4 N.Y.S. 569 | N.Y. Sup. Ct. | 1889
The defendant, Emily M. Finn, as one of the devisees of Julia. A. Goold, who died in January, 1887, became the owner of an undivided part of the mortgaged premises, unless the interest of Julia A. Goold was cut off by the statutory foreclosure by advertisement and sale under the mortgage-made by Mary Home, who died intestate, seised and owner of the premises in. January, 1878, leaving Julia A. Goold one of her heirs at law.
As the evidence given on the trial is not returned in the record, we assume the truth of the findings of fact returned, and such other facts as may be necessary to uphold the j udgment not in conflict with the facts found. Gardiner v. Schwab, 110 N. Y. 650,17 N. E. Rep. 732. The validity of the statutory foreclosure is assailed by the defendant, because it is affirmatively found that no copy of notice that the mortgage would be foreclosed was served upon, the personal representatives of Mary Home, deceased. We may assume that, she had no personal representatives, and also that such copy of notice was-duly served upon Julia A. Goold. The foreclosure was under the statute, and prior to section .2388, Code Civil Proe. The statute (chapter 346, Laws-1844; 3 Rev. St. 5th Ed. 860) provides that notice that such mortgage will be foreclosed shall be given, “ (3) by serving a copy of such notice at least, fourteen days prior to the time therein specified for the sale upon the mortgagor or his personal representatives, and upon the subsequent grantees, ” etc.
The weight of authority, if such weight may be determined by comparison of the number of cases, is to the effect that, where there are no personal representatives of the deceased mortgagor, the forclosure is nevertheless valid against those upon whom service is made. King v. Duntz, 11 Barb. 191; Anderson v. Austin, 34 Barb. 319; Cole v. Moffitt, 20 Barb. 19; Hubbell v. Sibley, 5 Lans. 51; Van Schaack v. Saunders, 32 Hun, 515.. The case of Mackenzie v. Alster, 64 How. Pr. 388, is the other way. It is a strong presentation of the doctrine that, unless tile statutory condition precedent to a. sale is complied with, the sale is invalid. The latter case may be said to be-the logical deduction from the literal terms of the statute; the former cases to-be such reasonable construction as is adapted to the situation and promotive of justice. Why should the heir, who is served, and thereby is enabled to protect his interests, be heard to complain in behalf of non-existent personal representatives? The spirit of the statute is that notice shall be given to those whose interests are to be affected. The spirit of the statute is respected, though its letter be not observed by service upon parties in interest. The-letter killeth, but the spirit maketh alive. Hence we conclude to follow the more numerous company of authorities. Mrs. Goold, therefore, was fore
