
    Adam E. Bonacker, Plaintiff, v. Frances Weyrick and James Powell, Defendants.
    (County Court, Rensselaer County,
    August, 1905.)
    Foreclosure of mortgages on land — Foreclosure by advertisement — Sale — Persons concluded — Summary proceedings — Code of Civ. Pro., §§ 2232 and 2395 — Purchaser in good faith—Title duly perfected.
    Where a mortgage, executed in 1869, upon which no principal or interest had been paid since November 30, 1874, was assigned, in 1904, and it appears that, in 1874, the mortgaged premises were conveyed by warranty deed which did not in any way refer to the mortgage and, shortly before foreclosure of the same, by advertisement, the premises were sold to defendant who neither assumed nor recognized the mortgage in any way, but her attorney appeared at the foreclosure sale and gave notice that the mortgage was invalid by reason of lapse of time since any payment had been made thereon and the notice of sale set forth all the facts, the assignee, as purchaser at the sale, is not a purchaser in good faith within section 2395 of the Code of Civil Procedure; nor is his title duly perfected, as required by section 2232, and he is, therefore, not entitled to maintain summary proceedings to remove the defendant from the premises.
    
      It seems, that petitioner’s remedy is an action in ejectment, or an action, under the Code, to compel the determination of a claim to real property.
    Proceedings under section 2232, subdivision 2, of Code of Civil Procedure for the removal of Frances Weyrick and James Powell from property situate in the city of Rensselaer, N. Y.
    Elliott I. Stiles, for plaintiff.
    John J. McManus, for defendants.
   Tierney, J.

This is a proceeding brought by Adam E. Bo naeker under subdivision 2 of section 2232 of the Code of Civil Procedure, for the removal of Frances Weyrick and James Powell from property No 58 Fowler avenue in the city of Rensselaer, N. Y.

The conditions under which the petitioner claims title and right of possession are as follows: On November 20, 1869, David Welch, the then owner of the property in question, gave a mortgage on said property to Thomas Hayes for the sum of $750, and said mortgage was duly recorded in the Rensselaer county clerk’s office on the 25th day of November, 1869, in book of mortgages No. 121, page 389. There are various assignments of said mortgage down to December 1, 1874, when it came by assignment into the hands of John Templeton, cashier of the Albany County Bank, and so far as the records show remained in his hands until the 7th day of October 1904, when it was duly assigned to Adam E. Bonacker, the petitioner herein, and said assignment was recorded in Rensselaer county clerk’s office, October 28, 1904. Fifty dollars of principal was paid on said mortgage and the interest was paid up to the 30th day of November, 1874, since which date no principal or interest has been paid upon it, and no promise in writing to pay the debt secured by the mortgage other than the instrument itself has ever been made.

In the fall of 1904, Bonacker commenced proceedings to foreclose this mortgage by advertisement, and the foreclosure sale was had on the 26th day of January, 1905, and he, Bonacker, the assignee as aforesaid, was the only bidder and became the purchaser of the property for the sum of $50.

It is contended on behalf of Mrs. Weyrick and Powell that David Welch, the mortgagor, sold the mortgaged property in 1874, to Annette A. E. Du Belle Ayer, by warranty deed, which did not refer to the mortgage in any way; that Miss Ayer was the owner of the property until January 13, 1905, when she sold the same to Mrs. Frances Weyrick, and that neither Miss Ayer nor Mrs Weyrick either assumed or recognized said mortgage in any way, and that the petitioner is not entitled to the benefit of section 2395 of the Code of Civil Procedure, for the reason that he is not a purchaser in good faith and the title under the foreclosure has not been duly perfected as required by subdivision 2 of section 2232 of the Code.

In his notice of sale the petitioner set forth all the facts with reference to the date of the mortgage, the assignments, and the period of time which elapsed since'which any payment of principal or interest had been made, which lapse of time would seem to bring the mortgage within the purview of the Statute of Limitations, adverse possession, and also gave the date of the conveyance by warranty deed by Welch to Annette A. E. Du Belle Ayer, and, besides this, the attorney for Mrs. Weyrick and Powell appeared at the sale under the mortgage foreclosure proceedings of the petitioner and gave notice that the mortgage was invalid by reason of the lapse of time since any payment had been made thereon.

In the case of Jackson v. Dominick, 14 Johns. 435, the mortgagee (in this case the assignee) who foreclosed the mortgage was the purchaser, and the court held that he did not get a good title at the sale for the reason that the mortgage was tainted with usury, and he being a party to the contract was chargeable with notice. In this ease knowledge of the fact that the statute had run is shown to have been in the possession of the assignee and petitioner by his own statement of the matter in the foreclosure proceedings.

In Bissell v. Kellogg, 60 Barb. 617, it was held that the foreclosure by advertisement of a mortgage tainted with usury will not operate to convey a good title except to a bona fide purchaser at the advertised sale, and this can be prevented by giving notice of the usurious character of the mortgage at the time of the sale.

While both of these cases which I have cited involved a usurious condition instead of the running of the Statute of Limitations or adverse possession, yet it seems to me they are sufficiently analogous in principle to make them applicable to the case in hand and under either of these cases I cannot say that the petitioner was a purchaser in good faith within the reading of section 2395 of the Code or that his title was duly perfected as required by section 2232.

Adverse possession or presumption of payment- may be used as a shield to an attack made upon the rights of a person claiming title and right of possession under it. It cannot be used as a ground of affirmative relief or as a weapon of attack. It seems to me that Mrs Weyrick did all that she was called upon to do, and in fact all that she could do with such defense as she had by giving notice at the time of the sale under foreclosure proceedings of the invalidity of the mortgage upon which the proceedings were based, and that she has never been able up to now to have her day in court, and that the more proper procedure for the petitioner would be an action in ejectment or an action under article 5, title 1, of chapter 14 of the Code, where the whole case can be threshed out without advantage or prejudice to either side.

I, therefore, decide that the petition herein be dismissed with $10 costs.

An order may be entered accordingly.

Ordered accordingly. 
      
       Affd. 65 N. Y. 432.— [Reporter.
     