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Van Slyke v. Shelden.

that arising on the foreclosure of the mortgage without the service of a notice pursuant to the act of 1844.

The third section of the act for the foreclosure of mortgages, (2 R. S. 545,) provides as follows: "Notice that such mortgage will be foreclosed by a sale of the mortgaged premises, or some part of them, shall be given as follows."

(1st.) By a publication in a newspaper, &c.

(2d.) By posting the notice on the courthouse door.

The fourth section prescribes the contents of the notice; but, the mode of publication remained unchanged until the act of 1844. (Laws of 1844, p. 529.) By that act, the third section of the act for the foreclosure of mortgages was amended by inserting the following as an additional subdivision. (3d.) "By serving a copy of such notice, 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 and mortgagees of the premises, whose conveyance and mortgage shall be upon record at the time of the first publication of the notice, and upon all persons having a lien, by or under a judgment or decree, upon the mortgaged premises, subsequent to such mortgage, 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 said persons at least twenty-eight days prior to the time therein specified for the sale, by depositing the same in the post office, properly folded and directed to the said persons, at their respective places of residence." The foreclosure of the mortgage in question was in the year of 1847, and there was no proof of the service of any such notice, notwithstanding the omission of such service on the mortgagor was made a specific ground of objection.

It is argued that the omission of this notice did not render the sale irregular and void. We think otherwise. After this new provision was incorporated by amendment into the act for the foreclosure of mortgages, it was just as necessary to prove the notice served, as to prove the publication in the newspaper, or the posting on the courthouse door. It is one of the modes of giving notice, ordained by the act, as a condition of the foreclosure.

Van Slyke v. Sbelden.

In Bloom v. Burdick, (1 Hill, 130, 139, 141,) Bronson, J. says, while discussing the necessity of the statutory notice and appointment of guardians for infants in the surrogate's court: "The surrogate undoubtedly acquired jurisdiction of the subject matter, on the presentation of the petition and account; but that was not enough. It was also necessary that he should acquire jurisdiction of the person. It is a cardinal principle in the administration of justice, that no man can be condemned, or divested of his right, until he has had the opportunity of being heard. He must either by serving process, publishing notice, appointing a guardian, or in some other way, be brought into court; and if judgment is rendered against him before that is done, the proceeding will be utterly void." Again he says, "In every form in which the question has arisen it has been held that a statute authority by which a man may be deprived of his estate, must be strictly followed." In Thatcher v. Powell, (6 Wheat. 119,) Marshall, Ch. J. said it was a self-evident proposition, that no individual or public officer can sell and convey a good title to the land of another, unless authorized to do so by express law. And the person invested with such a power must pursue with precision the course prescribed by law, or his act will be invalid." (See also to the same effect, Jackson v. Esty, 7 Wend. 148; 13 Id. 465; 4 Wheat. 77; 4 Hill, 76.) These authorities are directly applicable to the case in hand. The mode of foreclosing a mortgage by statute, was a substitute for a foreclosure in the court of chancery. A service of the subpoena in chancery was necessary to give the court jurisdiction of the person of the defendant. In the substituted proceeding, at the first, provision was made for notifying the mortgagor and others having liens on the land, by publication in a newspaper, and by posting the notice on the courthouse door. In 1844 the legislature thought it proper to require a service of the notice on the mortgagor, and his grantees, &c., either personally or by mail. And this amendment was made by adding a third subdivision embodying the new requirement, to the former requisites of publication and posting a notice on the door of the courthouse, so that the act should now read as though this new provision was

Van Slyke v. Shelden.

originally a part of the statute, and was one of the conditions on which the foreclosure depended. The same idea is carried out in the following sections of the act of 1844. By the second section of that act, provision is made for the perpetuation of the proof of this service, by an affidavit, just as the publication of the notice in a newspaper and the posting on the courthouse door is made by affidavit. These affidavits are to be recorded, by the twelfth section of the act in the revised statutes, and in this manner, the evidence of the performance of all these jurisdictional facts is preserved. Again: the eighth section of the revised statutes, which declares the effect of a sale upon advertisement, is amended by the act of 1844, so as to make the sale a bar, only on condition that the notice has been served on the parties, pursuant to the new requirements of that act.

