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except as otherwise expressly prescribed therein, this title does not affect a submission, made otherwise than as prescribed therein, or any proceedings taken pursuant to such a submission, or any instrument collateral thereto.
Part of 22, amended. Burnside v. Whitney, 24 Barb. 632; s. c., Y. 148.
Proceedings to foreclose a mortgage by advertisement.
SEO. 2387. When mortgage may be foreclosed. 2388. Notice of sale; how given.
2389. Id.; how served.
2390. Duty of county clerk.
2391. Contents of notice of sale.
2392. Sale; how postponed.
2393. Id.; how conducted.
2394. Mortgagee, etc., may purchase.
2395. Effect of sale.
2396. Affidavit of sale, and of posting, serving, etc., notices.
2399. Note upon record of mortgage.
2400. Deed not necessary.
2401. Costs allowed.
2402. Expenses allowed.
2403. Taxation thereof.
2404. Surplus money to be paid into supreme court.
2405. Claimant of surplus money to file petition.
2406. Application for surplus money.
2407. Order for distribution.
2408. Limitation of last four sections.
2409. Application of this title to mortgages to the State.
§ 2387. When mortgage may be foreclosed.-A mortgage upon real property, situated within the State, containing therein a power to the mortgagee, or any other person, to sell the mortgaged property, upon de fault being made in a condition of the mortgage, may be foreclosed, in the manner prescribed in this title, where the following requisites concur:
1. Default has been made in a condition of the mortgage, whereby the power to sell has become operative.
2. An action has not been brought to recover the debt secured by the mortgage, or any part thereof; or, If such an action has been brought, it has been discontinued, or final judgment has been rendered therein against the plaintiff, or an execution, issued upon a
judgment rendered therein in favor of the plaintiff has been returned wholly or partly unsatisfied.
3. The mortgage has been recorded in the proper book for recording mortgages, in the county wherein the property is situated.
2 R.S. 545, 1 and 2 (2 Edm, 564). Elliott v. Wood, 45 N. Y. 71; Cen tral Gold M. Co. v. Platt, 3 Daly, 263; Burnett v. Denniston, 5 Johns. Ch. 35; Ferguson v. Kimball, 3 Barb. Ch. 616; Jackson ex dem. Lockwood v. Turner, 7 Wend. 458; Cox v. Wheeler, 7 Paige, 250; Cameron v. Irwin, 5 Hill, 272; Warner v. Blakeman, 36 Barb. 501; s. c., 4 Keyes, 487; Cohoes Co. v. Goss, 13 Barb. 137; Carpenter v. Blackhawk Gold Mining Co., 65 N. Y. 43; Central Gold Mining Co. v. Platt, 3 Daly, 263; Mowry v. Sanborn, 68 N. Y. 153, 156; Grovenor v. Day, Clarke, 109; Wells v. Wells, 47 Barb. 416; Slee v. Manhattan Co., 1 Paige, 48; Demarest v. Wynkoop, 3 Johns. Ch. 129.
$2388. Notice of sale; how given. - The person entitled to execute the power of sale, must give notice, in the following manner, that the mortgage will be foreclosed, by a sale of the mortgaged property, or a part thereof, at a time and place specified in the notice:
1. A copy of the notice must be published, at least once in each of the twelve weeks, immediately preceding the day of sale, in a newspaper published in the county or in a municipal corporation a part of which is within the county in which the property to be sold, or a part thereof, is ituated. In effect, as amended, September 1, 1894; Laws 1894, ch. 730.
2. A copy of the notice must be fastened up, at least eighty-four days before the day of sale, in a conspicuous place, at or near the entrance of the building, where the county court of each county, wherein the property to be sold is situated, is directed to be held; or, if there are two or more such buildings in the same county, then in a like place, at or near the entrance of the building nearest to the property; or, in the city and county of New-York, in a like place, at or near the entrance of the building, where the court of common pleas for that city and county is directed by law to be held.
3. A copy of the notice must be delivered, at least eighty-four days before the day of sale, to the clerk of each county, wherein the mortgaged property, or any part thereof, is situated.
