25 How. Pr. 403 | N.Y. Sup. Ct. | 1862
The defendants have, I think, a sufficient interest in the questions involved, to entitle them to make the motion decided at special term.
1. On the ground of irregularity or illegality in not selling the premises in parcels.
2. On the ground of a fraudulent combination between bidders, affecting the sale.
3. On the ground of surprise and disappointment in regard to the proceedings at the sale.
4. On the ground of inadequacy of price and a well-founded expectation of realizing a considerable advance •upon the sum bid.
1. The first ground of the motion must fail. The premises do not really consist of distinct parcels of land, but of a single property, bought together, and, so far as we know, always controlled by a single person—all lying together contiguous and adjoining, and no part in any wise separated from another part. It is a case where it was in the sound discretion of the referee to sell together or in parcels, (Rule 74;) and that discretion has been carefully and honestly exercised. And it is by no means clear that the property would sell for more in the aggregate, if sold in separate parcels, than in bulk—especially if such parcels were to be made, (as is claimed by the moving parties,) not according to the occupancy of distinct portions of the premises by different persons, but by some new and arbitrary line to be fixed by the referee. The mortgagor, having assented to the sale in one parcel, ought not to be heard, I think, now to object to- it; and none of the other moving parties having, previous to the sale, requested a sale in parcels, ought to be permitted to object to a sale in bulk, unless a sale in that mode be (as I think it is not) plainly illegal.
2. The fraudulent agreement alleged to have tieen made between the mortgagor, John L. Rowe, and the plaintiff, David A. Whitbeck, that the latter should purchase the whole premises at the sale, and then convey the dock por
3. If there was no agreement of the character supposed, and no conversation which justified an impression or expectation on the part of the Rowes or Pierce that such
4. It is quite certain that mere inadequacy of price, unless it be so gross as of itself to justify a suspicion of fraud, surprise or mistake, is not, standing alone, ground for the interference of the court. Parties desiring to purchase must be vigilant as well as honest—must not allow themselves to be too easily misled, or thrown off their guard even innocently, by circumstances, unless intentional deception be practiced. We have no rule of equity which permits us to set aside a sale in the absence of fraud, misconduct, surprise or well-grounded misapprehension, simply because a higher price can be reasonably anticipated on a resale of the premises—however just in theory such a rule might appear to be, if the advance in price were marked and decided.
On the whole, I am satisfied with the decision of the special term, and think that the order should be affirmed, with $10 costs of appeal.