#### Wm. Chalmers, plaintiff *vs.*James Wright *et al.*defendants.

1. The *title*which a possessor of lands must claim in order to avoid the deed of an owner out of possession must arise, either from a written instrument, either professing, on its face, or agreeing, to convey some title or interest in the land in question, executed by some person holding adversely to such owner, who therein assumes to have the legal title so to convey, which is actually binding upon such person, or else from some judgment, decree or executed process of some court.

2. At the time of the conveyance of certain premises to the plaintiff, the defendant claimed to hold them under proceedings for foreclosure; a sale to a third person, accompanied by an attornment of the occupants and tenants, to him; a deed from such third person, conveying the premises in fee to a fourth person; and a lease and deed from that person to the defendant in fee simple. *Meld*that such third person, by the sale to him and the attornment of the tenants, meyely took the place of the'mortgagee, unless the proceedings to foreclose were effectual; and that such sale and attornment did not cut off the right of the owner to convey.

3. Attornments may be made to mortgagees, after a forfeiture of the mortgage, but only in such cases, or else .with the landlord’s consent, or pursuant to a judgment or decree.

4. Mere possession by a mortgagee, so long as there is a right to redeem, is not adverse to the mortgagor’s rights.

6. An absolute conveyance ih fee simple, by a mortgagee in possession, and a claim of title under it, though sufficient to bar an action, after twenty years holding under it, yet as it is also available merely to assign the mortgage to the grantee, and give him only the,same right of possession.as the mortgagee, it cannot be such a title, as to render void a deed from the owner out of possession to a third person.

■6. It is not necessary to rely on the affidavits filed, in a statutory foreclosure, as proof of the regularity of the steps taken for such foreclosure; since it may be supplied *aliunde*by other evidence.

*7147. The statute (2 *JR. S.*546, § 2, *suhd.*3,) which requires copies of the notice of sale in foreclosure proceedings, in order to preclude persons having a subsequent lien, to be served on them either personally, “ by leaving the same at their dwelling house,” or by mailing it twenty-eight days before the time of sale, “ properly folded and directed to such persons at their respective places of residence,” does so in order to enable such notice to reach the parties interested ; and affidavits of such service should state, enough to show) by their mere inspection, and to enable the court to see and determine, that the proper measures were taken to accomplish that end.

8. An affidavit of service of notice of sale on several persons, by mail, stating that on a day specified, the affiant served “ a copy of such notice on each.of ” the persons named, “ by depositing the same in the post office of the city of New York, *properly folded and directed,*to each of” such persons “at their respective places of residence in the said city of New York,” without specifying any place of residence, or mode of *folding or directing,*and that the affiant put a *“proper postage stamp*on each of *said letters,”*without otherwise mentioning its character, *held*to he insufficient proof of service by mailing under the statute, and therefore the proceedings to foreclose the right of redemption of the owner of the premises to be ineffectual for that purpose,

(Before Robertson, Ch. J.

at special term, February —, 1866.)

This action was brought by the plaintiff claiming to be owner in fee of a piece of land in the city of. New York, in order to redeem it from a mortgage executed in 1856, .by the then owner of the land in fee, *{Nislet,)*to a Mr. *McFarland.*Such mortgage contained a power of sale, and became due in July, 1858. In October, 1859, a foreclosure of it was begun by advertisement, under which in January, 1860, it was sold by the mortgagee to a Mr. Simpson, to whom the tenants in possession forthwith attorned. In November, 1860, *Simpson*conveyed the premises to a Mr. *Eassie, of*whom in May, 1862, the defendant *Wright*became a yearly tenant, but *Eassie*conveyed the premises in fee to him by deed with warranty, in May, 1863, In December, 1860, the same premises were sold to a Mr. *Bull*under an execution against *Nislet*upon a judgment obtained in 1858, and conveyed to him in November, 1863. He in the same month conveyéd them subsequently to the plaintiff.

