32 N.J. Eq. 295 | N.J. | 1880
The opinion of the court was delivered by
The appellant in this ease is the purchaser at a foreclosure-sale. The sale in question was made by the sheriff, and,, before the delivery of a deed by the officer, was set aside by the chancellor.; and it is the propriety of this order which, is called in question on this review.
At the threshold of the inquiry here, the counsel of the respondent objects to the jurisdiction of this court, for the reason that such an order as this is not appealable. The-ground assigned for this position is, that such an order ia only incidental to the proceedings, and is not definitive of any established right. But this contention, I think, is-plainly unfounded. A purchaser at an official sale becomea invested with a fixed and definite legal right, which -ia
The order in question was the proper subject of an appeal on the part of the purchaser.
The merits of the order setting aside this sale are, therefore, to be considered and disposed of.
The facts can be fully ascertained by referring to the opinion of the chancellor, so that it is not necessary that they should be restated in detail. Only a few of them are important, in my judgment, and I shall, therefore, confine my attention to such of them as are deemed of that character.
The fee of the property mortgaged, and which was sold, was claimed by Mr. Larned as the receiver of the West Line Railroad Company. It consisted of a tract situated in Communipaw Cove, part of which had been reclaimed, the x’esidue being still under water. . In the foreclosure suit, this land was advertised for sale on the 27th of January, 1876; it was not sold until nearly three years'afterwards, the sale having been adjoui’ned from week to week. The sale finally took place on the 26th of December, 1878, there having been one hundred and fifty-three adjournments. These postponements had been made by the sheriff* of his own motion, the attorney-general, who represented The Trustees for the Support of Public Schools, who were the complainants in the fox-eclosure suit, being unawai’e of the course thus taken by the officer. The property brought, at this sale, the sum of $123,000, being struck oft* to the appellant, as the agent of the Easton and Amboy Railroad Company.
The reason of this prolonged delay in selling this pi’operty was, because the title was under a cloud. The receiver of the New Jersey Central Railroad Company, in behalf of that corporation, claimed these premises under an alleged paramount right, and, as it was obvious that such a eonteixtion impaired the marketable value of the property, the
It thus appears that the’ sheriff’s sale took place on the 26th of December, 1878. The deed was to be delivered on the 2d of the following January. On the 30th of December, the chancellor wrote a letter to the sheriff, stating that application had been made to him for time to bring in a petition to set aside this sale, on the ground of misapprehension as to the time of the sale on the part of some parties interested, and instructing the officer to defer the delivery of the deed for one week from the date of such communication.
It is this direction to the sheriff that forms the subject of tbe first exception taken in behalf of the appellant, to the proceedings in the court of chancery. The contention on this point was pressed with unwonted vehemence, the argument being that the course pursued in this particular by the chancellor was irregular and illegal; that the statute imposed the duty on the sheriff' to deliver a deed to the purchaser on the stipulated day; that the right to such deed was a right vested in the purchaser, of which he could not be depi’ived except by. due process of law, and that this letter to the sheriff cannot, in any just sense, be said to be such due process. But it is the opinion of this court that this contention is not supported by right, reason, or by any principle that regulates equitable procedures. It is true that a- purchaser at a sheriff’s sale acquires a vested, right, which is, like all other legal rights, indefeasible except by the operation of legal methods; but then one of such
Neither does it appear to this court that the subsequent order of the chancellor setting aside this sale, is inequitable. The conduct of the sheriff, almost of necessity, made the sale a surprise to the parties interested. Such conduct was irregular and unusual in the extreme. The attorney-general, who represented the complainants in the foreclosure suit, had instructed the sheriff to discontinue his adjournments, and, in disregard of such order, they were continued, and, to the surprise of the attorney-general, he was so informed just before the day of sale. But for such notification he would have been as much led astray with respect to these proceedings as it now appears the other parties were. There can be no doubt that, in point of law, the title of this purchaser, if allowed to stand in this case, would be good, and yet the sheriff, in making these adjournments, in defiance of his instructions, took upon himself an unusual and perilous responsibility, for he plainly rendered himself liable to amercement. But it is enough to say, in this case, that the course pursued by this officer was such as naturally had the effect of throwing the receiver, Mr. Larned, and the other parties interested, off their guard, and that, in point of fact, it appears that they were misled by it. The affidavits, also, satisfactorily show that there is just ground for believing that the property has not produced anything like its real value, and, under these circumstances, the question arises, Why éhould this sale be permitted to stand ? The principal reason ux'ged in favor of establishing the px’oceeding is, that Mr. Larned, the receiver, was culpably negligent ixx not ascertaiixing to a certainty whether the adjournments had been discontinued by the officer. But who would have imagined, after the lapse of neai'ly three years, that these continuances had been kept up all that time, week after week, in the private- office of the sheriff. It seems to me that it was entirely reasonable to conclude, as all the parties, including- the attorney-general himself,
It also appears that the order appealed from was made upon the most equitable grounds practicable, the rights of all parties being carefully protected. The installment paid by the purchaser, on his bid, was ordered to be returned to him, and a well-secured bond taken, guaranteeing that, on a resale, this property should produce the whole of the claim due and to grow due to the Trustees for the Support of Public Schools, principal, interest and costs.
This order should be affirmed, with costs.
Decree unanimously affirmed.