Jadd v. O'Brien & Waddle.

office alone. But here is a positive error; and the question is whether it is one calculated to mislead; or rather whether the notice, considering the error which entered into it, fails to accomplish the object intended by the statute. We think it does not. There being no book in the office of as high a number as the one mentioned, an inquirer would immediately recur to the other test of locality, the date, and could not fail immediately to find the record. The case is within the maxim "falsa demonstratio non nocet."

It is also required that the notice should state the amount of the mortgage debt at the time of its first publication. The notice is dated the day before the day of publication in the newspaper, and the sum is stated to be the amount due on that day. Hence there is a failure literally to comply with the statutory direction. But we think the error is of too trifling a character to entail upon the whole proceeding a judgment of nullity. The interest for another day would be less than two cents. So far as the effect of a tender is concerned, there is no doubt but that the offer of the sum mentioned would have been sufficient as against the holder of the mortgage. The interest for the additional day might be easily ascertained by one desirous of knowing the precise amount at the day of publication. The statute does not say that the amount shall be set down in dollars and cents, though that is doubtless the readiest manner of complying with its direction; but I am not convinced that a statement that a particular amount was claimed to be due at a certain prior day, and that the mortgagee claimed that sum with interest from that time, would not be sufficient. On the whole, we think the objection was properly disposed of by the referee.

The objection which assumes that according to the notice, it was the mortgage or mortgage debt and not the mortgaged premises which were advertised to be sold appears to be hypercritical. We are to read this paper in the sense which the parties interested, and the public who were invited to purchase, would have placed upon it. It is parcel of the law of the State that mortgages, in the form in use in this country, may be fore

Judd . O'Brien & Waddle.

closed by advertising, where there has been a default in the payment of the mortgage debt, if no suit or proceeding at law has been prosecuted to recover it. When this notice recited these circumstances immediately after a description of the mortgaged premises, and proceeded to state that the same would be sold at public auction, no one we think could be so perverse as to understand that it was anything else than the land mortgaged which was to be so disposed of. A slight change in the punctuation, by changing the period into a comma before the word

default," and the insertion of a copulative conjunction at that place, all of which we think may be fairly understood, would make the sense perfectly plain. The defendants' criticism is based upon the grammatical principle that words of reference relate to the last antecedent; but this, though a general rule, is not a universal one. Where the sense of the writer shows that a subject placed earlier in the sentence is the one intended to be referred to, that construction will be adopted.

Although we do not find the notice liable to the exceptions which were taken against it on the trial, we would not advise its adoption as a precedent to be used in mortgage foreclo sures. There was a point taken on the argument which had it been mentioned on the trial would have raised a question of more gravity than those we have been considering. The statute says that "notice that such mortgage will be foreclosed by a sale of the mortgaged premises or some part thereof shall be given," &c. This notice does not intimate in any way that the sale which is spoken of is for the purpose of foreclosure, nor (what would be equivalent) that the sale is to be by virtue of a power of sale contained in the mortgage. We suppose that most persons would readily enough conjecture the purpose of the notice adopted in this case; but titles to land ought not to be left to depend upon vague inferences. We have noticed this feature in this case lest it might hereafter be supposed that this form of notice had been approved of by the court. We place the judgment of affirmance on the ground that none of the objections taken upon the trial were tenable, and that we

National Fire Insurance Company v. McKay.

are only to pass upon the points there plainly raised. The judgment must be affirmed.

All the judges concurring,

Judgment affirmed.

1

NATIONAL FIRE INSURANCE COMPANY v. MCKAY et al.

In an action for the foreclosure of a mortgage to secure the purchase money of the premises, one of the defendants, against whom no personal claim was made, set up by way of answer that he had purchased the premises of the plaintiff's grantee (who was also a party defendant, and against whom a judgment for the mortgage debt was asked): and had become the assignee of the plaintiff's covenants against incumbrances and of warranty: and had been evicted by paramount title under certain taxes, which were incumbrances at the time of the plaintiff's grant: Held, that these facts did not present anything which he could interpose, either by way of defence or counterclaim, to a foreclosure of the mortgage.