The only evidence of such foreclosure produced on the trial, consisted of a copy of a notice, with four affidavits annexed, produced from the files of the' clerk of the county *715of New York. . Such notice was dated in October,' 1859, and signed with the name of the mortgagee, (McFarland.) It recited the mortgage to him, describing the premises therein, stated its date, its record in a certain book and page in the register’s office, with a power of sale contained in it, and the amount due upon it; and gave notice that such mortgaged premises would be sold at the Merchants’ Exchange in the city of New York, at noon on a certain day thereafter, in January, 1860. The first of such affidavits appended purports to be made by a person who states therein that he was “ *foreman in the office of”*a public newspaper printed and published in the city and county of New York, called *The Shipping and Commercial List,*in which the notice, of which a copy was annexed, was published for twelve weeks successively, once a week for each week, prior to the time specified in such notice for the sale of such premises, the first time on the 2d of November, 1859, and the last on the 18th of January, 1860. The second of such affidavits stated the place, time and- mode of sale and the name of the purchaser; and was made by the auctioneer 'conducting the sale. The jurat to the third of such affidavits was signed by a person styling himself *u Not. Pub.”*It contained proof of posting the notice of which a copy was annexed, “ *in a proper and*substantial manner ” on the outward door of the City Hall of the city of New York, being the building in.which the county court was held. It also stated that the affiant in December, 1859, served *“ a copy of such notice on each of”*certain persons named therein, including the present plaintiff, the mortgagor, (Nisbet,) and several other parties,” by depositing the same in the post office of the city of New York, *properly folded and directed to*each of “ such persons at their respective places of residence in the said city of New York.” No place of residence or mode of *folding or directing*was specified in such affidavit. It also stated that the affiant put a “ *proper postage stamp*on each of *said letters,”*but without otherwise mentioning its character. The last of such affidavits was merely the usual *716one of affixing a .copy of such notice in the proper book in the New York county clerk’s office, and entering therein the time of filing the same, signed by the then county clerk.

*J.*Townshend, for the plaintiff.

*T.*Darlington, for the defendants.

Robertson, Ch. J.

The defendants take the ground in this case, preliminarily, that even if the mortgage in question were never foreclosed, the plaintiff is n.ot entitled to any relief, because at the time of the conveyance to hint from the purchaser at the sheriff’s sale under execution, (Bull,) the defendant "Wright had possession of the premises in question, claiming *under a title*adverse to that of the plaintiffs’ grantor, within the meaning of the statute against champerty. (1 *R. S.*739, § 147.) It becomes, therefore, necessary to examine what the nature of *the title*and the claim under it must be, by which, under that statute, all conveyances by the rightful proprietor while he is out of '' possession, are rendered void.

The case of *Crary*v. *Goodman,*in the Court of Appeals in this state, (22 *N. Y. Rep.*170,) has finally established the existence of a marked distinction between *“title”*claimed generally so as to start the running of the statute of limitations, (2 *R. S.*294, § 9; *Code,*§ 82,) and “ *a title*” under which the possessor of lands must claim adversely in order to avoid deeds by the owner out of possession under the champerty act; and the reasons for such distinction therein assigned are'very satisfactory. Indeed in the former-statute the word *title*may now be considered simply as synonymous with *right,*but in the latter, as being a specific *mode of acquiring it*by deed, 'descent, operation of law, judgment or decree. •

