Opinion
May, 1895.
Morris Goodhart, for appellant.
Charles Unangst, for respondent.
The action was in ejectment.
The plaintiff claimed a title and possession earlier than the time of the giving of two mortgages to the loan commissioners of the United States. But her grantor, Rosa Elsas, had given to the commissioners the two mortgages and had conveyed to the plaintiff the premises subject to the mortgages.
On the first of October there was a default of payment of interest, which continued for twenty-one days thereafter.
Thereupon by statute the commissioners (Loan Commissioners' Act, Laws of 1837, chap. 150, § 30) were "seized of an absolute and indefeasible estate in fee in the said lands." This shows that there was no title to the lands in the plaintiff. She must prevail by showing that she has title or she is not entitled to recover in ejectment. The title remained in the commissioners, even if they, after the default of payment of interest of 1888, made an invalid sale of the premises for a nonpayment of interest on subsequent days. That did not divest the loan commissioners of their title, even if the purchaser at the sale acquired no title. In such a case the former owner "cannot bring ejectment, as held in Pell v. Ulmar, 18 N.Y. 139, and has no way of obtaining her rights except by an equitable action, where all the parties can be brought in." Thompson v. Commissioners, 79 N.Y. 54.
The statute directs that loans shall be made upon "improved" property. The plaintiff asserts that in this case the land was not improved, and, therefore, the bond and mortgage were void, as the commissioners had not power to make the loan. The evident purpose of the statute, by its injunction upon the commissioners, was to obtain sufficient security for the repayment of the loan. Such a purpose would not be promoted, and would in fact be thwarted, if the security, because not of the kind of value intended by the statute, could be avoided by the borrower. The objection should not prevail.
Another objection is that the commissioners did not attend, as required by section 24, Laws of 1837, chapter 150, at their own office to receive payment of interest due October 1, 1888. The proof showed that their office was at the office of the register of the city and county of New York. There they transacted their business, as was shown by the proof of many acts they did there as commissioners.
Judgment affirmed, with costs.
FREEDMAN and McADAM, JJ., concur.
Judgment affirmed, with costs.