15 Abb. Pr. 259 | N.Y. Sup. Ct. | 1862
In the Ontario Bank a. Lansing (2 Wend., 260), on the sale of the property under a fi.fa., the-plaintiff inadvertently bid a sum less than the amount of his execution, and the sale on his application was set aside. Again in Mulks a. Allen (12 Ib., 253), the plaintiff and deputy sheriff, were deceived, as to the locality of the property, by the representations of the defendant; in consequence of which the plaintiff bid $800 for it, when it was not worth more than $150; it was struck off to him, and on motion a resale was ordered. There are other cases, no doubt, in which the court refused to interfere, either on the ground that junior judgment-creditors had acquired rights, or that a court of equity was the proper tribunal to grant relief. But neither of these grounds apply to the present case. It resembles the case of Hulks a. Allen, where the purchaser was deceived by the representations of the-defendant as to the locality. Here the purchaser was deceived, to be sure, by the misrepresentations of the plaintiff’s attorney;; but the misrepresentations were equally mischievous in the one case as in the other. They induced the purchaser to do what he otherwise would not have done. The purchaser in Hulks Allen was not obliged to rely on the misrepresentations any more than in this case; he could have obtained correct knowledge as tó the locality of the property by further inquiry; but still the court relieved him from the purchase.
As to the objection that the person making this application is not a party to the actions in which the executions were issued, if it is at all proper to consider that objection now, I think it should not be sustained. Parties, other than parties to suits, are frequently allowed to address themselves to the equitable consideration of courts of law; as, for instance, judgment-creditors in other actions against the same defendants, on motions-to set aside fraudulent judgments. Besides, in analogy to applications like the present, in foreclosure and partition suits in courts of equity, there is no reason why a person, not a party.
The order of the special term should be affirmed, with costs.
Baehaed, J., concurred.
Ingbaham, P. J., dissented.
