Marsh v. Ridgway — 18 Abb. Pr. 262

Majority

p. 262

MARSH a. RIDGWAY.

Supreme Court, First District ;

Special Term, October, 1864.

Headnote

Shebiee’s Doties at Sale.

Where a sheriff upon a sale of property makes an unfounded announcement, of a nature to lessen the price, and a less price than the value is obtained, the sale should be set aside, and a re-sale ordered.

Motion to set aside a foreclosure sale, and for a re-sale.

p. 263

The sheriff sold mortgaged premises under a judgment of foreclosure, and on the sale gave notice that the purchaser bought at his own hazard as to title.

The defendant moved to set aside the sale on the ground that, in consequence of that announcement a less price had been obtained than the property ought to realize.

Justus Palmer, for the motion.

—, opposed.

The notice given by the sheriff at the sale was equivalent to a declaration that the purchaser bought at his own hazard as to title.

The notice was calculated to impair the price which bidders would offer. There is no evidence offered that there was any defect in the title. The defendant is entitled to the benefit of such a sum as the property would have sold for if the title was good. The expenses for taxes and tax sales were to be deducted from the purchase-money. That could not therefore be regarded as a defect in the title.

If there is any known defect in, or dispute as to title, the sheriff on a foreclosure sale may notify purchasers of it; but where no objection is known to exist, it is wrong to throw a doubt on the title, by suggesting that the purchaser takes subject to any defect.

The sale must be set aside, and a resale ordered, and out of the proceeds the purchaser must be first paid the disbursements for taxes, &c., tax sales, &c