sequent execution of a deed by the two cannot aid such sale. (Powell v Tuttle, 3 Comst. 36, overruling King v. Stow, 6 John. Ch. 323.)

If the mortgagor becomes the purchaser under a regular sale of the commissioners and gives a new mortgage for the original principal, it is a mortgage for the purchase money, and upon a subsequent default, and a failure of any one to bid on the sale, the commissioners are entitled to the possession as against one who has acquired title under a judgment against the mortgagor, docketed intermediate the two mortgages. (Com'rs v. Chase, 6 Barb. 37.)

The various loan acts of this state of 1792, 1808 and 1837, contained the same features with respect to the absolute vesting of the estate, and foreclosure, but it is not deemed of sufficient importance to notice them more at large. (Powell v. Tuttle, 3 Comst. 403.) In 1850, an act was passed for the final settlement of the loans of 1792 and 1808, by a transfer to the United States' deposit fund, and to abolish the office of loan commissioner. (Laws of 1850, ch. 337, p. 732.)

SECTION IV.

Of the power of sale and statutory foreclosure.

It has long been usual in this state to insert in the mortgage a power of sale, to the effect that in case default should be made in the payment of the principal or interest, as provided in the mortgage, then the mortgagee, his executors, administrators and assigus are empowered to sell the mortgaged premises, with the appurtenances, or any part thereof, in the manner prescribed by law; and out of the money arising from such sale, to retain the said principal and interest, together with the costs and charges of making such sale; and rendering the overplus, if any there be, on demand, to the mortgagor, his heirs or assigns.

Previous to 1830, to entitle the party to execute a power of sale, he must have been at the time, at least twenty-five years old, and that rule applied to all powers executed since the 19th day of March, 1775. (Laws of 1813, p. 375, § 5.) At the revision of the laws in 1830, while the old rule was recognized for all past transactions, the age of twenty-one years was taken as the age of majority in all future cases. (2 R. S. 545.) A power of sale in a mortgage executed in 1792 by a person under the age of twenty-five years was void. (Burnet v. Denniston, 5 John. Ch. 35.) A power of sale in

a mortgage is of no importance except to give the party the right to the statutory foreclosure; if there be no power of sale in the mortgage, the foreclosure can only be conducted in a court of equity, according to the course and practice of such court.

The proceedings under the statute to foreclose by advertisement, are pointed out in the act. To entitle the holder of the mortgage to give the notice prescribed by law, and to make such foreclosure, it is requisite (1.) That some default in a condition of such mortgage shall have occurred, by which the power to sell became operative. (2.) That no proceeding shall have been instituted at law, to recover the debt then remaining secured by such mortgage, or any part thereof; or if any suit or proceeding has been instituted, that the same has been discontinued, or that an execution upon the judgment rendered thereon has been returned unsatisfied in whole or in part. (3.) That such power of sale has been duly registered, or the mortgage containing the same has been duly recorded. 545, § 2.)

(2 R. S. Notice that such mortgage will be foreclosed by a sale of the mortgaged premises, or some part of them, shall be given as follows: 1. By publishing the same for twelve weeks successively at least once in each week, in a newspaper printed in the county where the premises intended to be sold shall be situated, or if such premises shall be situated in two or more counties, in a newspaper printed in either of them. 2. By affixing a copy of such notice, at least twelve weeks prior to the time therein specified for the sale, on the outward door of the building where the county courts are directed to be held, in the county where the premises are situated; or if there be two or more such buildings, then on the outward door of that which shall be nearest the premises; and by delivering a copy of such notice at least twelve weeks prior to the time therein specified for the sale, to the clerk of the county in which the mortgaged premises are situated, who shall immediately affix the same in a book prepared and kept by him for that purpose; and who shall also enter in said book, at the bottom of such notice, the time of receiving and affixing the same, duly subscribed by said clerk, and shall index such notice to the name of the mortgagor; for which service the clerk shall be entitled to a fee of twenty-five cents. (2 R. S. 545, § 3, as amended 1842, ch. 277, § 5; and 1857, ch. 308, § 1. 3 R. S. 859, 860, 5th ed.) 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 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 mortgaged premises, subsequent to such mortgage, personally, or by leaving the same at their dwelling house in charge of some person of suitable age, or by serving a copy of such notice upon said persons at least twenty-eight days prior to the time therein specified for the sale, by depositing the same in the post office, properly folded and directed to the said persons at their respective places of residence. (2 R. S. 546, as amended 1844, ch. 346, § 1. 3 R. S. 860, 5th ed.)

Previous to the act of 1842, a notice of twenty-four weeks was necessary. In James v. Stull, (9 Barb. 482,) it became a question. whether the change from twenty-four weeks to twelve weeks was not unconstitutional and void, so far as operated upon mortgages in existence at the time of its passage, and it was held to be a valid exercise of the power of the legislature over the remedy, and did not affect the obligation of the contract.

With regard to the time of the publication of notice, it has been held that the first publication of a twelve weeks' notice must be at least eighty-four days, or 12 full weeks before the sale, one day being included and one excluded; and the publication must be in each intervening week until the expiration of the time required by the statute. (Bunce v. Reed, 16 Barb. 347.)

