Goelet v. Lansing

6 Johns. Ch. 75 | New York Court of Chancery | 1822

The Chancellor.

The 35th rule has in practice, as I have been informed, been applied only to process of execution sub pede sigilli, and not to decretal sales of mortgaged premises made without process of execution; and the special direction for the sale, in all such decrees, (and which was also contained in the decree in this case,) seems to have been considered as dispensing with so much of the 35th rule as requires a previous enrolment of the decree. The Court of Chancery in England will, on special application, grant an order- for “ a short writ of execution,” without waiting for the enrolment. (Newland’s Pr. 194.) The decrees for sale of mortgaged premises may be somewhat analogous to these short writs of execution; and there is certainly ground for doubt, whether the provision in the 35th rule is not, in such cases, superseded.

But if this be not so, (and it is not necessary, at present, to decide on this point,) yet the enrolment being now made and perfected, it will have relation back to the time of the decree, and protect the intermediate sale. The enrolment was mere matter of form ; and the doctrine of relation is benign and just, in its application in this case, since it tends to protect a fair sale, and the title of the purchaser, in favour of right, against a mere technical formality. The enrolment, said Lord Camden, (3 Bro. 643.) relates back to the time of the decree, nunc pro tunc, and it is the same thing as if it had been done at the time, to all intents and purposes. “ It is very immaterial to any real purpose, for the parties have a right not only to carry the decree into execution, but to appeal to the House of Lords without it.”

The attempt to set aside the sale is contrary to the spirit and equity of the agreement entered of record on the 17th of February,. 1821. The defendant, by agreeing to the sale in June, and by stipulating to make no opposition to it, and to file no further appeal, and that the sale might proceed peremptorily, has certainly waived the benefit of any such formal objection to defeat it. It is somewhat extraordinary, that the defendant should, in consideration of time and delay afforded him, solemnly stipulate to make no opposition to the sale, and now, after he had obtained his time, attempt to set it aside, nine months after it had been made, upon the pretext that the decree had not been enrolled until after the sale. It is not a very equitable interpretation of his agreement.

Motion denied, with costs.