The true nature of *the title*under which it is necessary for a possessor of lands to claim in order to defeat convey*717anees by the owner-out of possession may best be illustrated by examining what has been rejected or'received as such. Thus, while conveyances of land, by a mere purchaser of it from one who occupied it without color of title,' to a grantee, who took possession -of it under such deed; *(Jackson*v. *Elston,*12 *John.*452;) an equitable title arising merely from a contract to convey, *(Jackson*v. *Foster,*12 *John.*488; *Briggs*v. *Prosser,*14 *Wend.*227;) sheriff’s deeds on execution against one claiming title by devise; *(Northrop*v. *Wright,*7 *Hill,*476, 488;) and unauthorised conveyances by a trustee; *(Bradstreet*v. *Clarke, 12 Wend. 602,*674;) or by a committee of a lunatic, (he being a tenant in common with others "in his own right,) 'after the death of the lunatic-; *(Clapp*v. *Bromagham,*9 *Cowen,*530;) have been held sufficient to avoid conveyances by the true owners out of possession ; neither a deed not covering the land in question, (although claimed to do so;) *(Crary*v. *Goodman, ubi supra; Jackson*v. *Loyd, pier Woodworth, J., 1 Cowen,*286; *Enfield*v. *Cay,*7 *N. H. Rep.*457; *Hale*v. *Glidden,*10 *id.*397; *McKinney*v. *Kenny,*1 *A. K. Marsh,*460;) nor a quit claim without a valuable consideration paid; *(Jackson*v. *Frost,*5 *Cowen,*346; *Jackson*v. *Hill,*5 *Wend.*532;) although no covenant be necessary; *(Northrop*v. *Wright, ubi supra;)*nor a deed from one who claims only an easement; *(Jackson*v. *Mancius,*2 *Wend.*357;) nor a defeasible agreement to convey; *(Jackson*v. *Johnson, 5 Cowen,*74;) nor a conveyance void for fraud or want of authority in the attorney undertaking to execute it as such, *(Livingston*v. *Peru Iron Co.,*9 *Wend.*512,) would be sufficient for that purpose,

These authorities, therefore, show that the *title*of a possessor of lands, in order to avoid the deed of. an owner out of possession, must arise either from a written instrument-professing on its face or agreeing, to convey some title or interest in the land in question, by some person holding adversely, who therein assumes to have the legal title to convey, and which is actually obligatory upon such person, or else from a judgment, decree or executed process of some *718court. In this case the defendant Wright claimed to hold, at the time of the conveyance to the plaintiff, the premises in question only under the proceedings for foreclosure; the sale to Simpson, accompanied by the attornment of the tenants to him; a deed, with full covenants, conveying a fee simple to Eassie ; the lease of the latter to such defendant; and subsequent deed to him in fee simple. Simpson, -by the sale to Mm and the attornment of the tenants, merely, took the place of the mortgagee. Unless a proceeding to foreclose be effectual, attornments to persons entering without title cannot commence an adverse possession. *(Jackson*v. Delancey, 13 *John.*537.) Attornments by tenants, while holding under their leases, can neither originate nor continue an adverse possession against their landlords; *(Corning*& *Winslow*v. *Troy Iron*Factory, 34 *Barb.*485; *S. C.*22 *How. Pr.*217;) nor can tenants acquire any adverse possession against their landlords, until twenty years after their lease is ended, or they have ceased to pay rent. (2 *R. S.*294, § 13. *Code,*§ 86.) Attornments may be made to mortgagees, after a forfeiture of the mortgage, (1 *R. S.*744, § 3;) but only in such a case, or with the original landlord’s consent, pursuant to a judgment or decree. *(Id.)*Mere possession by a mortgagee, so long as there is a right to redeem, is not adverse to the mortgagor’s rights. *(Borst*v. *Boyd,*3 *Sandf. Ch.*501.) The sale and attornment to Simpson did not, therefore, cut off the right of the owner to convey.

