TITLE IX. Proceedings to foreclose a mortgage by advertisement. Sec. 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. art 17 Reid bli Eucht ander by chuw 920 Saws 1920 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. 2408a. Delivery of certain affidavits to purchaser. 2409. Application of this title to mortgages to the State. § 2387. [Am'd, 1913.] 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 default 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. 4. The first notice required by subdivision one of the next section is published within the time in which an action could be maintained to foreclose such mortgage. From 2 R. S. 545 (Part 3, c. 8, tit. 15), §§ 1, 2. Am'd by L. 1913, c. 486 (in effect Sept. 1, 1913). § 2388. [Am'd, 1894, 1900, 1904, 1905.] Notice of sale; how given. The person entitled to execute the power or 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 situated. 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 trial and special terms of the supreme court of the first judicial district are 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, if an executor or administrator has been appointed, and also upon his heirs, providing he died the owner of the mortgaged premises. A copy of the notice may also be served, in a like manner, upon a subsequent 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 mortgagee; or in the event of the death of the subsequent grantee who was at the time of his death the owner of the mortgaged premises, then upon his heirs; 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. From Id., § 3; L. 1842, c. 277, § 5; L. 1844, c. 345, § 1; L. 1857, c. 308, § 1. Am'd by L. 1894, c. 730; L. 1900, c. 766; L. 1904, c. 49; L. 1905, c. 433 (in affect Sept. 1, 1905). } 2389. [Am'd, 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 leaving 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 a resident 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. From 2 R. S. 545, § 3; L. 1844, c. 346. Am'd by L. 1887, c. 685. 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. From 2 R. S. 545, § 3; L. 1837, c. 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 there- . upon. 4. A description of the mortgaged property, conforming substantially to that contained in the mortgage. From 2 R. S. 545, § 4. § 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 practicable thereafter, in the newspaper in which the original 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. From Id., § 5. § 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 necessary to sell, in order to satisfy the amount due at the time of the sale, and the costs and expenses allowed 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. From Id., § 6. § 2394. Mortgagee, etc., may purchase. The mortgagee, or his assignee, or the legal representative of either, may, fairly and in good faith, purchase the mortgaged property, or any part thereof, at the sale. From Id., § 7. § 2395. [Am'd, 1889.] 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 persons: 1. The mortgagor, his heir, devisee, executor, or administrator. 2. Each person, claiming under any of them, by virtue of a title, or of a lien by judgment or decree, subsequent 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 of the notice of said sale to the clerk of the county; and the executor, administrator, or assignee of such a person. 4. Every other person, claiming under a statutory lien or incumbrance, created subsequent to the mortgage, attaching to the title or interest of any person, designated in either of the foregoing subdivisions of this section. 5. The wife or widow of the mortgagor, or of a subsequent grantee, upon whom notice of the sale was served as prescribed in this title, where the lien of the mortgage was superior to her contingent or vested right of dower, or her estate in dower. From Id., § 8; L. 1842, c. 277; L. 1844, c. 346, § 4. Am'd by L. 1889, c. 209. § 2396. [Am'd, 1908, 1912.] Affidavit of sale, and of posting, serving, etc., notice. An affidavit of the sale. stating the time when, and the place where, the sale was made; the sum bid for each distinct parcel, separately sold; the name of the purchaser of each distinct parcel, and the name of the person or persons, court officer or other officer, to whom the proceeds of the sale were paid, and the sums thereof must be made by the person, who officiated as auctioneer upon the sale. An affidavit of the publication of the notice of sale, and of the notice or notices of postponement, if any, may be made by the publisher or printer of the newspaper in which they were published, or by his foreman or principal clerk. An affidavit of the affixing of a copy of the notice, at or near the entrance of the proper court-house, may be made