in said county, do acknowledge myself hereby indebted to the People of the State of New York in the just and full sum of one hundred dollars, to be well and truly paid to the said People, if default shall be made in the condition following: WHEREAS, I, the said A. B., have this day applied to the County Court of said county for a license to keep a ferry upon the River, in the town of in said county: NOW THE CONDITION of this recognizance is such, that if I, the said A. B., shall faithfully attend and keep the said ferry, provided a license be granted for that purpose as aforesaid, with such and so many sufficient and safe boats, and a sufficient number of men to work the same, together with sufficient implements for said ferry, as shall be deemed necessary during the several hours in each day, and at such rates as this court shall direct, then this recognizance to be void; otherwise, to remain in full force. [Signature of applicant.] Subscribed and acknowledged in open court, this of day [Signature of] Clerk. 814. License for a Ferry.(a) At a County Court held in the courthouse in the city of for the county of him], county judge. the day of 18 WHEREAS, A. B., of the town of in and Present [naming describe the place particularly], for the term of And the said A. B. is allowed to collect and receive ferriage for the transportation of travellers, property and effects, over and across the said ferry, at and after the following rates, but he shall not take or demand any greater sum or sums for such transportation-viz. [state the rates]. [Signature of] Clerk. (a) This is to be entered on the minutes by the clerk, is to be delivered to the of the court. A certified copy, attested licensee. Foreclosure by Advertisement. CHAPTER XXXVIII. FORECLOSURE. Mortgages of real property are commonly foreclosed by a suit brought for the purpose, in which all persons having an interest subject to the mortgage are made parties. But if a mortgage contains a power of sale, which is usually the case, the holder may foreclose the mortgage by selling the property under the power of sale, by auction, on due notice to all parties interested. This is a common and convenient mode in simple cases where the parties are few in number. The mode in which this may be done, and the necessary method of preserving evidence of the sale, so as to assure the purchaser's title, are prescribed by statute. It is not allowable to proceed in both methods of foreclosure at the same time. In general, it may be said that any holder of the mortgage, whether he be the original mortgagee, or an absolute assignee, or an executor or administrator, or an officer of a corporation, or other trustee holding the mortgage, may proceed to enforce the power of sale by advertising and selling, pursuant to the statute. Notice of foreclosure.-In order to foreclose a mortgage by advertisement,(a) the mortgage, if not already recorded, should be put on record in the county where the lands lie; a notice that it will be foreclosed by a sale of the mortgaged premises, or some part of them, must be prepared, specifying the names of the mortgagor and mortgagee, and the assignee of the mortgage, if any; the date of the mortgage and where recorded, or where the power of sale is regis tered; the amount claimed to be due thereon, at the time of the first publica. tion of such notice; and a description of the mortgaged premises, conforming substantially with that contained in the mortgage. This notice must be given as follows: 1. By publishing it for twelve weeks successively, at least once in each week, in a newspaper printed in the county where the premises intended to be sold are situated; or if such premises are situated in two or more counties, in a newspaper printed in either of them. If the notice is published once in each week, for twelve successive weeks, the first publication being made eighty-five days before the sale, and the last, eight days before it, it is sufficient.(b) If the printers of the papers in the county refuse to publish the notice at the legal rates, it may be published in the State paper, in which case a copy of the notice must be served, at least six weeks before the time of such sale, on the person in possession of the mortgaged premises, in all cases where the same are occupied; and when they are not occupied, and the mortgagor, his heirs or personal representatives, reside in the county where such premises lie, then upon such mortgagor, his heirs or personal representatives, as the case may be. 2. Posting-A copy of the notice must be affixed at least twelve weeks prior to the time therein specified for the sale, on the outward door of the building where the County Courts are directed to be held, in the county where the premises are situated; or if there be two or more such buildings, then on the outward door of that which shall be nearest the premises. In the computation (a) These directions are according to the law of New York. 2 Rev. Stat., 545; Laws of 1842, 363, ch. 277; Ib., 1844, 529, ch. 846; Ib., 1857, vol. i., 667, ch. 308; 2 Rev. Stat., 649, § 50. (6) Howard v. Hatch, 29 Barb., 297. General Rules. of the time of posting, the first day and the day of sale cannot both be included, but only one of them.