
    (88 Hun, 348.)
    VAN VLECK et al. v. ENOS et al.
    (Supreme Court, General Term, Fourth Department.
    July 5, 1895.)
    1. Mortgage—Statutory Foreclosure—Entries by County Clerk.
    Compliance with the requirements of a statute that a notice of sale, which is to be delivered to the county clerk 12 weeks before time specified for the sale, shall be affixed by him in a book kept by him for the purpose, and that he shall enter at the bottom of the notice the time of receiving and affixing it, subscribed by him, and shill index the notice in the name of the mortgagor, is essential to the validity of the foreclosure.
    2. Same—Affidavit op Auctioneer.
    2 Eev. St. p. 547, § 11, provides that the affidavit of an auctioneer who officiates at a sale under foreclosure by advertisement may be taken by certain enumerated officers, among whom the county clerk is not mentioned. 2 Eev. St. p. 284, § 49, which confers on county clerks their power to take oaths, excepts such oaths as are required by law to be taken before pártieular oflieers. Held, that such an affidavit taken by such clerk is not valid.
    3. Ejectment—Title to Maintain.
    One to whom a conveyance absolute in form is made merely as security cannot maintain ejectment.
    4. Administrator's Sale—Title Acquired by Grantee.
    Under Code Civ. Proe. § 2778, providing that a sale by an administrator of decedent’s real estate for payment of his debts shall vest in the grantee all the estate, right, and interest of decedent, but subject to all subsisting charges which existed at the time of his death, even if a greater right could be sold than that possessed by„ decedent at his death, one buying with notice that land conveyed to decedent by deed absolute was so conveyed merely as security would hold it as such security only.
    Appeal from circuit court, Madison county.
    Action by Uri C. Van Vleck and others against Emilus J. Enos and others. From a judgment entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial, made on ’ the minutes, defendants appeal.
    Reversed.
    Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.
    N. Foote, A. A. Foote, and C. A. Hitchcock, for appellants.
    Mason & Cushman and John E. Smith, for respondents.
   MARTIN, J.

This was an action of ejectment to recover the possession of a farm situated near the village of Hamilton, N. Y. The plaintiffs’ alleged title is based upon the claim that Dewitt C. Enos owned the premises, and gave a mortgage thereon, which, after his death, was foreclosed, and the farm was purchased by Eneas E. Enos, who thereupon became the owner; that, after the death of Eneas E. Enos, proceedings were instituted by his administrators to sell his real estate for the payment of his debts, which resulted in a sale of the premises to the plaintiffs and others; and that under and by virtue of such sale they acquired the title in fee to the farm in question. The defendants, however, claim that the mortgage given by Dewitt 0. Enos was never properly foreclosed, and hence no title whatever passed to Eneas E. Enos; that, if it was properly foreclosed, it was purchased under an express arrangement or agreement whereby Eneas E. Enos took only a mortgage interest in the premises, while the fee belonged to Emilus J. Enos; that subsequently Emilus J. Enos became insolvent, and made a general assignment for the benefit of his creditors; that his assignee sold the interest of Emilus J. Enos in the premises, which was purchased for and belongs to the defendants Alanson T. Enos, Frank Enos, and Hetty Mitchell; and as the only title that Eneas E. had, or that the plaintiffs acquired, was that of a mortgagee, that neither Eneas nor the plaintiffs could maintain this action.

