gaged and described as such; and not for the sale of premises mortgaged as one farm, tract or lot, and being in fact but one farm, tract or lot at that time, although subsequently subdivided. (Lamerson v. Marvin, 8 Barb. 9.)

At the common law, the power of sale contained in a mortgage of real estate could only be executed by giving a deed. (Arnot v. McClure, 4 Denio, 44.) It may still be executed in that way when a party other than the mortgagee or his assigns is the purchaser. In 1808 the mortgagee or his assignee or legal representatives were authorized by statute to purchase for his, her or their benefit or account, (5 Web. 341, § 5; 1 R. L. 375, § 10;) and such is the existing law. (3 R. S. 861, § 7, 5th ed.) As the mortgagee could not convey to himself, it was very justly concluded that the legislature intended that the foreclosure should be complete without a deed. (Jackson v. Colden, 4 Cowen, 266, 276. Slee v. Manhattan Co. 1 Paige, 48.)

The affidavits of sale and of publication are required to be recorded by the county clerk in a book kept for the record of mortgages; and the original affidavits, the record thereof, and certified copies of such record are made presumptive evidence of the facts therein contained. (2 R. S. 547, § 10, as amended in 1844. ch. 346, § 2, and 1857, ch. 308, § 2. 3 R. S. 86, 5th ed. Bunce v. Reed, 16 Barb. 347.)

In 1838 the act was so amended by ch. 266, § 8, that when the mortgaged premises, or any part thereof, shall have been purchased at such sale by the mortgagee, his legal representatives, or his or their assigns, or by any other person or persons whatsoever, the affidavits of the publication and affixing notice of sale, and of the circumstances of such sale, shall be evidence of the sale and of the foreclosure of the equity of redemption, without any conveyance being executed, in the same manner and with the like effect as a conveyance executed by a mortgagee, upon such sale to a third person, has heretofore been. (Bunce v. Reed, supra. Cohoes Co. v. Goss, 13 Barb. 137. 3 R. S. 862, 5th ed.)

The revised statutes, as amended in 1844, ch. 346, § 4, (3 R. S. 861, 5th ed.) have declared the effect of the statute foreclosure, when conducted in the manner prescribed by law, and when the purchase is made in good faith. When these circumstances concur, it is declared to be equivalent to a foreclosure and sale under the decree of a court of equity, so far only as to be an entire bar of all claim or equity of redemption of the mortgagor, his heirs and representatives,

and of all persons claiming under him or them, by virtue of any title subsequent to such mortgage, and also of any person having a lien, by any judgment or decree upon the land or any part thereof contained in such mortgage, subsequent to such mortgage, and of every person having any lien or claim by or under such subsequent judgment or decree, who shall have been served with notice of said sale as required by law.

The revised statutes, as originally framed, gave less effect to a statute foreclosure than the existing law. A party whose mortgage of the same premisss, or any part thereof, or whose title accrued prior to such sale, and a creditor to whom the mortgaged premises or any part thereof was bound before such sale, by any judgment at law or decree in equity, was not prejudiced by such sale, nor were his rights or interests in any way affected thereby. (2 R. S. 546, § 8.) Under the former law, the purchaser at a statute foreclosure, if there were judgments subsequent to the mortgage, remaining a lien upon the property at the time of the sale under the statute, took the whole legal and equitable interest in the property as against the mortgagor and all persons claiming under him; subject, however, to the equitable right of the judgment creditor to redeem, in the same manner as if such foreclosure had not taken place. (Benedict v. Gilman, 4 Paige, 61.) The effect of the statute foreclosure under that act was to transfer to the purchaser the rights of the mortgagee, so far as he had any in the mortgaged premises as a security for his debt; and also so much of the equity of redemption as was not bound by the lien of a junior mortgage or judgment. (Vroom v. Ditmos, 5 id. 526.) As a necessary consequence, a subsequent incumbrancer had no claim to the surplus produced by a sale on a statute foreclosure, as his lien was not affected by the proceeding. (Waller v. Harris, 7 id. 167.)

The amendment introduced in 1844, and already adverted to, requires a notice of the proceedings to be served on 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 notice through the post office. (See ante, 51, 52.)

These requirements of the statute certainly make those persons,

in a qualified sense, parties to the proceeding, and justify the legislature in giving the effect to the foreclosure mentioned in the 8th section. But the statute fails to make any suitable provision for the rights of infants or other persons laboring under disability. (Demarest v. Wynkoop, 3 John. Ch. 146.) Nor does it make any provision where the mortgagor claims that the security is invalid for usury or any other cause. If there be any just legal or equitable defense to the mortgage, it must be asserted in an appropriate action in the common law courts. It is true, indeed, that a statute foreclosure of a paid mortgage conveys no title, though the sale is to a bona fide purchaser. (Cameron v. Erwin, 5 Hill, 272.)

In general, a power created by a feme covert is ineffectual on the ground of the disability of coverture. It has been shown that a power of sale in a mortgage executed in 1792, by a person under twenty-five years, is void. (Burnet v. Denniston, 5 John. Ch. 35.) But as a feme covert is authorized to join with her husband in a mortgage of her own land, it is conceived that she may execute a valid power of sale. She can convey her land by joining with her husband, and acknowledging the deed before a proper officer on a private examination apart from her husband. (1 R. S. 758, § 10. 3 id. 53, 5th ed.)