(c) 3. Recording.-A copy of the notice must be delivered at least twelve weeks prior to the time therein specified for the sale, to the clerk of the county in which the mortgaged premises are situated, who is to affix the same in a book kept for the purpose. 4. Service. A copy of the notice must be served at least fourteen days prior to the time therein specified for the sale, upon the mortgagor or his personal representatives (that is, his executors and administrators), (d) 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, at some place within the State, (e) properly folded and directed to the said persons at their respective places of residence. If the notice is sent unsealed, the direction should be upon the paper on which the notice is written. If sent in an envelope, it should be sealed.(ƒ) A mistake in mailing notice, addressed to a party at another place than the residence of such party, renders the foreclosure utterly void as to such party and his grantees.(g) All these four modes of notice must be pursued to make a valid sale under the statute.(h.) The sale may be postponed from time to time, by inserting a notice of such postponement, as soon as practicable, in the newspaper in which the original advertisement was published, and continuing such publication until the time to which the sale shall be postponed. If the original advertising and posting was not commenced in time to give the legal notice, the sale may be postponed, and the notice continued to make up the deficiency(?) of time. Except in case of a postponement for this purpose, the notice of postponement may be by publication alone without posting.(j) Where a postponement is made at the time and place appointed for the sale, by stating to those present the time and place to which the adjournment is made, the subsequent notice, to be inserted and continued in the newspaper until the time of sale, must conform to the adjournment, as thus announced.(k) Mode of sale.-The person foreclosing the mortgage may act as auctioneer. The sale must be at public auction, in the daytime, in the county where the mortgaged premises, or some part of them, are situated; except in sales of property mortgaged to the People of this State, in which case the sale may be made at the Capitol. If the premises consist of distinct farms, tracts or lots, they must be sold separately; and no more farms, tracts or lots should be sold than necessary to satisfy the amount due on such mortgage, at the time of the first publication of notice of sale, with interest, and the cost and expenses (c) Bunce v. Reed, 16 Barb., 847. (d) Service upon heirs or devisees is not necessary. Anderson v. Austin, 34 Ib., 319. (e) Bunce v. Reed, 16 Ib., 347. may be conducted in the other mode pre- (i) Cole v. Moffitt, 20 Barb., 18. (ƒ) Rathbone v. Clarke, 9 Abbotts' Pr., 372. 66, note. (g) Robinson v. Ryan, 25 N. Y., 820. (h) Van Slyke v. Shelden, 9 Barb., 278; Cole v. Moffitt, 20 Zb., 18. When there are no personal representatives, the provision of the statute concerning notice to them is inoperative, and the foreclosure (k) Where the announcement, made at the time and place fixed for the sale by the first advertisement, was of an adjourn ment to the 10th of the month, but the printed notice was, by mistake, for the 16th,-Held, that a sale had on the 16th was void. Miller v. Hull, 4 Den., 104. Foreclosure by Advertisement. allowed by law. The rule, that if the premises consist of distinct farms, tracts or lots, they must be sold separately, applies only where the premises consisted, at the time of the mortgage, of distinct farms, tracts or lots, and not where they were, and were mortgaged as, one farm, tract or lot, and were subsequently subdivided by the mortgagor, for more convenient occupation or for sale.() The mortgagee, his assigns, and his or their legal representatives, may fairly and in good faith purchase the premises so advertised, or any part thereof, at such sale. Effect of sale.-A regular foreclosure by advertisement, and the sale made in pursuance thereof to a purchaser, in good faith, is equivalent to a sale under a decree in a court of equity, so far only as to be an entire bar of all claim or equity of redemption of the mortgagor, his heirs and representatives, and of all persons claiming under him or them, by virtue of a title subsequent to the mortgage, and also of any person having a lien, by any judgment or decree, on the premises, or any part thereof, subsequent to such mortgage, and of any person having any lien or claim by or under such judgment or decree, who has been duly served with a copy of the notice of sale. An affidavit of the fact of any sale pursuant to such notice, may be made by the person who officiated as auctioneer at such sale, stating the time and place at which the same took place, the sum bid and the name of