Doyle v. Howard

Christianct J.

This case presents the single question, whether upon a mortgage foreclosure, by advertisement under the statute, the failure to execute and deposit the deed, or any affidavit of the facts of the sale with the register of deeds, until after the expiration of one year from the time of sale, renders the foreclosure and sale invalid. The deed in this case was not executed by the sheriff until one year and six days after the sale, and was recorded four months and twenty-five days after it was executed; and it does not appear that dhy affidavit of the facts connected with the sale was ever filed, recorded or made.

The right to foreclose and sell by advertisement depends wholly upon the statute, and is confined to mortgages containing a power of sale {Comp. L. ch. 157, §1). The sale, though made by the sheriff, is still a sale under the power, which refers to the statute for the mode of its execution. The whole proceeding is ex parte, and not judicial. The statute does not require personal notice of the' foreclosure and sale, but substitutes publication as constructive notice. The title of the mortgagor and his assigns may be divested without ever receiving any actual notice. It is, therefore, essential to the. rights of the mortgagor and those claiming under him subsequent to the mortgage, that all the safeguards which the statute has provided for the protection of their rights, should be substantially observed. And every step of the proceeding which the statute has provided for divesting their title, and the observance of which the court can see might operate as a protection to their rights, must be considered as inserted for that purpose, and for their benefit, so far as it may thus operate, and not merely as directory, or to be dispensed with, without their consent.

By the 9th section of the chapter above cited the sheriff is required, “forthwith to execute and deliver to each purchaser a deed of the premises bid off by him, s¡3ecifying therein, as the consideration of such deed,, the precise amount for which such parcel was sold, and shall indorse thereon the time when such deed will become operative, in case the premises are not redeemed according to law, and shall deposit the same with the Register of Deeds of the county in which the land is situated.”

By section 10, if the premises shall not be redeemed within the time limited for redemption “such deed shall thereupon become operative and may be recorded, and shall vest in the grantee therein named, his heirs or assigns, all the right, title and interest which the mortgagor had at the time of the execution of the mortgage or at any time thereafter.” This is the only mode provided in the Statute for vesting the title in the purchaser, and certainly, under this section, it cannot well be claimed that any legal title vests in the purchaser without deed, and by force of the purchase at the sale alone.

By the eleventh section, “If the mortgagor, his heirs, etc., shall within one year from the time of such sale, redeem the premises sold, or any distinct lot or parcel thereof, separately sold, by paying to the purchaser, his executors, etc., or to the Register of Deeds in whose office such deed is deposited, for the benefit of sueh purchaser, the sum which was bid therefor with interest from the time of sale, at the rate of ten per cent, per annum, then such deed shall be void and of no effect.”

Sec. 12. “Upon the payment of the sum bid for any parcel at such sale, and interest thereon, as aforesaid, to the Register of Deeds in whose office the deed therefor shall have leen deposited, or upon delivering to such register a certificate signed and acknowledged by the person entitled to receive the same, and certified, etc., setting forth that such sum, with the interest, has been paid to such person, such register shall thereupon destroy such deed and shall enter in the margin of the record of such mortgage, if recorded in his office, a memorandum that such mortgage is satisfied.”

There is some apparent discrepancy in the ninth section, in requiring the officer “forthwith to execute and deliver the deed to the purchaser,” and also to deposit the same deed with the register. But this discrepancy is appaarent only; since under this section a delivery to the register would doubtless satisfy the requirement of a delivery to the purchaser. And if this be not so, and an actual delivery to the purchaser is required, then such delivery must be considered as imposing upon tbe purchaser the duty of handing it over to the register; and such delivery by him to the register must be considered as a delivery by the sheriff to the register, the purchaser acting as the mere agent or servant of the sheriff in making the deposit.

But it is manifest from the tenth, eleventh and twelfth sections, that among the purposes to be subserved by the deposit of the deed with the register, one of the most important was to enable the mortgagor and those claiming under' him to redeem the premises, by paying the amount to the register, without the necessity of hunting up the purchaser. And without the deed (especially where no affidavit had been filed or recorded showing the facts and circumstances of the sale), the register could not ascertain the amount and would have no warrant or authority to receive it. Whether the recording of the affidavits referred to would give him that authority we need not decide, though it is clear these would not constitute the proof which the statute has provided for his action. But secondly, the deposit and filing of the deed give to the mortgagor and others interested an opportunity of ascertaining in the most authentic manner, whether the mortgage has been foreclosed, and, if sold, the amount bid and the sum required to redeem, without the necessity of watching the newspapers, or inquiring who made the sale, or its amount.

The officer who made the sale may be absent or dead, or difficult to be found, or, if found, may not have preserved any written memorandum, and may have forgotten the facts. And it is remarkable that this deed, thus required to be executed and deposited, is in fact the only written evidence of the sale required by the statute to be executed or preserved by any one. The statute authorizes, but does not require the making and recording of an affidavit by the person making the sale, which, if so made and recorded, is to be prima facie evidence. And, though a mortgagor may have seen a notice of foreclosure and sale in the newspaper, yet, if, some time after the day fixed for the sale, he should, on inquiry, find that no deed had been deposited with the register, he might very properly infer that the proceeding had been abandoned without being perfected by a sale.

The rights thus secured to the mortgagor by the provisions in reference to the deed and its deposit with the register, are substantial rights, of which he would be deprived by the omission to execute and deposit the deed, as required by the statute. We must, therefore, hold the provisions of the statute, so far as they relate to the execution and deposit of the deed, to be mandatory, and not merely directory. Doubtless that provision which requires the officer to “endorse upon the deed the time when the deed will become operative, in case the premises are not redeemed according to law,” might, within the general current of decisions, be held directory merely; as this indorsement gives no information which the law itself does not give when applied to the contents of the deed. But this point is not before us.

None of the authorities cited by the counsel for the plaintiff in error, will be found, when examined in connection with the statute to which they relate, to conflict with the conclusion at which we have arrived.

We do not mean to assert that the foreclosure would be void, by reason of the deed not being executed and deposited on the very day of the sale, or within a few days thereafter. But we confine our opinion to the case where no deed has been executed or deposited until after the expiration of a year from the day” of sale. In such a case we entertain no doubt the sale should be treated as invalid for any purpose of conveying the title.

We see no reason to doubt that, if the officer mating the sale should refuse to execute and deposit the deed forthwith as required, the purchaser would be entitled to a mandamus to compel him to perform this duty. And, doubtless, the mortgagee or his assignee foreclosing the mortgage would be entitled to the same remedy; certainly where, as in this case, lie was himself the purchaser also. The whole proceeding was for his own benefit; and he is, to some extent, responsible for the failure of the officer, and should have promptly resorted to his remedy.

And if the officer, under a mandamus applied for in due season, should execute the deed and deposit it some time after the sale, it might perhaps be proper to hold that the time of redemption was not thereby extended to a year from the time of depositing the deed; especially, if the mortgagor or his assigns had been promptly notified of the facts of the sale, and of the remedy adopted to procure the deed. But upon this we give no opinion, as the question is not in the case.

The judgment must be affirmed, and the defendant in error must recover his costs in both courts.

Campbell and Cooley JJ. concurred. Martin Ch. J. did not sit.