Chouteau v. Suydam.

over by the bank to the executor, and connected as that is, with the other portions of the arrangement, considering the unequivocal benefits accruing to the estate from the transaction as a whole, the objection should, I think, be regarded as without force even as to that.

It was further objected upon the argument that the executor in this case did not obtain the authority of the surrogate to compromise the claim of the estate, to the proceeds of the Pottawotamie certificates, pursuant to the act of 1847. (Laws of 1847, 88.) The object of that statute was, not to confer upon executors and administrators powers which otherwise they would not possess, but to afford them additional protection, when acting in good faith in the exercise of their common law powers. Although they could compromise a claim, or compound a debt, without the aid of the statute, still they might perhaps be held responsible for any serious error in judgment, in so doing. The act in question enables them to obtain the sanction of the judgment of the surrogate in addition to their own, and this affords them additional protection, if their con duct is fair and honest. The compromise in this case is obvi ously one which does not need the protection of the statute. It follows from these views, that the judgment of the Superior Court was right, unless some error was committed in adjusting the amount.

A point is made upon the construction of the agreement. The sum received by Corcoran, the receiver, from the treasury, was $22,162.58, and by the terms of the agreement, the Mechanics' Bank was to be entitled to retain this sum out of the proceeds of the bonds, together with the "interest which had accrued thereon, in the hands of the receiver," the excess being to be paid to the Ewings. The appellant claims that this entitled the defendants to interest upon the whole fund in the hands of the receiver, from the time it was received by him, until it was paid over to the bank. The referee held that it gave them only the interest actually realized upon the fund.

There is no doubt, I think, that the construction adopted by the referee was right. There would have been no necessity for

Chouteau v. Suydam.

the use of the term "accrued" if it was intended to allow interest upon the whole sum for the whole time. The words "with interest thereon while in the hands of the receiver," would have better expressed such an intent.

The referee undoubtedly erred in carrying out his construction, by not allowing the $411 of interest which had, I think, in the sense of the contract, accrued upon the Missouri state bonds, between the 1st of January and the 18th of May, 1852, although not payable until the 1st of July. This error, however, was corrected by the court below at general term. He also erred in charging the defendants with the five missing coupons, which had been detached from the Nashville city bonds, but that has also been corrected.

The only other error, in stating the account, insisted upon on the part of the appellant is, that he has not been allowed the sum of $554.06 charged by the Mechanics' Bank, in its account with Suydam, Sage & Co., as the commissions of the receiver. I can see no ground upon which this sum could have been properly allowed to the defendants. No such item was provided for in the contract between the parties.

It appears that that sum was retained by the bank in its settlement with the assignee of Suydam, Sage & Co., but the evidence does not show that it was ever paid over to the receiver. If, however that fact appeared, still the item could not be allowed, for the reason that the Ewings have never agreed to any such deduction. The Superior Court at general term, in correcting the errors which they found in the statement of the account by the referee, acted in strict accordance with the uniform practice in such cases. It is well settled, that when the only error in a judgment is an excess in amount, and such excess consists of a distinct item, or can be definitely ascertained by mere computation, the appellate court may make the reversal of the judgment depend upon the election of the party to relinquish the ascertained excess, and in case of his so electing may affirm the judgment.

The changes which have occurred from time to time in the persons representing the estate of Ferdinand Suydam, do not SMITH.-VOL. VII.

24

affect the case.

Judd v. O'Brien & Waddle.

The contract of Charles Suydam bound the estate; and this obligation continues, whoever may succeed to the duties of the trust.

The judgment should be affirmed, with costs of the appeal

to this court.

All the judges concurring,

Judgment affirmed.

JUDD v. O'BRIEN & WADDLE.

The notice of foreclosure of a mortgage by advertisement sufficiently specifies the place where the mortgage is recorded, by stating the clerk's office and the date of record, though the number of the book in which it is recorded is erroneously stated.

It is essential that the notice should declare that the mortgage will be foreclosed by sale. A mere notice of the sale of the mortgaged premises, without declaring it to be for the purpose of foreclosure, or in execution of the power of sale contained in the mortgage, is it seems insufficient.