The sale by the sheriff to Bull did not come within the statute, being by legal proceedings, *(Tuttle v. Jackson, 6 Wend.*213; *Hoyt*v. *Thompson,*5 *N. Y. Rep.*320;) and that the latter might have initiated proceedings to redeem. The only question that remains is whether the conveyances by the defendant Wright, to Eassie, by a mortgagee iú possession, and the possession by the latter, constituted a .title adverse to that of the. plaintiff at the time of the conveyances to him by Bull. Notwithstanding the regret expressed by.Lord Ch. J. Hale, in *Roscarrick*v. *Barton,*(1 *Cha. Ca.*220,) thereat, a mortgagee*TM possession is but the bailiff of the mortgagor, *719an d can do no more than a bailiff or steward. His possession is that of the mortgagor; and therefore he can acquire no title wherewith to commence an adverse possession. *(Pleak*v. *Chambers,*7 *B. Monro, 565. Nicholls*v. *Reynolds,*1 *Ang.*30.) Every advantage obtained by him while in such possession is for the benefit of the. mortgagor. *(Holridge*v. *Gillespie,*2 *John. Ch.*30. *Slee*v. *Manhattan Co.,*1 *Paige,*48.) A -fine levied by him does not bar the mortgagor, because the estates of the latter and the conusor of the fine are the same, *(Kennedy*v. *Daly,*1 *Sch. & Lef.*380;) nor does'one levied by his grantee. *(Story*v. *Windsor,*2 *Atk.*631.) Where a mortgagee in possession was disseised, and his disseisor levied a fine with proclamations, it was held tha^ the mortgagor was not barred," until five years after tender by him to the mortgagee of the amount due, because he could not enter until then. *(Stowell*v. *Lord Zouche, Plow.*373. 2 *Bac. Abr.*532. *Shep. Pr. Conv.*74, 79.) And in no ease can a party having possession, which is consistent with another’s right, render such possession adverse, except by some notorious act, which ma/lbe supposed to have reached the knowledge of the owner out of possession. *(Sharpe*v. *Kelley, 5 Denio,*431.) An absolute conveyance in fee simple by a mortgagee in possession, and a claim of title under it, may be sufficient to bar an action, after twenty years; but-as it is also available to assign the mortgage to the grantee, and give him the same right of possession as the mortgagee, it cannot be such a title, as to prevent the owner out of possession from conveying to a third person.

The plaintiff, therefore, being entitled to redeem the premises, unless the mortgage was properly foreclosed, it becomes necessary to’ consider the proof before me of the steps taken for the purpose. It was not necessary to rely on the affidavits filed, as proof of such steps having been properly taken, since it may be derived *aliunde*from evidence. But in this case the only evidence offered consisted of such affidavits; in which the affiants take upon themselves to *720decide that the statute was complied with in some particulars, and not to leave it to a court to pass upon it. The statute; (2 *B.*S..546,) requires, (by'the third subdivision of its second section,) that copies of the notice of sale, in order to preclude persons having a subsequent lien, be served on them, in one of three ways; personally, or by leaving the same at their dwelling house, or by tnailing it, twenty-eight days before the time of sale, “properly folded, and directed to such persons, at their respective places of residence.” This is required to insure the delivery of such notice to the parties interested, and the affidavits should state enough to enable the court to see and determine that proper measures were taken to accomplish that end. It is not the province of every one who may deposit such notices in the post o,ffice to determine that it has been *properly*done, and it would be impossible for the party supposed to be notified to disprove it, after the death of the person depositing such notices. It'has been held that proper *service, by mail,*under the Code, of a notice, is by sending *a letter*by mail, containing the required information, properly addressed. ( *Vassar*v. *Camp,*14 *Barb.*341.) As the statute, as to foreclosing mortgages, requires the *notice itself*to be folded and directed, it has been held that the direction must be on the notice itself; if the envelope is unsealed, a direction on the latter is not - sufficient. (9 *Abb. 66, n.)*"What the person who made the deposit in the post office understopd by *properly*folding and directing, does not appear. He may not have complied with the statute at all. I think, therefore, the evidence of proper service by mailing was defective, and the proceedings to foreclose the plaintiff’s right of redemption were ineffectual for that purpose.

The defendant, by the conveyance to him became assignee of the mortgage, and succeeded to all the rights of the mortgagee. He is to be allowed for all necessary repairs put upon the premises by himself or prior owners of the mortgage, *(Moore*v. *Cable,*1 *John. Ch.*385;) also for permanent improvements, put upon the premises with*721out actual notice of the judgment and sale under which the plaintiff claims, *(Benedict*v. *Gilman, 4 Paige,*58,) and in accounting for the rents .and profits, he is not to be charged with any part of them, which arose from such improvements made without such notice. *(Bell v. Mayor, &c. of New York,*10 *Paige,*49.) There must be a reference, therefore, to take the account between the parties.

Ho tender was necessary, as the plaintiff does not claim that the lien of the mortgage was dicharged. As the defendants claimed under an adverse title, they are not entitled to any costs, *(Vroom*v. *Ditmas, 4 Paige,*526;) nor is the plaintiff, who comes into court for a favor. *(Brockway*v. *Wells,*1 *Paige,*617. *Benedict*v. *Gilman, 4 id.*58.) The judgment must be without costs.