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Randell v. Von Ellert

4 Abb. N. Cas. 88 Court N. Y. Supreme Court, First Department; General Term, English

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p. 88
RANDELL v. VON ELLERT.
N. Y. Supreme Court, First Department; General Term,
December, 1877.

Headnote

Referee’s Deed.
Under section. 1244 of the Code of Oiv. Pro. a conveyance of property, sold by virtue of an execution, or sold pursuant to a judgment, must distinctly state, in the granting clause thereof, whose right, title or interest was sold, and is conveyed, without naming, in that clause, any of the other parties to the action.
Proper form of such clause in a referee’s deed on foreclosure.
p. 89
A purchaser at foreclosure sale in this action objected to the referee’s deed that it did not comply with section 1244 of the Code of Civil Procedure as above, and Mr. Justice Donohue having overruled his objection, he appealed.
Robert Benner, for the appellant.
John J. Thomassen, referee in person,
urged that the statute was intended only to apply where the judgment directed sale of the interest of a specified person, and could not apply in foreclosure, where the decree was general. That the amendment of 1877 caused the absurdity of the application contended for, and such application was not within the spirit of the statute (Jackson v. Collins, 3 Cow. 89 ), and the courts might dispense with it (People v. Schermerhorn, 19 Barb. 540 , 558).

The order was settled upon much consideration, and the material part was as follows:

That the referee comply with the provisions of said section of the Code by inserting in the conveyance the names of the party or parties who executed the mortgage foreclosed and stating that the right, title and interest which said mortgagors had at the time of the ex-cention of such mortgage, was sold and is thereby conveyed.[1]

* It is obvious that in some cases the interest conveyed is that which the mortgagors had at the time of the recording of the mortgage ; and the object of the statute would be more exactly attained by inserting the words “ or recording” after execution. The usages of referees under this clause are various. The following precedents are from recent deeds under the statute. G lames prefixed to the description. All the right, title and interest of A B and O D which they had on the day of , 1870, at minutes past two o’clock P. M., or at any time thereafter, in and to, &c.

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