
    Charles T. Frink, Respondent, v. Samuel Thompson and Henry D. Thompson, Appellants.
    (General Term, Sixth District,
    July, 1869.)
    Instruments requiring a revenue stamp, though unstamped, may be stamped and used in evidence, in the absence of intent to defraud the revenue in omitting the stamp.
    Whether the revenue laws require that affidavits in proceedings on foreclosure of a mortgage upon real estate by advertisement (3 E. S., 547, § 9, &c.) shall be stamped, quere.
    
    Such affidavits are evidence of the title purchased at such foreclosure sale, although unrecorded. The dictum in TuthiU v. Tracy (31 N. Y., 157) to the contrary, disapproved. Howard v. Hatch (39 Barb., 397), upon this point, reaffirmed.
    The plaintiff had a verdict at the Cortland Circuit in January, 1869, for the recovery of the possession of over 300 acres of land, situated in Cortland county, with $400 damages. Judgment was rendered against the defendants on the verdict, with costs. The defendants made a case, containing exceptions, which constituted a part of the judgment roll in the action. The defendants appealed from the judgment to the General Term of this court.
    
      George B. Jones, for the plaintiff,
    cited the following authorities : Revenue laws of congress; Beebe v. Hutton (47 Barb., 187); Vorebeck v. Roe (50 id., 302); Desmond v. Norris (10 Allen, 250); Terrell v. Moulton (12 id., 396); 3 Hill, 95; 3 Johns. Cas., 322; 4 Cow., 266; 1 Paige, 48; 4 Johns., 220; Howard v. Hatch (29 Barb., 297); 2 R. S., 3d ed., part 3, chap. 8, § 14; 97 Mass., 452; Yates, 73; Anderson v. Austin (34 Barb., 319).
    
      Arthur Holmes, for the defendants,
    cited revenue laws of congress; Beebe v. Hutton (47 Barb., 187); Cole v. Bell (48 id., 196); Baird v. Pridmore (31 How. Pr., 359); Myers v. Smith (48 Barb., 614); Hoppock v. Stone (30 How. Pr., 120); 49 Barb., 524; Vorebeck v. Roe (50 id., 302); Arnott v. McClure (4 Denio, 41); Cohoes Co. v. Goss (13 Barb., 137); Layman v. Whiting (20 id., 559); Bryan v. Butts (27 id., 503); Tuthill v. Tracy (31 N. Y., 157); 1 Paige, 461; 2 id., 202; 4 Johns. Ch., 38; 15 N. Y., 354.
    Present—Balcom, Boaedman and Parker, JJ.
   By the Court

Balcom, P. J.

The plaintiff’s title to the land in dispute depended on the validity of his foreclosure of a mortgage on the same, by advertisement, under 'the statutes “ of the foreclosure of mortgages by advertisement.” (2 R. S., 545.) The .affidavits of the publication and posting of the notice of sale, of its service, and of the circumstances of such sale, &c., were all made and recorded; but no revenue stamps or stamp was upon the affidavits. The plaintiff proved that the omission to have revenue stamps put upon the affidavits was unintentional, and without any intention to defraud the government. The affidavits were thereupon stamped with the requisite revenue stamps, and they were then read in evidence, under the objection and exception of the defendants’ counsel. The defendants’ counsel contended that the affidavits were invalid by reason of the omission to put stamps on them when they were made, and that the requisite stamps could not be affixed to them on the trial; and if they could be stamped on the trial, they must be again recorded in order to vest the title to the land in the plaintiff. The judge ruled against the defendants on these questions, and they excepted to such rulings.

The authorities justified the judge in permitting the plaintiff to affix revenue stamps to the affidavits on the trial, if any such stamps were necessary to their validity. But we do not determine the question whether such stamps were necessary to render the affidavits valid. We have repeatedly held that no instrument is invalidated by the omission to affix the proper stamp, unless the omission to affix such stamp be with intent to evade the provisions ” of the .act of congress requiring stamps to be used. But we have not published' our decisions, for the reason that we have heretofore supposed enough such decisions, made in other districts and in other States, have been published to satisfy the profession that the neglect duly to stamp an instrument must be fraudulent to invalidate it. We held, in Howard v. Hatch, (29 Barb., 297), that affidavits like those given in evidence in this case, need not be recorded in order to pass the title to the purchaser of the mortgaged premises. And we do not doubt the correctness of that decision, notwithstanding the obiter remarks of Judge Davies in Tuthill v. Tracy (31 N. Y., 157). If we have not erred upon this question, there certainly was no necessity for again recording the affidavits after they were stamped.

We do not deem any other question in the case of sufficient importance to require particular notice. We think no error was committed on the trial to the prejudice of the defendants. Our conclusion therefore is that the judgment in the action should be affirmed with costs.

So decided.  