10 Paige Ch. 487 | New York Court of Chancery | 1843
I think the vice chancellor was right in ordering a resale under the peculiar circumstances of this case. Very little reliance can be placed upon the recollections of Billington ; as his affidavits, which the appellant and the respondents repectively have obtained from him, are in direct conflict in some very important particulars. I think the following facts may be considered, however, as established. First, that Marsh, the purchaser, was a mere nominal defendant, who had no interest in the mortgaged premises, nor in the proceeds of the sale, which justified him in interfering to persuade the complainant to withdraw his consent to the postponement of the sale for a week, upon the terms proposed. And I think, from the interview which took place between him and the complainant, the day previous to the sale, that he must then have been apprised of the fact of the sickness of the defendant Forbes; although he is careful to say, in his affidavit, that he heard nothing of his sickness on the day of sale, and
Upon this state of facts I think the appellant took an unconscientious advantage of the situation in which the respondent was placed, by a dispensation of Providence, to obtain this property much below its real cash value. The decision of the vice chancellor, therefore, is not in conflict with the general rule of the court, that mere inadequacy of price is not of itself sufficient to deprive a bona fide purchaser at a master’s sale of the benefit of his purchase. (Livingston v. Byrne, 11 John. Rep. 555. Duncan v. Dodd, 2 Paige’s Rep. 101.) And on the grounds upon which the decision in this case was placed by the vice
The order for a resale, however, should have contained some further provisions to ensure the re-payment to the appellant, of the money which he had paid to the complainant upon the former sale, in case the respondent should neglect to pay that amount, with the interest thereon, within a limited time after the entering of such order. Such a provision would have been inserted in the order as a matter of course, upon the mere suggestion of its propriety, to the vice chancellor, by the counsel of Marsh. A modification of the order in this respect, therefore, will afford no ground for refusing costs to the respondent upon this appeal i as it does not affect the merits of the case brought before me for a decision.
The order appealed from must be affirmed with costs, with the following modification : The order must contain a provision that if the respondent does not pay or tender to the appellant, or to his solicitor, the #360 and interest thereon from the 24th of June, 1843, within ten days after the service of a copy of the order to be entered on this appeal, the master shall immediately proceed to a resale of the premises, upon a three weeks’ notice; that he put up the premises at the sum of $360, and interest as aforesaid, and the master’s fees and expenses; and that if no one bids to that amount, and pays the purchase money to that extent in cash, at the time the premises are so put up and offered for sale by the master, then that the former sale to the appellant be ratified and confirmed.
Order accordingly.