At the time of his death, Dewitt C. Enos was the owner of the premises in question, subject to a mortgage upon which there was then unpaid $2,500. He died December 14, 1868. At that time the premises were worth about $8,000. His wife and three infant children survived him. His widow was appointed administratrix of bis estate. After his death a plan was devised by and between the widow of Dewitt C. Enos, Alanson Trask, her father, and Emilus J. Enos, a brother of the decedent, by which the mortgage upon the premises was to be purchased by the widow and Emilus, foreclosed, and the title transferred to some other person for the purpose of divesting the title which the defendants Alanson T. Enos, Frank Enos, and Hetty Mitchell, the then infant children of the decedent, had in the premises. In pursuance of this plan the widow of Dewitt C. Enos furnished $1,000 of the funds belonging to his estate, and Eneas E. Enos, a son of Emilus J. Enos, furnished $1,500 for the purpose of purchasing the mortgage upon the premises, foreclosing it, and thus divesting the title of the infant children of the decedent in the premises. The mortgage was purchased, and assigned to Alanson Trask, who immediately commenced proceedings to foreclose it by advertisement. The premises were sold June 28, 1869, for $2,528, and bid off by Eneas E. Enos, under an agreement which had been made between himself, Emilus J. Enos, and Alanson Trask, by which Eneas E. was to bid off the premises for Emilus J., hold them as security for the $1,500 furnished by him to purchase the mortgage, give a mortgage to Anna F. for the $1,000 she had advanced, and give to Emilus J. a defeasance to convey the premises to him when he (Eneas F.) was paid the $1,500 advanced, with interest. Such a defeasance was subsequently executed, under seal, acknowledged, and delivered to Emilus J. Enos, and a mortgage for $1,000 was executed and delivered to Anna F. Enos. The premises continued in the possession and under the management and control of Emilus J. and his wife, and they received the entire proceeds thereof, until the commencement of this action. The premises were never conveyed by Eneas E. to his father, Emilus J. In December, 1886, Emilus J. made a general assignment for the benefit of his creditors. September 10, 1887, his assignee sold all his right, title, and interest in the premises in question, which was purchased for the children of Dewitt C. Enos, to whom a deed was given October 29, 1887, which was recorded January 6, 1888. November 24, 1886, Eneas E. Enos died insolvent and intestate, leaving a widow, but no children. TTis widow and David C. Mott were appointed administrators of his estate. Subsequently, proceedings were instituted in surrogate’s court to sell the real estate of Eneas E. Enos for the payment of his debts. Under those proceedings the premises in question were sold March 30,1888, to the plaintiffs and two other persons, who have since died, and an administrator’s deed, in the usual form, was given to the purchasers, and recorded April 18, 1888.

The evidence discloses that the purpose of the foreclosure and sale under the mortgage was to change the title to the property from the infant children of Dewitt C. Enos to some one else, so as to provide a home or secure the property for Emilus J. and his wife. While it is true that this was to be principally at the expense of the infants, who were incompetent to consent, yet that the widow, or Trask, who W'as their grandfather, intended to deal fraudulently or unjustly by them, is not to be supposed. The result of the transaction to the infants was the same,, however commendable the motive may have been. The purpose of this transaction, and the manner in which it was carried into execution, were well known to the widow, Trask, Emilus J., and Eneas E. In the first place, .the plaintiffs’ title and right of recovery are dependent upon the validity of the mortgage foreclosure. If that was invalid, obviously, this judgment cannot be upheld. The appellants contend that the foreclosure proceedings were void, and consequently the judgment should be reversed. In foreclosure by advertisement, the statute, as it stood in 1869, required that a copy of the notice of foreclosure and sale should be delivered, at least 12 weeks prior to the time specified for the sale,to the clerk of the county in which the premises were situated, who should immediately affix the same in a book prepared and kept by him for that purpose, and that the clerk should also enter in said book, at the bottom of such notice, the time of receiving and affixing the same, duly subscribed by him, and should index such notice to the name of the mortgagor. The affidavits of foreclosure and sale are the only evidence the plaintiffs have of their title to the premises. No deed was given. The affidavits contain no proof that the clerk entered in the book in which notices of foreclosure and sale were affixed, at the bottom of the notice, the time of receiving and affixing the same, or that he subscribed it, or indexed the notice to the name of the mortgagor. As to these requirements of the statute, the affidavits are silent, and no other evidence was given upon the trial to show that these provisions of the statute were complied with. In Mowry v. Sanborn, 68 N. Y. 153, 161, where a history of proceedings for the foreclosure of mortgages by advertisement was given, and the requirements of the statute on that subject were considered, after stating what the requirements of the statute were, —that, among others, a copy of the notice should be delivered to-the county clerk, to be affixed in a book in his office, and that an entry of the time of receiving and affixing the same should be made, —Andrews, J., said:

