Jackson ex. dem. Worden v. Harris — 3 Cow. 241

Majority

p. 241

Jackson, ex. dem. Worden, against Harris.

Headnote

Ejectment, for part of lot No. 4, in the old township " Brutus, in Cayuga county ; tried at the Cayaga Cii before (the late) Mr. Justice Platt, May 27th, 1822. pf Brutus, in Cayuga county ; tried at the Cayaga Circuit,

After the defendant had confessed lease, entry and ouster, al the trial, the plaintiff produced a deed from Daniel Atery and William Satlerlee, commissioners for loaning money of the county of Cayuga, to Allen Worden, the lessor of the plaintiff dated September 15th, 1820, expressed to be for the consideration of $115, to them in hand paid, by Worden ; and declaring that, pursuant to “ an act authorizing the loan of monies to citizens of this state,”^[2] they granted, bargained, &c. to Worden, in fee, “ all that certain tract of land, situate in the town of Calo, formerly Brutus, county of Cayuga, and state of NewYork, being a part of lot 1111m-her 4$ in the original township of Brutus, beginning, &c.” (oy metes and bounds) containing 100 acres of land, being the same land morí gaged to the commissioners for loan- ° ° ing money aforesaid, by Peter Wolverlon, on the 15th day of July, 1808.” The deed was executed by Daniel Avery and William Satterlee, and witnessed by Glen Cui/ler and Jede 7- 7 ¡IT j « dlCtfl JriOTgdU* ,

_ An advermortgaged °f premises for sale* under the «act authoricitizens of this ^/tríl l^08» (seat. 5 V. '& si uiar in its dethePpremi='e°f it contain the moHgagorf llle ,dale an(1 mortgage, the f'!mber o!, ll\e lot in which the premises which^it was situate when the mortgage wan given, and the cres^mort^a' ged, without describing the Pre™ses by bounds. ^ A proper form of an advertisement for sale of several lots by commissioners, under the 17th section of that act.

The 17th section, directing the commissioners to put up advertisements of side at three of the most publick places in the county, is sufficiently complied with, by fixing them in three of the most publick places, though they are all remote from the premises in question.

Whether the commissioners have a right to sell on credit ? Quere.

But the objection that the commissioners gave a credit for the surplus money, beyond he principal and interest due, can only be made by the mortgagor.

It sems, that it is no objection to the validity of the sale, that the commissioners do not proceed and sell on the first default; but wait till several years interest accumulates.

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The plaintiff then read in evidence, a mortgage, for the consideration of $76, executed by Wolverton, to the commissioners, dated the 15th July, 1808, for the premises in question, being the same described in the deed, habendumf &c. ; “ unto the said commisioners, and their successors and assigns forever, and for the uses and purposes mentioned in an act, &c. entitled “ an act, appointing aloan of monies to the citizens of this state providing that if Wolverton, &c, should pay, or cause to be paid to the commissioners, the interest of $76, at 7 per cent, per annum, on the first Tuesday of May, yearly and every year, and should also pay them the principal "sum, &c. when the same should by them be demanded, at any time after the 1st Tuesday of May, 1815, then the mortgage to be voi d, &c.

It was admitted, on the p^rt of the defendant, that he derived title from Wolverton, the mortgagor, subsequent to the time when the mortgage was executed.

The plaintiff’s counsel then called William Salteries, one of the commissioners, who testified that the interest due on the mortgage remaining unpaid for three years, the commissioners, on the 26th of May, 1820, advertised the mortgaged premises for sale, in pursuance of the statute on that subject, to be sold at the court house, in the county of Cayuga, on the 3d Tuesday of September, at 10 o’clock in the forenoon of that day ; and that the same were exposed to sale in conformity with the advertisement, and struck off to the lessor of the plaintiff, who was the highest bidder therefor ; that he immediately paid what was due on the mortgage to the witness ; that some time in October next succeeding the sale, the witness executed a deed to the lessor of the plaintiff, and sent it by one of the witnesses to the deed, to Daniel Avery, the other commissioner, for his signature. The plaintiff’s counsel then called Daniel Avery, the other commissioner, who testified that he received the deed from Glen Cvyler, one of the witnesses to it, and executed and returned it to the lessor of the plaintiff by CuyleAs hands. He further testified, that no person had caused his name to be entered on the books of the commis

p. 243

sioners, as assignee of the mortgagor. The counsel for the plaintiff here rested the cause.

