In re McFeeley

New York Surrogate's Court

In re McFeeley

2 Redf. 541

DecidedJanuary 15, 1877

StatusPublished

This text of 2 Redf. 541 (In re McFeeley) is published on Counsel Stack Legal Research, covering New York Surrogate's Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re McFeeley, 2 Redf. 541 (N.Y. Super. Ct. 1877).

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Opinion

The Surrogate.

The twenty-fifth section of the fourth title of chapter sixth of part second of the Revised Statutes requires that notice of the time and place of holding the sale shall be posted for six weeks, at three of the most public places in the town or ward where the sale shall be had. (2 Rev. Stat. 104.)

That was not done in this case, and the omission is not cured in this court by the remedial provisions of chapter 82 of the laws of 1850, (as amended by chapter 260 of the laws of 1869, and by chapter 92 of the laws of 1872), inasmuch as the fourth section of the said act of1850 expressly provides that it shall not be construed as authorizing any Surrogate to cofirm any sale of the real property of a deceased person, unless upon due examination he shall be satisfied that the provisions of [543]*543the fourth title of chapter sixth of part second of the Eevised Statutes have been complied with as if the act of 1850 had not been passed.

¡Nor can the said defect be disregarded under the provisions of fifty-ninth section of the same title, which declares that no offence in relation to the giving of notice of sale, or the taking down, or defacing such notice, shall effect the validity of such sale to any purchaser in good faith, without notice oftheirregularity (2 Rev. Stat. 110). Because the attorney for the purchaser in this case must be held to have had notice of an irregularity in the proceedings which were conduct by himself; and the purchaser was affected by such notice to his attorney. (Sugden on Vender, vol. 2, p. 757; Bank of the U. S. v. Davis, 2 Hill, 451.)

In view therefore of the familiar .rule of the law that to divest a person of his property by a special statutory proceeding, every direction of the statute must be strictly complied with, which rule has been applied by the courts to sales of this kind (Redfield Surr. Pr., 255), I must deny the present application with leave to sell the property again on proper notice.

Order accordingly.

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The Surrogate.

The twenty-fifth section of the fourth title of chapter sixth of part second of the Revised Statutes requires that notice of the time and place of holding the sale shall be posted for six weeks, at three of the most public places in the town or ward where the sale shall be had. (2 Rev. Stat. 104.)

That was not done in this case, and the omission is not cured in this court by the remedial provisions of chapter 82 of the laws of 1850, (as amended by chapter 260 of the laws of 1869, and by chapter 92 of the laws of 1872), inasmuch as the fourth section of the said act of1850 expressly provides that it shall not be construed as authorizing any Surrogate to cofirm any sale of the real property of a deceased person, unless upon due examination he shall be satisfied that the provisions of [543]*543the fourth title of chapter sixth of part second of the Eevised Statutes have been complied with as if the act of 1850 had not been passed.

¡Nor can the said defect be disregarded under the provisions of fifty-ninth section of the same title, which declares that no offence in relation to the giving of notice of sale, or the taking down, or defacing such notice, shall effect the validity of such sale to any purchaser in good faith, without notice oftheirregularity (2 Rev. Stat. 110). Because the attorney for the purchaser in this case must be held to have had notice of an irregularity in the proceedings which were conduct by himself; and the purchaser was affected by such notice to his attorney. (Sugden on Vender, vol. 2, p. 757; Bank of the U. S. v. Davis, 2 Hill, 451.)

In view therefore of the familiar .rule of the law that to divest a person of his property by a special statutory proceeding, every direction of the statute must be strictly complied with, which rule has been applied by the courts to sales of this kind (Redfield Surr. Pr., 255), I must deny the present application with leave to sell the property again on proper notice.

Order accordingly.

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Bluebook (online)

2 Redf. 541, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-mcfeeley-nysurct-1877.