Avon-by-the-Sea Land & Improvement Co. v. Finn

56 N.J. Eq. 808 | N.J. | 1898

The opinion of the court was delivered by

Collins, J.

This appeal involves the sequel to the order affirmed on the opinion last read. The appellant, by petition, sought affirmatively to have the sale set aside. The order made seems to us entirely equitable. The uniform practice of courts of equity in this country, when a resale of property is ordered because of supposed sacrifice of value, is to impose terms to, at least, secure against loss the holder of the decree; frequently to guarantee a substantial increase of bid at the new sale. Sound policy requires that bidding at judicial sales should be encouraged. Even under our statute prescribing confirmation of foreclosure sales, and requiring, as a prerequisite to such confirmation, proof to the judicial satisfaction that the “property has been sold at the highest and best price the same would then bring in cash” (Gen. Stat. p. 111 pl. 45), this court has held that where there is prima facie proof of that purport, as there was in the case in hand, it is proper to exact security for an increased bid before ordering a resale, although counter-evidence on the subject of value may be strong enough to induce the resale. Rowan v. Congdon, 8 Dick. Ch. Rep. 385. In the case cited the mortgagee had bought in the mortgaged lands for about $10,000. It was proved that a purchaser stood ready to bid $25,000, and was only prevented from attending and purchasing at the sale by a mistake as to time, yet a resale was authorized only on terms that security should be given to bid at least $25,000.

The chief complaint of the appellant is that the sheriff sold in bulk, notwithstanding a request to sell in lots as shown on a map recognized by the parties. A sale in parcels is favored where practicable in foreclosure cases, if thereby the mortgagee’s security will not be endangered, but is not a matter of right. In this case it appears that the mortgagee, by releasing in accordance with the landowner’s filed map, had approved a dedication of streets and a layout of blocks and lots, but that fact did .not bind her to direct the sheriff to sell by the lot or block. The released lots were excepted from the sale by a direct reference to the map, and therefore a sale in bulk with such an exception necessarily preserved the easement of the streets, which is all that could be asked as of legal right. Pending the foreclosure the appellant had struck off at auction some of the lots free from encumbrances, but had as yet given no deeds. Perhaps it would have been convenient to have had those lots sold last, or at least sold separately, and perhaps apart from this feature of the case a sale by lots or blocks would have been advantageous to the landowner and not injurious to the mortgagee; but all this is beside the point. On application to the court, before sale, an inquiry into the proper mode in which to sell could have been had, and order would have been made accordingly, but that course was not pursued by the appellant. The decree was the normal one to sell so much of the unreleased lands as would be sufficient to raise and satisfy the mortgaged debt. In executing such a decree the mode of sale is largely at the discretion of the selling officer. Parkhurst v. Cory, 3 Stock. 233. In this case it seems that but for the contrary insistence of the mortgagee’s solicitor the sheriff might have sold in parcels. He deposes that he was so inclined; but on the other hand, he made his affidavit, on reporting the sale in conformity with the statute and rules of court, that the property was sold for the highest and best price it would then bring in cash, and the sale should not be disturbed on mere conjecture that a sale in parcels would realize more. That the mortgagee was the purchaser does not affect the situation. Such was the case in Rowan v. Congdon, ubi supra. The doctrine was long ago established, with the approval of this court, that a mortgagee buying in at his own sale has the same rights that any other purchaser would have. Currie v. Sisson, 7 Stew. Eq. 578, following Snyder v. Blair, 6 Stew. Eq. 208. We see no reason why the respondent should now be subjected to the burden of separately valuing the parcels in which the appellant desires the lands to be sold. Her decree has been satisfied by a regular sale. The experiment of a sale, by lots ought to be made without risk "or annoyance to her. The appeal is partial only. By the order appealed from, the mode of sale has been placed in the appellant’s control. To permit that order to stand and annul its condition would be unfair. Ho such extraordinary relief as has been accepted would have been awarded except on terms. We are unwilling to approve the relief and override the terms.

The petition charged that the sale was not legally advertised. This point does not seem to have been pressed before the vice-chancellor, but is strenuously urged in this court. The objection is to the advertisement of an adjournment for more than one week. The following is the published notice:

“ADJOURNED SHERIFF’S SALE.

“The Avon-by-the-Sea Land and Improvement Company, at the suit of Ann Finn, stands adjourned to Monday, the 17th day of January, 1898, at the Court-House, at Freehold, in the county of Monmouth, New Jersey, at 2 o’clock p. M.

“Dated January 3d, 1898. Houston Fields, Sheriff.”

The form of this notice is criticised, but the main contention is that the land to be sold should iu some way have been described or identified. Such is not the requirement of the law. After prescribing an original advertisement of sale that shall sufficiently describe the lands to be sold and authorizing adjournment of the advertised sale, the statute thus proceeds:

“If any sale of lands, made under the direction of this act, be adjourned for more than one week, such adjournment shall be published in the same newspapers in which the notice of, sale was published; * * * provided, that in publishing any adjournments, it shall not be necessary to continue the publication of the original advertisement of sale, but a statement of the parties to the cause and the time and place of such adjournment shall be sufficient.” Gen. Stat. p. 2980 § 6.

Reading the caption with it, as we must, this notice, although awkwardly phrased, seems to us to be a publication of adjournment, in full compliance with the statute.

The order appealed from will be affirmed.

For affirmance — Collins, Depue, Dixon, Garrison, Gummere, Lippincott, Ludlow, Van Syckel, Adams, Bogert, Hendrickson, Nixon, Vredenburgh — 13.

For reversal — None.