APPEAL from the Supreme Court. Action to foreclose a mortgage, made by Joseph W. Savage to the plaintiff. The defendant McKay by his answer set up this state of facts: In June, 1847, the plaintiff, in consideration of $10,000, conveyed the premises in question to one Savage, by deed with covenants of seizin, quiet possession, against incumbrances, and for further assurance, and with a covenant of general warranty. Savage paid $2,000, part of the purchase money, and executed a bond and the mortgage in question to secure the balance. McKay was jointly interested with Savage in the purchase and in the covenants, and the deed was made to Savage for the joint benefit of Savage and McKay, as was known to the plaintiff. A few days after the conveyance by the plaintiff, Savage, in consideration of $5,000, conveyed to McKay the undivided half of the premises, with covenants of seizin, quiet possession, and warranty, and McKay assumed to

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National Fire Insurance Company v. McKay.

pay one-half of the mortgage to the plaintiff. In 1849, Savage, in consideration of $2,350, conveyed to McKay the other undivided half with like covenants; at the same time Savage executed to McKay an assignment of the covenants of the plaintiff on the ground that they were personal covenants, and did not run with the land; and McKay agreed to discharge Savage from all liability in regard to the title. By virtue of these conveyances McKay went into possession and paid $3,000 of the remainder of the purchase money, leaving $5,000 unpaid. The defendant further set up, that the premises were not free and unincumbered of charges, taxes, &c., at the time of the conveyance, but were incumbered by certain taxes lawfully assessed by and for Erie county, which were a lien and incumbrance on the premises. They were sold by the Comptroller according to law for the taxes, and conveyed to Roswell Steele, the purchaser. James Bennett, McKay's tenant, was evicted by due legal proceedings founded on the title thus acquired by Steele, of which the plaintiff had notice. The same facts are set up by way of further answer; a breach of the covenant of warranty is formally alleged, and damages averred, viz.: loss of premises, purchase money and costs of ejectment suit, and the answer concludes with a prayer that the defendant McKay recover damages of the plaintiff. In the complaint judgment was claimed only against Savage for any deficiency that might remain unpaid after the sale; and the defendant McKay was notified in writing at the time of the service on him of the summons, that the plaintiff made no personal claim against any of the defendants except Savage.

The defendant Steele answered, setting up his title to part of the premises mortgaged. It appeared by a comparison of the descriptions that a portion of the premises was not affected by the tax sale. The other defendants made default. On the trial before a referee, McKay offered to prove the facts set up in his answer. The evidence was rejected, on the ground that he could not avail himself of such facts either as a defence or by way of counterclaim. The referee ordered judgment for foreclosure and sale, and against Savage personally for the

National Fire Insurance Company v. McKay.

deficiency if any, and against McKay for the costs occasioned by his answer.

Upon McKay's appeal the judgment was modified at general term, by providing that it should not be a bar to any action to be brought by McKay on the covenants in the plaintiff's deed; that the complaint be dismissed as to Steele with costs, and the judgment affirmed in all other things. McKay appealed to this court.

John T. Talcott, for the appellant.

Sherman S. Rogers, for the respondent.

COMSTOCK, Ch. J. The situation of the several defendants and their relations to the controversy are as follows: Savage was the mortgagor and was personally bound for the payment of the debt. McKay was the purchaser of the premises subject to the mortgage, but in his answer he insisted that all his right and title had passed to the defendant Steele under the tax sale. Steele was the purchaser at the tax sale, and in his answer he claims to have acquired by that purchase a title to a portion of the premises which overreached the mortgage. Savage, the mortgagor, did not answer the complaint.

Upon this state of facts alone, and laying out of view the question of counterclaim on the plaintiffs' covenants of warranty, the plaintiffs were entitled to the usual decree of foreclosure and sale in respect to so much of the premises as Steele did not claim, and for the deficiency against Savage. None of the defendants could resist or complain of such a decree. Savage could not, because he made no defence. McKay could not, because in effect he disclaimed all interest in the land. Steele could not, because he only claimed the part which would not be affected by such a decree. Such is in fact the decree actually pronounced, and so far there is plainly no ground for the present appeal of McKay.

But the decree directs the sale of the whole premises, as well the part claimed as that not claimed by Steele in hostility to the mortgage, while at the same time it dismisses the SMITH.-VOL, VII.

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