“All thpse several acts required to be done were parts of the notice to be g'ven, a”d were to be performed prior to the sale, at the times specified in the st- tu e Thes statute requirements were conditions precedent to a valid sale v>nUr the power, and have the same effect as if they were inserted in the mo t a-ie, and a person claiming title under a statute foreclosure assumes the bu den of si owing that they were performed.”
■•S.atutory foreclosure, or foreclosure by advertisement, is exclusively a creature of legislative enactment. * * * Every requirement of the statute must be strictly complied with, as failure to comply with any of its material directions will render the foreclosure irregular and void.” Wiltsie, Mortg. korec. p. 879, § 768, and cases cited in note.

The respondents’ contention that the entry, in the book kept by the clerk for the affixing of such notices, of the time of receiving and affixing the notice subscribed by the clerk, and the indexing such notice to the name of the mortgagor, were immaterial and unessential requirements, and need not be proved to establish the validity of the foreclosure, cannot, we think, be sustained. The entry in such book of the time of receiving and affixing the notice, the subscription by the clerk, and the indexing of the notice to the name of the mortgagor, are among the requirements of the statute, and are made a part of the act of affixing the notice in the book kept by the clerk. It would not be contended, we apprehend, that if the notice had not been in any manner affixed in the book kept by the clerk the proceedings would be regular and the foreclosure valid. If to affix the notice in the book is material and necessary to a valid proceeding, it would seem that it should be affixed in the manner required by the statute, which includes the entry of the time when received and affixed, subscribed by the clerk, and that it should be indexed in the name of the mortgagor. This omission was a material one, and, as there was no evidence except the affidavit as to the manner of affixing such notice, it was, we think, insufficient to show that the requirements of the statute had been complied with.

Another objection to the validity of the foreclosure rests in the fact that the affidavit of the person who officiated as auctioneer at the sale was not verified before an officer authorized to take it. It was taken before the deputy clerk of the county of Madison. The statute regulating the foreclosure of mortgages by advertisement, as it then stood, provided that the affidavit might be taken and certified by any judge of a court of record, any supreme court commissioner, any commissioner of deeds, or a justice of the peace. 2 Rev. St. p. 547, § 11. There was no provision of statute which authorized even the county clerk to take such an affidavit. Craft v. Merrill, 14 N. Y. 456, tends to sustain the appellants’ theory that the affidavit was not properly verified. When we consider the provisions of the section above referred to, and examine section 49, p. 284, Rev. St., which conferred upon county clerks all the powers to take affidavits which they possessed at the time this affidavit was taken, and find that such oaths as were required by law to be taken before particular officers were excepted, it is quite obvious that the deputy clerk had no authority to take the affidavit in question. It is contended by the respondents, however, that the question whether the affidavit of sale was or was not sufficient is immaterial, because the sale was proved to have taken place. It was competent to prove the sale by common-law evidence. Mowry v. Sanborn, 68 N. Y. 153. The statute required proof of the time and place at which the sale took place, the sum bid, and the name of the purchaser. It is true, the witness Foote testified that he thought he followed the statutory proceedings, and went through the regular form of foreclosure, and that his other evidence tended to show that a sale took place. Yet we tail to find sufficient positive evidence of the facts required by the statute to be stated in the affidavit of sale to render it clear that the matters required to be stated in the affidavit were proved as distinctly and clearly as was necessary to sustain the validity of such foreclosure. We are therefore of the opinion that the evidence was insufficient to justify the court in holding, or the jury in finding, that the plaintiffs acquired a valid title to the premises through or under such foreclosure and sale.

