Murdock v. Empie

New York Supreme Court

Murdock v. Empie

19 How. Pr. 79

CourtNew York Supreme Court

DecidedMarch 15, 1860

StatusPublished

Cited by1 cases

This text of 19 How. Pr. 79 (Murdock v. Empie) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Murdock v. Empie, 19 How. Pr. 79 (N.Y. Super. Ct. 1860).

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Opinion

Ingraham, Justice.

The papers in this case show that the property was sold below its real value, and that on a resale it will bring an amount equal to the price bid, and ten per cent thereon.

If this sale had been made by the order of the surrogate, those facts might be sufficient to authorize the court to order a resale, as was said in Kain agt. Master ton (16 N. Y. R., 116).

That rule, however, as applied to surrogates, is not sufficient in mortgage sales. The statute (2 R. S., 105, § 33) makes it the duty of the surrogate to order a resale in such a case. There is no such statute relating to sales on the foreclosure of mortgages. On such sales parties interested are supposed to be able to attend to their interests at the sale, and do not require the same protection that should be extended to the sales of property of the estates of deceased persons; something more is necessary in relation to the sales of land under foreclosure (26 Wend., 143).

I am not, however, satisfied that the sale was conducted [81]*81in a way free from suspicion. Lloyd admits that he told Mrs. Empie that he thought Rosenfeld would bid $15,000. He does not deny what is stated by Empie, that he wished her not to bid, and he would take care of her interests ; and the subsequent proposition, by which Lloyd was authorized to sell the property immediately at $16,000, does not furnish any additional evidence of good faith in the proceeding.

When, in addition to these facts, it appears that the result of this sale, if carried out, will probably involve the mortgagor in the loss of all her property, and leave her liable for a large deficiency on the second mortgage, I am of the opinion that justice will be promoted by ordering a resale of the premises. (King agt. Morris, 2 Abbott P. R., 216; id., 294.) This, however, can only be done pn the following conditions:

1st. The purchaser must be indemnified against loss. For this purpose, in addition to the return of the 10 per cent paid by him on the sale, he must be paid the disbursements made by him, including the auctioneer’s fees, and one hundred dollars to satisfy any expenses he may have been put to in examining the title, &c.

2d. The defendant must file a bond, with sureties, to be approved by a judge, that at least $14,000, and the expenses of the resale, shall be bid by a bona fide bidder at the next sale.

3d. Pay the costs of this motion.

If these terms are complied with within six days from service of notice of this decision, the motion for a resale is granted, otherwise the same is denied.

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Ingraham, Justice.

The papers in this case show that the property was sold below its real value, and that on a resale it will bring an amount equal to the price bid, and ten per cent thereon.

If this sale had been made by the order of the surrogate, those facts might be sufficient to authorize the court to order a resale, as was said in Kain agt. Master ton (16 N. Y. R., 116).

That rule, however, as applied to surrogates, is not sufficient in mortgage sales. The statute (2 R. S., 105, § 33) makes it the duty of the surrogate to order a resale in such a case. There is no such statute relating to sales on the foreclosure of mortgages. On such sales parties interested are supposed to be able to attend to their interests at the sale, and do not require the same protection that should be extended to the sales of property of the estates of deceased persons; something more is necessary in relation to the sales of land under foreclosure (26 Wend., 143).

I am not, however, satisfied that the sale was conducted [81]*81in a way free from suspicion. Lloyd admits that he told Mrs. Empie that he thought Rosenfeld would bid $15,000. He does not deny what is stated by Empie, that he wished her not to bid, and he would take care of her interests ; and the subsequent proposition, by which Lloyd was authorized to sell the property immediately at $16,000, does not furnish any additional evidence of good faith in the proceeding.

When, in addition to these facts, it appears that the result of this sale, if carried out, will probably involve the mortgagor in the loss of all her property, and leave her liable for a large deficiency on the second mortgage, I am of the opinion that justice will be promoted by ordering a resale of the premises. (King agt. Morris, 2 Abbott P. R., 216; id., 294.) This, however, can only be done pn the following conditions:

1st. The purchaser must be indemnified against loss. For this purpose, in addition to the return of the 10 per cent paid by him on the sale, he must be paid the disbursements made by him, including the auctioneer’s fees, and one hundred dollars to satisfy any expenses he may have been put to in examining the title, &c.

2d. The defendant must file a bond, with sureties, to be approved by a judge, that at least $14,000, and the expenses of the resale, shall be bid by a bona fide bidder at the next sale.

3d. Pay the costs of this motion.

If these terms are complied with within six days from service of notice of this decision, the motion for a resale is granted, otherwise the same is denied.

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19 How. Pr. 79, Counsel Stack Legal Research, https://law.counselstack.com/opinion/murdock-v-empie-nysupct-1860.

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