In re the Assignment of Rider

30 N.Y. Sup. Ct. 91

• Court: New York Supreme Court
• Decided: November 15, 1880
• Status: Published

Opinion

By tiie Court :

First. The respondent insists that this order is not appealable, and cites several cases in the Court of Appeals. But those cases do not apply. There are many orders which cannot be ajipealed to that court, which may be appealed to this court from a Special Term. And the same is true of orders of the County Court, (Code Civ. Pro., § 1342; see .L. 1878, ch. 318, § 6, amending L. 1877, ch. 466.) It is true that this court will not review certain orders which rest solely in discretion and affect no rights. But the present order is not of that kind. It affects a substantial right; for it takes away the real estate of Ashley, the appellant, more effectively than would a judgment in ejectment. We do not doubt that the order is appealable.

Second. This is the more evident because, in our judgment, the County Court had no power to make such an order. Judicial sales are such as are made by the authority of a court. Over such sales, as a general rule, the court which makes them has control. The act of the officer wffio makes them often requires, and probably is always subject to, the approval of the court which confers his power. But the sale mode by this assignee was not a judicial sale. He sold by virtu» sis power in trust; and the purchaser obtained the title of the original owner through that power. It was said, on the argument, that a court of equity exercises, over sales by trustees of express trusts, such a summary power as was exercised by the County Court in this case. ~VV e are not aware of any such power. Undoubtedly a court of equity would have jurisdiction of a regular action, brought to set aside a fraudulent sale made by the trustee of an express trust in collusion with a purchaser. But that is not the present case. Here the County Court has set aside, on motion, a sale made by an assignee for the benefit of creditors, on the ground that a better price can be obtained. The County Court has, in short, exercised the power which it would have had over a judicial sale made by its officer. "We see nothing in the statute (L. 1877, cli. 4GG, § 25, amended by L. 1878, ch. 318) giving such a power. Yery possibly, on the accounting of the assignee, the County Court can charge him for loss to the estate by wrong-doing in making the sale, if any such wrong-doing existed. But the purchaser has acquired a title to the land, not by the authority of the County Court, but by the powror of sale in the assignment. The County Court cannot deprive him of this title by any such order as was made in this ease.

Third. But, passing the question of jurisdiction, the order should not have been made, even if this had been the case of a judicial sale. Some ten months had elapsed since the sale; during all which the assignor, who now applies for the order, had full knowledge of the facts. lie was present at the sale, and subsequently surrendered possession to the purchaser. lie is guilty of laches.

Again, there is nothing to show that the purchaser did not act in perfect good faith. He has gone upon the property and has made improvements thereon; and at this length of time it might be difficult to compensate him for the injury which he would suffer by having his land taken from him and by being compelled to remove therefrom.

Again, since the sale, the value of the land may have risen. This is probable, both from the making of this motion, and from the increased prosperity of the country. To that increase the purchaser is entitled.

Again, the price which the assignor claims may be obtained is not a sufficient increase over the price at the former sale to justify the order.' When to the purchase price we add the judgment on the premises which the purchaser was obliged to discharge; the improvements whieli he has put on the property ; the expense of a re-sale; the costs of this motion ; the expenses which will be caused to the purchaser by taking away his land at this time; the interest which be has paid on the mortgage ; even if we deduct therefrom whatever profits it shall appear that he has received, we shall find that the probable benefits to be derived from a re-sale is not enougli to make such a re-sale expedient, under the practice of a court of equity on this subject.

And it must further be observed, that it is for the public good that such sales as this, where no fraud is charged on the purchaser, should not be readily set aside. Men would be reluctant to bid at such a sale (especially where the property sold was a farm), if a purchase, made in good faith, might be set aside, after a year’s possession and enjoyment, and the expenditure of labor and money, on the ground that the farm did not sell for its full value. Men often attend such sales in the hope of making a good bargain; and they may rightfully do so, when there is no fraud, and the salo is conducted fairly. This hope is valuable, to induce men to attend, and thus to produce competition. And, therefore, the court should be careful to do nothing which would deter, in the future, attendance and competition at similar sales. Great benefit in the particular ease must he shown, in order to justify the harm which may he done in the case of other sales.

The order should be reversed, with $10 costs, and printing disbursements, and the motion for a re-sale denied, with $10 costs.

Present — Learned, P. J., Boardman and Bookes, JJ.

Order reversed, with $10 costs, and disbursements, and motion for re-sale denied, with $10 costs.