40 N.J. Eq. 451 | New York Court of Chancery | 1885
A bill was filed to foreclose a mortgage given by the defend-.ant Richard S. Jenkins. A final decree was taken and an exe
First. Because the property was struck off to the solicitor of' the complainant, and the report of sale made to Cohen, who did not bid. I think there is nothing substantial in this objection,, standing alone and unattended by any fraud. It does not occur to my mind that any of the circumstances shows a combination which could in anywise injure the defendant.
Second. Because it was given out at the sale that the property would be sold subject to taxes, besides interest and costs. The amount of taxes named as assessed against the property was $2,127.10, made up of the assessments for all the period from 1875 to 1884, inclusive. I cannot understand that the defendant suffered from what was said or done in this particular. The conduct of the master and of the complainants’ solicitor is susceptible of two constructions, possibly — a good and a bad one. They may have designed to impose upon bidders the impression that there were very large assessments against the property, and thereby hinder fair competition. If this were established by the-testimony I would be obliged to advise that the sale be not confirmed. But they may have intended to present all the facts to-bidders in order to prevent any imposition and to secure a fair-sale, which view I am bound to accept unless the testimony is quite conclusive to the contrary.
The presumption of law is that the conduct of the party complained of is honest and right until the contrary appears. The-complainants’ solicitor procured from the receiver of taxes a certificate of the taxes assessed against the defendant, and produced it at the sale, and from such certificate made the announcement of the assessments against the defendant on this property. This-certificate shows the assessment for each year. "Was it for am
Besides, it does not appear that any person was in any wise misled, or that any one hesitated or refused to bid because of any■■thing that was said or done respecting the taxes. This consid- ■ eration, I think, is very important, where an effort is made to have the court reject a judicial sale upon the ground of alleged fraud. I do not say what would be the duty of the court in case the fraud should be established, and it still appears to be doubtful whether the complaining party was injured or not, but where the presumption of honesty has not been overthrown, I think •the court is not only justified but obliged to take into account •■the fact that fair competition to the fullest extent was not interfered with.
I am referred to Bentley v. Heintze, 6 Stew. Eq. 405, as an authority sustaining the objections made to confirmation on the
Third. Because the advertisement of the sale described the-premises to be sold as lots, without mentioning the improvements upon them. I think this is not a good objection to confirmation.. If the price at which the lots were sold were grossly inadequate, then the want of a full description of the premises, besides courses- and distances, might properly be an element of consideration; but, until that fact is established, it seems to me it would be a. very dangerous doctrine to hold that a judicial sale is not lawful because the officer failed to describe all the improvements upon the land; for if it be a question of description, then the question, would inevitably follow, How describe and to what extent characterize this or that structure? and the courts would be involved, more extensively in determining whether the effort of their officers-at describing were successful or not, than, without such effort, in determining whether a sale was fair or not, by leaving all persons interested, including bidders, to judge of those things for themselves. It is conceded that the officer in this case has faithfully pursued the description of the property contained in the writ».
Fourth. Because the premises were advertised to be sold in lots and were really sold in the lump as one parcel. The master did not give notice that he would sell the premises in parcels. His language is “all the following-described town lots, tracts and pieces of land situate ” &c., then describing them by metes and bounds. The dwelling-house was upon oue lot. The defendant had purchased three other lots adjoining, one on each side, and one in the rear. These he had improved and adorned as part and parcel of his homestead, and in all respects treated the four as one. And that they should be offered as one and not in four different parcels, in the belief that there might be other gentlemen of similar tastes, it seems to me will not surprise any person disinterested. It is said that if Johnson v. Garrett, 1 C. E. Gr. 31, be followed, this sale cannot stand. Cases are only followed when they are very similar, or the analogy is so strong as to draw the mind inevitably after them. In that case the auditors were required to sell only so much of the debtor’s lands as w'oulcl be.
Fifth. Because the price realized was so grossly inadequate as to justify the court in refusing to confirm the sale. Under this branch of the case I must be guided by legislative enactment. The provision is—
“That no sale of mortgaged premises shall be confirmed by the court or further proceedings had until the court or such judge is satisfied by evidence that the property has been sold at the highest and best price the same would then bring in cash.” P. L. of 1880 p. 255.
My judgment, therefore, must be controlled by the evidence, which settles one way or the other the inquiry, Have the premises in question been sold for the highest and best price that the same would then bring in cash,? Upon this point affidavits have been submitted. Mr. Harned, on behalf of the defendants, bid $8,000, and intimated he was instructed not to go beyond that, which, although not conclusive, is of some value. The defendant Mr. Jenkins says that he paid $8,400 for the lot on which the building stands, in 1868 ; that he improved the lot at
On behalf of the complainant affidavits were also presented. Ex-Sheriff Calhoun, who has had very large opportunities to improve and ripen his judgment, says he would consider $10,000 an outside price at sheriff’s sale. Joseph Butcher, a contractor and builder, and the owner of real estate, says that $10,000 would be a fair price for the property at private sale, but refused ■to intimate its value at a forced sale, for cash. John C. Rogers, also a building contractor, says that $10,500 would be a fair price at private sale, but refuses to give an estimate of what it would probably bring at a forced cash-sale. Lewis B. Humphreys values it at $12,000 at private sale, and $10,000 as a fair price at a forced sale. D. Somers Risly, an owner and dealer in real estate, thinks it worth $10,000 at private sale and $8,500 at a sheriff’s sale. Jonathan Burr thinks $9,000 would be a fair price at a sheriff’s sale. Simon T. Reeigels says $10,000 would be a fair price at sheriff’s sale. Samuel Rudderow speaks to the same effect, while Mr. Reed says $9,500. These witnesses are not only men -of respectability but of large experience, and their testimony aids the court greatly. Taking their testimony as a whole, the highest and best price which could be obtained for this property at a forced sale, for cash, is about $9,500.
If to this $9,500 be added the amount which is admitted to be a prior lien for taxes and interest and costs thereon, in all over $1,300 — and it is plain that the premises were sold for the highest and best price which they would then bring — the requirements of the statute, to all intents, have been complied with, yet .the defendant, with great earnestness, insists that the premises will sell for more at a resale. But no one has offered more, and jqo pretence is made that any one can be produced who will offer more. This is important. Vanduyne v. Vanduyne, 1 C. E. Gr. 93.
I' will advise that the motion not to confirm the report of sale be denied, with costs, and that the report be in all things confirmed.