Ely v. Matthews — 128 A.D. 513

Majority

p. 513

Smith Ely, Respondent, v. Vira G. Matthews, Respondent, Impleaded with James H. George and Others, as Executors, etc., of Richard Grant, Deceased, and New Amsterdam National Bank, Appellants, and James W. Pearsall and Others, Respondents.

First Department,

November 6, 1908.

Headnote

Mortgage — foreclosure — order relieving purchaser from bid — when same cannot be vacated on motion of bidder.

Where the purchaser at a foreclosure sale has on his own motion obtained an order relieving him from his bid, neither he nor his 'assignee is entitled to an order vacating the prior order and directing the referee to convey, where the property has since advanced in value, so that it is to the interest of junior mortgagees to have.a resale.

Such decision relieving the purchaser from his bid inures to the benefit of the junior mortgagees, although they did not oppose a motion to compel him to complete his purchase.

Separate appeals by the defendants, James H. George and others, as executors, etc., and by the defendant, the Mew Amsterdam National Bank, from an order of the Supreme Court, made on application of plaintiff at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of June, 1908, directing the referee herein to execute and deliver a deed to the assignee of the bid of the purchaser at a foreclosure sale herein, and, upon the execution and delivery of such deed,

p. 514

vacating an order denying the plaintiff’s motion to compel the.purchaser to complete his purchase, and directing the repayment of the money received by the referee from him.

Joseph J. Hood, for the appellants James H. George and others, as executors.

H. Aaron, for the appellant New Amsterdam National Bank,

No appearance for the respondents.

This is an action to foreclose a first mortgage on real estate for $100,000.' A third mortgage for $20,000 and a fourth for $2,000 are held by the executors appellants and a fifth for $20,000 is held by the bank, appellant.

The judgment directing a sale of the premises was entered on the 12th day of November, 1907, and the sale took place on-the 19th day of December thereafter during the period of business depression and stringency in the money market and after an adjournment of one week at the request of subsequent mortgagees. The attorney for the executors, requested plaintiff to consent to a further adjournment for thirty days and offered to pay $500 to cover any possible loss thereby but the offer was refused. The premises were awarded to the highest bidder at $135,000.

The purchaser refused to complete Iris purchase upon grounds, among others, that the premises were to some extent obstructed by a wall on adjacent lands and burdened with an easement for its maintenance, and that the permanent receivers appointed by the Court of Chancery in New Jersey of the Electric Rubber Manufacturing Company, which owned a sixth mortgage on the premises for $10,000, had not been made parties, and that- joining the ancillary receiver, as was done, was not sufficient. The court, on motion by plaintiff to compel the purchaser to complete his purchase, decided that these objections were well taken and that the purchaser was entitled to be released, and an order -.to that effect directing the referee to refund the down payment was duly entered.

The practice now under review is wholly .unauthorized regardless of whether or not that, motion was correctly decided. That order

p. 515

is not before us for review and it is not necessary that we should discuss its merits. The order having been granted at the instance of the purchaser, neither he nor any one claiming in his right should be heard to say after the property has advanced in value that he wishes to reconsider Ms action, and since he could now make a profit on the purchase he is willing to take' title. He made his election to stand upon the objections to the title and he convinced the court that they were well founded. His right to take title as a purchaser thereupon terminated and his only right was with respect to being reimbursed. Although appellants did not oppose- the motion to compel the purchaser to complete his purchase, yet, since the purchaser duly presented the points for adjudication and since it affected their rights, the decision at once inured to their benefit, and it was not competent for the plaintiff, the purchaser and a third party by private agreement or understanding with respect to the assignment of the bid to deprive them of the right to a resale of the premises. When the sale was set aside it was the same as if it had never taken place. Of course the order might have been reviewed, and, perhaps, reversed on appeal, and the court which made it might, perhaps, on a motion for a reargument have vacated it and it might have been vacated for- fraud, but it could not be vacated to permit the assignment of the bid and the completion tif the purchase after real estate values had so advanced that it was for the interest of appellants to have a resale. While the order stood the purchaser had no title and he could neither have insisted upon a deed to himself nor could he confer any right thereto upon an assignee, for that would constitute a private resale, which is neither authorized by statute nor by the practice of the courts in such cases. (Code Civ. Proc. § 1678 ; Gen. Rules of Practice, rule 62; Freeman v. Munns, 15 Abb. Pr. 468 ; 2 Jones Mort. [6th ed.] § 1681; Thomas Mort. [2d ed.] § 967; Gerard Tit. Real Est. [4th ed.] 687.)

It never was the practice where a purchaser rejects title or refuses to perform and is sustained in Ms position by the court to accept without readvertising another to complete the purchase for Mm. The long-established practice requires that in such case there shall be a resale (Thompson v. Dimond, 3 Edw. Ch. 298 ), and in the case at bar the terms of sale so provided.

p. 516

The order should, therefore, be. reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

Patterson, P. J., Ingraham, Clarke and Scott,. JJ., concurred..

.Order reversed, .with- ten dollars costs and disbursements, and motion denied, with ten dollars costs. •

Cases cited

Feeeman v. Munns 15 Abb. Pr. 468 N.Y. Gen. Term p. 515
Thompson v. Dimond 3 Edw. Ch. 298 N.Y. Ch. 1839-03-26 p. 515