4, 1884, the day when the sale actually took place, on which day notice of the adjournment in question was published in the same papci'S as the original notice of sale.

Section 1678 of the Code of Civil Procedure provides that “notice of the postponement of the sale” of real property “must be published in the paper or papers wherein the notice of sale was published.” No doubt a failure to comply with this provision is an irregularity for which the court might set aside the sale upon the seasonable application of a party to the foreclosure suit; but I do not think it constitutes a jurisdictional defect in the proceedings, available to a purchaser more than two years after the confirmation of the sale, without objection by any of the parties.

In Woodhull v. Little ( 102 N. Y. 165 ), it was held that the omission of a referee in partition to give any notice whatever of the sale of one of the parcels of property sold, was an irregularity which did not vitiate the sale of that parcel. It is true that this decision turned largely upon the express provisions of statute as to the effects which follow the confirmation of a sale in partition. The case is in point, however, as showing that a much more serious omission than that which is under consideration here was deemed to be only an irregularity, and is expressly spoken of as such. The language used by the court of appeals, also in the case of

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Abbott v. Curran ( 98 N. Y. 665 ), tends strongly to sustain the conclusion' that the sale in question in this controversy was not invalidated by the failure" of the referee to advertise the adjournment. A local statute required foreclosure sales in Kings county to be made by the sheriff, unless all the parties to the action consented that a referee should sell. All the parties in the suit appeared and consented to a sale by a referee, except one, who was an absentee. The general term seems- to have held that the consent of all the parties who appeared was a sufficient compliance with the statute. But, says the court of appeals, “ if the court erred in this,, the error did not render the appointment of the referee illegal, or the sale by him void. It was at most an error which could be corrected by any party to the record by application to the court or by appeal from the judgment; but a sale made under such circumstances is not invalid because made by a referee, instead of the sheriff.” The order under review was one which required the purchaser at the foreclosure sale thus conducted by the referee to complete his purchase, and the court of appeals held that there was no substantial defect in the title, and that the buyer must take it.

If such a departure from a statutory requirement as the substitution of one officer to sell in place of another by whom the sale ought to have been made, does not affect the title of a purchaser, still less can it be held that this title is bad-, by reason merely of an omission to advertise an adjournment, by which neglect nobody appears to have been in jured or misled, and of which there is no complaint whatever by any of the parties to the action.[1]

Upon the agreed case, I think judgment should be rendered in favor of the plaintiff, without costs.

Van Brunt, P. J., and Daniels, J., concurred.

* Upon the subject of publication generally, see Abbott's New Practice, vol. 1, pp. 386, et seq.

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