9 Paige Ch. 259 | New York Court of Chancery | 1841
The purchaser in this case unquestionably bought the premises in good faith, and is there
In the present case it is true the appellants, or rather their officers and agents, were ignorant of the decree of foreclosure, or that any suit had been instituted to foreclose the mortgage on the premises upon which they had obtained a lien subsequent to the filing of the complainants’ bill. And of course they were not aware that the premises had been advertised for sale under such decree. But as the usual notice of the pendency of the foreclosure suit had been filed in the proper office two or three months before the recovery of their judgment, they could, by proper diligence, have ascertained not only the amount of prior liens upon the property of their debtor, but also the proceedings which were taking place to enforce those liens against his real estate. Their ignorance of the. fact that the property was to be sold under the decree of foreclosure, and of the time and place appointed for such sale, arose therefore from their own negligence, or the negligence of their officers and agents, and not from mistake or accident, against which this court should be called upon to interfere, where the sale was properly conducted.
Parties interested, however, even where they neglect to attend the master’s sale, have a right to expect, and
In the case of Woods v. Monell (1 John. Ch. Rep. 505,) Chancellor Kent held that where the premises to be sold consisted of several parcels, distinctly marked for separate and distinct enjoyment, it was, as a general rule, the duty of the officer who was to make the sale to sell in parcels, and not the whole premises in one entire sale. He says, to sell the parcels separately is the best for the interests of all the parties concerned. The property will produce more in that way, because it will accommodate a greater number of bidders, and tends to prevent obvious speculations upon the distresses of the debtor. In conformity with this principle, the revised statutes contain an express provision that upon sales of real estate upon execution, by the sheriff, where the property to be sold consists of several known lots, tracts, or parcels, such lots, tracts, or parcels shall be separately exposed for sale. (2 R. S. 369, § 38.) The 138th rale of this court requires the master to sell in the same manner, where real estate is to be sold under a decree in chancery, unless he is otherwise specially directed by the court. And thelast clause of that rule, which authorizes him to sell in one parcel only, where he is satisfied that the property will produce a greater price if sold together, was only intended to provide for very special cases; where, from the peculiar situation of the different parcels wdth respect to each other, it is evident that the several parcels if
I have not been able to discover any thing in the sitúa» tion of the property in the present case to render it necessary or proper to sell the whole of these lots and buildings together. The two lots upon Water-street were perhaps too narrow for the purpose of making two building lots. It might, therefore, have been a proper exercise of discretion, on the part of the master, to sell those two lots together in one parcel j making a lot of twenty-eight feet front-upon that street. But the two houses and lots on Front-street were in no way connected with these lots on Water-street. And each lot was of sufficient width either for a dwelling house or a store, and should therefore have been sold separately. And the storehouse and the lot on which it stands, together with the alley leading thereto from Water-street, should have been sold as another distinct parcel of the premises.
The affidavits annexed to the petition state the value of the property at $10,000 more than it was knocked down to the complainant for, as one entire bid for the whole; and the belief of the deponents that it would have brought at least $30,000 if sold in separate parcels. The master undoubtedly acted upon the supposition that it was the wish of the mortgagor that the property should be sold together ; and as the solicitor for the complainants made no objection he put it up in that manner without sufficient examination. But it now turns out that the interest of the mortgagor in the equity of redemption had been sold on execution, and that the twelve months allowed to him to redeem had expired some time previous to the decree of foreclosure. He therefore had no interest in the sale, ex
The order appealed from must therefore be reversed,
¡And as the appellants offer to bid $5000 more for the ¡premises than they were before sold for; upon their de- ; positing that sum with the master, within twenty days, to be applied to make up any deficiency, which may arise upon the resale, either in paying the amount due to the complainants for their debt and costs, or in paying and indemnifying the purchaser for all damages, costs, and expenses to which he may be entitled under this decision, the premises are to be resold, upon a notice of three weeks. And out of the money thus deposited with the master, the purchaser must be paid all his costs and expenses, including reasonable counsel fees for examining the title, to be taxed and allowed by the vice chancellor. He must also be paid the interest upon the deposit money paid to the master, which deposit is to be returned to him, and interest upon the residue of the purchase money while it has remained unproductive in his hands, and down to the time when he shall have notice that the $5000 is deposited with the master by the appellants. And the proceedings are to be remitted to the vice chancellor to carry into effect this decision.