If the foreclosure is void, as it most clearly is, then the fee still remains in the mortgagor, and no action can be maintained, either of ejectment or trespass, which affirms the title to be in the mortgagee. In fact, the mortgagor may himself maintain trespass for an invasion of his rights. (See Runyan v. Mersereau, 11 John. 534; Watson v. Spence, 20 Wend. 265, and cases there cited.) In addition to this, it is provided by the statute itself that no action shall be maintained at the suit of the mortgagee, until the mortgage has been duly foreclosed. (2 R. S. 31257.)

A new trial is granted.

SAME TERM. Before the same Justices.

FOSGATE and others vs. THE HERKIMER MANUFACTURing AND HYDRAULIC COMPANY and others.

In an action of ejectment brought as a substitute for a writ of right, to enforce a claim which accrued before the revised statutes took effect, an adverse possession of twenty-five years must be shown, in order to bar the action. Where a right of action exists in favor of a person for the recovery of the possession of real estate, and such person dies, and the estate descends to his heirs, they may recover upon the seisin of their ancestor. And, the writ of right being abolished by statute, the action of ejectment lies for the recovery of the premises, as a substitute for that writ.

In an action thus brought by the heirs, the right of action will not be deemed to have accrued to them until the death of their ancestor. And if the suit is commenced within twenty-five years after that event, it will not be barred by the statute of limitations.

Twenty years of adverse possession, although sufficient to bar an action of ejectment proper, is not enough to bar an action of ejectment which is brought in lieu of a writ of right. In the latter case an adverse possession of twenty-five years is necessary.

Parties seeking to recover as demandants in a writ of right must prove a seisin, in themselves or their ancestors, within twenty-five years. But an actual possession, by taking the esplees, is not necessary. If the demandant shows a possession by his servant, or his tenant, this is sufficient. When a man is once seised of land his seisin is presumed to continue, until a disseisin is proved. And if he leaves the premises vacant, and another takes possession, the latter will be presumed to have entered in subordination to the former title; unless the contrary is proved.

But where a person enters upon premises as purchaser under a judgment and upon a claim of right, that is a disseisin.

A notice, in a newspaper published in this state, of the death of a person in Texas, is no evidence of his death.

Where it appears, on the trial of an ejectment suit, that the individual defendants were in possession of separate rooms in a dwelling-house on the premises, and of separate parcels of land as tenants of a co-defendant, the plaintiff is bound to elect against which of the defendants he will proceed; and a verdict must be rendered in favor of the other defendants. A general verdict, in such a case, can not be sustained.

THIS was an action of ejectment, tried before the Hon. Charles Mason, one of the justices of this court, at the Herkimer circuit,

Fosgate v. Herkimer Man. and Hydraulic Co.

in October, 1849. On the trial the plaintiffs gave in evidence a warranty deed executed by Asa Gifford and wife to John Suiter, dated the twenty-seventh day of September, 1811, acknowledged on the same day, and recorded in the clerk's office of Herkimer county on the twenty-fourth day of December, 1811, expressing a consideration of eleven hundred dollars, and conveying the lands and premises described in the complaint in this action. Also a deed with covenants of warranty, executed by John Suiter, to Bela Fosgate, purporting to convey the same premises, for the consideration of $150, dated the 16th day of March, 1813, and acknowledged and recorded on the 24th day of March, 1813. Lauren Ford then testified on the part of the plaintiffs as follows: "I knew Asa Gifford; I know the lot described in the deed from Gifford to Suiter. Gifford occupied that lot in 1809, and for some time after that. I knew John Suiter. He lived there. I can not say for how long a time. He occupied it next after Gifford, as I recollect. I knew Bela Fosgate; he lived there with his family. I think he succeeded Suiter in the occupation of the lot." On his cross-examination he further testified as follows: "I brought several actions of ejectment to get Fosgate in possession of those premises. The declarations in those actions are entitled of the third Monday of February, 1828. Merry and those claiming under him had been in possession for some time, a year or more, prior to that. I resided at Herkimer until in 1834. As far as I know, Merry's folks continued to occupy the lot until the sale to the Hydraulic company. I do not know when Fosgate was in possession of the lot, nor for how long a time. I do not know whether he occupied it alone, or with others. The occupation changed among Fosgate, Suiter, Ethridge and others. Merry claimed to be the owner. I can not say when Fosgate left here. I think he was in possession as late as in 1820." Charles Van Eps testified on the part of the plaintiffs as follows: "I have known Bela Fosgate and his family since about twenty-two years ago. Bela Fosgate died seventeen or eighteen years ago. His wife died in the spring of 1848. I know his children; there are three of them living. Serene Birdsall, wife of Samuel Birdsall, Blanchard Fosgate and William

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