Bodine v. Edwards

This is an application for the resale of mortgaged premises under a decree in a foreclosure suit. The application is made by the defendant O. Edwards, who is personally liable for the deficiency upon the sale but who has no interest in the mortgaged premises. He has therefore no right to ask for a resale, if he and the representatives of his surety are discharged from liability for the deficiency to the extent of the full value of the premises over and above the amount bid at the former sale. The order obtained from the vice chancellor being a nullity, as he had no jurisdiction in a case pending before the chancellor, the sale was regular. And the party who had obtained the void order to stay proceedings cannot complain that he relied upon the validity of that order, and that the sale should be set aside upon the ground of surprise. It is evident however that the property was actually worth more than the amount of tho bid, if the purchaser under this decree will obtain a perfect title to the whole premises. But if the petitioner is right in supposing that the title is defective, then the purchasers at the master’s sale probably bid as much for such defective title to tho promises as the interestjwhich they will acquire under the decree is actually worth ; and there is no ground for setting the sale aside for inadequacy of consideration.

The complainants however offer to relieve O. Edwards and the representatives of the estate of Varick from personal liability for the deficiency, to the extent of $10,000 beyond the amount of their bid. This to the applicant is tantamount to a bid of $20,000 upon the property, which I am satisfied is more than the premises are worth in cash at the present time, even if the title'under the foreclosure would bo perfect in the purchaser. If the complainants, therefore, or their solicitor, shall within ten days after service of a copy of the order to be entered on this application, stipulate to release O. *47Edwards and the heirs and personal representatives of Varick from $10,000 of the deficiency reported due by the master, so as to leave them only liable for the residue of such deficiency, hut not so as to admit the actual receipt of the money so as, to render themselves liable upon their covenants in the deed, if the title should prove defective, or to render them liable for that $10,000 or any part of it, to the heirs or devisees of Bo>-dine, as for money had and received for their use, then the order to shew cause in this case is to be discharged. But if the complainants neglect to give such stipulation, the master is to offer the premises for sale a second time at a sum or price not less than $12,000, upon a notice of six weeks to be published in a newspaper in New-York. But if no one bids and actually pays down upon such resale the said sun) of $12,000, the former sale to stand confirmed.

The order to be without prejudice to the rights of the parties under the arrangement made at the hearing of this application as to the present possession of the premises. And in case of a resale, the costs of the complainants in opposing this application to be paid out of the proceeds of such resale. But in case the former sale stands, either under the complainr ant’s stipulation or for want of a purchaser at the price at which the premises are directed to be set up, then the petitioner Ogden Edwards is to pay the costs of the complainants in opposing this application and the costs of advertising and reselling, to be taxed. •