34 N.J. Eq. 429 | New York Court of Chancery | 1881
The petitioner, Selden T. Scranton, seeks to set aside the-sheriff’s sale of certain tracts of land sold under the execution in this cause, and to that end has, under Rule W8, filed objections to the confirmation of the sales, except as to one tract, which, though it was, as he insists, sold for far less than its value, he is willing to let go, seeing that the purchaser is a large creditor of his, and has dealt with him kindly. The tracts in question are-
To dispose of the objection on the ground of Avant of interest: The petitioner is a party to the suit, and, under his assignment for the benefit of his creditors, has such an interest in the sale of the property as gives him a right to be heard. He is entitled to any surplus of his property assigned that may remain after the payment of his debts; and on payment of his debts before administration of his estate by the assignee, he would be entitled to a re-assignment of his property.
The objections to the sales, however, are not such as to warrant
In this connection, it may be stated as a significant fact that the property sold to Pardee, which the petitioner values at about $50,000, was struck off to him at $26,710, subject to an encumbrance of $5,600. Before the passage of the act “concerning proceedings on bonds and mortgages given for the same indebtedness, and the foreclosure and sale of mortgaged • premises thereunder” (P. L. of 1880 p. £55), it had been repeatedly held in this court that it would not interfere with a sale under its decree, on the ground of mere inadequacy of price, unless the price was so inadequate that the court might infer fraud from the inadequacy. Eberhart v. Gilchrist, 3 Stock. 167, 170. And the English practice of opening biddings had not been adopted by our courts, because its tendency was considered prejudicial to judicial sales. Conover v. Walling, 2 McCart. 173, 178, 179. It is urged, however, that the act of 1880, above referred to, has introduced a practice as to sales under foreclosure akin to
But further, the amount due the complainant on the execution, at the time of sale, was about $400,000, and on the Deats lot there was a first mortgage, on which, at that time, there was
The. petitioner made no defence at all in the suit. For obvious reasons, he cannot obtain relief in this proceeding on the ground that, in equity, he is entitled to have the principal security exhausted before recourse is had to his mortgage. The petition will be dismissed, and the sale confirmed, with costs.