Dunn v. Herbs — 31 N.Y. St. Rep. 476

Majority

p. 476

A. Paul Dunn, App’lt, v. Fredrick C. Herbs et al., Impl’d, Resp’ts.

(Supreme Court, General Term, Third Department,

Filed May 26, 1890.)

Headnote

Judicial sales—Release of pubchaseb—Mistake.

The utmost fairness must be observed in judicial sales, and a purchaser will not be compelled to complete his sale when he has bid under an honest misapprehension, and at once applies for relief.

Appeal by plaintiff from order vacating a sale on foreclosure, and directing the referee to repay to defendants the amount paid by them on account of their purchase.

William Lounsbery, for app’lt; Chancellor Mawver, for resp’t.

This order should be affirmed.

The purchaser bid off two pieces of property, sold together, one of a little less than three acres, the other described to be eighty-nine acres. By an honest misapprehension he supposed the piece of eighty-nine acres to be one which belongs to the plaintiff but which was in fact not sold. The piece which the purchaser in fact bought is of much less value than that which he supposed he was buying, and contains, as would seem, eight or nine acres; not eighty-nine.

The utmost fairness must be observed in judicial sales; and a purchaser will not be compelled to complete his sale when he has bid under an honest misapprehension, and discovers that he has not bought the property for which he thought he was bidding, and at once applies for relief.

We do not say that the plaintiff intended to deceive. But probably the selling of the two pieces together tended to lead the purchaser into the mistake which he made.

Order affirmed, with ten dollars costs and printing disbursements.

Landon and Mayham, JJ., concur.