Rogers v. Schell , 20 Jones & S. 541 ( 1885 )

The Court at General Term, said :—“ Upon the facts found by the referee, the conclusion reached by him is entirely correct. The agreement between the defendant and the Eogers family, provided, that if he should bid upon the foreclosure sale more than the amount of the decree, the surplus should belong to him. His bid was in excess of the amount of the decree ; he paid it, and received back the surplus, under the arrangement, with the consent of all. To that he was entitled. Had the property, on a re-sale made by him, realized more than he paid, together with his disbursements on account of the property, the excess would have belonged to the family. But he has not re-sold. When he does sell, the plaintiff, or others entitled to the moneys realized on such re-sale, over and above what the defendant has paid on account thereof, will be entitled to the excess.

The defendant offered, in his answer, to convey the property to any person whom the parties in interest will designate, on being reimbursed the moneys he has paid for the same. A re-sale, if desired by the parties in interest, could doubtless be reached through an action brought for the purpose of compelling it. But that is not this action.”

S. W. Fullerton, for appellant. Ira D. Warren, for respondent.

Opinion by Van Vorst, J.; Sedgwick, Oh. J., and Freedman, J., concurred.

Judgment affirmed, with costs.