Graham v. Bleakie , 2 Daly 55 ( 1866 )

By the Court.—-Daly, F. J.

If the refusal of Carey to complete the purchase was upon the ground that the title was doubtful, he could, according to the established practice of courts of equity, have applied to the court for an order of reference to ascertain if a title could be made; .and if, upon the coming in of the refere'e’s report, it appears that there is a defect in the title which cannot be remedied, or that there is a well founded doubt as to its validity, the court will not compel him to complete the purchase (1 Sugden on Vendors and Purchasers, 60, n. 1; Bannister v. Way, Dick, 686; Saunders v. Grey, 4 Myl. & C., 515; Tanner v. Radford, Id. 518; Harding v. Harding, Id. 514; Johnson v. Reardon, 3 Ir. Eq. R. 200; Hodder v. Ruffin, 1 Ves. & B. 544; 2 Dan. Ch. P. 919).

Upon the order requiring him. to show cause why he should not complete the purchase, he made no such application, but relied upon certain written objections to the title which his attorney had served upon the referee, by whom the sale was made. There was but one of these objections that could create any doubt as to the validity of the title, and that was removed by the plaintiff’s obtaining a deed of confirmation from the executrix, which was left with the referee, and of which Carey had notice.

The other objections were passed upon by Judge Cardozo upon the motion to show cause, and were properly adjudged by him to be without foundation. The third, fifth, sixth, and seventh objections relate to covenants or conditions arising upon the lease, of which Carey had full notice before the sale. By the terms of sale the estate was declared to be a leasehold interest in the premises, created by an instrument in writing, a certified copy of which was annexed, and which estate was to be sold subject to all the conditions, terms, and provisions in the instrument and in the lease, certified copies of which were also annexed. The terms of sale and the certified copies of the lease and the mortgage, were publicly read at the time of the sale, within Carey’s hearing, and after the mortgaged premises were struck off to him, he signed a memorandum at the end of the written terms of sale, declaring that he had become the purchaser, and promising to comply with the terms and conditions of the sale. He had, therefore, ample notice of the matters which he afterward made a ground of objection, and subject to which he agreed to become the purchaser.

The first objection, that the summons in the foreclosure writ was without a Government stamp, was shown upon the motion to be unfounded in fact. As respects the second objection, it is sufficient to say that if the mortgage purported to convey a greater estate than Bleakie had in the premises, Carey was not misled by it, as he was advised by the terms of sale of the exact nature of the interest which the referee undertook to, and did, sell. If there was an irregularity in not entering up the decree for the sale of a leasehold interest, which was all that Bleakie could mortgage, that is not a matter of which a purchaser can take advantage (Baker v. Sawter, 10 Beav. 343; Bennett v. Hamil, 3 Sch. & Lef. 566; Conyers v. Crosbie, 7.1r. Eq. R. 401). The court had jurisdiction of the subject matter and of the parties, and a sale under the judgment would transfer to the purchaser whatever title the mortgagor had in the premises, even though the judgment should be afterward reversed or set aside for error or irregularity upon appeal (Breese v. Bange, 2 E. D. Smith, 474; Blakely v. Calder, 15 N. Y. 617; Packer v. The Rochester & Syracuse R. R. Co., 17 Id. 288; Holden v. Sackett, 12 Abb. 475; Wood v. Jackson, 8 Wend. 9; Brainard v. Cooper, 10 N. Y. 359; Buckmaster v. Jackson, 3 Scam. 104; Bank of the U. S. v. Voorhes, 1 McLean, U. S. 24). The 'decree followed the terms of the mortgage in the direction for the sale, and if the referee sold a lesser estate than was expressed in the mortgage it does not lie with the mortgagor to object, nor with the purchaser, when his title to the leasehold interest is confirmed by a deed from the executors.

Where the purchaser refuses to complete the purchase, a resale may be ordered, in which case he would be answerable for the deficiency; or the court, if the purchaser is a responsible person, may make an absolute order that he complete the purchase, or that an attachment issue against him (Saunders v. Grey, 4 Myl. & C. 515; Landsdown v. Elderton, 14 Ves. 512; 2 Rev. Stat. 278, 534; Miller v. Colyer, 36 Barb. 250; 1 Barbour’s Chancery Practice, 536). The latter is the proper course where there is some reason to suppose, as I think there is in this case, that the purchaser is acting in collusion with the mortgagor, and that his object in refusing to complete the purchase is to frustrate the sale. This Carey denies; but his refusing, after a deed of confirmation was obtained, with the nature of the objections he has raised, indicate very plainly to my mind, that his real reason is not founded upon any apprehension respecting the title.

A certified copy of the order directing Carey to complete the purchase within five days was personally served upon him, and a copy of it was annexed to the order to show cause why he should not be attached as for a contempt. When the order to show cause, with the accompanying papers, was presented to him, he, as appears by the affidavit of service, insultingly refused to receive them, and told the person presenting them to serve them upon his attorney. This was sufficient proof, under the statute, of a personal demand and refusal, to authorize the issuing of an attachment (2 Rev. Stat. 535, § 4; Lorton v. Seaman, 9 Paige, 609; Gray v. Cook, 24 How. 432). Both orders should therefore be affirmed, but as the appeal from the judgment. has been argued at the present term, and as the grounds relied upon for a new trial were deemed sufficiently grave to require a careful consideration on the part of the court, a stay of proceedings will be allowed upon application to any one of the judges, until the court shall decide whether it is necessary to grant a new trial or not.