Mott v. Walkley

3 Edw. Ch. 590

• Court: New York Court of Chancery
• Decided: October 25, 1842
• Status: Published

Opinion

.The Vice-Chancellor

The court cannot lose sight of /..the great disparity between the value of the mortgaged preJ} mises and the price at which it was sold—especially as the ' purchaser is the mortgagee himself. Still, a sale of property I j by a master at a low price is no objection, of itself, and fur-b nishes no sufficient ground for setting it aside.

Nor, where every thing is fair and every bidder unshackled, is there any thing in the circumstance of a mortgagee becoming the buyer- He has equal rights in this respect with any l; third person ; but circumstances may occur which would au5 thorize a petition to re-open such a sale when it would n ot be ■ opened if a stranger had become the purchaser. Chancellor Walworth has referred to the distinction and the principle of it in Tripp v. Cook, 26 Wend. R. 146. His honor observes, “ where the mortgagee or complainant himself becomes the purchaser, the court has not always held the sale so conclusive, as where the property has been purchased by one who was an entire stranger to the suit who had bid for the purpose of investment merely and see senator Verplank’s remarks in S. C. 158. See also, Brown v. Frost, 1 Hoffman’s Chancery Rep. 41.

Looking upon the complainant as a mortgagee, there would be no harm done to him by allowing a re-sale so as to secure. the amount of bid which Nathaniel Smith made ; for he thus1 gets paid a larger sum in cash while it would lessen the mortgagor’s personal liability. Here was evidently a bona fide intention on the part of Nathaniel Smith to complete his purchase—a preparation too in regard to paying the deposit; and he was only kept back from completing by the conduct and remarks of Mr. Bancker. I must look at this case as between a well intentioned interested buyer who has been misled and a mortgagee who has purchased at an under price: and the order to be entered will be that the sale to the complainant be vacated, so as to give the petitioner an opportunity to complete the purchase on his bid ; that he be at liberty to complete the same ; and, that the master then execute a deed to him upon his complying with the terms of sale on which the premises were struck off and sold to him by his paying the ten per cent. forthwith and paying the residue of the purchase money to the master within fifteen days after the date of the order to be entered on this decision ; and also that the costs of this motion and of opposing the same be paid out of the purchase moneys to the respective solicitors of the complainant and of the petitioner.