4. A copy of the notice must be served, as prescribed in the next section, upon the mortgagor, or, if he is dead, upon his executor or administrator. A copy of the no tice may also be served, in like manner, upon a subse quent grantee or mortgagee of the property, whose conveyance was recorded, in the proper office for recording
it in the county, at the time of the first publication of the notice of sale; upon the wife or widow of the mortgagor, and the wife or widow of each subsequent grantee, whose conveyance was so recorded, then having an inchoate or vested right of dower, or an estate in dower, subordinate to the lien of the mortgage; or upon any person, then having a lien upon the property, subsequent to the mortgage, by virtue of a judgment or decree, duly docketed in the county clerk's office and constituting a specific or general lien upon the property.
The notice, specified in this section, must be subscribed by the person entitled to execute the power of sale, unless his name distinctly appears in the body of the notice, in which case, it may be subscribed by his attorney or agent.
Id., 3, amended; L. 1842, ch. 277, 5; L. 1844, ch. 346, 8 1, and L. 1857, ch. 308, 21 (4 Edm. 534, 667). Cohoes Co. v. Goss, 13 Barb. 137; Winslow v. McCall, 32 id. 241; Wells v. Wells, 47 id. 416; Mills v. Van Voorhies, 20 N. Y. 412; Brackett v. Baum, 50 id. 8-12; Merchants' Bank v. Thomson, 55 id. 7; see? 2395, subd. 5, post; People v. Prescott, 4 Hun, 419; Van Slyke v. Sheldon, 9 Barb. 278; King v. Duntz, 11 id. 191; Rathbone v. Clark, 9 Abb. Pr. 66, note; Mowry. Sanborn, 65 N. Y. 581; s. c., 68 id. 153; Candee v. Burke, 1 Hun, 546; Mickles v. Dillaye, 15 id. 296; Cole v. Moffitt, 20 Barb. 18; Anderson v. Austin, 34 id. 319; Decker v. Brice, 19 Hun, 152; Miller v. Lindsay, 19 id. 207; Hubbell v. Sipley, 5 Lans. 51; 8. c., 50 N. Y. 468; Wilson v. Troup, 2 Cow. 195, 231; Westgate v. Handlin, 7 How. 372; Hornby v. Cramer, 12 id. 490; Judd v. O'Brien, 21 N. Y.186; see Leet v McMaster, 51 Barb. 237; see Wheeler v. Scully, 50 N. Y. 667; George v. Arthur, 2 Hun, 406; Groff v. Morehouse, 51 N. Y.503 n; Decker v. Bolce, 19 Hun, 152; Anderson v. Austin, 34 Barb. 319; Low v. Purdy, 2 Lans. 422; Northrup v. Wheeler, 43 How. 122.
2389. [Amended, 1887.] Id.; how served.- Service of notice of the sale, as prescribed in subdivision fourth of the last section, must be made as follows:
1. Upon the mortgagor, his wife, widow, executor, or administrator, or a subsequent grantee of the property, whose conveyance is upon record, or his wife or widow; by delivering a copy of the notice, as prescribed in article first of title first of chapter fifth of this act, for delivery of a copy of a summons, in order to make personal service thereof upon the person to be served; or by leav ing such a copy, addressed to the person to be served, at his dwelling-house, with a person of suitable age and discretion at least fourteen days before the day of sale. If said mortgagor is a foreign corporation, or being a natural person, he, or his wife, widow, executor or administrator, or a subsequent grantee of the property whose conveyance is upon record, or his wife or widow, is not are sident of or within the State, then service thereof may be made upon them in like manner without the State, at least twenty-eight days prior to the day of sale.
2. Upon any other person, either in the same method, or by depositing a copy of the notice in the post-office, properly inclosed in a postpaid wrapper, directed to the
person to be served, at his place of residence, at least twenty-eight days before the day of sale.
Id., 3, amended; L. 1844. Winslow v. McCall, 32 Barb. 241; Wetmore v. Roberts, 10 How. 51; Root v. Wheeler, 12 Abb. 294; Northrup v. Wheeler, 43 How. 122; Hornby v. Cramer, 12 id. 490; Bunce v. Reed, 18 Barb. 347; Rathbone v. Clark, 9 Abb. 66; George v. Arthur, 2 Hun, 406; Robinson v. Ryan, 25 N. Y. 420; Dwight v. Phillips, 48 Barb. 116; Hornby v. Cramer, 12 How. 490; Bunce v. Reed, 16 Barb. 347; Stanton v. Kline, 11 N. Y. 196.
