Citation Numbers: 11 N.J. Misc. 515
Judges: Jayne
Filed Date: 7/6/1933
Status: Precedential
Modified Date: 7/25/2022
The plaintiffs became the owners by assignment of a certain bond and mortgage executed and delivered on January 27th, 1926, by one Kaymond P. Thompson to The Peerless Plush Manufacturing Company to secure the payment of the sum of $13,500 on January 29th, 1929, with interest. The plaintiffs, as complainants, prosecuted a suit in the Court of Chancery to foreclose this mortgage, resulting in the entry on August 28th, 1931, of a final decree adjudging the plaintiffs, as complainants in that cause, to be entitled to the sum of $12,809.55 with lawful interest from August 25th, 1931, and costs of suit. On August 28th, 1931, a writ of fieri facias issued out of the Court of Chancery, directed to the sheriff of the county of Atlantic, commanding him to make, by a sale of the mortgaged premises, the sum so due the complainants, who are the plaintiffs in this action. The defendant, Daniel D. Conway, was at that time the sheriff of Atlantic county and the mortgaged premises were duly advertised pursuant to the writ, and after some adjournments, the mortgaged premises were exposed for sale by the sheriff on December 3d, 1931, and at this sale, the sheriff struck off the premises to Eaymond P. Thompson, whose bid of $12,000 was
The plaintiffs filed a petition in their foreclosure suit in the Court of Chancery alleging all of the circumstances here related and praying for an order directing Daniel D. Conway, sheriff of Atlantic county, to pay to them the sum of $1,200 with interest. On August 2d, 1932, an order was made in the foreclosure suit directing Conway as sheriff to show cause why the prayer of the petition should not be granted. An answer to the petition was filed in behalf of Sheriff Conway. This proceeding was heard by the late Vice-Chancellor Ingersoll. The memorandum of his conclusions discloses that the learned vice-chancellor was of the opinion that the petition should be dismissed and an action at law instituted to attain the same object. However, on April 25th, 1933, an order was entered in the foreclosure suit directing that the cause inaugurated by the filing of the petition and the filing of an answer thereto be transferred to the New Jersey Supreme Court under the authority of the act relating to the transfer of causes. Pamph. L. 1912, p. 417; Pamph. L. 1915, p. 39.
Assuredly, if Sheriff Conway had actually received the initial payment of $1,200 from the purchaser at the first sale, the plaintiffs could maintain an action of assumpsit against the sheriff for money had and received. Adams v. Disston, 44 N. J. L. 662. This motion presents the question whether, having accepted from the purchaser instead of cash a check, the payment of which was thereafter stopped, the sheriff escapes liability to the plaintiffs whose rights were thereby affected. Whether the petition, which is now to be regarded as the complaint, is said to allege a cause of action for money had and received or is in the nature of an amercement or for neglect or default, is obviously a matter of mere form because the facts set forth in the petition are fully and specifically alleged and comprehensively admitted. The petition clearly alleges a cause of action. The non-payment of the check comes to light with the averment of such fact in the answer.
It seems to be the well settled law that in the absence of statutory authority, order of court or consent of the execution
Returning to the instant case, when the sheriff struck off the mortgaged premises to Thompson at the purchase price of $12,000 it was then the substantial right of the present plaintiffs to have the sheriff then and there collect from the purchaser ten per centum of the purchase price in accordance with the terms of the sale, and if the purchaser failed to comply, the mortgaged premises could then be resold likewise in accordance with the terms of the sale. The answer states that there were sufficient funds in the bank to the credit of the purchaser with which to pay the check at the time the sheriff accepted it. No doubt this was the reason why the
In Robertson v. Bremer, 90 N. Y. 208, the court was concerned with circumstances similar to those present in this case. The sheriff had accepted a check from the purchaser at an execution sale which remained unpaid. The property, subject to levy, was thereafter resold at a purchase price much less than that submitted at the first sale. It was claimed that the sheriff could not be held responsible for more than the amount realized at the last sale. The court concluded: “When the sheriff assumed to take Walsh’s check and put him in possession of the property and deliver the same to him and close the sale, he made himself responsible for Walsh’s bid. A sheriff in such a case must demand money for property sold, and if that is not paid he must then and there avoid the sale and resell the property or postpone the sale giving notice thereof and then make a new sale at a subsequent time. But if he takes anything but money, gives credit to the purchaser, delivers the property to him and closes the sale, then what he takes must be treated as money in his hands to be applied upon the executions.”
In its relation to the duty of a sheriff, no significant distinction is discernible between sales of chattels and of real estate. The only difference is that title may be said to pass in chattels by the sale, whereas in the sale of land the deed is necessary to convey the legal title. The rights of the buyer in both instances are certainly fixed when the bid is accepted. When the property, whether real or personal, is struck off and the purchaser subscribes to his bid, each party may compel performance by the other. All that remains necessary to
To hold the selling officer responsible for the proceeds if a check accepted in part of full payment of the purchase price of property sold, may in some circumstances seem to be hard and unjust, but if the law were otherwise, a practice might naturally arise that would materially impair the sincerity of the bids made at such sales, afford opportunities to unscrupulous bidders and render generally such sales uncertain of consummation. The selling official may obtain the consent of the parties in interest to accept deferred payment of the purchase price at such a sale and, in many instances, he may feel warranted in accepting the check of the bidder, but in the latter case, he must assume the chance of incurring liability resulting from the non-payment of the check. A rule will be entered in accordance with this conclusion.