Brown v. Frost — 10 Paige Ch. 243

Majority

p. 243

Brown and others vs. Frost and others.

Headnote

An original bill in chancery cannot be filed by a party to a foreclosure suit, to set aside a master’s sale under a decree, where relief could have been obtained, by a summary application to the court, in the foreclosure suit.

Where the master sells property, under a decree in chancery, at an improper time, or in such a manner as to prevent a fair competition, or if for any other cause it is inequitable that such sale should be permitted to stand, the proper remedy of the party aggrieved is by a summary application to the court, in the suit in which the decree was made, to set aside the sale upon such term8 and conditions as may be just; so as to protect the rights of the purchaser as well as of the parties interested in such sale.

The owner of the equity of redemption is not entitled to redeem the mortgaged premises, after the same have been put up and sold under the decree, although the mortgagee becomes the purchaser at such sale.

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1843. April 4.

Until the report of sale is confirmed, any person interested may make a summary application to the court for a re-sale, provided he has any just grounds to sustain the application. But where the sale is properly made, and there are no grounds for setting it aside, the former owner of the equity of redemption cannot prevent the completion of the sale, and the confirmation of the master’s report, by a mere tender of the amount due upon the decree' with interest and costs.

Mere inadequacy of price is not alone sufficient to authorize the court to set aside a master’s sale, although the complainant in the foreclosure suit is the purchaser. But in such case, if the owner of the equity of redemption intended to bid a greater sum for the mortgaged premises and to comply with the terms and conditions of the sale, and was prevented from so doing by mistake or accident, he has a clear and adequate remedy, by a summary application to the court, in which.the suit was pending, for a re-sale. He cannot however file an original bill to set aside such sale.

This was an appeal from a decree of the assistant vice chancellor of the first circuit. The bill in this cause was filed by H. Brown to redeem certain premises which had been sold under a decree of foreclosure in a former suit. H. Brown, the complainant, in April, 1831, having become the purchaser of five parcels of land at a master’s sale, mortgaged the same to Frost and the Cammans, to secure the payment of $5000 and interest, in one year 5 and also mortgaged the same to the Cammans, at the same time, to secure the payment of the further sum of $4000, payable in one year with interest. lío part of the principal or interest having been paid, the mortgagees, in August, 1832, filed a bill of foreclosure ; and in January, 1833, they obtained the usual decree for a foreclosure and sale of the premises. Under this decree the master advertised the premises to be sold, on the 2d of March, 1833, upon the terms that $500 of the purchase money should be paid down, and the residue, with interest' at the. rate of six per cent per annum, on the 1st of May thereafter. The premises were struck off to H. Chase, who professed to purchase as the agent of H. Brown, the mortgagor, for $10,350. And $500 of the. purchase money was paid to the master on the day of sale, and $4000 more was paid to him on the 9th of May' thereafter ; and Frost then agreed to wait for the residue of the purchase money until the 17th of August. The residue not being paid, the complainants, in the fore

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closure suit, in February, 1834, applied to the court and obtained an order for a re-sale of the premises, for the balance due. The master advertised the property for a re-sale, in March, 1834, and put up the property upon the terms that ten per cent of the purchase money should be paid down, and the residue in ten days. One of the five parcels, constituting the principal value of the mortgaged premises, was struck off to Reed, who professed to bid as the agent of the mortgagor, for $6600. But he not being prepared to pay the ten per cent down, the property was put up again and struck off to Frost, for himself and his co-mortgagees, for the same sum ; and he immediately paid to the master the ten per cent required to be paid down. At the expiration of the ten days, when the balance was tobe paid, the residue of the purchase money was paid to the master, who thereupon conveyed the premises to the purchaser. After the deed was actually delivered to Frost, but on the same day, Reed tendered the whole amount due upon the bid, and asked to redeem the premises. The assistant vice chancellor decided that the rightto redeem existed at the time of that tender. He therefore decreed a redemption of the premises. (See 1 Hoff. Ch. Rep. 41 .) From that decree the defendants appealed to the chancellor. And the complainant having died, subsequent to the appeal and before the hearing thereon, the suit was revived in favor of lier heirs at law.

E. Sandford, for the appellants.

S. Sherwood, for the respondents.

Many things are stated in the bill in this cause which might have been the proper subjects of consideration in the original foreclosure suit. But the decree in that suit is conclusive upon the rights of the parties, and cannot be opened or disturbed in this collateral way. I am also satisfied that an original bill in chancery cannot be sustained, by a party to a foreclosure suit, to impeach or

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set aside the proceedings upon the master’s sale, under the decree, where there was nothing which could have prevented an application to the court, in that suit, for a resale, by those who were interested in the premises. If the master sells at an improper time, or in such a manner as to prevent a fair competition, or if for any other cause it would be inequitable to permit the sale to stand, the proper remedy is by a summary application to the court, in the suit in which the decree was made, for a re-sale of the premises upon such terms and conditions as may be just; so as to protect the rights of the purchaser as well as the rights of the parties interested in the sale. (Requa v. Rea, 2 Paige’s Rep. 339. Collier v. Whipple, 13 Wend. Rep. 224 . Nicholl v. Nicholl, 8 Paige’s Rep. 349. American Ins. Co. v. Oakley, 9 Idem, 259.) And it would seriously affect the interests of those whose property is sold by masters, under decrees of this court, if it was understood that questions of this kind were to be litigated and determined in a collateral suit. For no man of ordinary prudence would bid what he believed to be the fair cash value of the property, at a master’s sale, if he might be subjected to the expense and delay of a protracted chancery suit to determine whether the proceedings of the master had been strictly regular.