§ 2390. Duty of county clerk. A county clerk, to whom a copy of a notice of sale is delivered, as prescribed in subdivision third of the last section but one, must forthwith affix it in a book, kept in his office for that purpose; must make and subscribe a minute, at the bottom of the copy, of the time when he received and affixed it; and must index the notice to the name of the mortgagor.
Id., 83 in part, as amended by L. 1857, ch. 308, ? 1.
§ 2391. Contents of notice of sale.-The notice of sale must specify :
1. The names of the mortgagor, of the mortgagee and of each assignee of the mortgage.
2. The date of the mortgage, and the time when, and the place where, it is recorded.
3. The sum claimed to be due upon the mortgage, at the time of the first publication of the notice; and, if any sum secured by the mortgage is not then due, the amount to become due thereupon.
4. A description of the mortgaged property, conforming substantially to that contained in the mortgage.
Id., 4. Hornby v. Cramer, 12 How. 490; Judd v. O'Brien, 21 N. Y. 186; Leet v. McMaster, 51 Barb. 236,237; Burnett v.Denniston, 5 Johns.Ch. 35; Hubbell v. Sibley, 5 Lans. 51; s. C., 50 N. Y. 468; Rathbone v. Clark, Abb. 68, note; Mowry v. Sanborn, 68 N. Y. 153; People v. Prescott, $ Hun, 419; Bunce v. Reed, 16 Barb. 347; Jencks v. Alexander, 11 Paige, 626; Candee v. Burke, 1 Hun, 546.
$2392. Sale; how postponed.-The sale may be postponed, from time to time. In that case, a notice of the postponement must be published, as soon as prac ticable thereafter, in the newspaper in which the orig inal notice was published; and the publication of the original notice, and of each notice of postponement, must be continued, at least once in each week, until the time to which the sale is finally postponed.
Id., 6. Westgate v. Handlin, 7 How. 372; Miller v. Hull, 4 Den. 101; Jackson v. Clark, 7 Johns. 217, 226; Stearns v. Welsh, 7 Hun, 676.
§ 2393. Id.; how conducted. The sale must be at public auction, in the day-time, on a day other than Sunday or a public holiday, in the county in which the mortgaged property, or a part thereof, is situated; except that, where the mortgage is to the people of the State, the sale may be made at the Capitol. If the property consists of two or more distinct farms, tracts, or lots, they must be sold separately; and as many only of the distinct farms, tracts, or lots, shall be sold, as it is nec ssary to sell, in order to satisfy the amount due at the time of the sale, and the costs and expenses al. lowed by law. But where two or more buildings are situated upon the same city lot, and access to one is obtained through the other, they must be sold together.
Id., 6, amended. Annulling Sayles v. Smith, 12 Wend. 57, and see Westgate v. Handlin, 7 How. Pr. 372; see 1678, ante; Wells v. Wells, 47 Barb. 416; Ellsworth v. Lockwood, 42 N. Y. 89; Lamerson v. Marvin, 8 Barb. 9; Hubbell v. Sibley, 5 Lans. 51; s. c., 50 N. Y. 468.
2394. Mortgagee, etc., may purchase. The mortgagee, or his assignee, or the legal representative of either, may, fairly and in good faith, purchase the mort. gaged property, or any part thereof, at the sale.
Id., 7. Mowry v. Sanborn, 68 N. Y. 160; Valentine v. Belden, 20 Hun, 537; Hollingsworth v. Spalding, 54 N. Y. 636; Hubbell v. Sibley, 5 Lans. 51; s. c., 50 N. Y. 468; Cox v. Wheeler, 7 Paige, 248.
§ 2395. Effect of sale.--A sale, made and conducted as prescribed in this title, to a purchaser in good faith, is equivalent to a sale, pursuant to judgment in an action to foreclose the mortgage, so far only as to be an entire bar of all claim or equity of redemption, upon, or with respect to, the property sold, of each of the following per
1. The mortgagor, his heir, devisee, executor or administrator.
2. Each person, claiming under any of them, by vir tue of a title or of a lien by judgment or decree, subse quent to the mortgage, upon whom the notice of sale was served, as prescribed in this title.
3. Each person so claiming, whose assignment, mortgage, or other conveyance was not duly recorded in the proper book for recording the same in the county, or whose judgment or decree was not duly docketed in the county clerk's office, at the time of the delivery of a copy