
    Newton R. Bond, Resp’t, v. Emily M. Finn, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February 7, 1889.)
    
    1; Practice—Findings op pact—When truth op assumed.
    Where the evidence given on the trial is not returned on the record, the truth of the findings of fact returned, and such other facts as may be necessary to uphold the judgment, and which are not in conflict with the facts found, will be assumed.
    2. Mortgage—Foreclosure—When proceedings binding—3 ft. S. (5th ed.), 860.
    Where the proceedings are had under the statute, and there are no personal representatives upon whom to serve the notice as required, the foreclosure is, nevertheless, valid as against those parties upon whom notice is served.
    
      Appeal by the defendant from a iudgment in foreclosure.
    The issues were tried before a referee, and this appeal comes upon his findings; the evidence given upon the trial not forming part of the record.
    The complaint was in the usual form to foreclose a mortgage given by Augustus Gr. Goold and Julia, his wife, to the plaintiff to secure a debt of the former September 2, 1885. It alleged that Augustus G. Goold died intestate July 6, 1887, leaving his daughters the defendant Emily M. Finn and Julia A. Bond, his only heirs and next of kin; that Julia A. Goold, wife of Augustus, died January, 1887, leaving a will, which was admitted to probate, whereby the defendant Emily M. Finn and Julia A. Bond were made sole legatees, and Julia A. Bond, executrix.
    The complaint further alleged that the defendant, Emily M. Finn claimed an interest in the premises, which, if any, had accrued subsequently to the lien of the mortgage.
    The defendant answered among other things that neither of the mortgagors Augustus G. Goold nor Julia his wife had any title or interest in the premises when they made the mortgage, and none since, and that the defendant Emily M. Finn is the owner of an undivided one eighth part thereof.
    _ The referee found that the evidence did not establish any right or title of the defendant in the premises prior to the lien of the mortgage, and that if she had any right or title it was subsequent thereto, and that whatever right or title she may have had in the premises at the execution of the mortgage constitutes no defense to the action for foreclosure.
    The referee at the request of the defendant found that in January, 1878, Mary Home died intestate seized of the premises in question as the owner thereof, leaving Julia A. Goold and Anna Hallenbeck her sole heirs at law. That Julia A. Goold died January, 10, 1887, leaving a last will and testament which was duly admitted to probate whereby the defendant Emily M. Finn and Julia A. Bond were made her sole legatees and devisees.
    That whatever title Augustus G. Goold had to the premises described in the complaint at the time he made the mortgage in question was by virtue, of a statutory foreclosure by advertisement of a mortgage made by Mary Home to secure the payment of $1000. That, at the time of such statutory foreclosure, Mary Home was dead, and that no copy of a notice that such mortgage would be foreclosed was served upon her personal representatives,
    
      W. FrotMngham, for app’lt; D. O. Herrick, for resp’t.
   Landon, J.,

The defendant Emily M. Finn as one of the devisees of Julia A. Gfould who died in January, 1887, became the owner of an undivided part of the mortgaged premises, unless the interest of Julia A. G-oold was cut off by the statutory foreclosure by advertisement and sale under the mortgage made by Mary Home, who died intestate seized and owner of the premises in January, 1878, leaving Julia A. Groold one of her heir at law.

As the evidence given on the trial is not returned in the record, we assume the truth of the findings of fact returned, and such other facts as may be necessary to uphold the judgment, not in conflict with the facts found. Gardiner v. Schwab, 110 N. Y., 650; 17 N. Y. State Rep., 174.

The validity of the statutory foreclosure is assailed by the defendant because it is affirmatively found that no copy of notice that the mortgage would be foreclosed wafe served upon the personal representatives of Mary Home, deceased.

We may assume that she had no personal representatives, and also that such copy of notice was duly served upon Julia A. Gfoold.

The foreclosure was under the statute and prior to section 2388 of the Code Civil Procedure. The statute (ch. 346, Laws 1844, 3 R. S. [5th ed.j, 860) provides that notice that such mortgage will be foreclosed shall be given: “3. 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,” etc.

The weight of authority, if such weight may be determined by comparison of the number of cases, is to the effect that where there are no personal representatives of the deceased mortgagor the foreclosure is nevertheless valid against those upon whom service is made. King v. Duntz, 11 Barb., 191; Anderson v. Austin, 34 id., 319; Cole v. Moffitt, 20 id., 19; Hubbell v. Sibley, 5 Lans., 51; Van Schaack v. Saunders, 32 Hun, 515. The case of McKenzie v. Alster (64 How. Pr., 388) is the other way. It is a strong presentation of the doctrine that unless the statutory condition precedent to a sale is complied with the sale is invalid. The latter case may be said to be the logical deduction from the. literal terms of the statute; the former cases to be such reasonable construction as is adapted to the situation and promotion of justice. Why should- the heir, who is served, and thereby is enabled to protect his interests, he heard to complain in behalf of the non-existent personal representatives % The spirit of the statute is, that notice shall be given to those whose interests are to be affected. The spirit of the statute is respected though its letter be not observed, by service upon parties in interest. The letter killeth but the spirit maketh alive. Hence we conclude to follow the more numerous company of authorities.

Mrs. G-oold therefore was foreclosed, and hence the defendant took no title to the premises under her will.

The discretion of the court below respecting costs was not improperly exercised.

Judgment affirmed, with costs.

Learned, P. J., and Ingalls, J., concur.  