If, however, it should be held that the proof of the foreclosure and sale under the mortgage was sufficient, still it is quite obvious from the evidence that the title to the premises was to vest in Eneas E. Enos for. a special purpose only, which was that he should execute a mortgage to Anna F. Enos for the $3,000 fun nished by the estate of Dewitt C. Enos to purchase the mortgage foreclosed, retain the title, subject to such mortgage, as security for the payment of the money advanced by him for the same purpose, and, upon repayment, convey the premises to Emilus J. Enos. That, as between the parties, Eneas E. Enos acquired only a mortgage interest in the premises, there is, we think, no doubt. A deed absolute in form, but in fact given simply as security for a debt, does not convey the title, but is, both at law and in equity, a mortgage only. Barry v. Insurance Co., 110 N. Y. 1, 17 N. E. 405. The rule that a deed absolute upon its face can, in equity, be shown by parol, or other extrinsic evidence, to have been intended as a mortgage, has been, upon the fullest consideration, deliberately established by the decisions in this state, and will not, it seems, be departed from. Horn v. Keteltas, 46 N. Y. 605. One claiming under a conveyance in form a deed, but given as a mortgage, cannot maintain ejectment against the grantor, or any other person, and a re-conveyance by the grantee to the grantor is not necessary to reinvest the latter with the absolute title. It is necessary only to clear up the record title. Shattuck v. Bascom, 105 N. Y. 39, 12 N. E. 283. To establish that a conveyance or transfer of property, absolute on its face, was intended as a mortgage, and to give it effect as such, it is not material that the conveyance should be made by the debtor, or by him in whom the equity of redemption is claimed to exist. Whenever property is transferred, no matter in what form or by what conveyance, as a security for debt, the transferree takes merely as a mortgagee. Carr v. Carr, 52 N. Y. 251. The fact that a conveyance vests the legal title in the grantee is not decisive of the question whether it was an equitable mortgage. It may .be a mortgage, although- the defeasance be to another than the grantor. Pardee v. Treat, 82 N. Y. 385. There are many other cases holding the doctrine of those cited, but, as these principles seems to be wrell established in this state, we deem it unnecessary to cite further authorities. As the premises in question were purchased at the mortgage sale for the benefit of Emilus J. Enos, and .the title given to Eneas E- Enos to secure him for the money advanced for the purchase of the mortgage, and to give a mortgage thereon to secure the $1,000 advanced for the same purpose by the widow of Dewitt C. Enos, it is manifest that the title or equity in the premises was to belong to Emilus J. Enos, that it was held by Eneas E. Enos in trust for him, and that as such trustee, he was authorized to execute the mortgage to Anna F. Enos. The giving of this mortgage did not, we think, in any way affect the relation of the parties, or change that of Eneas E. Enos from that of mortgagee holding the equity or legal title in trust for Emilus J. Enos. Stoddard v. Whiting, 46 N. Y. 627. The principle of the cases cited fully sustains our conclusion that the only interest that Eneas E. Enos acquired to the premises in question was that of a mortgagee, and that he could not, as such, have maintained an action of ejectment.

This brings us to the consideration of the question whether the plaintiffs have any other or better title than Eneas E. Enos possessed at the time of his death. As we have already seen, the plaintiffs claim to have acquired their title to the premises by virtue of an administrator’s sale for the payment of the debts and funeral expenses of Eneas E. Enos. The statute under which these proceedings were instituted provides only for the sale of the real property „ of which the decedent” died seised, and the interest of a decedent in real property held by him under a contract for the purchase thereof made either with him, or with a person from whom he derived his interest. It also provides that a sale pursuant to. the statute vests in the grantee all the estate, right, and interest of the decedent in the real property so conveyed, at the time of his death, free from dower not assigned, but subject to all subsisting charges, by judgment, mortgage, or otherwise, which existed at the time of his death. Code, §§ 2749, 2778. The evidence discloses that Eneas E. Enos was never in fact seised of the premises in question, but that the only interest he possessed was that of a mortgagee who held the legal title as security for the payment of his debt. Under these circumstances, it is difficult to find any justification in the statute for the sale of these premises under the proceedings instituted by the administrators, as the decedent was not seised of them at his death. It may be that in a proper action the plaintiffs would be entitled to recover the interest which Eneas E. had in the premises, but that question is not here. Even if the sale was authorized, the only estate, right, or interest which would vest in the grantee, under such a conveyance, would be that which the decedent had in the property at the time of his death. In re Application of Dolan, 88 N. Y. 309, 322. And as the only estate, right, or interest that he had was that of a mortgagee, it would seem to follow that if the plaintiffs succeeded to that interest they could not maintain this action. It may be that as between Eneas or Emilus and a third person, who was a purchaser in good faith and for value, Eneas was to be considered as the legal owner of the premises, and the purchaser would obtain a title to which the equity of Emilus would not attach; but if the purchase was with notice the purchaser would be in no better position than his grantor, and his deed would be, at most, an assignment of Eneas’ interest in the property. If, therefore, we are incorrect in our conclusion that under the statute no greater right could be sold than that possessed by the decedent at the time of his death, and the purchaser acquired the legal title to the premises upon record-, ing his conveyance, then the question whether the plaintiffs were purchasers in good faith properly arises. Upon that question much evidence was given. It was shown that Emilus J. Enos and his wife were in actual, open, and visible possession of the premises, and had been so possessed of them for many years. This was constructive notice of the interest of Emilus J. in the premises, and was' sufficient to put the plaintiffs upon inquiry to ascertain what the rights of the defendants were in the premises. Bassett v. Wood, 55 Hun, 587, 9 N. Y. Supp. 79, and cases cited in opinion.

