Dane v. Mallory

| N.Y. Sup. Ct. | Jan 5, 1852

By the Court, Gridley, J.

The only question involved in this cause respects the title of the defendant to the boat,.under the Nash mortgage. For if that mortgage was a valid instrument, then the title of the plaintiffs, being derived under a sheriff’s sale of the boat, against one of the .persons who executed the mortgage to Nash,, was subordinate and subject to the superior title or lien created by it. The sale, under the execution against Gardner, being proved by parol, without any evidence of a judgment, could not convey any title to the purchaser. (Yates v. St. John, 12 Wend. 74.)

The whole question therefore depends on the right of the defendant, as derived under the Nash mortgage. The original mortgage was dated on the 23d day of July, 1846, and was executed by Harry Gardner and Ira Gardner, to Alvah Nash, on the boat in question in this suit, and was filed the same day, in the proper office. Certificates were indorsed on the mortgage, at the proper time, in the four successive years thereafter, with a statement of the amount remaining due each year. No objection was raised, to the regularity of these proceedings,

Bennett, one of the assignees of the mortgage in question, in the month of June, 1850, placed what purported to be a copy of the mortgage in the hands of Mr. Hathaway, as evidence of his authority to take the boat. He. by his agent, did take the boat, and advertised it to be sold on the second of July. The boat, however, was not sold at that time; but the sale was adjourned to a subsequent day; before which, Mr. Hathaway had disposed of the boat at private sale to Augustus Brown, and taken back a mortgage for the purchase money, and it was on a sale upon that mortgage that the defendant purchased the boat.

(1.) The copy of the mortgage delivered by Bennett to Hathaway as authority for seizing the boat was not an accurate copy of the original mortgage, and the point is made that' a seizure and sale under such defective copy did not convey a good title to the purchaser. It is true that the copy is not precisely accurate. But the consideration is the same; the subject matter is the same, viz. the boat Wakondah; the condition is the same; and the mode of foreclosure prescribed in the instrument is the same in both securities. . There is only a change in the language of the mortgage attributable to the use of a different printed form for the copy from that used for the 'original, without affecting any substantial provision of the instrument or any right secured by it. To the objections growing out of the defect in the copy there are two sufficient answers : First. The authority for making the seizure, was the original mortgage and not the copy. The only use of the copy which Mr. Hathaway could make would be to satisfy those who had the possession of the boat, of his superior right to it. The copy of the-mortgage did not clothe its possessor with any official authority to take the boat; nor could it in any sense be regarded as process, conferring a right on the possessor to seize the boat. And therefore, whether the copy which Hathaway held was a true copy or not, was immaterial, unless possession of the boat was fraudulently obtained by the presentation of the instrument as a true copy, and the boat was yielded on that precise ground. But it was not so yielded. For aught that appears, Mr. Bockwood took possession of it where it lay, vacant and unoccupied. A second answer is that the object of the act authorizing a copy to be made and providing that it should be evidence of certain facts, does not require an exact copy. If the copy is substantially correct, the object of the act is attained.

(2.) The next question is, whether there was any irregularity in the sale to Brown, by Hathaway, after the adjournment of the sale by Bockwood; of which the plaintiff can complain. In the fall of 1848 one of the mortgagors removed the boat to Troy, so that the mortgagee had no opportunity to seize it as forfeited. The first default occurred the same fall, and from that time the title at law became absolute in the mortgagee and his assigns. (Brown v. Bement, 8 John. 96. Otis v. Ward, 3 Wend. 498. Langdon v. Buel, 9 Id. 80. Patchin v. Pierce, 12 Id. 61.) And in a subsequent case it was expressly held that the provision in the mortgage for selling the property at auction and restoring the surplus moneys to the mortgagor, made no difference in this respect. And it was determined in Fuller v. Acker, (1 Hill, 473,) that the filing of the statement by way of renewal, required by the act of 1833, is not an extension of credit, and does not prevent the mortgagee from insisting on the forfeiture. It follows that Hathaway had a right at law to sell the boat, at private sale, just.as.he might sell any other property, to which he had an absolute and unqualified title ; especially as against the plaintiffs, who are mere strangers, on the evidence in this case.

[Oneida General Term, January 5, 1852.

Gridley, W. F. Allen, Hubbard and Pratt, Justices.]

In equity, if the mortgagors, the Gardners, or those who could show that they stood in their place, by purchase of the property, had sought to redeem, they might have done so. But no such right has been exercised, and no person, from whom the plaintiffs derive their claim, has shown any legal transmission of the title of the Gardners to him.

Hew trial denied.