The counsel for the defendant then produced a printed «opy of the advertisement of the commissioners of loans, referred to by William Satterlee, which was admitted by the plaintiff’s counsel, to be a correct copy of the original, and was in the words and figures following, to wit: “ Default having been made in the payment of the interest due upon monies secured to be paid to the commissioners for loaning monies for the county of Cayuga, on the following pieces or parcels of lands, described in the following list or schedule and for a more particular description thereof, reference to their several mortgages and minutes will appear :

Now, therefore, in pursuance of the act, entitled 16 an act, authorizing a loan of monies to the citizens of this state,”' and its subsequent amendments ; notice is hereby given, that on the 3d Tuesday in September next, the said several mortgaged premises will be sold, at ten o’clock in the forenoon of said day, at the court house, in said county, at publick vendue, to the highest bidder. Dated at Auburn, this twenty-sixth day of May, 1820.

Daniel Avery, 7 Commis Wm. Satterlee,) sioners.”

The defendant’s counsel then' called William Satterlee, one of the commissioners, who testified, that he put an advertisement on the court-house door, at Auburn, in Cayuga dounty; one at Strong's tavern, in Ozoasco, 8 miles south

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east of Auburn ; one at Keeler’s tavern, in Sempronius, 16: " miles south-east of the court-house; and sent one to Aurora, which is 16 miles south-west of the court-house; and that the premises inqucstionlie 15 miles north of the court house; that James B. Clark tendered him the amount of interest and principal, after the premises were sold to Worden, the lessor of the plaintiff, and after he had executed the deed to Worden; that the offer of Clark was made sometime in the winter after the sale. The sum of about 15 dollars, being the surplus for which the land sold to Worden, over and above what was due on the mortgage, and which was due to Wolverion, remained sometime in the hands of Worden, after sale ; the commissioners of loans not wishing to receive it until it could be paid to Walverton, who had removed from the state. The defendant’s counsel then called Daniel Avery, the other commissioner of loans, who testified, that -no particular arrangement was made with Worden, as to the overplus money going to Wolverton, and that there was no condition, that the deed was given to be held by the commissioners until the overplus was paid. He further testified, that he thought he saw the notice of sale posted up in a publick house in Aurora. The plaintiff, by consent, took a verdict, subject to the opinion of the Supreme Court on a case to be made.

J. L. Richardson, for the plaintiff,

contended, that he deri ved a perfect title under the deed of the commissioners; that they acted within their authority, and in conformity with the directions of the statute.

The objection will probably be made, that the description of the premises, in the advertisement of sale, was not so full as the act requires. The regularity of the proceed*nSs dePcnds upon the construction of the various sections ’ in relation to this subject. The 11th section^[2] fixes the time for paying the interest of the loan annually on the ls£ Tuesday of May. By the 15th section, if not paid within 22 days after, the borrower is forever foreclosed ; and the commissioners are to advertise and sell as directed in the 17th section. The provisions of this section have been complied with, in terms, as to time. As to description, they are te

p. 245

^cause advertisements to be fixed up at not less than three of the most publick places in the county where the premises are situate, describing the quantity and situation of the lands mentioned in the several mortgages foreclosed as aforesaid, and giving notice, &c.” They are also to advertise in one of the publick papers of the county. In this case, advertisements were fixed up in 4 or 5 different places, beside being published in the newspapers

The counsel here read the advertisement; and insisted that it was a substantial compliance with the act, in point of description. He said the act evidently contemplated a very brief notice ; for section 20, which determines the expense of proceeding, allows but $3 for all the services and expenses of sale.

The tender of the money by Clark, being after the sale, was too late ; besides, he established no right to make the tender. He assumed to be an assignee of the mortgagor, but, by the 20th section, the commissioners were not bound to recognize him in this character, unless he had been recorded as such in their books. .

D. Cady, contra,

submitted the following points or propositions, in writing :

I. The sale by the loan officers was void, and no title passed to the lessor of the plaintiff.

1. Because the advertisement did not contain a sufficient description of the situation of the land.

2. Because the advertisements were not put up and continued in the proper places.

3. Because the sale was, in part, at least, upon credit, and the deed not executed in the presence of two witnesses.

4. Because the sale was not on the day prescribed by law; and

5. Because the loan officers had no power, by law, to sell the premises.

II. There having been no regular sale of the premises1,

and the person under whom the defendant holds having

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tendered to the loan officers the whole sum due upon the mortgage,- he is entitled to retain the possession.

