Miller v. Hull

4 Denio 104 | N.Y. Sup. Ct. | 1847

By the Court, Beardsley, J.

The mortgage sale was advertised to take place on the 21st of March, at which time, and at the place appointed for the sale, it was adjourned to the 10th of April. By mistake the printer stated in his next paper, and so onwards, that the sale was postponed to the 16th instead of the 10th of April, as the fact was. The sale took place according to the printed notice, on the 16th, and the judge held that this was valid. In this, I think he erred. The statute directs the mode in which mortgages may be foreclosed by notice and sale, and the manner of giving notice and of postponing such sales, as well as the mode in which they should be conducted. (2 R. 8. 545, 6, § 1 to 6.) A postponement may be made before the day appointed for the sale, by inserting a notice thereof in the newspaper in which the original advertisement was published. (§ 5.) Or it may be made at the time and place appointed for the sale, by stating to those present the time and place to which the adjournment is made. In such case the subsequent notice, to be inserted and continued in the newspaper until the time of sale, must conform to the adjournment as previously announced and made when the adjournment in fact took place. In the present case, the adjournment to the 10th of April was regular, but the printed notice that the sale was postponed to the 16th was unauthorized and irregular, and the sale on that day was wholly void.

The charge on the point of usury was also erroneous. There is no possible mode in which an usurious security can be made good. The vice, as to such security, is incurable. But the parties to an usurious transaction may, doubtless, reform it; and by cancelling the usurious security and giving a new obligation for the real sum which ought to be paid, excluding all usury, the party will be bound. (Comyn on Usury, 183 to 185; Wright v. Wheeler, 1 Camp. 165, note; Barnes v. Headley, id. 157—overruled 2 Taunt. 184; Blyden. on Usury, 91; Kilbourn v. Bradley, 3 Day, 356.) Nothing like this was pretended in the present case. The judge “ charged the jury that if the mortgage was usurious at first, and the parties after-wards met and reformed it, and took out the usury,” it became valid, and the plaintiff could recover upon it. This cannot be sustained in point of law. Nor do I see that there was any evidence on which such a fact could have been found by the jury. Although the direct examination of the witness, (Hoes,) gave color to the supposition that the defendant was a party to an arrangement by which nine dollars and forty-five cents were endorsed on the mortgage with a view to bring it down to the sum actually received by the defendant, still, on cross-examination, the witness said he could not say the defendant “ was present when the $9,45 was endorsed, or that the order to have it done was given in his presence.” He therefore did not show that the defendant was in any respect a party to the act of making that endorsement, or in any way connected with it. But it is not important whether he was such a party or not: if he was, conceding the mortgage to have been originally usurious, it would remain so notwithstanding this endorsement, no matter by whom, or upon what arrangement it was made.

New trial ordered.