Griffith v. Hadley — 23 N.Y. Super. Ct. 587

Majority

p. 587

Griffith W. Griffith et al., Plaintiffs and Appellants, v. Thomson R. Hadley, Defendant and Respondent.

Headnote

Surprise, and gross inadequacy of price are sufficient grounds for setting aside a judicial sale of real estate, upon fully indemnifying the purchaser.

The sale of several distinct and separate parcels of land, greatly exceeding the debt to be collected, in one mass, to the prejudice of the debtor, is a .sufficient ground for setting aside a sale of real estate, even without indemnity to the purchaser.

(Before Robertson, White and Monell, J. J.

Heard, November 22;

decided, December 20, 1862.

This was an appeal from an order made on an application to set aside a sale made by a Receiver appointed in supplementary proceedings taken on a judgment recovered in this action.

The Receiver was appointed in June, 1862. An order was obtained by him, by default, authorizing him to sell the defendant’s real estate, on advertising it in a daily newspaper in New York for three weeks. It was so advertised, and sold on Saturday, the 20th of September last, to the present appellant, Mr. Burrell, by whom it was conveyed, on the 26th of the same month, to a Mr. But

p. 588

ler. Mr. Butler was not a party to these proceedings, nor was he notified of the application, and he did not appear in this Court, either at General or Special Term. His affidavit was used by Mr. Burrell, on the application at Special Term. Under what circumstances, or with what knowledge that was obtained, does not appear.

(after stating the facts.) The evidence is conflicting as to whether the Receiver’s attorney informed - the defendant’s attorney that the day of sale was the 30th of September, the preponderance being rather in favor of his being informed that it was the 20th. But, from the evidence, there can be no doubt he thought the date given him was the 30th. Preparation was made by him, and also an effort to pay the judgment before that time. The conveyance of the property by the purchaser, on the 26th, after knowledge of the defendant’s claim, also indicates some unfairness or eagerness to take advantage of his position. There is enough in the facts of the case to warrant the Justice who decided the motion to infer such surprise as would entitle the defendant to have the sale opened upon terms. The property was probably sold at a great undervalue and after very little, if any, competition. Upon indemnifying the purchaser liberally, the Court was justified in ordering a resale. Upon that ground the order was probably not appealable, as lying within the discretion of the Court. But there jvas, also, another ground on which the sale was sought to be set aside as.irregular, to wit, that the property consisted of several houses and lots, on different sides of the Bowery, in this city, and in 83d street; the debt to be collected being less than two hundred dollars, and the value of such interest greatly exceeding that sum; the purchaser paid $1,050 for it, and demanded $1,000 for a release The Revised Statutes expressly provide for sales in par cels, in case of sales on execution by a Sheriff. (2 R. S., 369, § 38; 3 R. S., 5th ed., 650, § 38.) This, however, has been held not to make the sale void, but only voidable

p. 589

in case of a sale in mass. (Cunningham v. Cassidy, 7 Abbotts’ Pr., 183; S. C., 17 N. Y. R., 276.) Still, where there is a prejudice, the sale may be set aside without even indemnifying the purchaser. (See cases reviewed in Breese v. Bange, 2 E. D. Smith, 474.) This was an equally good ground for setting aside the sale.

The order, therefore, made was correct, and should be affirmed, with costs, without prejudice to the rights of Butler, who is not a party to this motion.