Lansing v. M'Pherson

3 Johns. Ch. 424, 1818 N.Y. LEXIS 205, 1818 N.Y. Misc. LEXIS 24

• Court: New York Court of Chancery
• Decided: August 31, 1818
• Status: Published

Opinion

The Chancellor.

The defendant, M-Pherson, applies for two things; 1. that the decree taken pro confesso against him be set aside, on the ground of misapprehension, and that he has a good and substantial defence in respect to the claim against him for any deficiency which may arise on the sale, of the mortgaged premises; 2. that the sale be opened upon the terms he proposes.

As to the first point, the delay has been too long to justify the indulgence, without a very special case made; There must be strong ground, as Lord Eldm observed, in Knight v. Young, (2 Vesey and Bea. 184.) for opening a decree of this sort. The defendant ought to have stated the nature erf his defence, for the plaintiff produces his very engagement to supply the deficiency endorsed upon the mortgage when he assigned it. This part of the motion must be denied.

But I think the sale can be opened without any inconvenience or injury in this case; and justice would seem to require it, especially in favour of a defendant who Offers to give fifty per cent, in advance of the purchase money, and who is bound to supply the remainder of this debt unsatisfied by the sale. The plaintiff was here the purchaser, and the sale has not been confirmed, nor the deed executed.

Sale opened, on condition that the defendant JPPAeison deposit with the Register, within eight days, an advance of 50 per cent, on the sum of 325 dollars, which was bid by the plaintiff and on his paying the plaintiff the expense he incurred of the former sale.

Decree accordingly.