3 Abb. N. Cas. 73 | N.Y. Sup. Ct. | 1876
There are some circumstances stated herein, which tend to sustain the charge that the defendant above named was endeavoring to obtain the
Leave to renew being afterward granted, Mr. Hendrickson moved again, on further affidavits, showing,among other things, that the purchaser had offered the premises or sale, at the minimum price of $8,500 ; and also on a bond approved by a judge of the court, and tendered on behalf of the infants, in the penalty of $6,000, conditioned that the property should bring that sum on a re-sale.
The following opinion was delivered March 3, 1877, on granting an order for a re-sale:
While the proofs on the affidavits seem to be overwhelming with the purchaser, yet there are some coincidences—to call them no more—that compel me to discredit the case made by him: that the plaintiff, whose interest was paid, should, without inducement, sell out on a mortgage of $3,000, and take back one of $4,000 without explanation. It is impossible for me, with the press of other engagements, to go into
By the order entered on the foregoing decision, the bond was required to be to the following effect: “The said guardian ad litem, shall, within twenty days after the entry of this order, execute or cause to be executed a bond to George A. Halsey, referee appointed by the judgment herein, in the penalty of $5,000, with one surety, to be approved as .to sufficiency and form by one of the justices of this court, and filed with the clerk of this court, conditioned that the premises described in the judgment herein shall bring at least $4,600 and interest from last sale, oh such re-sale, and that in the event of the said premises not bringing that amount, the obligor in the said bond mentioned will pay all the expenses of said re-sale.”
From the order granting a re-sale, the plaintiff and the defendant, C. August Schuster, appealed to the general term.
I. That there was collusion and fraud in the sale.
VI. That there were so many inconsistencies in appellants’ story that the whole of it should be discredited.
The order of re-sale was an eminently proper one. The property was sold for much less than its real value. The testamentary guardian of the children who were owners of the equity of redemption was the purchaser. He claims to have purchased in his own right, and to hold the premises for his own benefit. The holder of the mortgage, soon after the sale, loaned on the property a larger sum than the former mortgage, taking the purchaser’s mortgage of the property for the new loan. Various circumstances appear, tending to show that the sale was a scheme of the purchaser to get the property in his own right, and cut off the interests of the infants at a price below its real value. A responsible bond is produced to the effect that the property at a re-sale shall bring a much larger price than the price at the former sale. The court would fail in its duty toward the infant children, if it refused under all the circumstances disclosed to allow the re-sale. The faithful manner in which the guardian ad litem, Mr. Hendrickson, has discharged his duty in taking care of the rights of the infants, deserves the commendation of the court.
The order should be affirmed with $10 costs, besides disbursements, to be paid by appellant Schuster to the ■guardian ad litem.
Beady, J., concurred.