Farnham v. Colton

A resale of property is more commonly ordered for the purpose of increasing the fund, for the payment of the debts of the mortgagor. In this case, though the property was sold for an inadequate price, yet it has finally gone for a meritorious object, to aid the payment of bona fide debts. There is no hope or expectation that the mortgaged premises wifi, upon a resale, pay a greater amount of debt than it has now actually done, by the arrangement with the Messrs. Darts. The Messrs. Darts have been vigilant, and secured their debt, an act of itself not unpraiseworthy; still they were junior incumbrancers to the petitioners, and if they or any person having an interest, have done any act wilfully to mislead, surprise, or defraud senior incumbrancers, ordinarily vigilant, they should not have the advantage of their vigilance; and a resale should be ordered. Upon looking over the papers and hearing the argument, I cannot bring myself to *37believe that the information communicated to the attorney for the petitioners, was such as should mis- , , J ™ . lead or surprise a vigilant creditor. 1 he arrangement spoken of as contemplated on the 19th Nov., was then indefinite, and it was not then known what shape it would take. It was left in that shape on that day, that a vigilant creditor, intending to secure his debt out of- the mortgaged premises, should at least have made some further inquiry in relation to it. The petitioners seem to have given the matter veiy little attention at the proper time; and it is not until after the sale that they look to the matter.

The application for a resale is denied, with costs to the opposing parties.

Note.—The decision in this cause was affirmed on appeal to the Chancellor.