by the person who so affixed it, or by any person who saw it so affixed, at least eighty-four days before the day of sale. An affidavit of the affixing of a copy of the notice in the book, kept by the county clerk, may be made by the county clerk, or by any person who saw it so affixed, at least eighty-four days before the day of sale. An affidavit of the service of a copy of the notice upon the mortgagor, or upon any other person, upon whom the notice must or may be served, may be made by the person who made the service. Where two or more distinct parcels are sold to different purchasers, separate affidavits may be made with respect to each parcel, or one set of affidavits may be made for all the parcels. From 2 R. S. 545, §§ 9, 10; L. 1844, c. 346; L. 1857, c. 308. Am'd by L. 1908, c. 294; L. 1912, ch. 343 (in effect Sept. 1, 1912). § 2397. [Am'd, 1882.] When one affidavit suffices; printed notice to be annexed. The matters, required to be contained in any or all of the affidavits, specified in the last section, may be contained in one affidavit, where the same person deposes with respect to them. A printed copy of the notice of sale must be annexed to each affidavit; and a printed copy of each notice of postponement must be annexed to the affidavit of publication, and to the affidavit of sale. But one copy of the notice suffices for two or more affidavits, where they all refer to it, and are annexed to each other, and filed and recorded together. In part from 2 R. S. 545, § 9. Am'd by L. 1882, c. 399. § 2398. [Am'd, 1904.] Affidavits may be filled and recorded. The affidavits, specified in the last two sections, may be filed in the office for recording deeds and mortgages, in the county where the sale took place. They must be recorded at length by the officer with whom they are filed, in the proper book for recording deeds. The original affidavits, so filed, the record thereof, and a certified copy of the record, are presumptive evidence of the matters of fact therein stated, with respect to any property sold, which is situated in that county. Where the property sold is situated in two or more counties, a copy of the affidavits, certified by the officer with whom the originals are filed, may be filed and recorded in each other county, wherein any of the property is situated. Thereupon the copy and the record thereof have the like effect, with respect to the property in that county, as if the originals were duly filed and recorded therein. From 2 R. S. 547, §§ 11, 12. Am'd by L. 1904, c. 679 (in effect Sept. 1, 1904). § 2399. Note upon record of mortgage. A clerk or a register, who records any affidavit, or a certified copy thereof, filed with him, must make a note, upon the margin of the record of the mortgage, in his office, referring to the book and page, or the copy thereof, where the affidavits are recorded. From Id., § 13. 2400. Deed not necessary. The purchaser of the mortgaged premises, upon a sale conducted as prescribed in this title, obtains title thereto, against all persons bound by the sale, without the execution of a conveyance. Except where he is the person authorized to execute the power of sale, such a purchaser also obtains title. in like. manner, upon payment of the purchase-money, and compliance with the other terms of sale, if any, without the filing and recording of the affidavits, as prescribed in the last section but one. But he is not bound to pay the purchase-money, until the affidavits, specified in that section, with respect to the property purchased by him, are filed, or delivered or tendered to him for filing. From Id., § 14; L. 1838, c. 266, § 8. 2401. Costs allowed. The following costs, in addition to the expenses specified in the next section, are allowed, in proceedings taken as prescribed in this title: 1. For drawing a notice of sale, a notice of the postponement of a sale, or an affidavit, made as prescribed in this title, for each folio, twenty-five cents; for making each necessary copy thereof, for each folio, thirteen cents. 2. For serving each copy of the notice of sale. required or expressly permitted to be served by this title, and for affixing each copy thereof, required to be affixed upon the court-house, as prescribed in this title, one dollar. 3. For superintending the sale, and attending to the excution of the necessary papers, ten dollars. From 2 R. S. 652 (Part 3, c. 10, tit. 5), § 4, subds. 1, 2, 3; L. 1844, c. 346, $ 3. $2402. Expenses allowed. The sums actually paid for the following services, not exceeding the fees allowed by law for those services, are allowed in proceedings, taken as prescribed in this title: 1. For publishing the notice of sale, and the notice or notices of postponement, if any, for a period not exceeding twenty-four weeks. |