Groff v. . Morehouse , 51 N.Y. 503 ( 1873 )

By the laws in force at the time the proceedings to foreclose the mortgage in question were had, it was necessary, in order to render a foreclosure and sale by advertisement under the power to sell contained in the mortgage equivalent to a foreclosure and sale under a decree of a court of equity, so far as to be a bar to all claim or equity of redemption of the mortgagor, his heirs and representatives, and all persons claiming under him or them by virtue of any title subsequent to such mortgage, that a copy of the notice of sale should be served 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 of the premises whose conveyance and mortgage was upon record at the time of the first publication ofthe notice, 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 such persons at least twenty eight days prior to the time specified therein for the sale, by depositing the same in the post-office, properly folded and directed to such persons at their respective places of residence; and in order to render such foreclosure and sale equivalent to a foreclosure and sale under a decree of a court of equity, so far as to bar the claim or equity of redemption of a person having a lien by judgment or decree upon the land subsequent to such mortgage, a like notice was required to be served and in like manner upon all persons having a lien by or under a judgment or decree upon the mortgaged premises subsequent to such mortgage, and the lien or claim of every person by or under suchsubsequent judgment or decree as had been served with such notice (and none others) was by the statute cut off from the right to redeem. (3 R.S., 860, subdivision 3 of § 2, and § 8.) Why the legislature discriminated between persons claiming by virtue of a title subsequent to the mortgage and concluded all such as had not their title upon record at the time of the first publication of the notice of sale, and made no distinction between persons having a lien or claim by or under a judgment or decree in that respect, we are not called upon to explain. It is enough that the language of the statute is clear, and concludes only that class of persons claiming by or under such subsequent judgment or decree as have been served with such notice of the sale as is required by law. The judgments owned by the plaintiff, and under which she seeks to redeem, were each recovered more than twenty-eight days prior to the time specified in the notice for the sale of the mortgaged premises. Neither of the plaintiffs in those judgments, or any one there having or claiming under either of them, were served with notice of the sale, and hence she is not barred of her equity of redemption. The judgment appealed from should, therefore, be reversed and a new trial ordered.

All concur.

Judgment reversed.