Blanco v. Foote

By the Court,

We have not been furnished with any opinion of the justice by whom this action was tried at special term, nor have the grounds on which his decision was rendered, been stated. In my opinion, the judgment, as against these appellants, cannot be sustained, for the following reasons: First. The plaintiff by his inchoate purchase of the premises in question, (having made the highest bid for them at sheriff’s sale under judgment of foreclosure, paid 10 per cent of the sum bidden, and signed a memorandum of purchase,) acquired no such right to or interest in said premises, as entitled him to maintain this *539action, against the defendants Foote, for foreclosure of the lien which they were supposed to have on the premises by virtue of their judgment against Harris. This plaintiff might have refused to take the sheriff's deed, for the reason that the title was defective, if the judgment of these defendants was a valid lien, and the plaintiff in the foreclosure suit might then have taken such action as was necessary to perfect the title; but no mere purchaser at sheriff's sale, before completing his purchase and talcing title, can, in my judgment, maintain an action in relation to the premises sold, against any person not a party to the suit in which the judgment for foreclosure was rendered. What rights he may have, or what action he might take as against the parties to the suit for foreclosure, it is not now necessary to inquire.

Second. If the plaintiff had completed his purchase, paid the whole purchase money and taken his deed, or had (as he supposed and insists) the right to maintain this action before completing, he would- not, in my opinion, be entitled to the judgment against the defendants Foote which has been rendered in this case. He might have obtained a judgment that said defendants redeem the premises from his purchase within a specified time or be foreclosed; or declaring that their alleged judgment was not a lien on the premises, but only a cloud on his title thereto, if the facts alleged and proved warranted such judgment; but the judgment at special term, in effect, admits, that the defendants Foote had a valid lien on the premises, and forecloses and cuts off that lien by affirming and declaring valid against them a judgment in an action to which they were not parties, and a sale under that judgment, of which sale, so far as now appears, they had no notice, without giving them any right to redeem, or opportunity to purchase the premises, or procure them to be purchased by another party, for any amount greater than that bidden by the plaintiff therefor.

In my opinion this judgment, as against the defendants *540Theodore G. Foote and Daniel D. Foote, (who alone have appealed,) should he reversed, and the complaint as against them he dismissed with costs.

Sutherland, Allen and Bonney, Justices.]

Judgment accordingly.