A power to mortgage includes in it a power to authorize the mortgagee to sell, in default of payment. It is an incident to the power to mortgage, and is included in that power. (Wilson v. Troup, 7 John. Ch. 25, 32.)

With respect to non-resident parties, the revised statutes provide that when any married woman, not residing in this state, shall join with her husband in any conveyance of any real estate situated within this state, the conveyance shall have the same effect as if she were sole; and the acknowledgment or proof of the execution of such conveyance, made by her, may be the same as if she were sole. This provision was adopted at an early day, and the effect was to treat a non-resident feme covert, with respect to conveyances of her land, as if she were sole; and to dispense with a private examination apart from her husband. (1 K. & R. 478, § 2. 1 R. S. 738, § 11.) Her title to dower in the lands of her husband situated in this state, as well as her title to lands of which she was seised in her own right, was thus extinguished in the one case, and transferred in the other in a manner different from that applicable to resident femes covert. But the statute only extended to actual conveyances of real estate

situated within this state. It did not embrace powers of attorney for the conveyance of real estate situated in this state, the necessity for which led to the act of 1835, ch. 275. By that statute it is enacted that when any married woman residing out of this state shall have joined with her husband in executing any power of attorney for the conveyance of real estate situated in this state, the conveyance executed by virtue of such power shall have the same force and effect as if executed by such married woman in her own proper person; provided that the execution of such power of attorney, by such married woman, shall first have been duly proved or acknowledged, according to the provisions of the revised statutes in relation to conveyances executed by married women residing out of this state. (3 R. S. 59, § 73, 5th ed.)

If the wife be an infant under the age of twenty-one years, the deed as to her, if the conveyance be of her property, is voidable only and not void: but if, in such case, she join with her husband in order to extinguish her dower, it is absolutely void. (Sherman v. Garfield, 1 Denio, 329.) The common law doctrine that a woman during coverture cannot alien her lands by deed, never prevailed in this state. A deed therefore of real estate, executed by her in conjunction with her husband, acknowledged by her in the form prescribed by law, is valid. But when she is an infant as well as a feme covert, the disability arising from infancy remains, although she execute and acknowledge a deed in the form prescribed by statute. (Bool v. Mix, 17 Wend. 119.)

How far the acts of 1848 and 1849, for the more effectual protection of the property of married women, (L. of 1848, p. 307; L. of 1849, p. 528,) have enabled married women to mortgage their separate estate, and thus incidentally to dispose of it through the power of sale, is not perhaps yet fully settled. The original act of 1848 does not confer power upon the feme covert to devise or bequeath her property by last will and testament. This defect was remedied by the act of 1849. (Wadhams v. The Am. Home Miss. Society, 2 Kern. 425.) And it would seem that by the act of 1849, in respect to estates acquired and held under the protection of the statute, the disabilities of coverture are in fact removed. (Yale v. Dederer, 4 Smith, [18 N. Y. Rep.] 271.) It would seem, therefore, to follow, that a married woman may create an express charge on her separate estate, in the same manner as if she were a feme sole. (Id.) The act of 1860, ch. 90, while in some respects it enlarges the power

of married women, interposes checks to their alienation of their real property.

SECTION V.

Of foreclosure in equity; and herein of the liens on real estate.

The jurisdiction of the supreme court, under the constitution of 1846, is ample over the subject of foreclosure, whether the mortgage contain a power of sale or not, or whether the deed be absolute in terms, and the defeasance as a mortgage be only made out by oral evidence. If the mortgage be to secure unliquidated damages, or if there be no power of sale in the mortgage, it can only be foreclosed in a court of equity. (Ferguson v. Kimball, 3 Barb. Ch. R. 616. Same v. Ferguson, 2 Comst. 360.)

There are two modes of foreclosure; 1, a strict foreclosure; 2, a foreclosure and sale under a decree of the court.

1. A strict foreclosure is not of frequent recurrence. It usually happens when the mortgagee is in possession and he wishes the equity of redemption of the mortgagor to be barred. (Bell v. The Mayor of New York, 10 Paige, 49.) On a decree for a strict foreclosure, the mortgagor has no right to redeem after the day fixed for that purpose in the decree, and the lands become the absolute property of the mortgagee. It is said there can be no valid strict foreclosure against an infant heir of the mortgagor. (Mills v. Dennis, 3 John. Ch. 367.) A purchaser under a statute foreclosure may file a bill for a strict foreclosure, against junior incumbrancers having a right to redeem. (Benedict v. Gilman, 4 Paige, 58.)

On a strict foreclosure, if the mortgagor redeem, the mortgagee must account for the rents and profits received subsequent to the decree. (Ruekman v. Astor, 9 Paige, 517.)

At law it is well settled that a foreclosure of the mortgage is no bar to an action on the attendant bond. (Hatch v. White, 2 Gallison, 152.) In the case of The Globe Ins. Co. v. Lansing, (5 Cowen, 380,) the question was whether a foreclosure of the mortgage and a sale under it, operated as an extinguishment of the debt, and it was there held that it was an extinguishment no further than the amount produced by such sale. The same point was so decided in the court for the correction of errors, in the case of Lansing v. Godlet, (9 Cowen, 346, 403.) At the October term of the supreme court, 1829, it was held that the foreclosure of the mortgaged premises with