1 Barb. Ch. 15 | New York Court of Chancery | 1845
The respondent was undoubtedly entitled to relief in this case,.as he could not safely bid upon the property under a decree which was irregular as to the rightful officers of the corporation, in case the decision of the chancellor in the case of Gable v. Miller and others should be eventually sustained, upon the appeal which it is understood has been taken to the court of dernier resort. Whether a bona fide purchaser who had no notice of such irregularity would not be protected under a decree which was apparently rightfully obtained against the corporation, by its corporate name, it is not necessary now to decide. But the complainant himself was not bound to take the responsibility of bidding upon the property, under a decree which was irregular; and which would be set aside in case an application for that purpose should be made by the rightful officers of the corporation within a reasonable time. He could not, however, be allowed to retain the decree as rightfully obtained and at the same time so far repudiate it as to sue the defendants at aw upon the bond. For, such a proceeding was inconsistent
The order appealed from must therefore be so far reversed' and modified as to set aside the decree in this suit, and all proceedings subsequent to the filing of the complainant’s bill, and to direct the bill itself to be dismissed, without costs and without prejudice to the complainant’s rights to proceed hereafter at law or in equity as he may be advised, to recover the debt due upon his bond and mortgage. And neither .party is to have costs as against the other upon this appeal, or upon the application to the vice chancellor.