9 Barb. 278 | N.Y. Sup. Ct. | 1850
The plaintiff claims title to the premises in question in this suit by virtue of a mortgage, executed by Stephen Sheldon, one of the defendants, to Roswell D. Brown, and by him assigned to the plaintiff. The mortgage bears date on the first day of April, 1845, and the premises were sold, under a statute foreclosure, on the tenth day of July, 1847, and were purchased by the plaintiff. The defendants were admitted to be in possession.
The defendants’ counsel moved for a nonsuit at the trial, on the ground that no service of the notice of sale had been made on the mortgagor, pursuant to the act of May 7th, 1844. The motion was overruled, and thereupon the defendants’ counsel excepted to the decision of the court, and went into his defense; which was also overruled by the judge ; and the plaintiff had a verdict and judgment. From this judgment the defendants have appealed, and the only question necessary to be considered is
The third section of .the act for the foreclosure of mortgages, (2 R. (S. 545,) provides as follows: “Notice that such mortgage will be foreclosed by a sale of the mortgaged premises, or some part of them, shall be given as follows.”
(1st.) By a publication in a newspaper, &c.
(2d.) By posting the notice on the courthouse door.
The fourth section prescribes the contents of the notice; but, the mode of publication remained unchanged until the act of 1844. (Laws of 1844, p. 529.) By that act, the third section of the act for the foreclosure of mortgages was amended by inserting the following as an additional subdivision. (3d.) “ 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 and mortgagees of the premises, whose conveyance and mortgage shall be upon record at the time of the first publication of the notice, and upon all persons having a lien, by or under a judgment or decree, upon the mortgaged premises, subsequent to such mortgage, personally, or by leaving the same at their dwelling house, in charge of some person of suitable age, or by serving a copy of such notice upon said persons at least twenty-eight days prior to the time therein specified for the sale, by depositing the same in the post office, properly folded and directed to the said persons, at their respective places of residence.” The foreclosure of the mortgage in question was in the year of 1847, and there was no proof of the service of any such notice, notwithstanding the omission of such service on the mortgagor was made a specific ground of objection.
It is argued that the omission of this notice did not render the sale irregular and void. We think otherwise. After this new provision was incorporated by amendment into the act for the foreclosure of mortgages, it was just as necessary to prove the notice served, as to prove the publication in the newspaper, or the posting on the courthouse door. It is one of the modes of giving notice, ordained by the act, as a condition of the foreclosure,.
If the foreclosure is void, as it most clearly is, then the fee still remains in the mortgagor, and no action can be maintained, either of ejectment or trespass, which affirms the title to be in the mortgagee. In fact, the mortgagor may himself maintain trespass for an invasion of his rights. (See Runyan v. Mersereau, 11 John. 534; Watson v. Spence, 20 Wend. 265, and cases there cited.) In addition to this, it is provided by the statute itself that no action shall Be maintained at the suit of the mortgagee, until the mortgage has been duly foreclosed. (2 R. S. 312 §57.)
A new trial is granted.