Requa v. Rea

2 Paige Ch. 339, 1831 N.Y. LEXIS 304, 1831 N.Y. Misc. LEXIS 94

• Court: New York Court of Chancery
• Decided: March 1, 1831
• Status: Published

Opinion

The Chancellor.

It is perfectly " evident it this case that the property has been sold much below its value, in consequence of the master’s violating his instructions through ignorance or a misapprehension of his duties. Although the purchasers deny that they hired Davis not to bid, it is impossible to resist the conclusion that by the device or trick of some one the property was sold much below its value. If the sale is permitted to stand, the complainant will be defrauded of more than $1000 ; as he was willing to give for the property the full amount of the debt and costs, and the mortgagor is insolvent. It is not necessary to express any opinion upon the question whether the purchasers were the originators of the trick, or actually used their influence with others to prevent the property from being bid up to its true value. The master had no right to permit the property to be struck off to a third person below the sum limited in his instructions. He should either have adjourned the sale and. given notice thereof to the complainant’s solicitor, or have "put up the property in the name of the complainant at the $2600, and, if no person bid more, should have struck it off to him at that sum. If he had adopted the latter course the complainant would have been compelled to take the property at that price. Under the circumstances disclosed, the purchasers have no equitable claim to retain the property, as they had full notice before they paid the money and took the deed. The master swears that believing Davis had been induced to betray his trust, he consented to receive their money and give the deed under an express notice to them that all the facts and circumstances would be reported by him to the chancellor for his decision thereon. If they chose to advance the money and take possession of the property after that notice of the equitable claim of the complainant to have the sale vacated, and without waiting for an order of confirmation, it was because they were willing to make an unconscientions speculation, founded upon the trick of Davis and the master’s ignorance of his duty, and they must abide the consequences. Where a person becomes a purchaser under a decree, he submits himself to the jurisdiction of the court in that suit, as to all matters connected with such sale, or relating to him in the character of purchaser. (Cassamajor v. Strode, 1 Sim. & Stu. Rep. 381.) Unless therefore these purchasers are willing to keep the property and pay the complainant the balance of his debt and costs, over the $1502, the property must be resold and put up at the sum of $2600, as on his bid. In that case the money paid by the purchasers must be refunded the sale to them must be set aside, and the deed cancelled; and they must deliver up the peacable possession of the premises to the purchaser on the resale. On the coming in and confirmation of the report of the resale, if the purchasers wish such an investigation, the court will order a reference to ascertain whether the rents and profits of the premises have been equal to the interest on the purchase money paid over to the master; and to enquire into all the tacts and circumstances attending the first sale, for the purpose of ascertaining whether the purchasers have any equitable claim to an allowance out of the purchase money for these damages or costs. But they cannot be allowed for any improvements which they have made on the premises, as they went into possession without authority, before the sale was confirmed ; and after notice from the toaster that there was at least a reasonable probability that, the. sale would be set aside.„ •