Judd v. O'Brien — 21 N.Y. 186

Majority

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Judd v. O'Brien et al.

Headnote

Statutory Foreclosure of Mortgage.

It is sufficient, that the notice of foreclosure of a mortgage, by advertisement, specify the place where the mortgage is recorded, and the date : a mistake in the number of the mortgage-book will not vitiate it, if it could not have misled.

It seems, that the notice should state that the mortgage will be foreclosed by the sale; a mere notice of sale is not enough. Denio, J.

Appeal from the general term of the Supreme Court, in the seventh district, affirming a judgment entered in favor of the defendant upon the report of a referee.

This was a creditor’s suit to charge a lot of ground in the village of Penn Tan, with the amount of two judgments recovered against A. V. Hasten. It was alleged in the complaint, that the defendants were mortgagees in possession, and that their claim had been fully paid out of the rents and profits'. It was admitted, that the mortgage under which the defendants claimed was a prior lien to the plaintiff’s judgment. The defendants claimed title to = the premises as purchasers under a statutory foreclosure by advertisement; and the only question was, as to the sufficiency of the notice of sale.

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*^le n°tice correctly stated the execution of the mortgage, and the place and date of record; but there was an error in the number of the mortgage-book in which the record was made. It further stated that default having been made in the payment secured by the mortgage, the same would he sold, at public auction, at a time and place named.

*The referee overruled the objections made to the sufficiency of the notice, and reported in favor of the defendants; and the judgment having been affirmed at general term, the plaintiff took this appeal.

Kernan, for the appellant.

■Prosser, for the respondents.

The statute requires the notice in the case of a foreclosure by advertisement, to state the date of the mortgage and where recorded. (2 R. S. 546, § 4.) This notice gives the clerk’s office and the date of recording correctly, but there is an error in the number of the book. If there had been no reference to the number and p ■ o of the book, b'ut only a statement of the time of retv ■ Img in the proper clerk’s office, I think, there would 1 o been a substantial compliance with the requirement i vj statute. Conveyances are required to be recorded . ■>■) order of the time of delivery to the clerk for rec- t. (1 R. S. 760, § 24.) A person being thus informed t . : place in the series of recorded mortgages, here .....,n\e of which he is in quest might be found, v onld - • be at a loss in laying his hand on it. Tins ' onld ■ he a sufficient answer, if the act had reqii': < the v.-nuiie and page to be stated; hut it is nof so pw • . -e in ■i requirements. The place where recorded wend be sufficiently indicated, by naming the offi.ee mu’ ;• date oí the record, and possibly by the ¡nruti'-j) the

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* office alone.^[1] But here is a positive error; and the question is, whether it is one calculated to mislead: or rather, whether the notice, considering the error which entered into it, fails to accomplish the object intended by the statute. We think it does not; there being no book in the office of as high a number as the one mentioned, an inquirer would immediately recur to the other test of locality, the data, and could not fail immediately to find the record. The case is within the maxim “falsa demonstratio non nocet

It is also required that the notice should state the amount of the mortgage-debt at the time of its first publication. The notice is dated the day before the day of publication in the newspaper, and the sum is stated to be the amount due on that day; hence, there is a failure literally to comply with the statutory direction. But we think the error is of too trifling a character, to entail upon the whole proceeding a judgment of nullity; the interest for another day would he less than two cents. So far as the effect of a tender is concerned, there is no doubt but that the offer of the sum mentioned would have been sufficient, as against the holder of the mortgage; the interest for the additional day might be easily ascertained, by one desirous of knowing the precise amount at the day of publication. The statute does not say that the amount shall be set down in dollars and cents, though that is doubtless the readiest manner of complying with its direction; but I am not convinced that a statement that a particular .amount was claimed to be due at a certain prior day, and that the mortgagee claimed that sum with interest from that time, would not be sufficient. On the whole, we think the objection was properly disposed of by the referee.^[2]

The objection which assumes that, according to the no

1 See Candee v. Burke, 1 Hun 549 .

2 See Mowry v. Sanborn, 62 Barb. 223 , which, however, was reversed in 65 N. Y. 581 .

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tice, it was the mortgage or "'mortgage-debt and not the mortgaged premises which were advertised to be sold, appears to be hypercritical. We are to read this paper in the sense which the parties interested, and the public who were invited to purchase, would have placed upon it. It is parcel of the law of the state, that mortgages, in the form in use in this country, may be foreclosed advertising, where there has been a default in the payment of the mortgage-debt, if no suit or proceeding at law has been prosecuted to recover it. When this notice recited these circumstances, immediately after a description of the mortgaged premises, and proceeded to state that the same would be sold at public auction, no one, we think, could be so perverse as to understand that it was anything else than the land mortgaged which was to be so disposed of. A slight change in the punctuation, by changing the period into a comma, before the word “ default,” and the insertion of a copulative conjunction at that place, all of which we think may be fairly understood, would make the sense perfectly plain. The defendants’ criticism is based upon the grammatical principle that words of reference relate to the last antecedent; but this, though a general rule, is not a universal one. Where the sense of the writer shows that a subject placed earlier in the sentence is the one intended to be referred to, that construction will be adopted.

Although we do not find the notice liable to the exceptions which were taken against it on the trial, we would not advise its adoption as a precedent to be used in mortgage foreclosures. There was a point taken on the argument," which, had it been mentioned on the trial, would have raised a question of more gravity than those we have been considering. The statute says that “ notice that such mortgage will be foreclosed by a sale of the mortgaged premises, or some part thereof, shall be given,” &c. This notice does not intimate, in any way, that the sale which is spoken of is for the purpose of foreclosure,

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nor (what would be equivalent) that the sale is to be by virtue of a power of sale contained in the mortgage. We suppose, that most persons would readily enough conjecture the purpose of the notice adopted in this case; but titles to land ought not to be left to depend upon vague inferences. We have noticed this feature in this case, lest it might hereafter be supposed that this form of notice had been approved of by the court.^[3] We place the judgment of affirmance on the ground that none of the objections taken upon the trial were tenable, and that we "-are only to pass upon the points there plainly raised. The .judgment must be affirmed.

Judgment affirmed.

3 In Leet v. McMaster, 51 Barb. 236 , it was ruled, that the notice of a statutory foreclosure need not state that the mortgage will be foreclosed.