He added, that it is for the Court to say what degree of particularity in the description is required by the statute. There certainly may be a description which is insufficient; and we think the legislature intended it should be enough, at ■all events, to put the possessor of the land on his guard ; as well as to enable those who attend the sale to find the land, acquaint themselves with its value, and be prepared to bid. “Lot-No. 1, in Brulus,r>' would enable any one to examine f but an advertisement by the commissioners, that they would-sell “ one of the lots in Brutus, would not enable a purchaser to bid understandingiy, without examining every lot in-the town. It is matter of publick law, that Brutus was divided into lots of 600 acres. Now, the commissi aiers say, that they will sell 100 acres of a certain lot. Who, from' this, could say what part of the 600 acres were to be sold ? It may be said, that the name of the mortgagor was mentioned, and that an examination of the commissioners’ files would be a guide; but this is not enough. One carmot know through whose hands the land may have passed. Neither name nor record would, therefore, guide him ; and he must examine 600 acres instead of one.

Again: the premises lie 14 or 15 miles north of (he court house; yet all the advertisements are fixed up from 8 to 16-miles south- of that place.

Fifteen dollars yet remain unpaid by the purchaser. The' law is express that money must be paid, on a sale of this description. . The commissioners have no power to sell on credit ; and they must exact and receive the whole money. If they may give day for the 15 dollars, they may do the same with $15,000. The ruléis, in its nature, inflexible, and cannot accommodate itself to the amount. There is no title in-the purchaser, till the money is, in fact, paid to the utmost farthing. _ _. - - .....

___It is conceded that the commissioners acted under a limited authority. Then, we say again, the sale was void, as not being made on the day required by the statute. Previous-

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to the day of sale, 3 years interest had been suffered to accumulate. By the 18th section, the commissioners are directed to sell on the third Tuesday of September, annually, all the lands mortgaged. in respect to which there shall have been a default in not paying the interest ; and by the 19th section, if no purchaser will bid to the principal and interest, they are to enter upon, and lease the lands for the benefit of the state. They are then to offer the land for sale, again, at the nextulprit ; and if there is then no purchaser for an .adequate sum. the state become seized of the lands, subject to a right of redemption in the mortgagor. Now it is fairly to be presumed, that ail these steps were taken. It was the duty of the commissioners to set about them immediately on the mortgagor’s default. Whether they did so or not, their poweis of sale, in the ordinary way, ceased ; and a tender was made before they had regularly sold. The proceeding was void—it was as no sale—and the tender in season.

It is said, that on default of payment, the commissioners were, by the 15th section, seized of an absolute estate in the lands ; but though this be so, they held it for certain specified purposes. They cannot sit down and dispose of the land in any manner (hey choose, but must be guided by the statute. (Denning v. Smith, 3 John. Ch. Rep. 332.)

Richardson, in reply,

cited King v. Stow, (6 John. Ch. Rep. 323) as in point, to shew that any irregularity in the proceedings of the commissioners in relation to fixing up advertisements, or making entries, &c. could not be objected against a bo-,a fide purchaser at the sale. The description was sufficient-

[Woodworth, J. As far as I remember the practice under this act, the advertisements of sale have always been in the form which was used here.]

Richardson. And the practice is correct in principle. No one could be deceived who lived on Wohertords land. This is a declaration to the possessor, and to purchasers, that JVoherioids land, to the extent of 100 acres, would be sold. Nor does it lie in the mouth of the defendant to say,

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that because the commissioners have indulged him three years, they must, therefore, relinquish the whole amount, This was a matter which lay exclusively between them and the publick. The same ansxyer applies to the objection, that the whole purchase money was not paid. The commissioners had a right to make the purchaser a depositary of the 15 dollars, or any larger amount, if they chose. They have done no more. The money remained with him, waiting a chance to be sent to the mortgagor,

Beside, though the commissioners gave credit for the whole, it is not for the defendant to object. 'They may assume the whole, and it will operate as a payment, although nothing be, in fact, paid.

