93 N.J. Eq. 167 | N.J. | 1921
The opinion of the court was delivered by
This is an appeal from an order of Vice-Chancellor Learning refusing confirmation of a foreclosure sale a-nd directing a resale of the mortgaged premises. The facts appearing in the record are that the complainant held a mortgage given by the defendant on a portion of his real estate on which, with interest, there was due $14,250. There ivas als-o a second mortgage given to another person on the premises for $20,000 which had been assigned as collateral security to the Integrity Trust Company. The sheriff of Gloucester county, as directed by the execution, issued according to the decree of foreclosure, sold the property to one Oscar B. Redrow, the owner of the decree, for $7,200, and reported to the chancellor the sale as required by statute, and it is this sale which the vice-chancellor refused to confirm. The purchaser assigned his bid, and the mortgagee assigned the mortgage and decree to the New Jersey Housing and Contracting Company, which paid the complainant the full amount due on the decree.
During the foreclosure proceedings the mortgagor was adjudicated a bankrupt, and the complainant, agreed to, and did,
It is next urged in support of the order appealed from that when the property was offered for sale it. was announced by complainant and the sheriff that no machinery was to be included in the sale. The affidavits of three persons who were present at the sale support that statement. This is denied under oath by the sheriff, the solicitor, and by four other persons who were present at the sale and interested in it, and they all testify that no such statement was made, and the preponderance of the evidence sustains this denial. The refusal to confirm the sale seems to be entirely in the interest of the second mortgagee, who had ample opportunity to attend the sale and bid the amount of complainant’s decree, because the amount of the two mortgages equals the offer to the trustee in bankruptcy and he will not realize one penny for the other creditors from the offer, which includes much property not subject to the mortgages. In addition to this it does not appear what the interest of the Integrity Trust Company was subject to which the intended offer was made, but, assuming that it was the full amount of the second mortgage, the holder of it had full opportunity to attend the sale and bid.
Tt is also urged that the housing company, the present holder of the decree, lias threatened to present a claim to the trustee in bankruptcy for the deficiency between the amount bid and the complainant’s decree. This is not pertinent to the present controversy, but if it should he presented it would have to be made
The order refusing confirmation and directing a resale is reversed and the record remitted to the court of chancery that the ' sheriff's sale be confirmed.