With regard to the notice forwarded through the post offiee, it has been held that the statute does not require that it should be deposited in any particular post office; the rule applicable to attorneys requiring the notice to be deposited in the post office at the residence of the attorney making the service, (Schenck v. McKee, 4 How. 246,) not applying to a foreclosure of mortgages under the statute. The judge however intimated that it should be mailed in this state, as it is a proceeding here. (Bunce v. Reed, supra. Stanton v. Cline, 1 Kernan, 196.)

A copy of the notice must be served on the mortgagor if he is living, and in case of his death, on his personal representatives. This must be complied with, or the foreclosure will be void. (Cole v. Moffit, 20 Barb. 18. St. John v. Bumpstead, 17 Barb. 100.)

The statute prescribes with great particularity what shall be contained in the notice. It must specify, 1. The names of the mort

gagor and of the mortgagee, and the assignee of the mortgage, if any; 2. The date of the mortgage and where recorded, or where the power of sale is registered; 3. The amount claimed to be due thereon at the time of the first publication of such notice; and 4. A description of the mortgaged premises, conforming substantially with that contained in the mortgage. (2 R. S. 546, § 4; Id. 830, 5th ed.)

The statute, requiring the amount claimed to be due at the time of the first publication, is directory only, and no penalty is prescribed for an error in this respect. An erroneous claim as to the amount will not ordinarily vitiate the sale, unless it be fraudulently done, and the mistake be calculated to mislead. (Klock v. Cronkhite, 1 Hill, 108. Bunce v. Reed, sup. Jencks v. Alexander, 11 Paige, 626.) In case the bond and mortgage are payable by installments, the mortgagee or his assignees, under the ordinary power of sale, must sell for the whole sum secured by the mortgage, whether it be actually due or not. By failure to pay the first installment the whole bond at law becomes due. The mortgagee should therefore state in his notice and claim the whole amount secured by the mortgage to be due and payable on the first default. (Holden v. Gilbert, 7 Paige, 208. Cox v. Wheeler, Id. 248.) Should the mortgagee sell the whole premises on a mortgage payable by installments, subject to the future installments, the land would become, in equity, the primary fund for the payment of such residue, and the mortgagor would be entitled to any surplus proceeds of the sale. Should the mortgagee himself become the purchaser, the whole mortgage debt would be extinguished. (Cox v. Wheeler, 7 Paige, 248. Tice v. Anin, 2 John. Ch. 125.) The mortgagee has no doubt the right to sell the premises under the power discharged from the lien of future installments, and to retain their amount out of the surplus proceeds of the sale. (Holden v. Gilbert, supra.) In effect the whole debt becomes due on the happening of the first default. Hand, J. in Bunce v. Reed, (supra,) says that it is most regular to sell for the whole amount, on a statute foreclosure, though a single installment be due; but he intimates that a power may be so drawn as to make more than one sale.

In view of the embarrassments attending a statutory foreclosure at law, when the mortgage is payable by installments, the better remedy would seem to be a foreclosure in a court of equity in cases of that kind. (2 R. S. 191. Leonard v. Morris, 9 Paige, 90.)

It is not indispensable to a right to the statutory foreclosure, that

the mortgage should be payable in money alone. When it was given to secure the payment of a debt in specific articles, and the value of the articles was liquidated by the mortgage in case of default, it was held to be equivalent to a mortgage to secure the payment of money. (Jacks v. Turner, 7 Wend. 458.)

But when the condition of the mortgage is for the performance of covenants, and the damages are unliquidated, it is quite clear that there can be no foreclosure under the statute, and that the remedy is either by an action at law on the bond, or by bill in equity to foreclose the mortgage. (Ferguson v. Kimball, 3 Barb. Ch. 619. Ferguson v. Ferguson, 2 Comst. 364.)

The statute has wisely provided that a sale under a statute foreclosure may be postponed from time to time, by inserting a notice of such postponement, as soon as practicable, in the newspaper in which the original advertisement was published, and continuing such publication until the time to which the sale shall be postponed. (2 R. S. 546, § 5.) But the notice of such postponement as published in the paper must conform to the adjournment as previously announced. A postponement may indeed be made before the day appointed for the sale, by inserting a notice thereof in the newspaper in which the original advertisement was published, (Miller v. Hull, 4 Denio, 107,) as well as on the day at which had been originally appointed in the notice. (Id.)

The sale under a power is required to be at public auction, in the daytime, in the county where the mortgaged premises, or some part of them, are situated; except in sale on mortgages to the people of this state, in which cases the sale may be made at the capitol. If the premises consist of distinct farms, tracts or lots, they must be sold separately; and no more farms, tracts or lots may be sold than are necessary to satisfy the amount due on such mortgage, at the time of the first publication of notice of sale, with interest, and the costs and expenses allowed by law. (3 R. S. 860, § 6, 5th ed.) Under this statute it has been held that the sale to make an effectual foreclosure must be at public auction, notwithstanding the power contained in the mortgage authorizes the mortgagee on default to sell the premises at private sale to satisfy the debt. (Lawrence v. The Farmers' Loan and Trust Co. 3 Kern. 200.)

The statute requiring mortgaged premises to be sold in parcels was designed to provide for a sale of premises consisting, at the time the mortgage was given, of distinct tracts, farms or lots, and mort