Slyke v. Shelden , 9 Barb. 278 ( 1850 )

By the Court, Gridley, J.

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 that arising on the foreclosure of the mortgage without the service of a notice pursuant to the act of 1844.

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,. In Bloom v. Burdick, (1 Hill, 130,139,141,) Bronson, J. says, while discussing the necessity of the statutory notice and appointment of guardians for infants in the surrogate’s court: “ The surrogate undoubtedly acquired jurisdiction of the subject matter, on the presentation of the petition and account; but that was not enough. It was also necessary that he should acquire jurisdiction of the person. It is a cardinal principle in the administration of justice, that no man can be condemned, or divested of his right, until he has had the opportunity of being heard. He must either by serving process, publishing notice, appointing a guardian, or in some other way, be brought into court; and if judgment is rendered against him before that is done, the proceeding will be utterly void.” Again he says, “ In every form in which the question has arisen it has been held that a statute authority by which a man may be deprived of his estate, must be strictly followed.” In Thatcher v. Powell, (6 Wheat. 119,) Marshall, Ch. J. said it was a self-evident proposition, that no individual or public officer can sell and convey a good title to the land of another, unless authorized to do so by express law. And the person invested with such a power must pursue with precision the course prescribed by law, or his act will be invalid.” (See also to the same effect, Jackson v. Esty, 7 Wend. 148; 13 Id. 465; 4 Wheat. 77; 4 Hill, 76.) These authorities are directly applicable to the case in hand. The mode of foreclosing a mortgage by statute, was a substitute for a foreclosure in the court of chancery. A service of the subpoena in chancery was necessary to give the court jurisdiction of the person of the defendant. In the substituted proceeding, at the first, provision was made for notifying the mortgagor and others having hens on the land, by publication in a newspaper, and by posting the notice on the courthouse door. In 1844 the legislature thought it proper to require a service of the notice on the mortgagor, and his grantees, Ac., either personally or by mail. And this amendment was made by adding a third subdivision embodying the new requirement, to the former requisites of publication and posting a notice on the door of the courthouse, so that the act should now read as though this new provision was originally a part of the statute, and was one of the conditions on which the foreclosure depended. The same idea is carried out in the following sections of the act of 1844. By the second section of that act, provision is made for the perpetuation of the proof of this service, by an affidavit, just as the publication of the notice in a newspaper and the posting on the courthouse door is made by affidavit. These affidavits are to be recorded, by the twelfth section of the act in the revised statutes, and in this manner, the evidence of the performance of all these jurisdictional facts is preserved. Again: the eighth section of the revised statutes, which declares the effect of a sale upon advertisement, is amended By the act of 1844, so as to make the sale a bar, only on condition that the notice has been sérved on the parties, pursuant to the new requirements of that act.

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.