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$ 2393. Id.; how conducted.—The sale must be at public auction, in the day-time, on a day other than Sunday or a public holiday, in the county in which the mortgaged property, or a part thereof, is situated ; except that, where the mortgage is to the people of the State, the sale may be made at the Capitol. If the property consists of two or more distinct farms, tracts, or lots, they must be sold separately; and as many only of the distinct farms, tracts, or lots, shall be sold, as it is necessary to sell, in order to satisfy the amount duo at the time of the sale, and the costs and expenses al. lowed by law. But where two or more buildings aro situated upon the same city lot, and access to one is ob. tained through the other, they must be sold together.
Id., 86, amended. Annulling Sayles v. Smith, 12 Wend. 57, and see Westgate v. Handlin, 7 How. Pr. 372; see 1678, ante; Wells v. Wells, 47 Rarb. 416; Ellsworth v. Lockwood, 42 N. Y. 89; Lamerson v. Marvin, 8 Barb. 9; Hubbell v. Sibley, 5 Lans. 51; 8. C., 50 N.Y. 468.
§ 2394. Mortgagee, etc., may purchase.— The mortgagee, or his assignee, or the legal representative of either, may, fairly and in good faith, purchase the mort. gaged property, or any part thereof, at the sale.
Id., &7. Mowry v. Sanborn, 68 N. Y. 160; Valentine v. Belden, 20 Hun, 537 ; Hollingsworth v. Spalding, 54 N. Y. 636; Hubbell v. Sibley, 5 Lans. 51; 8. C., 50 N. Y. 468; Cox v. Wheeler, 7 Paige, 248.
$ 2395. Effect of sale.-A sale, made and conducted as prescribed in this title, to a purchaser in good faith, is equivalent to a sale, pursuant to judgment in an action to foreclose the mortgage, so far only as to be an entire bar of all claim or equity of redemption, upon, or with respect to, the property sold, of each of the following persons:
1. The mortgagor, his heir, devisee, executor or ad. ministrator.
2. Each person, claiming under any of them, by vistue of a title or of a lien by judgmert or decree, subsequent to the mortgage, upon whom the notice of sale was served, as prescribed in this title.
3. Each person so claiming, whose assignment, mort. gage, or other conveyance was not duly recorded in the proper book for recording the same in the county, or whose judgment or decree was not duly docketed in the county clerk's office, at the time of the delivery of a copy
of the notice of said sale to the clerk of the county; and the executor, administrator, or assignee of such a person.
4. Every other person, claiming under a statutory ljen or incumbrance, created subsequent to the mort. gage, attaching to the title or interest of any person, designated in either of the foregoing subdivisions of this section,
5. The wife or widow of the mortgagor, or of a subsequent grantee, upon whom notice of the sale was served as prescribed this title, where the lien of the mortgage was superior to her contingent or vested right of dower, or her estate in dower.
Id., 88, amended; L. 1842, ch. 277, and L. 1844, ch. 346, 4 (4 Edm.535, 668). Brackett v. Baum, 50 N. Y. 8; Lewis v. Smith, 9 id. 502; s. C., 11 Barb. 152; 9 N.Y. Leg. Obs. 292; Walsh v. Rutgers Fire Ins.Co., 13 Abb. 33; Holden v. Sackett, 12 id. 473; Laverty v. Moore, 32 Barb. 347 ; 8. C., 33 N. Y. 658; Astor v. Turner, 11 Paige, 436; Vroom v. Ditmas, 4 id.
526 Bissell v. Kellogg, 60 Barb. 617; Hyland v. Safford, 10 id, 558; Soule d. Ludlow, 3 Hun, 503 ; IIornby v. Cramer, 12 How. 490 ; Dwight v. Phillips 18 Barb. 116; Klock v. Cronkhite, 1 Hill, 107; Hubbell v. Sibley, 5 Lans. 61; 50 N. Y. 468; Candee v. Burke, i Hun, 546; Burnett v. Denniston, 5 Johns. Ch. 35; Jencks v. Alexander, 11 Paige, 619; Benedict v. Gilman, id. 58; Jackson v. Henry, 10 Johns. 185.
