Lawrence v. Murray

3 Paige Ch. 400 | New York Court of Chancery | 1831

The Chancellor.

There is no valid objection to the form in which the question, in this case, ivas brought before the vice chancellor. The master’s report of the sale, and as to the payment of the proceeds, is always made up and filed by him without giving the parties any opportunity to present objections to the draft of the report. A party may therefore apply to the court, in the first instance, to correct any error which has been made in paying over the proceeds of the sale.

Where a party contracts with his debtor for the payment of a sum in gross, with interest, the debtor cannot compel him to receive a part of his debt, leaving the residue unpaid. But when the creditor seeks to enforce payment of his debt through the medium of the officers of courts, as soon as any part of the debt is collected under the order or process of the court it is a payment, pro tanto, and interest cannot afterwards be collected upon the amount thus received by the officer of the court. Upon a sale -by the master, under a decree, the money should be paid over without delay to the parties entitled thereto ; and if the mortgagee suffers it to remain in the hands of the master, he cannot be allowed his interest, to be paid out of the surplus proceeds which belong to other persons. If the master neglects to pay over the money as directed by the order of the court, the interest should be charged upon him personally. In this case, if the complainant was unwilling to receive the $8,700 raised upon the sale of the first lot, until the whole amount was collected, he should have stated that fact at the time, and should not have consented to the adjournment of the sale, without any intimation of his intention to claim interest on the whole during the time the sale was delayed. The objection that the interest on the complainant’s costs should have been deducted, was. not made before the vice chancellor; arid there is nothing in the papers which were before him, to show that the solicitor had delivered a copy of his taxed bill of costs to the master, so as to entitle himself to the payment of his costs previous to the last sale. As the property was sold subject to the right of the tenants to occupy it for a particular period, the presumption is that the purchaser paid a less sum therefor than he would have done if the possession had been delivered immediately. The fact that the defendants continued in possession under that reservation, therefore, furnishes no reason ibr charging them with interest on the amount which was raised by the sale.

The decision of the vice chancellor must be affirmed, with costs; and the proceedings are to be remitted, so that Ms order may be carried into effect„