Mowry v. Sanborn — 18 N.Y. Sup. Ct. 545

Majority

p. 545

LE ROY MOWRY, JOHN T. MASTERS and WARREN BRIGGS, Appellants, v. JESSE K. SANBORN, Respondent.

Headnote

Foreclosure by advertisement— 2 S. S., 547, § 14 — defeats in affidavits required by— commot be supplied by parol evidence.

Under the provisions of the Revised Statutes providing for the foreclosure of mortgages hy advertisement, defects in the affidavits, required hy section 14 (2 R. S., 547), cannot he supplied by parol evidence.

Defects in other affidavits required'in such proceedings, e. g., the affidavit of service of notice upon the mortgagor, may he so supplied.

Such affidavits are to he strictly construed.

Appeal from a judgment in favor of tbe defendant, entered upon a nonsuit directed by the court.

Tbe action was commenced March 16, 1871, to. recover .the possession of certain real estate in tbe village of Sandy Hill. The plaintiffs claimed title to tbe premises by virtue of a conveyance from tbe Washington County Bank, which bad purchased them at a sale bad under tbe foreclosure of a mortgage given to it by tbe defendant, dated July 7, 1857. Upon the first trial, in 1871, tbe plaintiff introduced in evidence a deed of tbe premises from George Bradley to tbe defendant, dated in 1852, and a mortgage thereof from him to tbe president of tbe bank, and also affidavits and papers showing tbe foreclosure of this mortgage by advertisement, and tbe conveyance of tbe premises to tbe bank and from it to' tbe plaintiff. Judgment was entered in favor of tbe plaintiff, which was affirmed at tbe General Term ( 62 Barb., 223 ), but subsequently reversed in tbe Commission of Appeals ( 65 N. Y., 581 ), on tbe ground that the' affidavit of service of notice of tbe foreclosure upon tbe mortgagor was defective, in that it stated that tbe deponent served tbe notice upon him by depositing it in tbe post-office, addressed “ Jesse K. Sanborn, Sandy Hill, Washington county, N. Y.,” and that “ at that time each of said persons resided, as this deponent is informed and believes, at tbe respective places to which their said notices were so addressed; ” tbe Commission of Appeals bolding that tbe affidavit did not furnish presumptive evidence of service, and that to have that effect tbe affidavit must be of a person who speaks from

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personal knowledge as to the residence of the persons served, mere knowledge and information being insufficient. The action was again tried June 29, 1875. Upon this trial the plaintiffs were allowed, against the defendant’s objection and exception, to prove by parol, in connection with the affidavits of service, that the mortgagors did in fact reside at Sandy Hill, N. Y., at the time of the mailing of the notice. Upon an appeal from a second judgment in favor of the plaintiff, the General Term reversed it on the ground that this evidence was inadmissible. ( 7 Hun, 380 .) Upon a further appeal to the Court of Appeals the latter court decided that oral evidence was admissible for this purpose, and directed a new trial.

Upon the third trial it was claimed by the defendant that the affidavit of publication was defective. The following 'is a copy of the affidavit, viz.:

“ State oe New York,

“Washington Cownt/y,

“John EL Waterbury, of the town of Greenwich, county of Washington and State of New York, being duly sworn, deposeth and saith that he is the foreman of the printer of the newspaper called the People’s Journal, a public newspaper printed and published in the county of Washington, where the premises described in the annexed printed notice of sale or a part thereof are situated. Deponent further says that the notice of the mortgage sale, of which a printed copy is hereto annexed, was published for twelve weeks successively, at least once in each week prior to the time specified in said notice for the sale of said premises, said publication having been commenced on the 23d day of April, in the year 1868, and continued for twelve weeks, at least, successively, at least once in each week.

“ JOHN M. WATERBURY.

“ Subscribed and sworn to before me,' and certified by me, this 17th day of ►

July, 1868,

“ Jambs I. Lourie,

“Wota/cy Public.”

Defendant’s counsel objected to the affidavit, on the grounds that the affidavits of publication and sale were made before a notary

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public, and sucb affidavits could only be made before a judge of a court of record, a commissioner of deeds or justice of tbe peace; tbat tbe affidavit of publication does not sbow or state any publication of tbe notice of sale in any public newspaper or in any newspaper, and does not sbow or state tbat tbe notice of sale was published in tbe newspaper called tbe People’s Journal; tbat there is no sufficient affidavit to sbow any publication of notice of foreclosure or sale, and there is no affidavit on tbat subject tbat complies with tbe statute in tbat respect. Plaintiffs’ counsel offered to sbow by parol evidence tbat tbe publication referred to in tbe affidavit was in fact made in tbe People’s Journal, tbe paper referred to in tbe affidavit.

Defendant’s counsel objected to tbe evidence offered upon tbe ground tbat it was incompetent and inadmissible. Tbe court sustained tbe objection, and plaintiffs’ counsel duly excepted.

Samuel Hand, for tbe appellants.

