Sherman v. . Willett , 42 N.Y. 146 ( 1870 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The crop of rye was personal property, and as such passed to the personal representatives of Elmer Willett as assets, to be applied and distributed as part of his personal estate. (2 R.S., 82, § 6; Bradner v. Faulkner, 34 N.Y., 347.) The administrators had the right to sell it. They have always had the right to sell the personal property of their intestate, and that right is not limited by section 25, 2 R.S., 87. They have the right to sell for the payment of debts and legacies, and also for the purpose of distribution. (Willard on Executors, 268.) But if it be true, as claimed by the counsel for the appellants, that they have the right only to sell personal estate so far as may be necessary for the payment of debts and legacies, they are not required to get an order of the surrogate authorizing the sale; and when they sell, certainly, in the absence of any proof to the contrary, it will be presumed, in favor of a faithful discharge of their official duty, that they acted legally, and that the exigencies existed authorizing the sale. Hence there is no room for doubt, that the sale of the crop of rye to the plaintiff on the 21st day of October, 1863, by the administrators, was a valid and legal sale.

The plaintiff, by this sale, took his title to the rye subject to the contingency that it might be wiped out by a foreclosure of the mortgage given by the intestate upon the land before the crop of rye was sown. (Shepard v. Philbrick, 2 Denio, 174;Simers v. Saltus, 3 Denio, 214; Lane v. King, 8 Wend., 584.) If nothing had been done before the mortgage foreclosure or at the mortgage sale affecting the title to the rye, it would have passed to the purchaser under the foreclosure sale. Was the plaintiff's title, then, under the facts as they exist in this case, cut off by the foreclosure sale?

While a mortgagee is not bound to sell the mortgaged premises in parcels unless they are in the mortgage described in parcels (Lamerson v. Marvin, 8 Barb., 9; Griswold v. Fowler, 24 Barb., 135), yet I have no doubt he may do so where the premises are so situated that he can sell in parcels; and in such a case, when he has sold land enough to satisfy his mortgage, he need sell no more; and in such a case, if any one can complain of a sale by parcels, and seek to avoid the foreclosure, it certainly cannot be a purchaser, but must be some one at the time interested in the equity of redemption. When it is admitted that a mortgagee can release a portion of the premises and sell the remainder, although they are described as a whole in the mortgage, I do not see why he may not sell the same portion before releasing any. In this case, the mortgage was a lien upon the whole premises, including the rye, and at the time of sale, the mortgagee announced that he would not sell the rye, but would sell the balance. The purchaser knew this, and bid with this understanding. The rye was not sold. The purchaser did not buy it. How can he claim it? If the sale was void because not regularly made, and because the entire premises were not sold, then certainly the defendant has no standing upon which he can base any claim to the rye. Hence, if I am right so far, the plaintiff's title to the rye is good. But I go further and hold that this title is good also upon the doctrine of estoppel. Zina Cornell, the administrator, was also the mortgagee. He sold this rye to the plaintiff, professing to give him a good title free from the lien of his mortgage. He induced him to buy and pay for the rye. After making this sale, he was estopped both as mortgagee and as representing the intestate, the mortgagor, from setting up any title or claim against his own sale. The defendant holds under the mortgagor and mortgagee, and he has no greater title than they could give him; and when his grantor purchased at the foreclosure sale he was also present, and they both knew of the facts constituting the estoppel and bid recognizing the rights of the plaintiff. Hence he is equally bound by the estoppel.

It is true that the affidavits of foreclosure, as filed, show a sale of the entire premises without any reservation; but these affidavits are not conclusive upon the plaintiff, who was not a party to the foreclosure. They are by statute only made presumptive evidence of the facts contained in them. Any person, unless it be the mortgagee, and those claiming under him, can controvert them by parol evidence. (Arnot v. McClure, 4 Denio, 41.) In the case cited, Judge BRONSON says: "As the affidavits are an ex parte proceeding, and are only made presumptive evidence of the facts therein contained, there can be no doubt that they may be controverted by the mortgagor and those claiming under him. All, or any of the facts stated in the affidavits may be disproved."

The judgment should be affirmed.