State ex rel. Dewey v. Burdick — 5 N.Y.S. 363

Majority

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State ex rel. Dewey et al. v. Burdick et ux.

(Supreme Court, General Term, Fourth Department.

May 10, 1889.)

Headnote

1. Summary Proceedings to Recover Land—Pleading—United States Loan Commissioners.

Laws N. Y. 1837, c. 150, (1 Rev. St. 7th Ed. 511,) which was an act authorizing the loan of certain moneys belonging to the United States, provides (section 5) that “the commissioners * * * to be appointed in pursuance of this act shall respectively be known * * * by the name and style of ‘the commissioners for loaning certain moneys of the United States of the county ’ of which they are respectively commissioners, and they shall be named and described by such name and style in all legal and other proceedings which may be had under the provisions of this act. ” Section 3 provides that such commissioners shall be nominated and appointed by the governor and senate. Held, that a petition to recover land sold under foreclosure of a mortgage given to the commissioners to secure a loan, which petition the petitioners assumed to make “as loan commissioners in and for the county of Onondaga,” and which averred that they were “duly elected” as such officers, improperly described the petitioners, and was irregular in averring that they were “elected. ”

3. Same—Jurisdiction.

Code Civil Proc. ÍT. Y. § 3333, subd. 3, allows summary proceedings to recover land to be maintained against a person who holds over after notice to quit has been given, “where the property has been duly sold upon the foreclosure—by proceedings taken as prescribed in title ninth of this chapter—of a mortgage executed by him.” Title 9 relates to foreclosure by advertisement, and prescribes (section 33S7) that a mortgage on real property, containing a power of sale, “may be foreclosed in the manner prescribed in this title where * * * default has been made in a condition of a mortgage, whereby the power to sell has become operative. ” Held, that summary proceedings could not be maintained for land sold on foreclosure of a mortgage which contained no power of sale, as such mortgage became foreclosed on the mortgagor’s default by operation of law, and not by virtue of title 9.

Appeal from. Onondaga county court.

Summary proceedings to recover possession of land, brought by the state of Hew York, by Franklin H. Dewey and George Edinger, against George K. Burdick and Abigail Burdick, his wife. On March 17, 1879, defendants executed a mortgage covering real estate therein described to “the commissioners for loaning certain money of the United States of the county of Onondaga,” for the consideration of $1,000, interest payable annually. A proceeding for the foreclosure of the mortgage by advertisement was had. Hotice of foreclosure was given “pursuant to an act authorizing the loan of certain moneys belonging to the United States, passed April 4, 1837,” and the land was bid off by C. E. Billington, as loan commissioner. A notice to quit was served, which was refused, and the petition in these proceedings was filed. An answer was filed denying the allegations of the complaint, except that the

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parties were officers, as averred, and setting up that the mortgage was void by reason of an alteration thereof. Judgment for petitioners, and defendants appeal.

Argued before Hardin, P. J., and Martin and Merwin, JJ.

Waters <£- McLennan, for appellants. B. Si. Bailey, ( William Sfottingham, of counsel,) for respondents.

1. In the petition it is averred that Dewey and Edinger “ were duly elected loan commissioners in and for the said county of Onondaga, and duly qualified and entered upon their duties as such officers. ” They assumed to make the petition “as loan commissioners in and for the county of Onondaga. ” After describing the premises by metes and bounds, the petition avers in respect thereto—in respect to said premises, viz.: “Being the same premises conveyed to the commissioners of said fund for Onondaga county by said mortgage. ” Section 5, c. 150, Laws 1837, (1 Rev. St. 7th Ed. 511,) provides as follows: “The commissioners of the several counties to be appointed in pursuance of this act shall respectively be known and distinguished by the name and style of ‘ the commissioners for loaning certain moneys of the United States of the county ’ of which they are respectively commissioners, and they shall be named and described by such name and style in all legal and other proceedings which may be had under the provisions of this act. ” From the quotations we have already made from the petition it is obvious that the petitioners were not “named and described by such name and style” as the statute from which we' have just quoted requires. The petition was irregular in stating that the commissioners were duly elected; whereas, section 2 of the act already referred to provides that the governor shall nominate, and, with the consent of the senate shall appoint, two reputable inhabitants, etc. By chapter 337 of the laws of 1850 “loan commissioners for the several counties in this state of the loans of 1792 and 1808 are abolished. ” See title of the act, 1 Rev. St. 529, and section 6, p. 531. Thompson v. Commissioners, 79 N. Y. 55 .

2. Section 2232 of the Code of Civil Procedure extends the summary proceedings for the recovery of land' to four enumerated cases, and allows such proceedings to be instituted and conducted against “a person who holds over and continues in possession of real property after notice to quit the same has been given, as prescribed in section 2236. ” The respondent seeks to uphold the proceedings in question, and insists that the county judge had jurisdiction, in virtue of subdivision 2 of section 2232. That subdivision is as follows: “(2) Where the property has been duly sold upon the foreclosure—by proceedings taken as prescribed in title ninth of this chapter—of a mortgage executed by him, or a person under whom he claims, and the title under the foreclosure has been duly perfected. ” Title 9 of the Code of Civil Procedure relates to “proceedings to foreclose a mortgage by advertisement;” and section 2387, which is found in title 9, prescribes what mortgages may be foreclosed by advertisement. The section contains the following: “A mortgage upon real property situated within the state, containing therein a power to the mortgagee or any other person to sell the mortgaged property upon default being made in a condition of the mortgage, may be foreclosed, in the manner prescribed in this title, where the following requisites concur1 (1) Default has been made in a condition of the mortgage, whereby the power to sell has become operative. * * * (3) The mortgage has been recorded in the proper book for recording mortgages, in.the county wherein the property is situated. ” The mortgage which was given by the defendants was substantially in the form prescribed by section 56 of the act of 1837, c. 150, (1 Rev. St. 7th Ed. 523.) The mortgage contains no “power to the mortgagee, or any other person, to sell the mortgaged property upon default being made in a condition of the mortgage. ” Under such a mortgage as was given by the

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defendants, after default for 23 days in the payment of money due thereon “all title and interest of the mortgagor in the land is gone.” “The whole title to it vests in the commissioners. But, as the state wants no more than its debt and interest, the mortgagor is relieved from the forfeiture he has incurred if he will, before the actual sale, come forward, and pay it, with the expenses. ” Pell v. Ulmar, 18 N. Y. 146 . By the mortgagor’s default the mortgage became foreclosed by operation of law, “and nothing remained in the mortgagor but a special privilege of redemption. ” White v. Lester, 4 Abb. Dec. 588; Pell v. Ulmar, supra. Inasmuch as the petition and proofs before the°county judge did not show that the property in question had been sold upon a foreclosure authorized by the provisions of title 9 of the Code of Civil Procedure, there was a failure to show facts conferring jurisdiction upon the county judge to conduct the summary proceedings. See People v. Andrews, 52 N. Y. 445 . It seems that the authority to sell premises covered by a mortgage like the one in question rests upon the statute, rather than a power of sale contained in the instrument. It seems that section 2409 of the Code of Civil Procedure was adopted to exclude from the operation of the other sections of title 9 the foreclosure of a mortgage given like the one before us. In Sherwood v. Reade, 7 Hill, 433 , it was said, the authority to sell as conferred by this statute is special in its nature, and must be strictly pursued, or the sale will be invalid. Judgment and order reversed, with costs. All concur.

Cases cited

People ex rel. Sheridan v. Andrews 52 N. Y. 445 N.Y. 1873-04-08 p. 365