$ 2396. Affidavit of sale, and of posting, serving, etc., notices.-An affidavit of the sale, stating the time when, and the place where, the sale was made;
the sum bid for each distinct parcel, separately sold; and the name of the purchaser of each distinct parcel, may be made by the person, who officiated as auctioneer upon the sale. An affidavit of the publication of the notice of sale, and of the notice or notices of postponement, if any, may be made by the publisher or printer of the newspaper in which they were published, or by his fore. man or principal clerk. An affidavit of the affixing of a copy of the notice, at or near the entrance of the proper court-house, may be made by the person who so affixed it, or by any person who saw it so affixed, at least eighty. four days before the day of sale. An affidavit of the affixing of a copy of the notice in the book, kept by the county clerk, may be made by the county clerk, or by any person who saw it so affixed, at least eighty-four days before the day of sale. An affidavit of the service of a copy of the notice upon the mortgagor, or upon any other person, upon whom the notice must or may be served, may be made by the person who made the ser. vice. Where two or more distinct parcels are sold to
different purchasers, separate affidavits may be made with respect to each parcel, or one set of affidavits may be made for all the parcels.
Id., 89, and amended, L. 1844, ch. 346 ; L. 1857, ch.308, consolidated and amended. Mowrey v. Sanborn, 65 N. Y. 581; 8. C., 68 id. 153; 8. C., 72 id. 534; Hornby v. Cramer, 12 How. 490; Bryan v. Butts, 27 Barb. 503 ; 8. C. , 28 How. 503 n; Dwight v. Phillips, 48 Barb. 116; Tuthill v. Tracy, 31 N. Y. 157; Hubbell v. Sibley, 50 id. 468.
$ 2397. (Amended, 1882.] When one affidavit suffices printed notice to be annexed. — The matters required to be contained in any or all of the affidavits, specified in the last section, may be contained in one affidavit, where the same person deposes with respect to them. A printed copy of the notice of sale must be annexed to each affidavit ; and à printed copy of each notice or postponement must be annexed to the afidavit of publication, and to the affidavit of sale. But one copy of the notice suffices for two or more affi. davits where they all refer to it and are annexed to each other and filed and recorded together. Id., part of & 9, amended. Mowrey v. Sanborn, 72 N. Y. 534.
§ 2398. Affidavits may be filed and recorded. The affidavits, specified in the last two sections, may be filed in the office for recording deeds and mortgages, in the county where the sale took place. They must be recorded at length by the officer with whom they are filed, in the proper book for recording mortgages. The orig, inal affidavits, so filed, the record thereof, and a certified copy of the record, are presumptive evidence of the matters of fact therein stated, with respect to any property sold, which is situated in that county. Where the property sold is situated in two or more counties, a copy of the affidavits, certified by the officer with whom the originals are filed, may be filed and recorded in each other county, wherein any of the property is situated. Thereupon the copy and the record thereof have the like effect, with respect to the property in that county, as if the originals were duly filed and recorded therein.
Id., 211, amended, and part of ? 12. Mowrey v. Sanborn, 65 N. Y. 881 ; s. c., 72 il. 534 Layman v. Whiting, 20 Barb. 569 ; Bryan v. Butts, 27 ia. 503 ; s. C., 28. How. 582 n ; Tuthill v. Tracy, 31 N. Y. 157; Dwight W. Phillips, 48 Barb. 116; Story v. Hamilton, 10 Week. Dis. 13; Osborn d. Merwin, 12 llun, 332; Chalmers v. Wright, 5 Rob. 713.
$ 2399. Note upon record of mortgage.-A clerk og a register, who records any affidavits, or a certified copy thereof, filed with him, must make a note, upon the margin of the record of the mortgage, in his office, re
ferring to the book and page, or the copy thereof, where the affidavits are recorded. Id., & 13.
