119 N.Y.S. 911 | N.Y. App. Div. | 1909
This is an action of ejectment. In 1892 Eli Bennett conveyed with covenant of warranty to Deutsch, plaintiff, the land in suit, and the latter gave Bennett a purchase-money mortgage. Haab, defendant, is in possession as vendee, and claims under an attempted sale on foreclosure of such mortgage by advertisement made, as claimed, by Bennett’s administratrix on May 5, 1894. The deed accepted by the defendant recognized the conveyance by Bennett to Deutsch, and is sufficient evidence of Bennett’s right to convey. The affidavits of sale and of service óf notice thereof on the mortgagor are not made by the auctioneer and the person who served the notice, but severally by the wife and son of Eli Bennett, the former of whom was the administratrix.
There are two questions to be considered: (1) Are such affidavits sufficient evidence; (2) if they are not evidence, is the defendant a mortgagee in lawful possession ? The affidavits authorized by the statute, filed' in the proper office and recorded in the book for recording deeds, take the place of a deed (Mowry v. Sanborn, 72 N. Y. 534) and are, after such recording, deliverable to the purchaser.
The .judgment and order should be affirmed, with costs.
Hibschberg, P. J., Woodward and Jenks, JJ„ concurred; Miller, J., dissented.
Judgment and order affirmed, with costs.
See Code Civ. Proc. (Laws of 1880, chap. 178); §§ 3396-2400, as amd. by Laws of 1882, chap. 399, Laws of 1904, chap. 679, and Laws of 1908, chap. 294. See, also, Laws of 1900, chap. 223, and Code Civ. Proc. § 2408a, added by Laws of 1909, chap. 65.— [Rep.