Provost v. Roediger — 32 N.Y. St. Rep. 1101

Majority

p. 1101

John C. Provost, App’lt, v. Louis C. H. Roediger et al., Respt’s.

(Supreme Court, General Term, Second Department

Filed July 18, 1890.)

Headnote

Fobeclosube — Setting aside sale.

Application was ' made to set aside a foreclosure sale on the ground of the insanity of the morigagor at the date of sale and inadequacy of price. The affidavits as to the time when the mortgagor became insane were conflicting and proof of inadequacy of price unsatisfactory, the main proof fieing that the plaintiff, who was the purchaser, sold four years later at an ■advance in price. The court ordered a reference to determine the amount received by plaintiff on the resale and from rents and payments made by Mm and that the balance be applied on the judgment for deficiency. Held, error.

Appeal from order of special term, on motion to set aside a sale on foreclosure.

Manley & Wadley (Geo. A. Stearns, of counsel), for appl’t; A. N. Weller, for resp’ts.

The judgment in this case was entered in March, 1884 The sale of the mortgaged property took place in May, 1884, and the same was purchased by the plaintiff for $1,000. The plaintiff expended some $1,500 in paying taxes and assessments on the property, a great part of which was a lien on the premises at the sale. In 1888 the plaintiff sold the property to a ■bona fide purchaser. Roediger became insane and died in 1889. The petitioner, his administrator, asks to set aside the sale, because he was insane at the date of the sale and because the price was inadequate. The affidavits failed to show with any definite particularity when the insanity commenced. The affidavit of Dr. Denier tends to show that Roediger was insane in March, 1884, when the judgment was obtained. His testimony is shaken by the affidavit of the wife of the lunatic, that he was a smart business man up to about August, 1885, and this agrees with a statement made by Dr. Denier that the manifestation of insanity which he puts in 1884, was really in 1885. He says that the incident was a year or a year and a half before the examination of the lunatic, which undoubtedly was in July, 1886. The lunatic did not give up business until May, 1886. The proof therefore fails to show that Roediger was of unsound mind on or before May, 1884.

The proof as to inadequacy of price is equally unsatisfactory. The mortgage it is true was for $3,000, but the taxes and assessments had been permitted to accumulate so as to increase the

p. 1102

deficiency to a large amount. The bid was really about $2,500, and there was realized from the property in October, 1888, the sum of $3,750. The interest on the purchase, and taxes on the property after the purchase, would with the bid nearly or quite reach that sum. ¡No resale was ordered, but an account was directed of payments of taxes and assessments since the purchase taken and the income received therefrom after the purchase and before the sale in 1888, and that the balance over expenses and the amount received on the sale by plaintiff less the bid at the the mortgage sale be credited on the deficiency judgment. The public sale-is to stand. The sale by plaintiff is to stand, but the referee is to charge the plaintiff with the amount of his sale and with rents after the foreclosure sale, and thereby reduce the deficiency judgment. The equity of this is not plain. The plaintiff' relies on a judgment, and a purchase under it. The order upholds the judgment and sale under it, but really sets the sale aside as to the plaintiff, and makes him responsible for ■ the proceeds of the property, and for the larger price obtained some four years after. If the mortgage sale ought not to stand, the plaintiff should be reinstated to his rights on a resale.

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

Pratt, J., concurs.