§ 2400. Deed not necessary. When affidavits not necessary ; but purchaser may require them. The purchaser of the mortgaged premises, upon & sale conducted as prescribed in this title, obtains title thereto, against all persons bound by the sale, without the exo cution of a conveyance. Except where he is the person authorized to execute the power of sale, such a pur. chaser also obtains title, in like manner, upon payment of the purchase-money, and compliance with the other terms of sale, if any, without the filing and recording of the affidavits, as prescribed in the last section bus one, But he is not bound to pay the purchase-money, until the affidavits, specified in that section, with re spect to the property purchased by him, are filed, or de livered or tendered to him for filing.
Id., & 14, amended; L. 1838, ch. 266, 88. . Mowrey o. Sanborn, 88 X. L. 153 see $ 2396, ante; Layman v. Whiting, 20 Barb. 559; Bryan o. Butts, 27 id. 503; Arnot 0. McClure, 4 Den. 41: Cohoes Co. v. Gross, 13 Barb. 137; Howard v. Hatch, 29 id. 297; Chalmers v. Wright, 6 Root. 713; Osborn o. Merwin, 12 Hun, 332; Tuthill v. Tracy, 31 N. Y. 157; Mowrey o. Sanhorn, 72 id. 534 ; Story v. Hamilton, 20 Hun, 133 ; Dwigtet . Phillips, 48 Barb. 116.
$ 2401. Costs allowed. The following costs, in addition to the expenses specified in the next section, are allowed, in proceedings taken as prescribed in this title:
1. For drawing a notice of sale, a notice of the postponement of a sale, or an affidavit, made as prescribed In this title, for each folio, twenty-five cents ; for making each necessary copy thereof, for each folio thirteen cents.
2. For serving each copy of the notice of sale, required or expressly permitted to be served by this title, and for affixing each copy thereof, required to be afised upon the court-house, as prescribed in this title, one dollar.
8. For superintending the sale, and attending to the execution of the necessary papers, ten dollars. 1844, ch. 346, 3(1 Edm. 668). Collins v. Standish, 6 How. 493 i § 2402. Expenses allowed. The sums actually paid
for the following services, not exceeding the fees allowed by law for those services, are allowed in proceedings, taken as prescribed in this title :
1. For publishing the notice of sale, and the notice or Botices of postponement, if any, for a period not exceed ing twenty-four weeks.
2. For the services specified in section 2390 of this actu
8. For recording the affidavits; and also, where the property sold is situated in two or more counties, for making and recording the necessary certified copies thereof
4. For necessary postage and searches.
$ 2403. Taxation thereof.— The costs and expensee must be taxed, upon notice, by the clerk of the county where the sale took place, upon the request and at the expense of any person, interested in the payment thereof. Each provision of this act, relating to the taxation of costs in the supreme court, and the review thereof, applies to such a taxation. Id., & 3, amended. Matter of Moss, 6 How. 263.
$2404. Surplus money to be paid into supramo court- An attorney or other persou who receives any money, arising upon a sale, made as prescribed in this title, must, within ten days after he receives it, pay into the supreme court the surplus, exceeding the sum dve and to become due upon the mortgage, and the costa and expenses of the foreclosure, in like manner and with like effect, as if the proceedings to foreclose the mortgage were taken in an action, brought in the supreme court, and triable in the county where the sale took place. L. 1868, ch. 804, 8% 1, 2 and 4 (7 Edm. 363); L. 1870, ch. 706, 81 (7 Edns. 770); see 82 743, 745.
2405. Claimant of surplus money to file petition. A person, who had, at the time of the sale, an interest in or lien upon the property sold, or a part thereof, may, at any time before an order is made, as prescribed to the next section but one, file in the office of the clerk of the county, where the sale took place, a petition stating the nature and extent of his claim, and praying for an order, directing the payment to him of the sur. ploo money, or a part theroot.