The only real question for consideration on this appeal, therefore, is that upon which the assistant vice chancellor has based his decree—the right of the mortgagor to redeem the premises after they have been sold under the decree. He states it as an established rule of the court of chancery in this state, that the right of redemption remains until the purchase by the mortgagee is consummated, the deed delivered, and the report confirmed. But he does not refer to any reported case either recognizing or establishing such a principle. If such a rule exists, it is one which I never heard of before; and no such right has ever been claimed, by the owner of the mortgaged premises, in any suit or proceeding before me, during the fifteen years in which I have presided in this court. The case of Edwards v. Cunliffe,

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(1 Mad. Rep. 287,) referred to by the assistant vice chancellor, in which Sir Thomas Plumer enlarged the time for the payment of the mortgage money, was not the case of a sale of the mortgaged premises, but of a decree for strict foreclosure.

The ordinary form of decrees of foreclosure in this court gives to the mortgagee, or any other party to the suit, the same right which a stranger has to become a purchaser at the master’s sale. And if the mortgagee bids more for the property than it is worth, he is still bound to take it in satisfaction of his debt, to the extent of his bid, and to pay the surplus money, if any, to the owner of the equity of redemption. Where the property is fairly struck off to him, therefore, he has the same right to be protected in his purchase, if he complies with the terms and conditions of the sale, as though he were not a party to the decree of foreclosure. It is true that the court does not interfere to compel a delivery of the possession of the premises to the purchaser, until the master’s report of the sale has been duly confirmed, whether such purchaser be the mortgagee himself or a stranger to the suit. And until such confirmation of the report, any person interested in the sale is in a situation to make a summary application to the court for a re-sale, if there is any just ground for such an application. But the report of the sale is confirmed of course, at the expiration of the eight days from the entering of the order nisi, if no exceptions are filed, unless there is an application in the meantime to set aside the sale. And the former owner of the equity of redemption cannot prevent the completion of the sale, and the confirmation of the report, by tendering or offering to pay the amount of the decree with interest and costs.

Here the purchaser paid ten per cent of his bid at the time of the sale, and signed the written contract, by which he was bound to pay the residue at the time prescribed in the conditions of sale. The time allowed for that purpose was for the convenience of the purchaser, and to enable the master to get the best price for the property; and not for

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the purpose of giving the mortgagor the right of redemption in the mean time. And if the purchaser had preferred to pay all the purchase money immediately after the sale, the master would have been authorized to receive it at that time, and to apply it to the payment of the debt and costs, according to the directions of the decree. Frost, however, waited until the day fixed by the terms of the sale, and then received the master’s deed. And if the mortgagor had no right to prevent the consummation of the sale, by a mere tender of the amount of the decree and costs previous to the execution of the master’s deed, as she certainly had not, the subsequent tender of the money gave her no right to file this bill to redeem the premises, or to have a resale thereof under the former decree.

It is very probable that this land was sold for something less than its actual value at the time, although it appears money was scarce, and property of course was much depressed ; for it appears this lot, with the other five parcels, had been sold three years before for f>10,700. The inadequacy of price, howevqr, cannot justify this court in disregarding settled principles for the purpose of giving relief in this case. If there was a real and bona fide intention on the part of Reed to bid off the property, and to pay for it at the time specified, in the terms of sale, and he was prevented from doing so by mistake or accident, the mortgagor, for whom he professed to act, had a clear and adequate remedy by an application to the vice chancellor, before whom that suit was pending, for a resale. It seems from the evidence that an ex parte application of this kind was made, and that the vice chancellor refused to interfere unless the money was paid or tendered to the master. And then, for some reason which is not sufficiently explained, that method of obtaining relief was abandoned, and this unheard of expedient, of filing an original bill to obtain a resale of mortgaged premises under the decree in the former suit, was resorted to.

The decree of the assistant vice chancellor must therefore be reversed, and the bill in this case must be dismissed ;

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but without prejudice to any right the respondent may have to apply to the vice chancellor for a resale of the premises, upon such terms and conditions as may be just and equitable, if the report of the sale had not been confirmed, so as to make it binding and conclusive upon the parties, previous to the filing of the bill in the present suit. The respondents are only before the court on this appeal as the heirs of the original complainant in this suit. It would therefore be wrong to charge them personally with the costs, either in the court below or on the appeal. And under the peculiar circumstances of the case, I shall not charge the estate of the decedent, in their hands as heirs, at law, with the costs of the adverse parties.