Lawrence v. Cornell

4 Johns. Ch. 542 | New York Court of Chancery | 1820

The Chancellor.

The facts stated in the petition and report, remain uncontradicted. The premises, at the time of the sale, were represented “ to be free and clear from all incumbrances;” and the Master’s report contains no allegation to the contrary. It, likewise, contains the evidence of the fact of such incumbrances; and the certificates show that the evidence of them came to the Master’s knowledge since the sale. The purchaser ought not to be held to his purchase, under these circumstances; and we must intend that the lot was sold, and was purchased with the understanding, that the title was clear, and the price bid is to be taken as a fair and adequate consideration for the premises, free from incumbrances. It is, therefore, just, and for the interest of all parties, that the purchaser, or the Master for him, should be at liberty to apply part of the purchase money in discharge of the incumbrances. Stretton’s case, (1 Vesey,jun. 266.) though rather an imperfect and unsatisfactory note, contains authority for this direction, as we have here, what was wanted in that case, the Master’s report of the incumbrances.

I shall, accordingly, direct, that the Master, out of the proceeds of the sale, redeem the mortgaged premises from Richardson, and, also, discharge the lien of the other tax, upon the terms by which they are, by law, redeemable, and that he bring the residue of the purchase money into Court, to abide its order.

Order accordingly.