Majority
p. 107Sherman and Batcheldor against Dodge and others.
Headnote
Under the ad authorizing the loan of moneys, fee. passed April 18th, 1786, (Bess. 9. ch. 40.) the loan officers are bound strictly to pursue the directions of the statute, in the sale of premises mortgaged. If, therefore, there be a defect in the advertisement of sale, in describing the quantity and situation of the land, the sale is irregular and void j and the purchaser, under such sale, was decreed to release all his title to the owners of the equity of redemption ; and a note, given by him to the loan officers, for the surplus of money, was ordered to he delivered up and cancelled; but the defendant, being an innocent and bona fide purchaser, was not subjected to costs. •THE bill, (filed August 4th, 1819,) stated, that in June, 1817, Josiah Shaw, who was then seised of. a lot of land, or farm, being the south half of lot No. 33, in Curry's patent, in Charleston, Montgomery county, containing 100 acres, gave to the plaintiffs, to whom he was justly indebted, for goods sold and delivered, a bond and warrant of attorney to secure the debt, being 1460 dollars, on which a judgment was entered up, and execution issued thereon, and the land, above mentioned, advertised by the Sheriff for sale. That on the 30th of January, 1818, the plaintiffs, for the first time, discovered, that Shaw had previously mortgaged the land, on the 1st of April, 1814, to D. Kimball, for 1500 dollars, and that the mortgage had been assigned, on the 1st of December, 1814, to J. Schuyler, for 421 dollars ; and the plaintiffs, to save their debt, Skate having become insolvent, paid up the mortgage, and took an assignment
p. 108
thereof from Schuyler, to whom they paid 420 dollars and the interest then due, on the 20th of January, 1818, whereby their title became absolute. That in October, 1S18, the plaintiffs, for the first time, discovered, that one Bartholomeiv Bodge, who had, or pretended to have, a title to the lot, had, on the 9th of July, 1788, mortgaged the lot to the loan officers of the county of Montgomery, to secure the sum of thirty pounds, with interest, pursuant to an act of the legislature, passed April 18th, 1786. (1 Gree.nl. ed. L. N. Y. 247. Sess. 9. ch. 40.) The plaintiffs alleged, that the farm in question was worth, at least, two thousand dollars. That Aaron Haring, and Peter Brooks, jr. defendants, are, and have been, for several years, loan officers of the county of Montgomery; and they, on the 15th of September, 1818, sold the whole of the said farm or lot, for the interest due, the 15th of June, 1818, on fifteen dollars only, the whole of the principal, excepting the 15 dollars, having been paid as early as 1800, and the interest, yearly, on the 15 dollars, to the third Tuesday of June, 181.8. That the defendant, W. I,. Bodge, and Baniel Paris, became the purchasers of the lot for the sum of 400 dollars; and paid the principal and interest due on the mortgage, and the costs, amounting to 19 dollars, and gave their note for the balance of 381 dollars, to P. Brooks, jr., dated 9th of October, 1818, and both of the loan officers executed a deed for the whole lot. The bill further stated, that the loan officers did not advertise the land according to the directions of the act of 1786; but that, if any advertisements at all were fixed up, they were defective in not stating the quantity of the land, the name of the mortgagor, and a description of its situation, as the only description given by them, in the advertisement, was as follows : “ The southernmost half of let number twenty-one, in a patent granted to William Curry and othersand which was particularly erroneous and deceptive, as the lot was 3STo. 22, and the loan officers at
p. 109He stated the following points: 1. That the sale, by the loan officers, was void, for not conforming strictly to the directions of the statute. 2. That the defendants, D. and P., must be presumed to have known the directions of the statute, and were, therefore, purchasers at their peril. 3. That D. was bound to release, on being informed of the irregularity, and the tender made to him. 4. That the plaintiffs were not bound to indemnify him against the note, as the plaintiffs were equitably entitled to
tually conveyed to Dodge and Paris, lot No. 22. That the plaintiffs had applied to D and P., and requested a release of the property, tendering to them fifty dollars, in specie, and an indemnity against the note ; that P. had released his claim, but that D. had refused to release his title, unless the plaintiffs would pay him fifty dollars, and procure the indemnity of John Taylor, though the loan officers had offered to give up the note, if D. would release the lot. That D. had brought an action of ejectment against the tenant in possession, &c. Prayer, for relief generally, and an injmiction against proceeding in the ejectment suit. The injunction was granted. The bill was taken pro con~ fesso against Haring and Brooks. The defendant, D,, answered, admitting the sale by the loan officers, as stated in the bill, but denying any notice, at the time of the purchase by him and P., of any mistake or defect in the advertisements, Sec. He admitted the tender as charged, and that he offered to release on the payment of 50 dollars, for Ms trouble and expenses, and an indemnity signed by J. T., or on the indemnity alone, but the plaintiffs’ solicitor demanded costs. He set forth the mortgage, in which the lot is called No. 21, which is the only mistake, the boundaries given being those of lot 22.
Proofs were taken in the cause.
Parker, for the plaintiffs.
p. 110the surplus in the hands of the loan officers ; and, having obliged the plaintiffs to come to this Court for relief, he ought to pay costs. He cited 3 Johns. Ch. Rep. 344 , 345. 4 Cranch's Rep. 413. said, that as the mistake in the number of the lot was made by the mortgagor, under whom the plaintiffs claim title, they were estopped from making the - objection. That if there was any defect in the notice or advertisement of sale, it was a question of law, and the plaintiffs might make it a ground of defence in the ejectment suit. That the plaintiffs were not entitled to a release-; but if any was to be made, it should be to the loan officers. That he was an innocent purchaser, and ought not to pay costs.
Dodge, contra,
declared, that the sale by the defendants, H. and B., as loan officers, of the mortgaged premises, was irregular and void, because it was not made in pursuance of the due previous notice required by the twentieth section of the act of the 18th of April, 1786. (Sess. 9. ch. 40.) That act required the advertisements of sale to be fixed at not less than three of the most public places in three or more towns of the county where the premises were situated, describing the quantity and situation of the lands mortgaged ; and the notice in this case did not appear to have been put up at the requisite public places, and the advertisements (if any were published) did not describe the quantity or true Situation of the lands to be sold. This appeared, he said, satisfactorily, from the charge in the bill, from the admission of the bill by the loan officers, who suffered it to be taken pro confesso, and from the absence of all proof of notice. The note given to the loan officers for the balance of the purchase money was ordered to be delivered up to be cancelled, and the defendant D was thereupon ordered to release all his
p. 111
elaim and title under the purchase to the plaintiffs, who were the owners of the equity of redemption, and in possession of the premises. The case was deemed to fall within the principle of the decision in Denning v. Smith, ( 3 Johns. Ch. Rep. 332 .) which required the directions of the statute in respect to the sale to be strictly pursued.
No costs were given to either party as against the other, as there was no fraud or bad faith in the sale or purchase ; and the defendant,!)., purchased without knowledge of any irregularity in the notice of sale, and was not, under the circumstances of the case, chargeable with any unreasonable and unjust assertion of his claim, in any stage of the transaction.
Decree accordingly.