APPEAL from the Supreme Court. The action was a judg ment creditor's suit, in which the plaintiff sought to obtain satisfaction of the amount of two judgments which had been recovered against A. V. Masten, and which he alleged were liens upon a lot of ground in the village of Penn Yan. The com. plaint admitted that Masten had mortgaged the lot before the lien of the plaintiff's judgments attached, but it averred that the mortgage had been paid by the perception of the rents and profits realized by the defendants, who had gone into possession under the mortgagee.

The defendants set up a foreclosure of the mortgage by the defendant O'Brien, as assignee, by advertisement; that he became the purchaser, and subsequently conveyed to the defendant Waddle. The case turned wholly upon the regularity of the alleged foreclosure. The notice of sale, which was printed

Judd v. O'Brien & Waddle.

and posted up according to the statute, was in the following words:

49

"Abraham V. Masten on the 24th of July, 1845, made and executed a mortgage to William H. Sackett of New York city, to secure $400 payable in four equal annual payments from the 2d day of June, 1845, with annual interest; which mortgage was recorded in the office of the clerk of Yates county, on the 24th July, 1845, at 3 o'clock, P. M., in liber 21 of mortgages, on page 549; and on said mortgage is this day due $107.50, said mortgage is duly assigned to John O'Brien. The mortgaged premises are described in said mortgage as follows:

"All that certain piece or parcel of land, situate, lying and being in the village of Penn Yan, in the county of Yates, known and designated as canal lot number seventeen, being the same premises conveyed by Joseph Jones, Morris F. Sheppard and Ebenezer B. Jones to Horace B. Miller; and by the said Horace B. Miller conveyed to John L. Stoakes by deed, bearing date the thirteenth day of May, one thousand eight hundred and thirty nine, and recorded in the office of the clerk of Yates county on the third day of September, 1839, being the same premises conveyed by Henry Masten, master in Chancery, to Alvin Winants, May 14, 1845. Default having been. made in the payment 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 same will be sold at public auction, at the American Hotel, in Penn Yan, on the 17th day of October next, at 10 o'clock, A. M.'

"Dated Penn Yan, July 16, 1849.

"E. VAN BUREN, Attorney.

"JOHN O'BRIEN, Assignee."

The defendants' counsel objected that the notice misdescribed the book in which the mortgage was recorded; and it was admitted that the record was in book number eleven instead

Judd v. O'Brien & Waddle.

of number twenty-one. In fact there were then but fourteen books in which mortgages were recorded in the Yates county clerk's office; but the time of recording was correctly stated in the notice. He also objected that the notice did not state the amount claimed to be due on the day of its first publication; and finally, that the notice was not of a sale or the mortgaged premises, but of the mortgage itself of the mortgage debt; the words in the notice, "the same will be sold," referring, as he insisted, to the mortgage or the mortgage debt, and not to the mortgaged premises.

The referee, before whom the case was tried, overruled these objections, and made his report in favor of the defendants. The judgment entered thereon was affirmed at general term in the seventh district, and the plaintiff appealed to this court.

Francis Kernan, for the appellant.

David B. Prosser, for the respondents.

DENIO, J. The statute requires the notice in the case of a foreclosure by advertisement to state the date of the mortgage and where recorded. (2 R. S., 546, § 4.) This notice gives the clerk's office and the date of recording correctly, but there is an error in the number of the book. If there had been no reference to the number and page of the book, but only a statement of the time of recording in the proper clerk's office, I think there would have been a substantial compliance with the requirement of the statute. Conveyances are required to be recorded in the order of the time of delivery to the clerk for record. (1 R. S., 760, § 24.) A person being thus informed of the place in the series of recorded mortgages, where the one of which he is in quest might be found, would never be at a loss in laying his hand on it. This would not be, a sufficient answer if the act had required the volume and page to be stated; but it is not so precise in its requirements. The place where recorded would be sufficiently indicated by naming the office and the date of the record, and possibly by the mention of the