Brown v. Frost — 3 Sarat. Ch. Sent. 19

Majority

p. 19

William H. Brown et al. v. Edmund Frost et al.

Headnote

setting aside nitistor^s tsstlos

Motion for ™-

E. Sand? ford, for appellants ; S. Sherwood, for respondents.

Appeal from ad.ecr.ee of the assitant vice chancellor of i l the first circuit. (See Hoff. Ch. Rep. 415. S. C.) Decided that an original bill to impeach or set aside proceedings upon a master’s sale under a decree of foreclosure cannot be sustained, where there was nothing to prevent an application in the foreclosure suit, for a resale, by those interested in the premises. That if the master sells at ap 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

p. 20

application to the Court iu which the decree was made, for a resale of the premises* upon such terms and conditions as may be just; so as to protect the rights of the purchaser as well as of the parties interested in the sale.

Right of mortga-fho purchaser,

Resalo may bo applied for at ieportTscon-™ firmed.

Confirmation of report not pre-ofamountof ie cree-

That under a decree of foreclosure the mortgagee, or any other party to the suit has the same right which a stranger has to become a purchaser at the master’s sale. And that 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.

That 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 if he were not a party to the suit.

That until the master’s report of sale is confirmed, the court will not interfere to compel a delivery of the possesion of the premises to the purchaser, 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 may apply to the court for a resale if there is just ground for it.

But that the report of sale is confirmed of course at the ex- * rirat‘On 0f 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 that the former owner of the equity of redemption cannot prevent the confirmation of the report by tendering or offering to pay the amouHt of the decree, with interest and costs.

Decree appealed from reversed, and bill dismissed; but without prejudice to right of respondents to apply for a resale, in case the master’s report had not been confirmed before the filing of the bill in this cause.