50 N.Y.S. 275 | N.Y. App. Div. | 1898
The order appealed from in this case was made in a summary proceeding instituted to obtain possession of real property upon the foreclosure of a mortgage by advertisement. Code Civ. Proc. § 2232. On February 1, 1897, Wilbert S. Birdsall executed and delivered to John P. Wheeler and Samuel J. Weir a bond and mortgage
A compliance with the statutory requirements relating to foreclosure by advertisement is a condition precedent to a. valid sale under the power contained in the mortgage, and a person claiming title under such a foreclosure assumes the burden of showing that the statutory requirements were complied with. Van Vleck v. Enos, 88 Hun, 348, 34 N. Y. Supp. 754; Mowry v. Sanborn, 68 N. Y. 153, 161. In many cases it has been said that every requirement of the statute must be strictly complied with. Sherwood v. Reade; 7 Hill, 431, 434; Van Slyke v. Shelden, 9 Barb, 278, 285 ; 9 Enc. Pl. & Prac. 166, and cases cited. By section 2388 of the Code of Civil Procedure it is provided that “the person entitled to execute the power of sale” must give the notice, and it must be subscribed by him or his attorney or agent. By section 2391 ■it is provided, among other things, that the notice of sale must specify “(1) the names of the mortgagor, of the mortgagee, and of each assignee of the mortgage; (2) the date of the mortgage, arid the time when and the place where it is recorded.” There is no requirement for stating
Assuming, however, that the mortgagees, as owners of a part of the debt secured bv the mortgage, may have a right to execute the power (4 Rev. St. [8th Ed.] p. 2451, § 133; Real Property Law, § 126),“the further question is whether the proceeding was invalid by reason of the omission to state in the notice the name of the assignee, or refer at all to the assignment. The statute is imperative that the notice must state the name of each assignee* I know of no authority for dispensing with such an absolute requirement. It is urged that the statute only refers to absolute owners by assignment. That is a limitation not found in the statute, and there is no apparent reason for implying it. The fact that the assignment was not recorded is not here material, as the statute did not require it. There is no question here under the recording act. Nor is it material to inquire whether the mortgagor was injured by the omission. He was entitled to have the statute complied with. From the notice as published it might be inferred that the mortgagees were the entire owners. The mortgagor, or any one desiring to purchase at the sale, might well be in doubt whether the rights of the assignee would be cut off by the sale, and this would materially affect the bidding. The bank had a right to take
Order reversed, with costs, and restitution ordered. All concur.