De Peyster v. Hildreth

| New York Court of Chancery | Mar 2, 1847

The Chancellor.

The court is not authorized, upon this-application, to make an order to restrain the petitioners fromt taking a sheriff’s deed upon the sale under their judgment,. If any relief of that kind is necessary, the proper remedy of the' complainant will be to file a bill against them, after they shall have taken such sheriff’s deed, to remove the cloud which they have cast upon his title. Had the complainant’s bill been in the usual form, stating that Suydam, Sage & Co. had or claimed some interest in the mortgaged premises, as purchasers, mortgagees, or otherwise, which interests, if any, had accrued subsequent to the complainant’s mortgage and were subject thereto, the taking of the sheriff’s deed might cast a cloud upon the title of the purchaser under the decree. For the plaintiffs in the judgment not being parties to the foreclosure suit, and the fact that those who were made parties, and who became the purchasers at the sheriff’s - sale, were; the .assignees of the judgment, at .the-tizne of -the decree, not being-stated in. the .bill, it .might npt appear upon the- face. of the enrolled decree ..that the rights acquired by. them,, as .purchasers at .the,sheriff’s sale, were overreached and cut .off by the decree, and.by-the master’s.sale, made-in pursuance of such decree.:. Here,-hpwever, it appears .front the bill itself, that the .defendants S.uydam, S.age dp, Co. were the assignees of the.Coolc judgment when .this. foreclosum-suit was commenced.: And the.decree declares, that the defendants ,in. the suit, and, all persons, claimmg.unde.r them,,or any,of them, subsequent. - to ,the commencement, thereof, shall be. barred, of all equity-of redemption or other claim to the premises sold by - the,master.. The .recording-of the master’s deed, therefore, is constructive notice to all .subsequent purchasers,from.any. of the parties.to .the .de.cree, that,the, rights which, suph. .parties had in, of. the. liens - which they hadt-upon, the mortgaged premises, at the time of the decree,. wer.e cut off and extinguished by the master’s sale.

The affidavits on the part of these applicants, as to the value of the mortgaged premises, if they related to its actual value at the time of the master’s sale, would-, of themselves.be sufficient to defeat this application. For if the actual cash value was sufficient, to pay both-the judgment, and the. amount due upon the complainant’s decree, the proper remedy of-Suydam, Sage & Co. was to .have attended ,the sale and- bid ;up the .property to.a sum sufficient, to . pay the decree,- and-the amount of then-bid at the sheriff’s sale,: with interest thereon. No court, in.the exercise; of ;a sound discretion, .ever set-aside .a. regular, decree of foreclosure and sale, for, the mere -purpose of giving a.defendant a nominal priority, in payment, out. of the proceeds of the sale .of the. mortgaged-,premises:; when the. papers onwhich-his application was .-.founded, .showed, that- .the., cash. value, of. the .property was such that. it. was. wholly immaterial, -which party was, entitled to priority.- It is true,, these applicants cannot now obtain the property by. paying-the amount due to .the complain-, ant, with interest and- costs. But,no. reason whatever is shown why,-they-did,mot attend- the...sale and-bid in,the , premises, if. théy reklly" believed thé vaítíé of thé'pfoperiy’Vas" wtiUfttiey^ have gotten others tó' Wé'áí -the"" - píéíriisés 'aíé, now' worthy antf thefébyfeávéthe’ambunthf théir'jud^éñúand'iáterest:

Again; it is-'oiit of thé usual coúi'se' of plUéticé to máfcé the same application for relief a sécbifii-tíhW; where • the "first mb tion orpétition has been deniedmpohthWnfoHfs, 'wiíhoütreséfi vitig to' the applicant the" right * tó' réñew thé sainé'/ That," howévér, would not^hhUe'héén' an 'ih’shpUiablfe'objection to the piéseáí motion; if the' applicants had ‘in‘faCtmade oiif a new caseehtitíiiig them to relifefj But they’ havé" not 'niMé usé of' due''diligence; in mkfcing-their renewed"appHcati'óíi; aftér they heard' of thé'decisiofokgainst" thein upon the'fifst: Thé’mbft-" gágéd premises- wérésdld by"' the mkstef as early’ aá thb12tn of September; aúdthb decision '"upon the former application' Was ■ made' éátiy m'October.’ Thfe'clerk'of th'éii own'ccmnséí sWékrslie -sáw'a státemént ofthb’Uécisfon'puBíisliM, and in-" formed Mr.Sagéofit, as soon as the "‘first of NoVémheiv And the’ order of the cóüfÉ whs actually received by 'théir solicit!or bit tbdTGth' of thkimtitith? They Tradahiplé' thtie,' therefore, "’to renew their application mi the firet Tuesday‘of Jáhuái'y. Andy withiéasoíiáble’cliiigencé; they might hávé mddé théir motion on' the first Tuesday of " December; if they had' attended' tb it" immediately after théy wéire mforttiédUf thé'decisioh!" By their neglect tb do soy a boná fide" ptilbHaseiy whirhkk hot" had' ndtidé' of this appliciationi/hks become thhbUénéTbffeBbUt‘20O’acrésbfthe mortgaged premises."' And the" 'décreé' aM" 'master’s' sale cannot ndw'be openedVithtítí'foaténaHyaífoótitig his rights "as StibK purchaser^ aS’the mástéfs sáfe, whích'WaS’ éhtife,' cáttnot'he'sét aside m'partyutidéfhtié'birC^^ of this basé/’ Dór thésé reasons," I ShbUliíbébbligédtd deny this ápplícátióh’yeven if the mmtsbf thé case’w'éiéhVith'thé'applicktity. •

Blit" there is "no'thffig'nv thb -niSfitd of the" cáse, as nowpie-sentédfto indtiCéúné'to chanté ttib ophtibh® which "'I bípreásed" upon the former application. Indeed thé’papéxS ndw béfdre mb'" make out a nihch/ "stronger" cáse of equity "in’favor' of thébomplainant’s retaining the priority acquired by his decree, than was presented at that time. I am now satisfied that if Suydam, Sage & Co. had proceeded with the execution which was in the hands of the sheriff, upon their judgment, at the time of the giving of the complainant’s mortgage, the whole amount of that execution would have been realized by them, without resorting to the land mortgaged to the complainant; or to the land previously mortgaged to Suydam, Sage & Co., to secure their advances and acceptances for the Hildreths. They, too, were aware of the existence of the complainant’s mortgage, and that his solicitor expected the judgment was to be paid out of other property, upon which it was a lien. Under such circumstances it was inequitable, as to the complainant, for them to consent to withdraw the execution from the hands of the sheriff; so as to discharge the personal estate which the defendants in the judgment had at the time of issuing that execution, and to leave their judgment to be satisfied out of the real estate which they knew had, before that time, been mortgaged to the complainant. That they were ignorant that an execution had been issued upon the assigned judgment, at the time they issued their second execution thereon, in August, 1844, might have been some excuse for the issuing of the last execution. But as they show that there was then no personal property which was not fully covered by other executions, there was no excuse for withdrawing the first execution, after they were aware of its existence; and thereby discharging the only personal property upon which either execution was a lien.

The complainant’s equity to be paid out of the proceeds of the mortgaged premises, is therefore greater than that of Suydam, Sage & Co.; who have lost the opportunity to have their judgment satisfied, out of other property of their judgment debtors, by their own acts, and by then negligence. And the complainant having obtained a decree, whereby he has secured to himself the legal right to priority of payment, the court ought not to interfere to deprive him of it. (Burchard v. Phillips and others, 11 Paige's Rep. 66.)

This application must be denied with costs to be taxed.