33 A.D. 611 | N.Y. App. Div. | 1898
It is not necessary that the judgment of foreclosure should be amended. The plaintiff was entitled to have the interest of the mortgagor, little or great, in the mortgaged premises, sold toward the satisfaction of his debt. A purchaser at a judicial sale, who has . knowledge of the defects in the title to the .property which he has contracted to buy, should not be released from his contract for those defects; but it does not follow that because a purchaser has knowledge of one or more infirmities in the title offered, he is obliged to submit to every other defect in title to which the property may be subject. When property, to which a perfect' title cannot be given, is made the subject of a judicial sale, it is requisite that the bidders should be fairly apprised of the nature and extent of the title to be acquired, or given notice that they themselves must inquire into the state of the title and take it entirely at their own risk. The court at Special Term has found, oh conflicting affidavits, that the purchaser was not fairly apprised of the character of the title he would obtain by the sale under the judgment. This justified the order releasing him. It may be that the plaintiff’s attorney did give some general notice in the auction room concerning the character of the title sold, but this was repudiated by the auctioneer who conducted the sale. Ho. proof of the authority of the person making the announcement was given to the bidders. It cannot be possible that proposed purchasers must be bound by every declaration of unauthorized persons made in the auction room. The conditions of sale and the character of the title sold should be announced by the auctioneer or sheriff, and the purchaser has the right to rely on such announcement, When the sheriff refused the plaintiff’s request to announce the defective character of the title to the mortgaged premises, the plaintiff should have applied to the court for direction to its officer. This case is to be distinguished from Stephens v. Humphryes (73 Hun, 199). There a full written notice prepared by the plaintiff’s attorney was publicly read at the sale, and the statements made therein were not repudiated, but apparently acquiesced in by the referee. Therefore, in that case, the purchaser was fairly
The order should be affirmed, with ten dollars costs and disbursements.
All concurred; Goodrich, P. J., in result.
Orders affirmed, with ten dollars costs in one case, and disbursements in both.