Again, the premises were sold by.the assignee of Emilus J. in September, 1887, and purchased for the children of Dewitt C. Enos, to whom a deed was given, which was recorded January 6,1888,— more than two months before the premises were sold to the plaintiffs, and more than three months before their deed was recorded. The proof also disclosed that a portion of the plaintiffs, and the attorney who was acting in the matter for all, acquired information in regard to the interest of the children of Dewitt C. Enos in the premises, and as to the interest of Emilus J. therein, which, if credited, was sufficient to show that the plaintiffs were not purchasers in good faith. On the other hand, the plaintiffs introduced evidence which tended to show that some of them were informed by Emilus J. that he had no title to the premises, and that information as to the rights of the defendants was sought from one of the attorneys who foreclosed the mortgage, and who was the attorney for the assignee of Emilus J., and that no information showing that the title of Eneas was less than the legal title to the premises, subject to the $1,000 mortgage, could be obtained. That, at or about the time when it was offered for sale by the administrators, any of the plaintiffs made direct inquiry of Emilus J., or his wife, as to their interest in the farm, for the purpose of ascertaining if they had any interest therein, is not pretended. The statements which were proved to have been made by Emilus J. were made at other times, and had no relation to this sale. Indeed, as to most of the plaintiffs, they made no effort to ascertain what rights Emilus J. and his wife had in the premises, although they were known to them to be in actual, open, and visible possession thereof. Nor was any effort made by them to ascertain the rights therein of the defendants Alanson T. Enos, Frank Enos, and Hetty Mitchell, although they had a deed of the premises, which had been recorded more than two months prior to the time of the administrator’s sale, which was known to some of the plaintiffs independent of the record, and some of them were informed that the foreclosure sale was in fraud of the rights of the children of Dewitt C. Enos. It may be that, as to some of the plaintiffs, the court was justified in submitting to the jury the question whether they were purchasers in good faith, and for value; and, yet, as the burden of proof was upon them to show they were such purchasers (Westbrook v. Gleason, 79 N. Y. 23; Seymour v. McKinstry, 106 N. Y. 230, 12 N. E. 348, and 14 N. E. 94), an examination of the whole case renders it so improbable that they had neither constructive nor actual notice of the rights of the defendants in the premises as to lead us to the conclusion that, as to them, the verdict of the jury was against the weight of the evidence. As to the other plaintiffs, the evidence was insufficient to justify the submission to the jury of the question whether they were purchasers in good faith. In other words, we are of the opinion that the plaintiffs have not sufficiently borne the burden of showing that they were purchasers in good faith, and for value, to justify us in upholding the judgment herein upon the ground that they, as such, acquired a greater or better title'than that possessed by Eneas E. Enos at the time of his death. These views lead to the conclusion that the judgment should be reversed.

Judgment and order reversed, on the facts and law, and a new trial granted, with costs to abide the event. All concur.  