Curia,

The lessor of the plaintiff claims his title to the premises in question, by virtue of a deed from the commissioners for loaning money in the county of Cayuga, under the act “ authorizing a loan of moneys to the citizens of this state,” passed April 1 Uh, 1808. (5 vol. Laws, by W. & S. 392.) The premises were mortgaged to the commissioners by one Peter IVolverton, on the ISiAday of July, 1808; and default having been made by him in the payment of the interest, the commissioners, in pursuance of the directions of the act, sold them at publick auction, and the lessor of the plaintiff became the purchaser. The defendant derivestitle, also, from Peter IVolverton, by a conveyance subsequent to the mortgage ; and after the sale to the lessor of the plaintiff, he. offered, by the hand of Clark, to redeem, by paying the amount due.

The only question in the case is, whether the sale by the commissioners was in conformity to the provisions of the act ? The principal objections are—

1. That the advertisements did not contain a sufficiently minute description of the situation of the land.

2. That they were not put up in the proper places.

3. That the purchase money ivas not all paid on the day ¡oí sale.

There is no pretence of fraud on the part of the commissioners. They are admitted to have acted in good

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faith, and the lessor of the plaintiff is a bona fide purchaser for a valuable consideration.

1. The 17thsection of the act directs, “that the commissioners shall cause advertisements to be fixed up at ,not less than three of the iqost publick places of the county where the premises are situate, describing the quantity and situation of the land, &c. and shall also cause such notice to be given in, at least, one of .the publick newspapers in the county, if any such there be.” The advertisement, in this case, contained the name of the mortgagor—the date and number of the mortgage—the number of the lot—the town in which it was situated, when the mortgage was given—and the quantity of acres mortgaged. It could not have been more particular, without giving a description of the premises by metes and bounds, as contained in the mortgage. The act does not require such particularity. It contemplates only a general description, sufficient to apprize the mortgagor that his land is to be sold, and to enable any persons who may wish to purchase, or who may be interested in the premises, by subsequent liens, to locate and identify them.

In Denning v. Smith, (3 John. Ch. Rep. 332) one of the advertisements neither contained the name of the mortgagor, nor the number of one of the lots ; and these omissions were held to be fatal. But the Chancellor seems to admit, that if the name of the mortgagor, and the number of the lot, had been inserted, the advertisement would have been good. He says, the “ omission of the mortgagor’s name, and of the number of the lot, in the advertisement in Cattskill, where the agent of the owner resided, was a most unfortunate circumstance, &c. It was also an omission fatal, in any view, to the legality of the notice.” The other notices, the sufficiency of which, in point of form, was not questioned, were not as particular in their description as the advertisement in this case. They described the premises as being in the town of Cairo, and as being “ lot No. 11, and part of lot No. 14, near Perce’s mill, containing 126 acres, mortgaged by Henry Persenwithout designating what part or portion of the mortgaged premises was in each or either of the lots,. The first objection, therefore, is unfounded.

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2. The second objection appears to be founded on the fact t^e advertisements were put up in places remote from the mortgaged premises ; for there is nothing in the case t° show that the places where they were put up, were not three of the most publick places in the county. This is alt that the act requires. It is not necessary that one of the advertisements should be upon or near the premises; and unless one of the three most publick places in the county was near the premises, an advertisement there would not be a compliance with the act. In Denning v. Smith, the omission to put up an advertisement in Cairo, which was in the neighbourhood of the premises, and was one of the most publick and central places in the county, was held by the Chancellor to be a circumstance which, in conjunction with other facts, tended to shew a fraudulent intent on the part of the commissioners. But, in this case, it does not ap-. pear that there was any publick place near the mortgaged premises.

In King v. Stow, (6 John. Ch. Rep. 323) all the advertise- . ments were put up in the village of Elizabethtown, twenty miles distant from the mortgaged premises ; and although it appeared that a publick road passed through the premises, and that two publick ferries were maintained within two miles and a half of them, the notices were held to be good ; there being no evidence of a fraudulent intent, and Elizabethtown being, in fact, the most publick place in the county. The notices in this case were, therefore, regular.

3. The reason why the surplus, beyond the amount due to the state, was not immediately exacted from the purchaser, is stated by the commissioners to have been, because the mortgagor, to whom it was to be paid, had left the state, and the commissioners did not want the money until they could pay it over. They state expressly, in their testimony, that there was no agreement for a credit. The surplus was only $15, and there is nothing to show that it was not paid on demand. But this is an objection which, if it can be raised at all, can be urged only by the mortgagor.

. Judgment for the plaintiff.