Dunn v. Herbs — 63 N.Y. Sup. Ct. 457

Majority

p. 457

A. PAUL DUNN, Appellant, v. FREDERICK C. HERBS and MAGNUS D. HERBS, Respondents, Impleaded with AUGUSTUS GIGON and Others.

Headnote

Judicial sale —purchase made under a misapprehension, not enforced.

In judicial sales the utmost fairness will be observed, and the purchaser will not be compelled to complete his purchase when he has bid at the sale under an honest misapprehension, and has subsequently discovered that he has not bought the property for which he supposed he was bidding, and at once applies for relief.

Appeal by A Paul Dunn, the plaintiff, from an order made at Special Term, and entered in the office of the clerk of the county of Ulster on the 1st day of February, 1890, which, on motion of the defendants, Frederick O. Herbs and Magnus D. Herbs, vacated and set aside a sale made by a referee in the above-entitled action.

The action was brought for the foreclosure of a mortgage, and a sale was had under a judgment entered therein, at which the mortgaged premises were purchased by Frederick O. Herbs and Magnus

p. 458

D. Herbs. It was claimed by the purchasers, on the application to vacate the sale, that it was supposed by them that they were purchasing land adjacent to and used in connection with the mortgaged premises, and which, as they believed at the time of the purchase, was part thereof.

WilUann loimsbery, for the appellant.

Chancellor Hawver, for the respondents..

This order should be affirmed.

The purchasers 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 they 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 purchasers, in fact, bought is of much less value than that which they supposed they were 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 purchasers into the mistake which they made.

Order affirmed, with ten dollars costs and printing disbursements.

Landon and Mayham, JJ\, concurred.