
    SUPREME COURT.
    Henry Randell, trustee, etc., agt. Theodore Van Ellert and others.
    
      Mortgage foreclosure—sale try referee—Peed — what must be stated in granting clame—sec. 1244, Code of Gwil Procedure.
    
    Under section 1244 of the Code of Civil Procedure, on foreclosure of a mortgage, and sale of the mortgaged premises by a referee, the ordinary deed is not the proper one. The provisions of this section must be complied with by stating in the granting clause whose right, title and interest has, in fact, been sold by him.
    The provisions of this section apply to and include all foreclosure cases.
    The object of this enactment is to preserve the symmetry of the recorded title, and dispenses with the necessity of looking through the judgment record in order to ascertain the interest that has been sold under it.
    Beady, J. (dissenting), held, that the application of this section must depend upon the decree; that the deed should follow the decree.
    The provisions of section 1244 are not in conflict with 3 Revised Statutes fffth ed.], 273, sea. 88).
    
      First Department, General Term, December, 1877.
    
      Before Davis, P. J., Brady and Daniels, JJ.
    
    Appeal by plaintiff, as purchaser in this and two other causes, from orders denying applications for orders directing the referee to state in the deeds executed by him, pursuant to foreclosure sales, whose right title and interest in the property affected was sold.
    The action was to foreclose a mortgage. After sale, the referee tendered to the counsel of purchaser the ordinary deed, which was refused, for the reason that it did not comply with section 1244 of the Code of Civil Procedure.
    
      The referee then offered to insert in the granting clause of . said deed the name of the mortgagor or his assignee, or of all the defendants in the action, but the purchaser still declined to accept said deed. The referee then applied to the court at special term for instructions and a construction of that section, and the following opinion was rendered.
    
      John J. Thomasson, referee.
    
      Robert Benner, for purchaser.
   Donohue, J.

The section on which the difficulty arises, producing this application, requires the insertion in the referee’s deed of the names of all the persons whose title the referee’s deed proposes to convey.

The provision it seems to me impossible to comply with, as in law the sale conveys the title of all parties or persons, and all title which may have passed unto parties whose conveyances and liens have not been recorded. Should such names be left out in a deed naming the parties, it might be held their interests were not conveyed. Where, under the circumstances, it is impossible to perform the act required, the referee is discharged from doing it. The ordinary deed, it seems to me, is the proper one.

From this decision the purchaser brings this appeal.

Daniels, J.

The orders were made1 relieving the referee from the obligation of stating, in his deeds, whose title and interest in the land had been sold by him, because, in the language contained in them, it seemed impossible for the referee to give such deeds as the law required, and also comply with the new provisions contained upon this subject in the Code of Civil Procedure. Why this impossibility should be supposed to exist seems to be no farther indicated than it can be gathered from the provisions of the preceding statute, declaring the effect which the deed should have that might be executed pursuant to a sale of property under a judgment in a foreclosure case. Under these provisions it was declared that the deed should have the same effect, and vest in the purchaser the same estate as would have been acquired by the foreclosure of the equity of redemption, and should be as valid as though executed by the mortgagor and mortgagee of the property, and should be an entire bar against each of them, and all the parties to the suit in which the decree should be made, and their heirs and all claiming under such heirs (3 R. S. [5th ed.], 273, sec. 88). And there seems to be nothing contained in these provisions creating the least inability to comply with what has since been required to be observed in the judicial sale of real estate.

The fact that the deed upon a foreclosure sale shall be attended with this effect, cannot disable the officer making the sale from also stating in it whose right, title and interest in the property has in fact been sold by him. Both provisions, and all the requirements made by each of them, are entirely consistent and may be wholly as well as conveniently observed. But if they could not be, that would not result in the nullity of the last provision enacted.

That is never the effect of inconsistent legislation. But the last enactment made is observed and executed, while that preceding it is regarded as repealed. The last expressed intention of the legislature is always the one to be enforced where it conflicts with others previously declared. For that reason, if the statutes could not both be enforced the provision made by the Code would be the one that, at the present time, would be obligatory. But, in fact, there is no conflict whatever in the laws upon this subject. The preceding statute requires nothing whatever to be stated in the deed upon the foreclosure sale inconsistent with this provision of the Code. And the declaration of the effect of the deed in no way prevents a statement from being made, showing whose right, title and interest has been sold. In effect, that would be the title of the mortgagor at the time of the execution and recording of the mortgage, where no different adjudi- ' cation has been made by the judgment. And no difficulty can stand in the way of making such a statement in the deed. The object of the new enactment is entirely apparent. It was to preserve the symmetry of the recorded title, and dispense with the necessity of looking through the judgment ■ record in order to ascertain the interest that has been sold under it. The enactment made by the Code of Civil Procedure is plain and peremptory. And it was made in terms so broad as clearly to evince the design to include all foreclosure cases. Its language is, that “ a conveyance of property sold by virtue of an execution, or sold pursuant to a judgment, must distinctly state in the granting clause thereof, whose right, title or interest was sold, and is conveyed, without naming in that clause any of the other parties to the action/’ &c (Code of Civil Procedure, sec. 1244). And it includes all conveyances of property sold either by virtue of an execution or judgment. It is so clear that construction is not required for the purpose of rendering it perspicuous. There would seem to be no difficulty whatever in the way of ■the referee which could prevent him from ascertaining, by the judgment, the time when the mortgage was recorded in each one of these cases. And if the judgment has been regularly obtained, in stating in the deeds that the interest sold and conveyed is the same as the mortgagor had in the land at that time, it may require greater attention than has previously been necessary in these cases. But because it does,. the Code cannot dispense with the observance of what the legislature has so plainly required. The enactment is that the deed must distinctly state the fact, and while it continues in force the officer making such a conveyance cannot be relieved from its observance. The order made in this and the other two cases, should be reversed and an order entered requiring the referee to comply with the direction which has been given upon the subject.

Davis, J., concurs.

Note.—The order of the court in this action was that “the referee comply with the provisions of section 1244 of the Code of Civil Procedure, by inserting in the conveyance the names of the party or parties who executed the mortgage foreclosed, and stating that the right, title and interest which said mortgagors had at the time of the execution of such mortgage, was sold and is thereby conveyed.”

In the granting clause of deeds, the description of premises should be inserted in the usual way; then at the end of description the following should be added, as a compliance with the provision of section 1244: “And also, that all the estate, right, title and interest which A and B, who executed the mortgage described and foreclosed in said action, had, at the time they executed said mortgage, in said mortgaged premises, in said judgment and hereinbefore described, was sold under said judgment and is hereby conveyed to said parties of the second part, their heirs and assigns forever.” [Ed.

Beady, J (dissenting).

I do not discover points on the part of the defendants, or any of them. The controversy seems to be between the referee and the purchaser, the plaintiff. The section of th°e Code considered is very, broad and leaves, perhaps, little room -for doubt, but its application must depend upon the decree. The deed should follow that, and the referee should not be required to determine whose interest was sold. If the decree is general so should be the deed, and if any other rule be adopted it should rest upon the decree, which should be required to state the interest in detail. The decree not being before us, I assume the order made was right.  