Pitt v. Amend ( 1895 )

PRATT, J.

Foreclosure by advertisement, in which the defendant purchaser refused title solely because of the alleged defect in the foreclosure in not giving notice of the sale to the “personal representatives” of the deceased mortgagor, required by .the statute (chapter 346, Laws 1844). The case, as agreed upon, shows that the mortgage was made by Patrick Connell and Mary Daly Connell, his wife, and that the notice of sale was served on Patrick Connell, but that Mary Daly Connell had deceased before the foreclosure, intestate. Whatever rights in the mortgaged premises Mary Daly Connell died seised and possessed of passed to her heirs at law, and not to her personal representatives. No administration was ever had upon her estate, and there is nothing to show who her heirs were. In Low v. Purdy, 2 Lans. 424, notice had been served upon the heirs, but not upon the personal representatives, and it was there held that such service was a nullity, and that “heirs” and “personal representatives” are two separate and distinct classes of persons, and that the statute prescribes service upon the personal representative, and not the heirs. It would appear, then, that there were no personal representatives of Mary Daly Connell to serve with notice. Her husband and comortgagor was served, and all the other proceedings are confessedly regular. The foreclosure was in 1866, and there is nothing before the court showing any outstanding equity in the estate of the heirs of Mary Daly Connell to warrant disturbing the sale under this foreclosure after so many years. Anderson v. Austin, 34 Barb. 321; Cole v. Moffitt, 20 Barb. 18; Hubbell v. Sibley; 5 Lans. 51; King v. Duntz, 11 Barb. 191. Judgment for plaintiff. All concur.