Jackson ex dem. Bennet v. Lamson

Headnote

Where a mortgage contains a power of sale, on default of payment of any part of the money secured to be paid, and the mortgagee proceeds under this power, and gives public notice of the sale of the mortgaged premises, for six successive months, pursuant to the statute, this, in an action of ejectment against the mortgagor, will be deemed equivalent to six months7 notice to quit, previous to the commencement of the suit.

THIS was an ejectment brought to recover certain lots of land, in Argyle, in Washington county. The defendant, on the 3d of August, 1815, executed a mortgage of the premises to the lessor of the plaintiff, for securing the payment of 1,500 dollars, according to the condition of a certain bond. A c. li was provided and agreed in the mortgage, that in case of nonpayment of the principal or of the interest, or any part thereof, at the times limited for the payment, in the condition of the bond, that the mortgagee should have power to sell and convey the premises, at public auction, and execute a conveyance therefor, to the purchaser at such sale, &c\ It was proved that the premises were duly advertised for sale, by virtue of the power so contained in the mortgage, for six successive months, pursuant to the statute; and the premises were sold, according to the notice, on the 9th of February, 1818, and the lessor executed a deed of the premises to the purchaser at such sale, who, afterwards, on the 11th of February, 1818, released and quit-claimed the same premises to the lessor of the plaintiff.

It appeared from the condition of the bond produced at the trial, that the 1,500 dollars was to be paid in instalments as,: follows : 400 dollars on the 1st of February, 1816 ; 400 dol- : lars on the 1st of February, 1817; 400 dollars on the 1st of February, 1818; and the further sum of 300 dollars on the 1st of February, 1819. And it was objected, on the part of) the defendant, that the whole sum of 1,500 dollars not being due at the time of the sale, the proceedings under the power for a sale and foreclosure, were illegal and void; but the ob

jection was overruled by the judge. It was then objected, that the plaintiff was not entitled to recover, as no notice to quit had been given to the defendant. A verdict was taken for the plaintiff, subject to the opinion of the court, on the que's-lion, whether the defendant was entitled to a notice to quit before the commencement of the suit.