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Pitt v. Amend

65 N.Y. St. Rep. 697 Court N.Y. Gen. Term Decision date 1895-02-11 English

Delivered by Pratt, J.

Contents

Majority

p. 697
William A. Pitt, Pl’ff, v. Arthur Amend, Def’t.
(Supreme Court, General Term, Second Department,
Filed February 11, 1895.)

Headnote

Mortgage—Foreclosure.
Where the husband of a deceased mortgagor, who was a co-mortgagor, was served with notice of sale, and all the other proceedings were regular, the sale under foreclosure will not be disturbed more than twenty years afterwards because notice of sale was not given to her personal representatives, where none were appointed.
Submission of controversy without action, to compel performance of a contract for the purchase of real property.
McGuire, Low & Coombs, for pl’ff; Joseph H. Delaney, for def’t.

Foreclosure by advertisement, in which the defendant purchaser refused title solely because of the alleged defect in the foreclosure in not giving notice of the sale to the “personal representatives” of the deceased mortgagor, required by the statute (chapter 346, Laws 1844). The case, as agreed upon, shows that the mortgage was made by Patrick Connell and Mary Daly Connell, his wife, and that the notice of sale was served on Patrick Connell, but that Mary Daly Connell had deceased before the foreclosure, intestate. Whatever rights in the mortgaged premises Mary Daly Connell died seised and possessed of passed to her heirs at law, and not to her personal representatives. No administration was ever had upon her estate, and there is nothing to show who her heirs were. In Low v. Purdy, 2 Lans. 424 , notice had been served upon the heirs, but not upon the personal representatives, and it was there held that such service was a nullity, and that “heirs” and “personal representatives” are two separate and distinct classes of persons, and that the statute prescribes service upon the personal representative, and not the heirs. It would appear, then, that there were no personal representatives of Mary Daly Connell to serve with notice. Her husband and co-mortgagor was served, and all the other proceedings are confessedly regular. The foreclosure was in 1866, and there is nothing before the court showing any outstanding equity in the estate of the heirs of Mary Daly Connell to warrant disturbing the sale under this foreclosure after so many years. Anderson v. Austin, 34 Barb. 321 ; Cole v. Moffit, 20 id. 18 ; Hubbell v. Sibley, 5, Lans. 51; King v. Duntz, 11 Barb. 191 .

Judgment for plaintiff.

All concur.

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