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Anthon v. Batchelor

22 Abb. N. Cas. 423 Court N. Y. Supreme Court, First District, Chambers ; English

Delivered by O’Brien, J.

Contents

Majority

p. 423
ANTHON v. BATCHELOR.
N. Y. Supreme Court, First District, Chambers ;
March, 1889.

Headnote

1. Judicial sale; deficiency upon resale after default.] Where the court, upon application without notice to the purchaser, grant a resale of premises under foreclosure, after the purchaser has defaulted, the defaulting purchaser is discharged from liability to make good the deficiency arising in the last sale.[1]
2. Same.] It seems that where the application is made for an order directing a resale on the purchaser’s account and risk, and upon notice to the purchaser, the rule would be otherwise.
Motion to compel an alleged defaulting purchaser at a foreclosure sale to pay the deficiency between his bid and the sum realized at the subsequent sale.
In, a foreclosure, suit brought by Helen L, Anthon against Charles Batchelor and others, a sale of the premises was had and the purchaser’s deposit in conformity with the terms of sale was then made. It appeared from the affidavits submitted upon this motion that there was considerable conflict as to who was the purchaser.
On the date of closing the sale the purchaser did not appear.
A resale was then asked for and ordered, but without notice to the purchaser that the same would be had at his risk and account. The resale took place and the price realized was less than the amount bid on the first sale.
This motion was thereupon made.
p. 424
V. 3. Moercm, for the motion.
3. B. Boxie, opposed.

Apart from the question as to whether Johnson was or was not the real purchaser, the motion to compel him. to pay the difference between the price realized on the second sale and that bid on the first, must, upon the law, be denied. As stated in Goodwin v. Simonson ( 74 N. Y. 133 , 136), “ a purchaser at a foreclosure sale may be compelled to complete his purchase or may be discharged and a resale ordered. The plaintiff had an election either to proceed against the purchaser for a contempt or to apply for a resale.” As the court granted a resale, the purchaser was discharged from liability to make good the deficiency arising in the last sale by the order of the court. In a case where the application to the court for an order directing a resale on the purchaser’s account and risk is made upon notice to the purchaser, the rule would be otherwise. If plaintiff, therefore, resells without such an order made after notice to the purchaser, he is deemed to elect to waive the first sale and to take the risk of obtaining a better price (Riggs v. Purssell, 74 N. Y. 370 ; Miller v. Collyer, 36 Barb. 250 ; Home Ins. Co. v. Jones, 45 How. Pr. 498 ). See also “ Defaulting Purchasers ” (27 Alb. L. J. 508).

In this case an application was made, without notice to the purchaser, and an order directing a resale was entered, which, under the authorities cited, discharged the purchaser, except to the extent of his deposit, which was forfeited, from further liability.

Motion denied; no costs.

Cases cited