Tbe affidavit of "Waterbury is sufficient proof of publication. (Judd v. O'Brien, 21 N. Y., 186 ; George v. Arthur, 2 Hun, 406 ; Oandee v. Burke, 1 id., 546 ; Howard v. Hatch, 29 Barb., 297 ; Baloom, J., 62 id., 223-229.) Tbe affidavit being required to be made by tbe foreman of tbe printer of tbe newspaper in which tbe notice was inserted, and to state tbe fact merely of publication, tbe statute was complied with, and any proof to identify tbe affiant as sucb printer, or tbe People’s Journal as tbe newspaper in which tbe publication :vs|as made, if necessary, was proper and should have been admitted. (See Bocees, J., Mowry v. Sanborn, 7 Hun, 384 ; see Baloom, J., 62 Barb., 223 ; Dwight v. Phillips, 48 id., 116.)

Hughes <& Northup, for tbe respondents.

A foreclosure of a mortgage is a statutory proceeding, and tbe statute must be strictly pursued, and an omission to comply with any of its material requirements will render tbe foreclosure irregular and void. To be a valid foreclosure it must be “conducted as herein prescribed.” (Lawrence v. Farmers', etc., 13 N. Y., 200 ; Lockett v. Dili, 1 Wood’s O. C. R., 552; Potter’s Dwarris, Rule 21, p. 146 ; Powell v. Tuttle, 3 N. Y., 396 , 401; Sharp v. Spear, 4 Hill, 76 , 84; Thatcher v. Powell, 6 Wheat., 119 ; S, C., 5 Pet, Oon, R., 31; Sherwood v.

p. 548

Beade, 4 Hill, 431 , 434; Bloom v. Burdick, 1 id., 141; Sharp v. Johnson, 4 id., 92, 99; Striker v. Kelley, 2 Den., 323 , 330; see, also, Van Stylce v. Sheldon, 9 Barb., 278 ; Doughty v. Hope, 3 Den., 594 , 598; S. O., 1 N. Y., 79 ; People v. Board of Police, 6 Abb., 162 ,-164; Stanton v. Ellis, 12 N. Y., 575 , 578 ; Ex parte Bank of Monroe, 7 Hill, 177 , 179 ; 10 N. Y., 329 , 330; 2 Robt., 153 ; 42 How., 116 ; 43 N. Y., 107 ,121; 23 id., 285, 286; 12 Abb. [N. S.], 161, 169; 19 N. Y., 496 ; 39 id.) 196, 369 ; 45 id., 781-784; see, also, opinion in this ease of Reynolds, C.) The affidavits of a proper foreclosure, showing an absolute and actual compliance with the requirements of the statute, are the title of the purchaser, and if they are not made as provided for by the statute the purchaser acquires no title. {Layman v. Whiting, 20 Barb., 559 ; People v. Becker, 20 N. Y., 324 .) The court properly excluded oral proof that notice was published in the People’s Journal. Parol proof cannot be given to supply any defect in affidavits of publication, posting on court-house door, or of the sale. (Arnot v. McClure, 4 Den., 41 ; op. of Ct. of App. on second appeal.)

A statutory foreclosure is the execution of a power of sale given in the mortgage. The provisions of the statute, therefore, only regulate the execution of a power granted by the mortgagor. They do not (like some statutory proceedings) authorize the taking away of one’s property without any authority from the owner.

It would seem reasonable, therefore, that proceedings taken under this statute should be sustained, when the power of sale has been fairly exercised; and that, in a court possessing common-law and equity jurisdiction, any apj>arent defects in the papers should be supplied by common-law proof if it could be given. (1 R. S. [m. p.], 737, § 152; 2 R. S. [m. p.], 547, § 14.) That statute enables purchasers for a valuable consideration to have relief in equity against a defective execution of a power.

But a different doctrine seems to have been established. (Arnot v. McClure, 4 Den., 44 .) And when the present case was in the Commission of Appeals ( 65 N. Y., 581 ), a very strict rule of construing the affidavits, was adopted. On the second appeal, the Court of Appeals, with that decision before them and referring to

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the same, practically adopted it; a minority only of the court expressing dissent therefrom.

And in the opinion then delivered, while the court limited the rule which excluded common-law proof, and held that it is not applicable to those affidavits which are not mentioned in section 14, they, by implication, left this rule in force as to those affidavits which are mentioned in that section. They say that oral proof was admissible, “ unless the affidavit of service was a part of the statute conveyance provided for in section 14.” From this it is to be inferred that oral evidence is not admissible to establish matters which should be in affidavits, which are a part of that statute conveyance.

The case then stands thus : The Commission of Appeals decided that these affidavits must be construed strictly. Applying that rule to the affidavit of publication, it is defective ; much more than the affidavit of service, which that court' held to be bad. Former cases have held that common-law evidence, is not admissible to supply defects in the affidavits. The Court of Appeals have modified these decisions, by holding that such evidence is competent as to defects in the affidavits of service, because those are not mentioned in section 14. The affidavit of publication is mentioned in that section. And we therefore feel compelled to hold, whatever our own judgment might be, that the evidence offered was properly excluded. And that the judgment should be affirmed with costs.

Present — Learned, P. J., Bookes and Boardman, JJ.

Judgment affirmed, with costs.