the purchaser, and shall be annexed to a printed copy of the notice of sale. An affidavit of the publication of such notice of sale and of any notice of postponement may be made by the printer or publisher(m) of the newspaper in which the same was inserted, or by his foreman or principal clerk; and an affidavit of the affixing of a copy of such notice on the outward door of the courthouse, may be made by the person who affixed the same, or by any other person who saw such notice so posted during the time required; and an affidavit of the affixing a copy of such notice in the book kept by the clerk, may be made by the county clerk, or by any other person who saw such notice so affixed, during the time required; and an affidavit of the serving a copy of such notice on the persons entitled to service thereof, may be made by the persons who served the same. These affidavits may be taken and certified by any judge of a court of record, or any commissioner of deeds, notary public or justice of the peace, and may be filed in the office of the clerk of the county where such sale took place. The affidavits are to be recorded at length by the clerk, in the book kept for the record of mortgages; and the original affidavits, the record thereof, and certified copies of such record are presumptive evidence of the facts therein contained. Great care should be taken in drawing the aflidavits, where these are relied on as effecting the conveyance; because it is held that, if defective, they cannot be sustained or amended by parol evidence.(n) When these affidavits are filed and recorded, they are a substitute for a deed. But until such affidavits be made, filed and recorded, or a deed is given in pursuance of the sale, no title passes to the purchaser. 815. Notice of sale under power in mortgage. PAGE 17. Notice by assignee, etc... 816. Another form; the whole mortgage being due on default in interest.. 428 423 818. Affidavit of publication... 424 820. Affidavit of posting notice... $19. Affidavit of aflixing notice in county clerk's book. 425 425 821. Affidavit of service of notice. 425 822. Affidavit by auctioneer to the fact of sale... 426 426 (1) Lamerson v. Marvin, 8 Barb., 9." (m) The publisher is deemed the printer within the statute. Bunce v. Reed, 16 Barb., 347. (n) Arnot v. McClure, 4 Den., 41; Layman v. Whiting, 20 Barb., 559; Cohoes Company v. Goss, 13 lb., 187; Bryan v. Butts, 27 lb., 503. ecuted a mortgage to A. B., of state the terms], which mortgage was County on the day of minutes in the noon, in liber: of mortgages, page ,(p)* and dollars interest [or, the sum of principal and dollars] is due on said the sum of dollars interest, making together the sum of mortgage on the day of 18 the day of the first publication of this notice;() and whereas default has been made in the payment of the money secured by said mortgage, and no suit or proceeding having been instituted at law to recover the debt now claimed to be due upon said mortgage or any part thereof: the said mortgage will be foreclosed by a sale of said premises by virtue of the power contained in the mortgage, (r) which sale will be made by the subscriber, at public auction, at the Hotel,(8) in on the day of next, at o'clock in the noon. The following is a description of said mortgaged premises [here-insert description.](t) [Date on the day of first [Signature of mortgagee or attorney.] publication.] 816. Another Form; The Whole Mortgage Being Due Upon Default in Interest Clause. [As in the preceding form to the *, continuing thus:] and whereas it was in and by said mortgage expressly agreed, that should any default be made in the payment of the said interest or of any part thereof on any day whereon the same was payable as expressed in said mortgage, and should the same remain unpaid and in arrear for the space of thirty days, then and from thenceforth-that is to say, after the lapse of the said thirty days— the principal sum of dollars mentioned in said mortgage, with all ar (0) This form is sustained by Judd v. ally with the statute. Judd v. O'Brien, O'Brien, 21 N. Y., 186. 21 N. Y., 186; Jencks v. Alexander, 11 Paige, 619. (p) The reference to the record of the mortgage should be accurate, though errors which would not mislead are disregarded; and it seems that stating the time and place, without naming the book and page, would be sufficient. Judd v. O'Brien, 21 N. Y., 186. (2) The amount due up to the day of first publication of the notice should be stated accurately; though if the data for a precise computation are given, it might be regarded as sufficient, if there was no bad faith in the omission to comply liter (r) The notice should show that the purpose of the sale is to foreclose the mortgage, or what is equivalent, that the sale is had by virtue of a power contained in the mortgage. Judd v. O'Brien. 21 N. Y., 186. (8) See note (u), infra. (t) The property should be distinctly designated. Rathbone v. Clarke, 9 Abbotts' Pr66, note. The better practice is to insert the description given in the mortgage. |