Dickinson v. Auld

Headnote

Answer — when it cannot he stricken out as frivolous.

Appeal from an order overruling the answer of the defendant as frivolous, and ordering judgment for the plaintiff for the amount claimed in the complaint, being the sum of $1,338.21 and costs, and also from the judgment entered thereupon.

The action was brought to recover upon the bond a deficiency claimed to remain unpaid after an alleged statutory foreclosure of a mortgage upon premises in Kings county, made by the defendant, Thomas Auld, and his wife, to secure the payment of $1,600, loaned to defendant’s wife, and which mortgage,- with the bond accompanying the same, was by divers mesne assignments transferred to the plaintiff.

The answer denied the legality and regularity of the alleged foreclosure proceedings, specifies the facts showing that the statute had not been complied with, admits that the plaintiff purchased the mortgaged premises at the sale held under said proceedings, and that she has gone-into possession, retains, and claims to hold the same thereunder as owner; and alleges that the amount bid by her was at least $2,000 less than the fair and reasonable value of the premises at the time of the sale; that she was enabled to bid in said premises for that sum in consequence of her irregular proceedings, and that persons who desired to purchase said premises failed to bid at said sale by reason thereof. That the value of the mortgaged premises at the time of sale and at the time of answering, greatly exceeded the amount of the mortgage, costs, and all other liens on the premises, and that the defendant sustained damage in consequence of such irregular and illegal proceedings in the alleged foreclosure equal to the amount of his liability on his bond.

The court, at General Term, said: “The answer of Thomas Auld is not frivolous. He is sued as the signer of a money bond, with his wife. There accompanied this bond a mortgage upon the wife’s property. The complaint avers that a sale was had pursuant to a power contained in the mortgage, and that the property brought $500 only. The answer of Auld avers that he, with his wife, conveyed the land covered by the mortgage to one Robert Auld; that Robert Auld conveyed the same to one Theis; that both deeds were put. upon the record before the first publication of the advertisement of sale under the foreclosure by statute; that such sale was had without any notice of it having been given, either to Thomas Auld or Agnes, his wife, who were the signers of the bond and mortgage, or to Robert Auld or Theis, who were the grantees under deeds by which they covenanted to pay the mortgage debt as part of the purchase-money. The foreclosure by advertisement without notice of the sale was void as to Thomas Auld, if his answer is true. The plaintiff then attempted to use a void sale to establish a valid payment to the extent of the bid. This cannot be done.”