
    MACKENZIE v. ALSTER.
    
      N. Y. Supreme Court, Second Department, Second District; Special Term,
    
    December, 1882.
    Action for Specific Performance.—Vendor and Purchaser.— Foreclosure by Advertisement.—Notice in case of Mortgagor’s Death.—Executors and Administrators.—Power of Sale.— Statutory Remedies.
    Under 2-S. 8. 545, § 3, subd. 3, as amended by L. 1844, c. 346, (same statute, 3 B. 8. 6th ed. 848),—which requires notice of foreclosure by advertisement to be served “upon the mortgagor or his personal representatives,”—notice must be served upon the executor or administrator if the mortgagor be dead; and if there be no executor or administrator, foreclosure by advertisement cannot be had. The remedy is to procure an appointment and then serve the notice, or to proceed by action for foreclosure.
    
    The case of Anderson ®. Austin, 34 Bari). 319, to the contrary,—disapproved and disregarded.
    The court has no power to dispense with a positive provision of the statute.
    Duncan E. Mackenzie brought this action against Adam Alster for the specific performance of a contract for the sale by the plaintiff to the defendant of certain real property.
    
      Plaintiff’s title was derived through the foreclosure by advertisement of a certain mortgage on the premises executed by one Joseph Fitzpatrick. The mortgagor died before the first publication of the notice of sale, leaving a widow and one infant child. No administrator of his estate was appointed. The notice of sale was served upon the widow, and at the time and place specified the premises were sold to plaintiff.
    Defendant rejected the title on the ground that neither the mortgagor nor his personal representatives was served with the notice.
    
      Barney & Cowman, for plaintiff.
    
      John H. Clayton, for defendant.
    
      
       The language of the statute in respect to the mode of giving notice by personal service, &c., is as follows: “ 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 and mortgagees of the premises whose conveyance and mortgage shall be upon record at the time of the first publication of the notice, and upon all persons having a lien by or under a judgment or decree upon the .mortgage premises, subsequent to such mortgage, personally, or by leaving the same at their dwelling-house, &c.”
      The corresponding provision of the Code of Civil Procedure, which takes the place of the above provision, is as follows : “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. A copy of the notice may also be served, in like manner, upon a subsequent grantee or mortgagee of the property,” &c., &c. §238, subd. 4
    
   Gilbert, J.

The question to be decided is whether the title tendered by the plaintiff is such as a court of equity ought to compel'the defendant to accept. That title is derived from the foreclosure of a mortgage made by one Fitzpatrick, by virtue of the statute regulating the proceedings to foreclose mortgages by advertisement (2 R. S. 545; same statute, 3 Id. 6th ed. 848). Fitzpatrick died while these proceedings were pending, intestate, no administrator of his estate has been appointed, and no notice of the foreclosure of the mortgage by a sale of the mortgaged premises was served upon Fitzpatrick.

These principles are well settled: 1st. That the mortgage together with the power of sale contained in it constitute a security merely.

The mortgagor continued to be the owner' of the estate mortgaged (Thomas on Mortg. 15; 1 R. S. 738, § 133 ; same statute, 3 Id. 7th ed. 2194).

2d. That the power of salé could be executed only by a strict compliance with all the provisions of the statute cited (Lawrence v. Farmers’ Loan & Trust Co., 13 N. Y. 200, 211; Mowry v. Sanborn, 68 N. Y. 153, 161; Arnot v. McClure, 4 Den. 41; Cohoes Co. v. Goss, 13 Barb. 137; Lyman v. Whiting, 20 Id. 559 ; Bryan v. Butts, 27 Id. 503).

3d. That the requirements of the statute are conditions precedent to a valid sale under the power and have the same effect as if they had been inserted in the mortgage (68 N. Y. 153).

4th. That when the vesting of an estate depends upon the performance of conditions precedent, it cannot vest unless the conditions are performed.

The condition precedent omitted in this case was the service of the notice of sale upon “ the mortgagor or his personal representatives.” The mortgagor left a widow and one child only one year old. No administrator of his estate having been appointed, it is insisted that the provision of the statute respecting notice to the mortgagor or his personal representative became inoperative. It was so held in Anderson v. Austin, 34 Barb. 319. No reasons were assigned for that doctrine, and it seems to me to be utterly irreconcilable with the authorities cited and with general principles of universal application. If for any cause a party cannot avail himself of a legal remedy provided b.y statute, he must either forego the remedy or remove his disability. Statutes cannot be abrogated because parties are unable to comply with the provisions of them. In this case, however, there existed no insuperable difficulty in complying with the statute. It was conceded on the argument by both parties that executors and administrators, not heirs or devisees, are the personal representatives of a mortgagor within the meaning of the statute referred to. The provisions of the statute, 1 R. S. 749, § 4; same statute, 3 Id. 7th ed. 2205, imposing upon an heir or devisee thé duty of paying a mortgage upon land which has descended or passed to him, would seem to render such heir or devisee a fitter representative of a deceased mortgagor, with respect to proceedings to foreclose the mortgage, than an executor or administrator. But taking the concession as correct, all that is necessary for a mortgagor to do, is to take the requisite steps to have an administrator appointed or wait until some one who has a prior right to letters of administration shall have done so, or to set in motion the public administrator or resort to a court of equity for the foreclosure of Ms mortgage merely. The court has no power to dispense with a positive provision of a statute. If it can with one, it may with all. If the death of the mortgagor and the non-appointment of .an administrator renders the service of a notice of sale unnecessary, the non-existence of a newspaper in the country would render unnecessary the publication of an advertisement of sale. Thus the provisions of the statute might be frittered away. I do not believe that the power to produce such results exists.

The complaint must therefore be dismissed with costs, unless the defendant consents to • have the case stand over for the purpose of making a good title.

Bd appeal was taken.  