Opinion
June Term, 1854
H. Denio, for appellant.
N. Hill, Jr. for respondent.
It appears by the complaint that the mortgage was in fact recorded in the clerk's office in the county of Erie on the 12th November, 1831. And it appears by the affidavit annexed to the notice of lis pendens, that the said notice was on the 24th July, 1840, filed in the office of the clerk of Erie county. These facts are admitted by the demurrer. The notice describes the premises as being situate in Buffalo, in the county of Erie; and the recording act (1 R.S. 756,) requires every conveyance of real estate to be recorded in the office of the clerk of the county where such real estate shall be situated. Every person is bound to take notice of a pufllic statute. The notice was in fact filed in the office where the mortgage was recorded, and no one reading the notice and having knowledge of the statute, could be misled by it. The object of the act of 1840, § 8, was to require such a description of the mortgage as to apprise individuals having liens by judgment on the premises mortgaged, where they could find the record of the mortgage. This was done effectually by the notice in this case. The particular form of the notice is directory. If it did not conform to the general practice of the court, it might have been a good ground to open the decree for irregularity, had the motion for that purpose been made in time and by the proper parties.
By the 9th section, the court had power to make the decree of foreclosure, but it was forbidden to do this unless proof should be given in such manner as the court should require, that the notice of the pendency of the suit had been filed as required in section eight. The complainant gave all the proof the court required, and the decree was pronounced. The regularity, in point of form, of that proof can not be objected to in a collateral action. A motion should be made in the same court to set aside the decree for irregularity, and this motion to be effectual must be made within a year. The court passed upon the sufficiency of the notice, and no appeal was made to the chancellor. The court might have required a notice with a more full description, but not having done so, and being satisfied with the one filed, the decree was effectual to foreclose all subsequent liens by judgment.
The notice annexed to the affidavit contains a clause, saying that the mortgage was "recorded in the office of the clerk of Erie county." These words are omitted in the notice filed. But without these words no one could be misled by it. The affidavit of the clerk in which he swears that the notice filed was "a copy, he believes, of the one subjoined to his affidavit was enough. It was not a very lawyer-like affidavit. The decree would not have been void had no affidavit of lis pendens been produced. It would only have been irregular. ( Curtis v. Hitchcock, 10 Paige, 399.)
The demurrer to the complaint was well taken, and the judgment of the supreme court should be affirmed.
TAGGART, J. did not hear the argument
Judgment affirmed.