38 N.Y.S. 817 | N.Y. App. Div. | 1896
Lead Opinion
The complaint alleges, and the answer admits, that in an action in the Supreme Court, in which one Cassidy was plaintiff and one Adler, defendant, the defendant, Frank X. Sadlier, was duly appointed receiver of the property, real and personal, of the said Cassidy & Adler, a co-partnership, composed of the parties to the action above referred to, and on or about the 6th day of June, 1895, the defendant, as such receiver, caused certain property of the said Cassidy & Adler, in the city of New York, known as 138 West One Hundred and Thirty-third street, to be advertised-and sold at public auction upon the terms of sale, a copy of which is annexed to the complaint. By such terms of sale it appears that the property was to be sold subject to a mortgage of $16,000, to be at five per cent, and having
This case is clearly within the principles established in Riggs v. Pursell (66 N. Y. 198). In making the sale the defendant did not act as the agent of the parties, but as the officer of the court. The sale was theoretically made by the court through its officer, and the contract of the purchaser was with the court. The purchaser was entitled to all the property which the receiver undertook to sell, and which he rightfully supposed he was to receive. In that case it was said : “ A purchaser upon such a sale will not be relieved on account of defects in the property or the title thereto, of which he had notice, and in reference to which he made his bid, and the court will not permit him to abandon his contract without seeing that the object of the purchase is defeated, and that he would be injured by the enforcement of the contract. If every minute and critical objection to a judicial sale is suffered to prevail, it will be attended with much inconvenience and embarrassment. A purchaser claiming to be discharged from his contract should, therefore, make out a fair and plain case for relief, and it is not every defect in the subject sold or variation from the description that will avail him. He will not be suffered to speculate at such sales, and, if he happens to make a bad bargain, to repudiate it and abandon his purchase on some nice but immaterial objection. If he gets substantially what he bargains for he must complete the purchase and take his deed.”
Assuming that the plaintiff was not chargeable with knowledge of the contents of this mortgage (a question which we do not deter
The laws of the United States make gold and silver dollars legal tender, but only such gold and silver as has been coined into money by the United States. Since the resumption of specie payments by the United States in 1878, it has been declared to be the policy of the government to maintain at an equality all of the various kinds of money, gold, silver and legal tender notes, made by the laws of the United States legal tender for the payment of debts. Such having been the declared policy of the United States, and all contracts made having been based upon the declared policy, that the various kinds of money which have been made legal tender for the payment of debts are of equal value, a court can hardly assume that the government of the United States will reverse its policy and, by a debasement of its currency or repudiation of its notes and obligations, justify and approve a repudiation of obligations and contracts entered into in pursuance of its laws, and in reliance upon its declared policy.
This plaintiff was entitled to a conveyance of the property purchased subject to a mortgage of $16,000. "Whether that mortgage was specifically payable in silver dollars of the United States, gold
All that appears by the record is that this mortgage, to which the property sold was subject, is payable in gold coin of the United States. "We can take judicial notice of the laws of the United States, and we thus know that the United States has declared its intention to keep all kinds of money issued or coined by it on an equality. In the absence of any evidence tending to show that gold coin is of greater value than any other of the various kinds of money made a legal tender by law, there is absolutely nothing upon which a court can base a finding that the fact that this mortgage was payable in gold coin imposed any greater obligation upon the purchaser of the property, or exposed the property to any greater incumbrance, than would a mortgage simply payable in money without specifying the particular kind of money. And, in the absence of such evidence, the rule applied in the case of Riggs v. Pursell (supra) controls ; i. e., that “ a purchaser upon such a sale will not be relieved on account of defects in the property, or the title thereto, of which he had notice, and in reference to which he made his bid, and the court will not permit him to abandon his contract without seeing that
As before stated, there is absolutely no evidence here upon which the court could base any finding that this provision in the mortgage would impose any additional burden upon the property, or that plaintiff would not obtain by the conveyance of the receiver just what he bargained to receive, namely, the property subject to a mortgage of $16,000.
When this case of Riggs v. Pursell (supra) was again before the Court of Appeals (74 N. Y. 376) the necessity of there being some fact upon which such a' finding could be based was reiterated, and the evidence before the court on the renewed application to relieve the purchaser was commented on and held to be sufficient for that purpose. But, so far as we can ascertain, the principle decided on the first appeal has never been questioned ; and it seems to us clear that in the absence of any evidence showing that such a provision in a mortgage was an additional incumbrance upon the property, or rendered the property less valuable or marketable than a mortgage simply payable in dollars, without specifying the kind of dollars, the plaintiff was not justified in refusing to accept the title.
It follows, therefore, that the judgment must be affirmed, with costs.
Rumsey and O’Brien, JJ., concurred; Van Brunt, P. J., and Williams, J., dissented.
Dissenting Opinion
I dissent. When a person contracts to pay for property he may pay in any legal tender. So when he takes subject to an obligation he may assume that he can discharge it in any kind of legal tender.
Williams, J., concurred.
Judgment affirmed, with costs.