Bonacker v. Weyrick

This is a proceeding brought by Adam E. Bonacker under subdivision 2 of .section 2232 of the Code of Civil Procedure, for the removal of Frances Weyrick and James Powell from property, No. 58 Fowler avenue, in the city of Rensselaer, N. Y.

The conditions under which the petitioner claims title and right of possession are as follows: On November 20, 1869, David Welch, the then oWner of the property in question, gave a mortgage on said property to Thomas Hayes for the sum of $750, and said mortgage was duly recorded in the Rensselaer county clerk’s office on the 25th day of November, 1869, in Book of Mortgages No. 121, page 389. There are various assignments of said mortgage down to December 1,1874, when it came by assignment into the hands of John Templeton, cashier of the Albany County Bank, and so far as the records show remained in his hands until the 7th day of October, 1904, when it was duly assigned to Adam E. Bonacker, the petitioner herein, and said assignment was recorded in Rensselaer county clerk’s office, October 28, 1904. Fifty dollars of principal was paid on said mortgage, and the interest was paid up to the 30th day of November, 1874, since which date no princi-. pal or interest has been paid upon it, and no promise in writing to pay. the debt secured by the mortgage other than the instrument itself has ever been made.. In the fall of 1904, Bonacker commenced proceedings to foreclose this mortgage, by advertisement, and the foreclosure sale was had on the 26th day of January, 1905, and he (Bonacker), the assignee as aforesaid, was the only bidder, and became the purchaser of the property for the sum of $50. ' .

It is contended on behalf of Mrs. Weyrick and Powell that David Welch, the mortgagor, sold the mortgaged property in 1874 to Annette A.

In the case of Jackson v. Dominick, 14 Johns. 435 ; the mortgagee (in this case the assignee) who foreclosed the mortgage was a purchaser, and the court held that he dd not get a good title at the sale for the reason that the mortgage was tainted with usury, and he, being a party to the contract, was chargeable with notice. In this case knowledge of the fact that the statute had run is shown to have been in the possession of the assignee and petitioner by his own statement of the matter in the foreclosure proceedings. In Bissell v. Kellogg, 60 Barb. 617 , affirmed 65 N. Y. 432 , it was held that the foreclosure by advertisement of a mortgage tainted with usury will not operate to convey a good title except to a bona fide purchaser at the advertised sale, and this can be prevented by, giving notice of the usurious character of the mortgage at the time of the sale. While both of these cases which I have cited involved a usurious condition, instead of the running of the statute of limitations or adverse possession, yet it seems to me they are sufficiently analogous in principle to make them applicable to the case in hand and under either of these cases I cannot say that the petitioner was a purchaser in good faith within the reading of section 2395 of the Code ór that his title was duly perfected as required by section 2232.

Adverse possession or presumption of payment may be used as a shield to an attack made upon the rights of a person claiming title and right of possession under it. It cannot be used as a ground of affirmative relief or as a weapon of attack. It seems to me that Mrs. Weyrick did all that she was called upon to do, and in fact all that she could do-, with such defense as she had, by giving notice, at the time of the salé under foreclosure proceedings, of the invalidity of the mortgage upon which the proceedings were based, and that she has never been able up to now to have her day in court, and that the more proper procedure for the petitioner would be an action in ejectment or an action under article 5, tit. 1, c. 14, of the Code, where the whole case can be threshed out without advantage or prejudice to either side.

I therefore decide that the petition herein be dismissed, with $10 costs. An order may be entered accordingly.

Ordered accordingly.