
    Bond v. Finn.
    
      (Supreme Court, General Term, Third Department.
    
    February 7, 1889.)
    1. Mortgages—Foreclosure—Service of Notice on Heir.
    Under Laws N. T. 1844, c. 346, requiring notice of foreclosure by advertisement to be served on the mortgagor or his personal representatives, and on subsequent grantees, etc., a foreclosure is valid as to an heir who is served, though there are no personal representatives.
    2. Appeal—Matter not Apparent in the Record.
    Where the evidence at a trial before a referee is not in the record on appeal, it maybe assumed, in support of the judgment on the report, that a deceased mortgagor had no personal representatives, and that notice of foreclosure by advertisement was served on the heir; the findings not being in conflict therewith.
    Appeal from the judgment on report of referee.
    Mortgage foreclosure by Tewton R. Bond against Emily M. Finn and others. 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 G. 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, seised of the premises in. question as the owner thereof, leaving Julia A. Goold and Anna Hallenbeek 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 forclosure by advertisement of a mortgage made by Mary Home to secure the payment of $1,000. That at the time of such statutory forclosure Mary Home was dead, and that no copy of a notice that such mortgage would be foreclosed was served upon her personal representatives. Defendant appeals.
    Argued before Learned, P. J., and Landon and Ingalls, JJ.
    
      W. Frothinyham, for appellant. I). C. Herrick, for respondent.
   Landon, J.

The defendant, Emily M. Finn, as one of the devisees of Julia. A. Goold, who died in January, 1887, became the owner of an undivided part of the mortgaged premises, unless the interest of Julia A. Goold was cut off by the statutory foreclosure by advertisement and sale under the mortgage-made by Mary Home, who died intestate, seised and owner of the premises in. January, 1878, leaving Julia A. Goold one of her heirs 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 j udgment not in conflict with the facts found. Gardiner v. Schwab, 110 N. Y. 650,17 N. E. Rep. 732. 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 was 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. Goold. The foreclosure was under the statute, and prior to section .2388, Code Civil Proe. The statute (chapter 346, Laws-1844; 3 Rev. St. 5th Ed. 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 forclosure is nevertheless valid against those upon whom service is made. King v. Duntz, 11 Barb. 191; Anderson v. Austin, 34 Barb. 319; Cole v. Moffitt, 20 Barb. 19; Hubbell v. Sibley, 5 Lans. 51; Van Schaack v. Saunders, 32 Hun, 515.. The case of Mackenzie v. Alster, 64 How. Pr. 388, is the other way. It is a strong presentation of the doctrine that, unless tile 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 promotive of justice. Why should the heir, who is served, and thereby is enabled to protect his interests, be heard to complain in behalf of 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. Goold, 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. All concur.  