16 How. Pr. 417 | N.Y. Sup. Ct. | 1858
Under orders of reference in cases like this, aside from computing the amount due on the mortgage, the first duty of the referee is to ascertain whether the mortgaged premises are so situated that they can be sold in parcels, without injury to the interests of the parties. (Sec. 164 of article 6, chap. 1, part 3 of the Revised Statutes.)
This provision of the statute relates entirely to the material condition of the mortgaged property. If the referee finds that the property cannot be sold in parcels, as he would be bound to do, in cases where it is indivisible for use or enjoyment, as in the case of a mill, a store, a dwelling-house or a farm, or single piece of property, whose value consisted in keeping it together in its unity or entirety, such finding will practically
But if he finds that the mortgaged premises consist of a large tract of land, he will then inquire whether such tract can be subdivided and sold in distinct parcels without impairing its aggregate value, and if so in what parcels, or whether the premises are so situated that the sale of the whole in one parcel will be most beneficial to the parties. So far as the duty of the referee is concerned, under this branch of the order of reference, the inquiry is simply how can the mortgaged premises be sold so as to realize therefrom the greatest amount of money ? The statute, (Sec. 165 of the act aforesaid,) can have no other meaning. A sale of the whole premises in one parcel can only be most beneficial to the parties, when the mortgagee will receive, and the mortgagor pay from the sale thereof the largest amount of the mortgage debt and leave the largest surplus after payment of the whole debt. The benefit mentioned and intended by the statute, is a benefit common to both parties in this single respect. Nothing is referred to a referee under these orders of reference except the questions relating exclusively to the material situation of the mortgaged premises, and how the same can be most advantageously sold, having reference to its condition, the demand for such property, and its relative value and saleableness in the market in the locality where it is situated. The report of the referee is but part of the evidence before the court, and upon which it is called upon to decide whether it will or will not be most beneficial to the parties to decree a sale of the whole premises in one parcel in the first instance. The court will look to the pleadings, and will receive other evidence in its discretion, and will consider any stipulations offered, and admissions of the parties, or of other persons presented to it on the hearing.
The referee in this case finds that the mortgaged premises
If the amount secured by the bond and mortgage in this ease was all due, I cannot think that any court would be warranted in decreeing a sale of the whole premises in. one parcel under the proofs before the referee.
But it appears that there is secured by this mortgage, and remaining unpaid to the plaintiff thereon, the sum of $35,920, of which only the sum of $2,592.08 is now due and payable. The residue being payable in instalments, running through a period of about fourteen years from its date. The property was obviously purchased and sold with the view to the resale of the same by the defendants in small parcels for city lots, for the plaintiff bound himself to receive in payment bonds- and mortgages upon small parcels of said land, not to be for a smaller sum than $200 each, nor having over fourteen years to run, and to execute releases of the property sold.
From this source, it was doubtless expected that the mortgage debt was to be paid. In view of these facts, it is impossible to say that these lands cannot be sold in parcels so far as relates to the situation and use of the property. The difficulty, if any, lies in the want of demand for the land in such parcels, or a demand to such an extent as will make it the duty of the court to require the same to be so sold. All the plaintiff is entitled to is to receive his pay upon the mortgage in cash, as the
These facts, in connection with the fact that the plaintiff now
The defendants present, it is true, some offers to purchase particular parcels, but these should have been made to the referee, so that he might have inquired whether the persons making such offers were responsible persons, and whether the land proposed to be purchased by them, could properly he separated and sold within the principles above stated; which I think so improbable that I do not think it expedient to send down the case to the referee for further examination.
The exceptions to the report of the referee must, therefore, be disallowed, and the said report confirmed, and a decree for the sale of the whole premises in one parcel be made accordingly.
Decree accordingly.