11 N.Y. 320 | NY | 1862
There is no doubt that, as to the mortgagors and their grantees, or the grantees of Mrs. Ryan, the statutory foreclosure was utterly void, and did not and could not affect their title or estate, or operate so as to convey a legal title to the premises to the plaintiff. (Bloom v. Burdick, 1 Hill, 130; Van Slyke v. Shelden, 9 Barb., 278.)
The act of 1844, amending the provisions of the Revised Statutes as to foreclosing mortgages by advertisement, requires a copy of the published notice of foreclosure to be served on the mortgagor, either personally or by leaving the same at the dwelling house of the mortgagor, or by mail directed to the place of residence of the mortgagor. Mrs. Ryan, the mortgagor, was not served with notice in either manner. The notice was attempted to be served by mail, but it was directed to her at Berne, Albany county, when, at the time, she resided in the city of New York.
The plaintiff, by bringing this action to foreclose the mortgage, concedes that the attempted foreclosure by Hornblower
In Jackson v. Bowen (7 Cow., 13), it was held that a conveyance by a mortgagee as upon a statute foreclosure, if the proceedings to foreclose were irregular, operated as a good assignment of the mortgage, and the purchaser might claim as assignee of the mortgage. This case would appear to be controlling on this question. Besides, the mortgage has been delivered by Hornblower to the plaintiff. The plaintiff produced it on the trial.
Hornblower is not a party to this action, but it is presumed that he could not set up the irregularity of his own statutory foreclosure proceeding as against the plaintiff; and if so, why should not Nichols, the present owner of the premises, pay the mortgage to the plaintiff as assignee ? It would have been safe for him to have done so:
I think, then, assuming that the answer puts in issue the plaintiff’s right and title to the mortgage as assignee of Hornblower, that the foreclosure proceeding, and the plaintiff’s purchase under it, could and did operate as an assignment of the mortgage to the plaintiff.
But, upon the whole answer, it is difficult to say that the defendants intended to put in issue the plaintiff’s right or title to the mortgage. They first, by a general denial, deny every allegation in the complaint, “ except as hereinafter admitted by the said defendants.” They afterwards aver the tender to the plaintiff, and deny hi§ right to. “ tack the rents alleged to have been paid by him, upon his aforesaid mortgage.”
The next question is, whether the plaintiff, as assignee of the mortgage, could or did enlarge his mortgage to the amount of $260, by paying the rent to Van Bensselaer; whether he could tack $260 of the amount paid Van Bensselaer on or to Ms mortgage.
But Nichols is not a bona fide grantee without notice. Livingston testified that he was present when the deed was delivered, and Mrs. Ryan agreed to pay $260 of the rent; that he was acting as the attorney of Mrs. Ryan in the transaction of the business. He then took his conveyance with full knowledge of Mrs. Ryan’s agreement to pay $260 of the rent; and if so, the mortgagees could have enlarged the mortgage by paying the $260 as against him, if they could have done so against Mrs. Ryan or the mortgagors; and it is very clear that the plaintiff, as assignee of the mortgage, could enlarge the mortgage as against Nichols, if the mortgagees could have done so.
The question then is, whether the mortgagees could have enlarged the mortgage, as against Mrs. Ryan or the mortgagors, by paying the rent to Van Rensselaer. Mrs. Ryan’s stipulation was, that she would pay $260 of the rent to Van Rensselaer. Her agreement was not to pay the $260 to the mortgagees. This is the fair inference from Livingston’s testi
I think the principle upon which they would have had this right is illustrated and has been enforced in the cases cited by the plaintiff’s counsel, holding that taxes, &c., necessarily paid by the mortgagee to preserve his security, may be added to his mortgage. (Silver Lake Bank v. North, 4 John. Ch., 370; Faure v. Winans, 1 Hopk. Ch., 283; Burr v. Veeder, 3 Wend., 412; Rapelye v. Prince, 4 Hill, 119.)
If the mortgagees had paid the rent to "Van Rensselaer, it' would have been considered, I think, as having been necessarily paid, because it would appear from the reentry clause in the lease, that "Van Rensselaer could at any time have reentered for the non-payment of the rent, and thus have destroyed their mortgage security. The mortgage in the plaintiff’s hands as assignee was subject to the same peril: the rent was demanded of him, and probably notice of reentry served upon him. If the plaintiff could add $260 of the amount of rent paid by him to his mortgage, it must be deemed to have been added to the principal, and to have been forthwith, due and payable.
If the foregoing views are correct, it is not necessary to examine the question of jurisdiction, or as to the effect of the
I think the judgment of the Supreme Court should be affirmed, with costs.
All the judges concurring,
Judgment affirmed.