2 Paige Ch. 99 | New York Court of Chancery | 1830
By' the practico oí the English court of chancery it is almost a matter of course to .open the bid-dings on a master’s sale, before the confirmation of his report, upon the offer of a reasonable advance on the amount bid, andi the payment of the costs and expenses of' the purchaser. As a general rule, and advance of ten per cent, is sufficient to - authorize a re-sale. (Garston v. Edwards, 1 Sim. and Stu. 20.) But the biddings will not be opened where the amount of the advance is less than £40. (Farlow v. Wieldon, 4 Mad. Rep. 460.) . The English practice as to opening bid-dings has not been adopted in this state, and it is probably not' desirable., thát it should be introduced here. In Williams, v. Attleborough, (Turner’s Rep; 75,). Lord Eldon says, “ During a period of nearly half a .century which I have passed in this court, and in which Lord Apsley, Lord Thurlow, the Lords Commissioners, with" Lord' Loughborough .at. their head, then'Lord Loughborough as chancellor/ and after. him the Lords Commissioners,- with Chief Baron Eyre, at their head have presided here, I have heard one and all of them lament that the practice of opening biddings was ever intro
In Williamson v. Dale, (3 John. Ch. Rep. 292,) Chancellor Kent permitted a re-sale, on grounds which were certainly not stronger in favor of the application than those which are here presented. The property in this case is the sole dependance of two infant children, and has been sold for half its value to pay a debt a little less than the amount of the purchase money. The property was sacrificed, either through the misapprehension, or negligence, of their mother and step father. Immediately after they heard of the sale they made the application to the purchaser to let them redeem the property for the benefit of the infants, and they now offer an advance of more than one thousand dollars on the former bid. If the defendants were adults, and the property had been sacrificed by their own negligence or inattention, I should not disturb the sale ; and now it can only be done on condition that a full indemnity is offered to the former purchaser. The fact that he has agreed with the former tenant of the premises to rent the same to him for two years from May next, does not stand in the way of a re-sale. If it is a mere verbal agreement under which nothing has been done to change the rights of the parties, it is not valid under that provision of the
If, within ten days, the petitioners, or- any other person in their behalf, give sufficient surety to the Satisfaction of the" master, that the premises shall actually produce fifty per cent, advance upon a • re-sale, or if they deposit with the master . within - that time the fifty per cent, advance offered by them, he must put up the property again and re-sell the" same upon • such notice as he may, deem reasonable, not less than one week. .In that case the master is.to pay to the former purchaser, out of. the amount of such advance, the interest . of his deposit and of the whole purchase money which, he has kept on hand, together with all reasonable costs and. expenses which he" has paid or been subjected ■ to in opposing. this application, or in investigating the title. The property ■must also be sold, subject to any rights which the present tenant may have, under the alleged agreement with Turner.